William H. Rehnquist: Well, we'll hear argument first this morning in Number 96-653, Kenneth Lee Baker and Steven Robert Baker v. General Motors Corporation. Mr. Tribe.
Laurence H. Tribe: Mr. Chief Justice and may it please the Court: One judge in Michigan, without an adversary hearing, enters a consent decree as part of a stipulated monetary settlement between G.M. and an employee, Ron Elwell. The employee can give testimony about G.M.'s practices that it considers damaging but is unable to suppress in the usual manner... that is, by persuading a judge that the testimony is inadmissible because of attorney-client privilege, trade secrets, and the like. The decree permanently enjoins the employee from being deposed or testifying without the consent of General Motors as a witness of any kind in State or Federal litigation brought against G.M. anywhere by anyone, whether a private plaintiff seeking damages or a public official enforcing health and safety regulations or criminal statutes.
William H. Rehnquist: Mr. Tribe, you refer to the Michigan proceeding as a consent decree. What are you... what precisely do you mean by that?
Laurence H. Tribe: What I mean, Mr. Chief Justice, is that there was no adversary hearing and though consent decree is sometimes used to refer to a class action, here it was a stipulated settlement entered on the record by the judge after--
William H. Rehnquist: Well, that's true of all settlements, isn't it, that there's no adversary hearing?
Laurence H. Tribe: --Sure. This is not... we're not suggesting that there was anything unique or unusual about it. What's unusual, or at least what some people think is unusual, is that the request for a subpoena to depose the employee or to call him as a witness comes from a litigant who was not a party to and had no notice of the little proceeding that led to the quite usual entry of the decree. Now, the district--
Anthony M. Kennedy: Well, even if Baker had had notice in Missouri, I take it your position is he wouldn't have to go to Michigan.
Laurence H. Tribe: --That's certainly true--
Speaker: Well--
Laurence H. Tribe: --but it makes it, if anything, worse that they didn't have notice.
David H. Souter: --I take it your position would be the same if there had been an adversarial proceeding and... which had resulted in--
Laurence H. Tribe: Absolutely. I make that point only because at various points in the brief by General Motors it's suggested that there were some elaborate findings that this was the only possible way of protecting privilege. Our position would be the same anyway, but I just wanted to note the fact. The district--
Ruth Bader Ginsburg: --I thought, Mr. Tribe, that you made that point to underscore that issue preclusion has no part in this case at all, because nothing was ever actually litigated.
Laurence H. Tribe: --That's certainly true, Justice Ginsburg--
Speaker: So--
Laurence H. Tribe: --and it's in addition true that if there had been litigation, it's somewhat ironic that a determination by Judge Hathaway in Michigan that, for example, some document was privileged in a proceeding between General Motors and Elwell would obviously not be binding against the Bakers here, and yet the intriguing thing is that this decree, the injunction, has this enormous effect on them. The question is, does it matter that they weren't there? The district court thought it mattered a great deal, invoked what it called the rights of third parties... at page 28a--and essentially took the position that the full--
William H. Rehnquist: --This is the district court in Missouri now?
Laurence H. Tribe: --No, I'm sorry, the district... yes, the district court below, in Missouri, Mr. Chief Justice... took the position that the full faith and credit statute should not be read to mean that a decree of this kind, and I quote him, forever defines the rights of innocent third parties who have a keen interest in the information that Elwell holds. Now, the Eighth Circuit disagreed, took the position that the whole point of the decree was to dispose of what it called these discovery rights of litigants, and to do so in all of the other lawsuits that the Michigan judge assumed would follow. Of course, if the Eighth Circuit is right, the consequences are pretty sweeping. The old maxim that the public has a right to every man's evidence will need a footnote saying, unless he has sold his silence--
David H. Souter: Why is that?
Laurence H. Tribe: --evidence might expose.
David H. Souter: Why is that? Isn't the issue just whether the Baker... what's the... the plaintiff--
Laurence H. Tribe: The plaintiffs here are the Bakers.
Speaker: --The Bakers--
Laurence H. Tribe: The children.
David H. Souter: --would have to go to Michigan and say, we're not bound by the Michigan decree. Of course they're not bound by it. So they'd go to Michigan and they'd say, look, we've never litigated this, and therefore will you please modify the decree because, after all, we don't want to ask him about any privileged information. We don't want to ask him about any confidential information. We want information that we have a right to. Your decree is too broad, so modify it. We were never parties. And they'd be totally right in that, wouldn't they? So the issue is just what court they have to go to.
Laurence H. Tribe: Well, that's one way of putting it. If that were the only issue, then I think this Court's decision... really several decisions. Crider v. Zurich, a decision of this Court, holds that a local venue rule like the one Michigan has saying that you've got to go to the original issuing court in order to make a change in a decree or a judgment or an injunction, because that denies the full faith and credit premise of the equal competence of the courts of other States to entertain the matter, that kind of venue rule is not entitled to full faith and credit.
Anthony M. Kennedy: Well, isn't another way to answer the question to just say that it's not Baker's burden to undo the injunction, it's G.M.'s burden to show that Baker is bound, and it can't do that when Baker wasn't a party.
Laurence H. Tribe: That's certainly right, Justice Kennedy, and in fact--
David H. Souter: That's precisely the issue, because... you might come to this when you want, but what's worrying me is, if you require the Bakers to go to Michigan you run into the problem that Justice Kennedy raised. Why should they have to go to Michigan?
Laurence H. Tribe: --Yes.
David H. Souter: All right. But if you don't require them to go to Michigan, you run into the possibility that Elwell, the Elwells of the world, i.e., those under injunctions, will get under conflicting injunctions, and then they'll really be in a mess because in... you know, you have one State telling them you have to do a thing and another State saying you can't do a thing--
Laurence H. Tribe: Well, the--
David H. Souter: --and that would produce a terrible practical mess, so between those two evils, it seems better to send them to Michigan.
Laurence H. Tribe: --Well, let me back into that, Justice Breyer. I certainly don't agree that that's better, and I also don't agree that it's a hopeless clash of evils. This very settlement took care of that. There was a side agreement that said that if he is ordered to testify, then he cannot be sanctioned. He, indeed, has testified against G.M. in some 30 trials. Not once--
Anthony M. Kennedy: This is a really important point in the case. Let's assume there's no settlement agreement. Let's just talk about conflicting injunctions. What would be the answer if there were no settlement agreement? G.M. says, well... or, Elwell says well, I'm being told one thing in one State and the other thing in the other State, and what's the answer to that?
