William H. Rehnquist: We'll hear argument next in No. 03-407, John F. Kowalski v. John C. Tesmer. Mr. Casey.
Thomas L. Casey: Mr. Chief Justice, and may it please the Court: In this facial challenge to the Michigan statute, court of appeals rulings that these lawyers have third party standing and that their potential clients have a constitutional right to appointed counsel in discretionary appeals are both wrong. First, with respect to the standing argument, in our brief we argue that the respondent attorneys could not meet any of the criteria for standing. This morning I'd like to focus on the element of prudential standing that considers whether there is a hindrance to the ability of a third party to protect his own... to protect his own interest.
Ruth Bader Ginsburg: --there is an injury in fact. These lawyers claim that if the State were compensating for this service and they're on the list to be appointed, they would have more money in their pockets. You're not... you're not challenging that there is an injury in fact.
Thomas L. Casey: Yes. In our... in our brief we have challenged that. The... the requirement is that there be an injury in fact, a concrete and particularized actual or imminent injury in fact.
Ruth Bader Ginsburg: But you... you said now you were going on to the prudential factors, and so I asked were you recognizing that there was an injury in fact, and you said no. And... and why not? Because it seems so obvious that they would get appointments if the system were--
William H. Rehnquist: I take it you're reserving it for... in your... in your brief.
Thomas L. Casey: I... I am not waiving the argument. I... I would like to rest on the brief. But I... in answer to your question, we believe yes, there is a likelihood that these lawyers on the list for appointed counsel will some day... if they stay on the list and a case comes up in that county, there is a likelihood that there will be a case. We submit, however, that on these facts in this facial challenge, we don't know how many lawyers are on the list for appointments in Saginaw County. We don't know how many appeals of this nature come up. So it may be many years before the situation arises. This is not a concrete and particularized actual or imminent injury in fact, and we've argued that in the brief. At... at best, if there is an injury in fact and if there is... another factor is the close relationship to the third party. We believe those are weak at best, and we've argued in our brief that they don't exist. I think it is most clear, however, that the criteria concerning the hindrance to the third party does not exist here. This is a facial challenge bought by... brought by lawyers before the statute took effect, claiming not that the statute violates their own constitutional rights, but that it violates the rights of potential future clients, and that the lawyers will suffer economic harm.
Sandra Day O'Connor: May I clarify something about this case? Are any of the indigent defendants whose rights the respondent attorneys want to advance... do any of those people themselves have standing to bring their claims in Federal court now?
Thomas L. Casey: Yes. We argue that there are... there are three ways that an indigent defendant can bring this claim themselves without having to rely on an attorney in this type of case. First, they can bring the challenge directly through the State courts.
Sandra Day O'Connor: I'm asking if there are any individuals now before this Court in this case--
Thomas L. Casey: No. None of these... none of these defendants--
Sandra Day O'Connor: --who would be available and who would have remedies or standing to bring their claims. Are we just talking pure hypotheticals here?
Thomas L. Casey: --In this facial challenge, we're talking about pure hypotheticals. The... the three named indigent defendants--
Sandra Day O'Connor: There were three named indigents.
Thomas L. Casey: --Correct.
Sandra Day O'Connor: They were?
Thomas L. Casey: They were denied counsel.
Sandra Day O'Connor: Denied counsel, and they were also dismissed at some point down the line?
Thomas L. Casey: Yes. The... the Sixth Circuit held that the Federal court should abstain from deciding their claims because they could have brought their claims in their direct State appeals. They raised claims about the practice of denying counsel before the statute took effect.
Ruth Bader Ginsburg: --Mr. Casey, was it a Younger abstention--
Thomas L. Casey: Yes.
Ruth Bader Ginsburg: --with respect to the--
Thomas L. Casey: The... the Sixth Circuit en banc held that under Younger v. Harris, the Federal