Laurence H. Tribe: --Well, I think the answer is that contempt requires a certain mens rea, and that in that case he cannot be held in contempt for following the order of a court that appears to have competent jurisdiction--
Anthony M. Kennedy: Well, doesn't the Missouri court also have the capacity to instruct G.M. not to enforce the injunction against Elwell in defiance of Missouri's orders?
Laurence H. Tribe: --I think that's certainly right. G.M. has to be before the Missouri court to create the problem. In this case, the way it was indeed structured was with a side agreement that eliminated the very problem that the Court--
David H. Souter: But what I'm actually worried is not this case. I'm worried about custody cases, antitrust cases, dozens of cases in which very complicated injunctive decrees could have been entered against defendants in State 1, and then grandma in Florida in a custody case, or any supplier in an antitrust case produces a different action in Florida and puts Alcoa or Swift or mummy or daddy or somebody under a conflicting injunctive decree, and that's what I'm worried about.
Laurence H. Tribe: --Well, but I do think first there's obviously a certain wisdom in taking these one case at a time, and it seems to me very clear that in a case like this, where it is just wordplay to say that this is not being used against the Bakers, that they're not being bound, of course they are. They are being deprived of the procedures that would otherwise be available to get this evidence, and the only thing that's being invoked to deprive them of it, in a sense a legal defense to their claim, is the Michigan judgment. In that circumstance, just as in--
William H. Rehnquist: That's what full faith and credit always produces, some result like that. Supposing the Michigan decree hadn't involved testimony. Suppose it involved a car, and you go to Missouri and you say well, why should this Missouri creditor be denied the resort to Missouri courts over this claim to a car?
Laurence H. Tribe: --Well, what--
William H. Rehnquist: And the answer is, full faith and credit.
Laurence H. Tribe: --Well, Chief Justice Rehnquist, this Court in in personam as opposed to in rem cases, where there is, in fact, a finite object and it has to be allocated, and once it is you can't continually relitigate it, has never held that we can simply let the chips fall where they may when a judgment has been entered not over an object but over knowledge in someone's head, a judgment that says we're going to say you can't testify it. That is, in Martin v. Wilks it could also have been said in response to your opinion for the court could also have been said, well, consent decrees often have side effects and, indeed, the way that General Motors tries to make this look like anything other than an easy case is to suggest that the decree is only being enforced against Mr. Elwell, and that my clients are simply in the wrong place at the wrong time, the way their mother was in that car. Now, that, I think, is sheer sophistry. It's not true, because unlike a judgment that changes something physical, it reduces the assets available, it eliminates a job, this judgment has effect on the Bakers only because it is used to preclude them from arguing to the court in Missouri that they are entitled to have Elwell's testimony. It has preclusive effect. It involves the absentee adjudication of their rights. That's what this Court has never allowed.
Ruth Bader Ginsburg: Mr. Tribe, would you distinguish what the... we're told by your colleague that this is just an incidental effect. It's like, creditor 1 sues debtor, and debtor, paying that judgment, wipes out debtor's fortune. Creditor 2 comes along, just as good a case, tough luck.
Laurence H. Tribe: Right, and this, Justice Ginsburg, is nothing like that. A case like that shows that a judgment can be for some people a natural disaster. The landscape has changed and you can't reconstruct it. The judgment in this case didn't change anything physical. It's not, for example, as though this was a judgment that Mr. Elwell did something terrible and should be executed in the State of Michigan which would, of course, render him unavailable. The only way... just... you have to ask yourself, I think, what the causal chain is. Their argument is, so what, too bad, the judgment in Michigan has made this fellow essentially unavailable, just as though he were incarcerated. But of course then, under the Federal rules, one could at least depose him. The fact is, if you ask, what's the causal chain by which he was made unavailable, he's unavailable only to the extent... and this goes back to Justice Kennedy's question... that General Motors' request to the judge in the State of Missouri that the judgment in Michigan be treated as preclusive of the rights of the litigants in Missouri, who weren't there, weren't represented, weren't privies, had no notice, it's only to the extent that that request is granted.
Ruth Bader Ginsburg: But if Elwell really is not available, then couldn't you, on behalf of the Bakers, introduce Elwell's testimony from the Georgia case, where he did testify, I think about the same defect.
Laurence H. Tribe: Well, the testimony about the Ivey memorandum was particularly helpful here, and rather damning, I think, to General Motors, but certainly one ought not to be... it's really... the idea that there are second best solutions all build on the wrong premise, that you can bind them to this decree, bind in a strictly technical, legal sense. That is, Justice Stevens, for example, in the dissent in Martin v. Wilks came up with a possible way that a consent decree in a case like that might be used against the other side without really binding them. That is, it might bear on the state of mind of the person subject to the decree. It might help the employer in a title VII case negate a claim of bad faith. No such indirect use of the decree is involved here. The decree is being brought to bear fully on the only people who are hurt by it. It's not being enforced against Mr. Elwell, who's never sanctioned. The entire structure of the situation is that General Motors obtains a settlement in which it has a chance to argue to courts around the country you ought to prevent the plaintiffs in these cases from getting this evidence that they could otherwise get, to which they would be entitled under the Federal rules, not because you have a right to some kind of evidence in the abstract, but because you have an entitlement to use the rules in place.
Anthony M. Kennedy: If we were to rule in your favor and cite the Full Faith and Credit Clause, would we also have to talk about due process, or would we say that the Full Faith and Credit Clause is complementary to the basic principles of the law of judgments, and that Baker is just not bound under standard principles of the laws of judgment? Would--
Laurence H. Tribe: The latter. The latter, Justice Kennedy. That is, and this Court's precedents make clear that full faith and credit and the law of judgments and of res judicata are bound up historically and analytically, and the only reason you might want to reach--
Anthony M. Kennedy: --We don't have any square holding. We've intimated that in some of the cases, I think.
Laurence H. Tribe: --Well, I... there's certainly alternative holding in... some of the earlier cases before the 1970's, when the Court began positivizing procedural due process, there were cases, a fair number of them, including Hansberry v. Lee and others, in which the language of the Court is that it has been a principle since time immemorial that people are not bound by judgments in proceedings that they don't have a chance to participate in, and occasionally the phrase, full faith and credit, has entered those opinions. But that has been axiomatic throughout. You only reach procedural due process if you think that Congress for some reason in section 1738 departed from that normal understanding of full faith and credit and the law of judgments, in which case we argue that it would have been a deprivation of property in the form of an entitlement to invoke the procedural rules, much like Logan v. Zimmerman, without due process, even considering Justice Breyer's--
Antonin Scalia: Excuse me. The property involved here is the right to invoke the procedural rules?
Laurence H. Tribe: --Yes, as in--
David H. Souter: I thought the property was your cause of action, which--
Laurence H. Tribe: --Well, there are two. There's a State-created property, Justice Souter, the tort cause of action, and a second State-created property interest in the Missouri-created separate cause of action for damages for aggravated action. It's a kind of punitive damage--
William H. Rehnquist: --I don't think you'll find much disposition on the Court to enlarge on Logan v. Zimmerman.
Laurence H. Tribe: --I don't have any desire to urge the Court to enlarge on Logan.
William H. Rehnquist: I think you'd have to to rely on it the way you said you did.
Laurence H. Tribe: Well, with respect to the federally created entitlement to invoke the rules, I don't think... the key point is, we're not talking, Mr. Chief Justice, about some takings argument. We're only talking about the fact that when the rules provide a clear right to obtain or to seek to obtain a subpoena or a deposition, then that is enough of an entitlement so that it would not be constitutional for a court to say well, we'll decide that by a flip of a coin.
Anthony M. Kennedy: Would you say that it's liberty or property, or do you have to say that it's one of the three?
Laurence H. Tribe: I don't think one has to choose--
Anthony M. Kennedy: One of the two?
Laurence H. Tribe: --but it could be... it could be either, but I--
Anthony M. Kennedy: Does it have to be one?
Laurence H. Tribe: --Well, I think it is both. It would have to--
Anthony M. Kennedy: It has to be one, doesn't it?
Laurence H. Tribe: --It certainly has to be one of the three, and it's not life. But it doesn't really in this case have to be-- [Laughter] --any of the three, because full faith and credit doesn't extend in this way, doesn't extend in this way to judgments that were rendered in a proceeding that one was an utter stranger to. I mean, whatever you think of the practical problems that Justice Breyer was discussing, I think you can rule out as one of the possible solutions a solution that says, well, the grandmother in his hypothetical, or the children in mine, will simply have to be bound by a judgment in another jurisdiction. That can't be right.
Speaker: Mr.--
Laurence H. Tribe: Now, if you say, Justice Breyer, well, I'm not saying they're bound, I'm just saying they have to travel to Michigan to seek relief, Justice Brandeis in the Chase National Bank case in 1934 essentially was addressing that problem when he said that you should have a right to stay at home, mind your business, and know that the rights won't be affected by a judgment--
Speaker: --Fine. Do you--
Laurence H. Tribe: --in a district court. Besides--
Stephen G. Breyer: --What has surprised me in this... maybe you can just suggest something I could read. It seems to me in 200 years of history, it must have come up before that State A enters an injunction against Smith, and a person in a different State who wasn't a party and isn't bound would either have to go to the first State to get it modified or could sue in his own State and would discover that that person whom the injunction was aimed at could be made subject to conflicting injunctive orders.
Laurence H. Tribe: --Well--
Stephen G. Breyer: I'm amazed that there isn't something written that's absolutely clear, explaining--
Laurence H. Tribe: --What--
Stephen G. Breyer: --that it's either the one way or the other way.
Laurence H. Tribe: --Justice Breyer, I hate to disappoint you, but I have not found anything that is clear enough that it would bear on an injunction remotely like this one.
Stephen G. Breyer: Well, but you see, maybe your injunction is not like what I'm saying, but what's bothering me is the instance that I'm saying--
Laurence H. Tribe: The effect--
Stephen G. Breyer: --other injunctions, so is there something you can point me to that would say why it's better to have the possibility of conflicting injunctions than to require the plaintiff to travel to the State where he's not bound and get the modification.
Laurence H. Tribe: --Well, the other party can travel, but his... I don't understand why General Motors, given its vehicular mobility-- [Laughter] --couldn't just go back to Michigan and ask for some kind of relief.
Ruth Bader Ginsburg: Mr. Tribe, I thought when you were concentrating on preclusion principles rather than a due process personal right that what you were talking about is one State's right to dictate the rules of admissibility of evidence in another State, and the full faith and credit is about relations to the... between the States in the national union more than it is about personal rights of individuals, and here there's a question of the allocation of authority between Michigan-- --Right. --and Missouri.
Laurence H. Tribe: If I might, Justice Ginsburg, simply jump to that for a moment, because it seems to me that's a very important feature of the case that I'm not sure is as thoroughly explicated in the briefs as it might be, and that is the following. Set aside for the moment the question of whether under normal principles of preclusion these children who were strangers to the proceeding could be bound. I think the answer to that is clearly no. Secondly, I think it's clear they're being bound. But the point you make is the one that intrigues me most in a way, and that is, the whole premise of full faith and credit in a Federal union like ours is a premise of mutual respect, the premise that says a State is not to assume that the courts of another State just can't do justice as well as its courts can and, indeed, that premise pervades our system. The Anti-Injunction Act and the Younger doctrine means the Federal courts can't presume inadequacy on the part of the State courts, and this Court's decisions in Donovan v. Dallas and General Atomic indicate, too, that a State court cannot tell litigants, even litigants in its courts, that they may not invoke certain procedures in a Federal court. In General Atomic it wasn't even an antisuit injunction. They were being told that they could not use Rule 14 as an impleader. This case is a classic example of that. Essentially, if the Eighth Circuit's use of the decree from Michigan is affirmed, it will follow that the courts of a State can not only make decisions that will have res judicata and preclusive and sometimes collateral estoppel effect substantively in the courts of another State, it will follow that the courts of a State can control who can be called as a witness, who can be deposed, what evidence can be introduced in another State or in the Federal courts. That, it seems to me, is impermissible. I mean, decisions--
Sandra Day O'Connor: But... you know, this is troublesome because Michigan isn't telling Missouri what to do. Missouri can allow Elwell to be called to the stand, and Elwell can say, but I can't testify to this. I decline to answer. So Missouri isn't being deprived of the--
Laurence H. Tribe: --No, Missouri, Justice O'Connor--
Sandra Day O'Connor: --process.
Laurence H. Tribe: --Well, Missouri is being told that it's--
Sandra Day O'Connor: Plenty of times witnesses have some privilege that can be asserted so that the Bakers wouldn't be entitled to certain testimony. They can call the witness to the stand. The witness says, sorry, I'm here, but this is privileged information.
Laurence H. Tribe: --But if it's privileged because of some background rule like the Fifth Amendment privilege, that's one thing, but if a State can create this kind of special witness protection program under which it can decide which witnesses it would be utterly futile to call in the courts of... in the Federal courts despite their own independent interest in the administration of justice, that would be an interpenetration--
Sandra Day O'Connor: Do we know how other courts in Michigan would treat this injunction? Has it been tested in another suit against G.M. in Michigan, for instance?
Laurence H. Tribe: --There are several cases, Justice O'Connor, in which judges have washed their hands of it and have said, under our venue rules go to Judge Hathaway. Even though it was the same court in Michigan, they treated the venue rule as a kind of rule of personality, and Judge Hathaway apparently has sort of washed his hands of it and has said, I put the injunction in place, so that it appears to be--
John Paul Stevens: Mr. Tribe, can I ask you a question about your understanding of the meaning of the injunction? There's some difference between the side agreement that says we won't seek contempt charges if you testify and the text of the injunction itself. Do you agree that the injunction in effect says to the... this witness, if you are subpoenaed to testify or ordered by a court in another State to testify, you shall not comply with that order?
Laurence H. Tribe: --The answer is yes. I think it probably means that, but it's ambiguous, and the record doesn't resolve the ambiguity.
John Paul Stevens: Well, if it means that, do you concede or do you dispute that the Michigan court will have the power to enter such an order?
Laurence H. Tribe: I dispute that the Michigan court has the power to enter an order that directly tells someone to defy the order of another jurisdiction--
John Paul Stevens: Well then, if you're right on that, the order would not be entitled to full faith and credit under elementary jurisdictional principles.
Laurence H. Tribe: --Well, I think that's right as well.
John Paul Stevens: But you don't seem to make that argument.
Laurence H. Tribe: Well, we make it indirectly in the point that I was elaborating to Justice Ginsburg. That is, if it is true that the courts of the united States and of the various States are not authorized to put people in this circumstance and in effect to make inroads in the internal operation of the systems of other States and of the Federal Government, then this order is completely void independent of the nonparty status of the Bakers.
John Paul Stevens: So you want us to have some kind of a standard to say that you can't interfere with the vital or important interests of the sister State?
Laurence H. Tribe: Well--
Speaker: I mean, is that--
Laurence H. Tribe: --No, it's not quite as big as that, Justice Kennedy. I think as in Prince and in New York this is a case that's... that I think, though, there are much easier ways to decide it. Under normal principles of judgments, I think it's possible to say--
John Paul Stevens: --Well, what-- --What is the standard? Excuse me.
Laurence H. Tribe: --That the internal operations of the judicial systems of each State cannot be manipulated or commandeered by the judgments of other States, but I don't myself suggest that a case that can be disposed of as simply as this one because of the Bakers' nonparty status should be the vehicle either for exploring the puzzles that Justice Breyer raises or for adopting this add-on to Prince.
Sandra Day O'Connor: What if the Michigan court had litigated the issue of privilege as between Elwell and General Motors--
Laurence H. Tribe: Yes.
Sandra Day O'Connor: --and had concluded that information about subject X was privileged, and made that determination and then said, and you can't disclose that, Mr. Elwell, anywhere, anytime. Is that entitled to full faith and credit when Elwell is called then as a witness in another jurisdiction?
Laurence H. Tribe: I think as between Elwell and G.M., yes, although the Bakers or others like them are not bound by that determination under standard principles of preclusion.
Antonin Scalia: That is no. I mean, your answer is no--
Laurence H. Tribe: Well--
Antonin Scalia: --in the context of this case.
Laurence H. Tribe: --It depends whether there is a nonparty whom one is seeking to bind.
David H. Souter: The only point at which the one State is commandeering the process of the other, I take it, is the point at which the second State simply will not hear the third party. The State... the second State says, I don't care what you tell me, there is a decree, full faith and credit, that's the end of the issue. That's the point at which it commandeers, isn't it?
Laurence H. Tribe: I think, Justice Souter, yes, and that's what the Eighth Circuit is basically telling the courts of Missouri to do. I think I perhaps should reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Tribe. Mr. Cappuccio, we'll hear from you.
Paul T. Cappuccio: Thank you, Mr. Chief Justice, and may it please the Court: There are two reasons why there cannot possibly be a due process objection to the application of full faith and credit here and Justice Breyer, your question raised one of those grounds and, Justice Kennedy, you picked up on it and I'm going to try to answer both of you, and Mr. Chief Justice, you raised the other ground, and probably the simplest reason is that ultimately by the application of full faith and credit here we are just talking about what court will decide whether or not in this case Elwell will be allowed to testify. That's the application of full faith and credit, and that--
Ruth Bader Ginsburg: The application of full faith and credit as far as I know, in all the history of that clause, this Court has never even said that full faith and credit is owed to a decree ordering a person to do an act. Indeed, wasn't it entirely clear under the regime that existed until the thirties under the First Restatement of Conflicts that a granting or denying... and I'm reading you from the First Restatement section 449... granting or denying equitable relief other than in order to pay money is a matter of discretion, and the decision of one court to give specific relief will not limit another court and thus exclude the use of discretion by the second court. That was talking even as between the two parties to the first judgment, and here you're saying, oh, but we can enforce an order to act not only as to the party who was ordered to act, which this Court has never said comes within full faith and credit, but to... against a stranger. Now, that is really asking this Court to take a giant step.
Paul T. Cappuccio: --Your Honor, I respectfully disagree. I don't think it is. I think the Restatement is flatly wrong in what it said. This Court has never denied full faith and credit to equitable decrees, and there is no basis for distinguishing--
Ruth Bader Ginsburg: Just give me one citation where this Court has said State 2 must compel X to do an act simply because State 1 compelled X to do an act.
Paul T. Cappuccio: --Well, I can give you... a custody decree, for example, will require someone to have or not have the child. A... Cole v. Cunningham, which was an antisuit case which went very far--
Ruth Bader Ginsburg: All that Cole v. Cunningham said was that State 1 can issue an antisuit injunction. It did not say that State 2 had to pay that injunction any mind.
Paul T. Cappuccio: --But Your Honor, there is no basis in either the language of section 1738 or any policy of full faith and credit to treat an injunction or an affirmative injunction, as opposed to a prohibitory one, any different. They are both judicial proceedings--
Ruth Bader Ginsburg: I'm simply asking you, has there ever been such a case in the history of the United States... custody is a status, child custody. Those decrees are modifiable.
Paul T. Cappuccio: --I am unaware--
Ruth Bader Ginsburg: I am not aware... I am aware of some, as you no doubt know, the land cases, Fall v. Eastin, Klopp v. Klopp say even the very actor that was told to convey a piece of property in State 1 doesn't have to do it if he's in State 2 and that's where the property is.
Paul T. Cappuccio: --Well, I'm not sure that's the holding of Fall v. Eastin. Actually, the problem in that case was that the court tried to effect title to land directly. But I think in that case the husband could be directed to convey the land, and I think the concurrence in that case--
Ruth Bader Ginsburg: Well, it's a long extension. I'm simply making the point that you are asking this Court to make a ruling that it has never made. You may be right that it should.
Paul T. Cappuccio: --Your Honor--
Ruth Bader Ginsburg: You may be right that the Restatement was wrong and that those cases were wrong, but it is something very novel you're asking us to do.
Paul T. Cappuccio: --Your Honor, two answers to that. Fall v. Eastin is actually an example for me, because I think it was Justice Holmes in his concurrence thought it was quite plain that the order requiring the husband to convey the land was entitled to full faith and credit, and second, we cite a number of lower court cases in our briefs, including from the Seventh Circuit, that established that this is a fairly well-settled issue that full faith and credit is entitled to injunctions, both prohibitory injunctions and affirmative injunctions.
Anthony M. Kennedy: But in all events, the other problem is that you're trying to make this applicable to Baker, and Baker is simply not bound. Now, if G.M. finds itself in the position of Elwell testifying, and it tries to hold Elwell in contempt back in Michigan, would Elwell have a defense on some sort of due process grounds, do you think, that he was ordered to do what the Missouri court told him to do because due process concerns and full faith and credit concerns simply did not allow the injunction to be enforced?
Paul T. Cappuccio: No, sir. He would be in contempt of the injunction. But I understand the problem here, and the problem here is to 1) ask what sort of effect is this having on third parties, and is that effect so great as to violate due process, or does it leave them with a way to defend their rights in a manner that is consistent with due process?
Sandra Day O'Connor: Well, I'm not sure that we have to address it in the due process context and, frankly, I hope we don't have to. Can't we just ask whether this is required by the Full Faith and Credit Clause? Why do we have to pin it on some due process--
Paul T. Cappuccio: Well, Your Honor, because the application of full faith and credit is fairly straightforward here, and this picks up on another question you had. The full faith and credit statute says that the Michigan injunction is entitled to the very same force and effect that it would have within the State of Michigan. That's common ground. The Michigan courts, we were fortunate in this case, have interpreted the force and effect of this very injunction, and the case that we cite in the red brief is the Brisborne case, and what second courts who people have gone to have said is that the force and effect that this injunction is due is that Ron Elwell is prohibited from testifying unless and until somebody goes back and presents their claim to the Wayne County, Michigan court to allow him to testify.
Anthony M. Kennedy: --But those people were all within the jurisdiction of the Michigan courts, were they not?
Paul T. Cappuccio: They were, and I--
Anthony M. Kennedy: And that's different, because the Bakers are not.
Paul T. Cappuccio: --Well, Your Honor, it is different from... on the due process question, I agree with you. It is not different--
Anthony M. Kennedy: But as Justice O'Connor was indicating, it seems to me it's also different because of the fundamental law of judgments, which is that you can't apply a judgment or enforce a judgment against a person... against... where there was no personal jurisdiction over that person originally.
Paul T. Cappuccio: --Well, that--
Anthony M. Kennedy: It's just a simple personal jurisdiction.
Paul T. Cappuccio: --That sort of raises the question as to whether these people are being bound by the judgment rather than being affected by the judgment in some incidental way, but I think that bound debate, which the Court has had in Martin v. Wilks, is just a proxy for the due process analysis. The question--
Ruth Bader Ginsburg: Mr. Cappuccio, it isn't in this respect. You know, you gave the creditor 1, creditor 2, and I followed that, creditor 2 comes too late, and it's just an incidental effect. But here, the whole purpose of this injunction was to control litigation not in Michigan but elsewhere. The whole purpose was to say, in effect, Michigan rules the world. It determines what evidence will be admissible in courts all across the country, although... and I think you'll agree with me that to this extent the Restatement of Conflicts is right... each State applies its own rules to determine the admissibility of evidence. So here is Michigan in effect preempting the ordinary operation of the rules of evidence of all the courts in the country--
Paul T. Cappuccio: --Your--
Ruth Bader Ginsburg: --and I've never seen any decree quite like that.
Paul T. Cappuccio: --Your Honor, this is just Michigan deciding something between Ron Elwell and General Motors and preventing Elwell from hurting General Motors. What makes this apply elsewhere is the Full Faith and Credit Clause, nothing that the Michigan court did, and what that says is, we have decided as a Nation because someone can step over the line and hurt General Motors just as well in another State, that the... that that judgment is enforceable everywhere.
Sandra Day O'Connor: May I-- --Mr. Cappuccio, why isn't it the case that we say, in accordance with the Restatement rule, that the Full Faith and Credit Clause does not bind Bakers, who were not privy to that proceeding in Michigan, and that General Motors' remedy is to go after Elwell for contempt in Michigan--
Paul T. Cappuccio: Because, Your Honor--
Sandra Day O'Connor: --if he agrees to in fact testify?
Paul T. Cappuccio: --Because, Your Honor, with the Full Faith and Credit Clause requires, again, is that the Michigan injunction be given the same force and effect, and at a minimum I would argue that requires--
Anthony M. Kennedy: Do you have any authority that the Michigan courts say that their judgments bind persons who were not before the court, and over whom the court had no personal jurisdiction?
Paul T. Cappuccio: --I'm sorry, Your Honor, they do not say that. The Michigan courts--
Anthony M. Kennedy: Well then, it doesn't have the effect that you seek to give it here.
Paul T. Cappuccio: --No, I'm sorry, Your Honor, the Michigan courts' cases simply say that someone who is affected by the judgment and seeks to reopen it, or seeks to modify it or challenge it, must go back to the court that rendered it. It is merely a litigation channeling provision.
Anthony M. Kennedy: If they're already in Michigan.
Paul T. Cappuccio: Well, but by... that's right, Your Honor, because that rule is just for Michigan, but by operation... this is the most important point. By operation of the Full Faith and Credit Clause, that Michigan rule applies to govern this judgment. It is--
Ruth Bader Ginsburg: Mr. Cappuccio, would you tell me how Michigan has the power to drag somebody in Alaska, in Hawaii, and say you can't... plaintiff, you can't choose your own forum. You have to come to Michigan to litigate. The scene that I get from what Michigan... what you are attempting to extract from this Michigan judgment is in effect Michigan rules the world, like the old story about Tobago rules the world, only now it's Michigan is going to decide what evidence comes in all over.
Paul T. Cappuccio: --I understand that, and I lay that at the feet of the U.S. Congress, and they were wise to have done that. That is what section 1738 does.
John Paul Stevens: No, but Mr. Cappuccio, may I ask this question?
Paul T. Cappuccio: Sure.
John Paul Stevens: It only does it if the Michigan court had the power to enter the order it did enter. You would agree with that much, I assume.
Paul T. Cappuccio: Jurisdiction over the person or subject matter, yes, sir.
John Paul Stevens: And would you think there is any question at all about the power of a Michigan court to order a litigant before it to refuse to comply with any normally lawful court order that might be entered anywhere else in the country? Does that bother you at all? I'm just looking... I'm not looking about third parties.
Paul T. Cappuccio: I understand.
John Paul Stevens: I'm just looking just at Elwell. You are saying to him if... under your reading of the injunction, as I understand it, it in effect says no matter how lawful the court order may be that directs you to testify, you must refuse on pain of contempt.
Paul T. Cappuccio: I agree. He would be in contempt if he did that.
John Paul Stevens: And you think it's perfectly clear that there's no jurisdictional issue as to the power of a court to enter such an order as required full... must be given full faith and credit.
Paul T. Cappuccio: I can't imagine what the jurisdictional issue would be. The court had jurisdiction overt the persons, and the court had jurisdiction over the subject matter, and they entered an injunction that prevents Elwell from testifying against General Motors. What makes it extraterritorial in its effect--
Speaker: Well--
Paul T. Cappuccio: --is the Full Faith and Credit Clause.
William H. Rehnquist: --as between Elwell and General Motors I suppose it's a settlement. If it had been contested he could have appealed through the Michigan courts, but he can't collaterally attack the decree--
Paul T. Cappuccio: That's--
William H. Rehnquist: --just because it may be improper.
Paul T. Cappuccio: --That's right, Your Honor. That's absolutely right, and that's an important distinction here which is separating the difference between whether this injunction is overbroad, which I'm not asking this Court to decide... I'm not trying to stifle debate as to whether this injunction, by covering evidence that might not be privileged, is overbroad, and whether it's entitled to full faith and credit.
John Paul Stevens: But you're saying any claim that an injunction is overbroad in this sense must be litigated in the court entering the injunction.
Paul T. Cappuccio: Absolutely, sir, Justice Stevens.
David H. Souter: May I propose a variant on Justice Stevens' question? Let's assume we're simply talking about proceedings in Michigan. As I understand your characterization of what the Michigan court has already said, it is that it may bind a... an individual who was not party to the original litigation between Elwell and G.M. as to the opportunity of that third party to seek the normal process of any Michigan court. As I understand it, you are saying that Michigan says, no, you may not, third party, now a plaintiff in a new case against G.M., go into the normal, whatever would be the normal venue in Michigan and say, I want this evidence. You are bound by an earlier decree to which you were not party to come into a different court and raise a different issue, which is, should I be bound by a decree between these two other individuals? Isn't that the predicate for a due process issue?
Paul T. Cappuccio: Your Honor, no, because I disagree with your use of the word bind there, because the question is, what sort of impact does it have on the third party? You would... I assume that the Court would agree that if it were a merely incidental impact there'd be no due process problem at all, so the first question you have to ask is, what is the degree of the impact? Does it foreclose a property right, which is the question the Chief Justice asked, and then second, what process are you given? And I'm saying there's no due process objection either to the Michigan rule or to the application of full faith and credit, or, I may add, to what Congress has mandated, which is the exact same thing in the 1991 Civil Rights Act in the wake of Martin v. Wilks. Petitioners in their brief cite the statute that was passed in the wake of Martin v. Wilks, and what Congress requires is exactly the same sort of channeling of third party collateral... not collateral attacks, third party challenges to consent decrees back to the court that issued it. Petitioners raised it. Allow me to read the rule. First of all, Congress precludes certain third parties from raising challenges... if they had notice, if they were adequately represented... but they recognized there might be new third parties who came along later who weren't--
David H. Souter: In other words, real third parties.
Paul T. Cappuccio: --Real third parties.
David H. Souter: People who were not in fact substantially represented the first time. Okay.
Paul T. Cappuccio: Absolutely, Your Honor, and Congress says in that section, which is section 2000... 2000... do you have it here +/? it's 28 U.S.C. 2000e-2n. I have the actual bill. Any action not precluded under this section, meaning real third parties, the challenges in employment a consent judgment or order described in paragraph 1 shall be brought in the court and, if possible, before the judge that entered such judgment or order, and my position is the constitutionality here of the effect of full faith and credit is indistinguishable from the constitutionality of this provision by Congress, which is plainly constitutional, because all it does is require parties to go back to the court that issued it, and then the question is yours, Justice Kennedy--
Speaker: Let me interrupt you again--
Paul T. Cappuccio: --Sorry.
John Paul Stevens: --If I just might... supposing the order... they found out he had a lot of documents that he had in his summer home in Wisconsin, and they were under subpoena, and the judge in Michigan said, I want you to burn those documents to protect General Motors from the unlawful access to those documents, and there was an order in Wisconsin said he can't, he could only get relief from that in Michigan, I guess. He'd have to go burn the documents.
Paul T. Cappuccio: That order would be entitled... well, it depends if there were a prior final order--
John Paul Stevens: Would that be entitled... section order be entitled to full faith and credit even though he had jurisdiction of the person and the subject matter?
Paul T. Cappuccio: --It would be entitled to full faith and credit, and it would be reversed in a split second, Your Honor, because it would be an abuse and an illegal order.
John Paul Stevens: Why would that be reversed any more than this one? They might claim they were privileged documents.
Paul T. Cappuccio: Well, but that would be reviewed, and that's the point. It is not that the Michigan court has done something that nobody can review. There are at least two opportunities to review. There's an opportunity for direct review when it's entered, okay.
Ruth Bader Ginsburg: But you're talking about the party to it, but this is a consent decree. The parties are not going to litigate anything. We're talking about the effect in another forum on that forum and the normal operation of its courts, and someone who was a nonparty and can't be required to go any place. I asked you... I started out asking about the old Restatement, and you corrected me by saying that's flatly wrong, but the current restatement has this interpretation. It's entitled, limitations on full faith and credit, not about due process. It says, a judgment rendered in one State need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State, here the important business being determining for itself what evidence is admissible.
Paul T. Cappuccio: And the cites to that proposition are dissents, and dicta, and concurrence is not essential to holding. And I commend to you, Justice Ginsburg, two law review articles, one written by a man named William Reynolds in the Maryland Law Review, and one written by a man named Ron Hecker, I think it... Hecker in the California Law Review, and you will see that there is absolutely no support for the rather inaptly called Restatement on that point, because in fact all of those cases--
Ruth Bader Ginsburg: Well, you can quarrel for that one way or another, and I can say to you, you will see that there is no decision of this Court saying State 2 enforces X to do an act simply because State 1 did.
Paul T. Cappuccio: --I--
Ruth Bader Ginsburg: You may be right that we should--
Paul T. Cappuccio: --Sure.
Ruth Bader Ginsburg: --do that, but there... I could say there is no authority for it and be right.
Paul T. Cappuccio: Yes, that's absolutely right, Your Honor, but I come from just the opposite, which is, I start with 1738, which says they are all enforceable unless there is a reason to not make them enforceable, and this Court has never, ever recognized in any single case an exception based either upon the policy interests of the forum court, the, worded somewhat differently, institutional integrity of the forum court, or the nature of the decree, whether it's legal or injunctive, and I am saying--
William H. Rehnquist: Well, didn't Fauntleroy v. Lum say there wasn't any public policy exception?
Paul T. Cappuccio: --Absolutely, Mr. Chief Justice, and my position is, in order to rule for petitioners in this case you would be effectively overruling Fauntleroy v. Lum, because in that case--
Ruth Bader Ginsburg: Fauntleroy was a question of a judgment, a litigated judgment, and a determination had been made, and then in State 2 a party to that judgment wanted to look behind it, and that's a no-no, and that's well-established. Here, we're not talking about Elwell. We're talking about Bakers.
Paul T. Cappuccio: --We are, Your Honor, but I think the point that the Chief Justice was making with Fauntleroy is that this Court has never recognized that the effect on the policy forum is to be balanced against a final judgment. And what I am saying is, petitioner's formulation of the exception they're looking for, which is to interfere or commandeer the judicial process, is merely a reformulation of the policy interest in Fauntleroy. Certainly the supreme court of Mississippi would feel that it was being commandeered and its institutional integrity is being interfered with.
John Paul Stevens: Yes, but that went to whether, and a question that's going to the merits of the holding rather than the power to enter the decree.
Paul T. Cappuccio: Excuse me, Your Honor.
John Paul Stevens: But that reasoning went to the merits of the decision rather than the power to enter the judgment.
Paul T. Cappuccio: That's correct.
John Paul Stevens: And that distinction is very clear in Fauntleroy, and the question I keep coming back to is the question of, is there no limit on the power to enter any kind of judgment whatsoever other than a personal jurisdiction and subject matter jurisdiction? I agree, just difference in policy, but here you're asking him to say you must disobey an order that every jurisdiction in the country would normally say is a valid order when you subpoena somebody to testify, and you're saying this decree says, we don't care how universal the approval is of such lawful order, you must disobey it.
Paul T. Cappuccio: Two answers to that. First, the decree is not saying to disobey an order. There was no order in place. It is the first judgment--
John Paul Stevens: Well, the decree does say you don't have to interfere with the jurisdiction of the Georgia court, but presumably that means that any other court's jurisdiction must be interfered with. That's in the decree itself.
Paul T. Cappuccio: --It means only that Ron Elwell cannot testify, and the effect of the Full Faith and Credit Clause is to extend that extraterritorially.
John Paul Stevens: And the question is whether that impairs the jurisdiction of any of these other courts, which the decree seems to assume it would.
Paul T. Cappuccio: Well, it would affect their ability to have one witness come in. I don't think it would impair their jurisdiction, but I do not see--
Ruth Bader Ginsburg: Mr. Cappuccio, may I ask in reference--
Paul T. Cappuccio: --Sure.
Ruth Bader Ginsburg: --to Fauntleroy v. Lum there was a later decision by Justice Stone... was it Pacific Employers +/? and I'll just read you what he said some years after Fauntleroy v. Lum. Perhaps he was wrong, too. It has often been recognized by this Court that there are some limitations upon the extent to which a State may be required by the Full Faith and Credit Clause to enforce even the judgment of another State in contravention of its own policy.
Paul T. Cappuccio: There is plainly some broad statements, particularly by Justice Stone, who dissented originally in Yarborough and threw some dicta in later, that makes it--
Ruth Bader Ginsburg: This wasn't in a dissenting opinion.
Paul T. Cappuccio: --No, I understand it was in a majority opinion, but in that case it was absolutely unnecessary to the holding, because that case was a choice of law case and, of course, this Court has held precisely because Congress has not litigated the effect of acts, and because there's a necessity to balance interests--
Ruth Bader Ginsburg: Yes, but this sentence was about judgments, so you say that was wrong.
Paul T. Cappuccio: --It is, Your Honor, one of the quotes that the Restatement relies on, and I am saying that if the proverbial, as Justice Scalia said once in his opinion, hapless law clerk goes back through those cases, in none of those cases does the Court hold that there is an exception to judgments when the interests of the other State need to be weighed. There are statements--
John Paul Stevens: Let me just clarify one thing--
Paul T. Cappuccio: --Sure.
John Paul Stevens: --because you didn't quite finish your answer when Justice Gins... it is your position... I'm just not looking at authorities or law review articles or Restatement... it is your position that there is no full faith and credit limitation whatsoever, other than personal jurisdiction and subject matter jurisdiction in the court entering a judgment?
Paul T. Cappuccio: Yes, Your Honor, that's it.
Sandra Day O'Connor: Well, Mr. Cappuccio, by way of another example, sometimes we see court orders ordering a... an employee or a former employee not to compete with the employer in situations where the employee and the first employer get in a dispute and go to court and there is a covenant not to compete, and that's enforced by a court order in, let's say, Michigan, and the Michigan court says, Mr. X, you will not compete for a period of 5 years with this employer number 1, and any contract you enter into anywhere to do that is void and of no effect. Employee goes to State 2 and enters into a contract with a new employer to go to work in competition, in violation. Now, I guess on your theory that contract is unenforceable in the second State in any way for the employer, the new employer who tries to hire him.
Paul T. Cappuccio: Absolutely, Your Honor, and in that first judgment--
Antonin Scalia: Let's add to the fact that it was not litigated, so that there's no... no, you know, res judicata effect. It was a consent decree in the first suit.
Paul T. Cappuccio: --Yes, sir, and my answer--
Antonin Scalia: And you'd still say that the second court is--
Paul T. Cappuccio: --My answer is, is that is preposterous to think that the person who is affected, the person who wants to enter into the contract--
Speaker: --Mm-hmm.
Paul T. Cappuccio: --could go into the court of the second State and say, ignore the judgment. Rather, they would have to go back to the first court and show that they had the kind of interest that was affected.
Sandra Day O'Connor: Gee, I would have thought that in the second State the new employer could sue the employee who entered into this contract perhaps when he shouldn't have, and that the first employer could sue him for breaching the original order. I mean, what--
Paul T. Cappuccio: No, Your Honor, I think in that case the suit in the second case, the first order would plainly be entitled to full faith and credit and if somebody wants to go back and claim that that is wrong, be it a party or a third party, they have to go back to the original court. That's all full faith and credit is about.
Stephen G. Breyer: But what is the authority for that? That is... let me go through exactly the same question I asked Professor Tribe. In Justice O'Connor's case you have a third person who was not party to the first action who wants the services of the employee. We agree that that third person is not bound, and you agree that the Bakers here are not bound. Moreover, if the Bakers have a claim to this evidence, and it sounds as if they do, there's no doubt they get it. They will get this evidence. Only question is whether they have to go back to Michigan. Well, similarly, what's the authority? In 200 years, there's never been a case that says that either this employer in the second State, i.e., the third party, that says either, of course the second State has to follow the injunction of the first against the employee, not the employer, so go to the first State, get it modified, or that says the opposite, and there's never been a law review article that explores that question deeply? I mean, what I'm looking for is the case or the law review article in 200 years that went into what I would think was the most simple basic question under injunctions and the Full Faith and Credit Clause. Is--
Paul T. Cappuccio: --Well, Your Honor, there are two questions, and let me try to answer the first one and then the second one. The first... the answer to the first one is, it does not matter whether you say they are bound or not bound. That is a legal conclusion about what due process requires. What matters is the degree of impact on him. Does it affect a property right, and I agree with the Chief Justice, you're not going to... I hope you won't extend Logan v. Zimmerman. They don't have a property right here. That disposes of this case. But even if it does, what process are they entitled to, and the only question is, is it too much of a burden to send them back to Michigan, and I'm saying no--
Ruth Bader Ginsburg: --Back. Back. That's a very revealing word. They never were there in the first place.
Paul T. Cappuccio: --Okay... sorry. [Laughter] Whether it's too much of a--
Ruth Bader Ginsburg: You spoke... in your brief, you spoke about, you must return to Michigan, and now twice you said go back to Michigan. Michigan has no power over them.
Paul T. Cappuccio: --I'm sorry, I shouldn't have said back, but this is the whole issue in this case, is it too much of a burden, does it violate due process, and I'm saying no. Because of the important interest of full faith and credit to avoid conflicting judgments, as Justice Breyer talked about--
Ruth Bader Ginsburg: So Michigan can rule the world to that extent.
Paul T. Cappuccio: --The Full Faith and Credit Clause--
Ruth Bader Ginsburg: It can require anybody from anyplace... even though Michigan would have no power over them, by having a judgment, a plaintiff against defendant, third party, wherever she may be, will have to go to that one place to litigate. It sounds very strange.
Paul T. Cappuccio: --That's exactly what Congress did in the Civil Rights Act of 1991. It's exactly what Congress did by reason of the Full Faith and Credit Clause. And the burden, Justice Kennedy, is not an undue burden. It's the same exact burden that a litigant faces when they want to get an out-of-State witness.
Antonin Scalia: I suppose, Mr. Cappuccio, that... I also... it was the exact example that Justice O'Connor gave which has occurred to me. These injunctions against competition are very, very common, and I guess they're not worth a whole lot if they're only enforceable in the particular State.
Paul T. Cappuccio: Your Honor, I--
Antonin Scalia: I would expect a lot of literature on the other side. I would have expected a lot of lawsuits in which people simply said, I don't have to obey this injunction in the other State because your writ doesn't run this far.
Paul T. Cappuccio: --I would think that it would be... the reason we don't have anything is because it is so plain that that is a final judgment entitled to full faith and credit.
William H. Rehnquist: Thank you, Mr. Cappuccio.
Paul T. Cappuccio: Thank you, Your Honor.
William H. Rehnquist: Mr. Tribe, you have 2 minutes remaining.
Laurence H. Tribe: Thank you, Mr. Chief Justice. Let me begin by saying that the power of Congress in response to Martin v. Wilks to have a national venue provision has nothing to do with the power of a State to say, come back to Michigan though you've never been here. Congress was not acting in connection with full faith and credit. What Congress was doing was exactly analogous to Michigan's in-State rule saying venue is in the court that did it in the first place.
Antonin Scalia: Mr. Tribe, I don't understand one thing about your position. Is it your position not only that the... that courts in States other than Michigan are not bound by the judgment, but that also, if he complies with the decrees of these other courts, that Mr. Elwood is not liable for contempt in Michigan?
Laurence H. Tribe: No. Justice Scalia, if third parties are effectively bound, that's my problem. I'm not saying that General Motors could not have arranged to have sanctions imposed on him as he travels around the country if he testifies in response to the... in response to orders. That would be a matter of contract between General Motors and this employee.
Antonin Scalia: No, no, not by contract. May the Michigan court cite him for contempt if he complies with the order of the court of another State and gives testimony?
Laurence H. Tribe: I think not, Justice Scalia.
Antonin Scalia: Okay. That's your position--
Laurence H. Tribe: Right. That's right.
Antonin Scalia: --not only that the State court is not bound, but also that Elwood is not bound?
Laurence H. Tribe: In all likelihood, though--
Anthony M. Kennedy: And what is the principle? Why can't he be cited for contempt? What's the principle?
Laurence H. Tribe: --The principle is that as a matter of due process one cannot be held in contempt for refusing to comply with the order of a court. One can--
David H. Souter: But he could be held in contempt if he acquiesced, couldn't he?
Laurence H. Tribe: --You can waive your right, certainly Justice Souter.
David H. Souter: No, but I mean, if he-- --If he's not subpoenaed. If he voluntarily testifies--
Laurence H. Tribe: Oh, yes, that's... sure.
David H. Souter: --Or if his objection is a sham--
Laurence H. Tribe: Then there's no--
David H. Souter: --then, of course they can go after--
Laurence H. Tribe: --Then there's no problem. Of course--
Antonin Scalia: --Or if he goes to that State in order to be subpoenaed, which is what happened here, apparently.
Laurence H. Tribe: --There's no evidence in the record of what... of that.
Speaker: All right. Well, let's--
Laurence H. Tribe: And the briefs in opposition don't even suggest it.
Antonin Scalia: --Let's hypothesize it, then. Suppose he goes to that State expecting and hoping to be--
Laurence H. Tribe: Yes. I would think if you have such a case he could be in contempt.
Antonin Scalia: --Okay.
Laurence H. Tribe: The opposition to cert didn't suggest this was such a case.
Ruth Bader Ginsburg: You're not suggesting that it wouldn't be, just between those two parties, perfectly all right for General Motors to say, if you are indeed subpoenaed by somebody--
Laurence H. Tribe: Right.
Ruth Bader Ginsburg: --then you can't help it, but don't walk into a place that would otherwise have no power over you.
Laurence H. Tribe: That's right, and I'm afraid my time is up. Thank you.
William H. Rehnquist: The case is submitted.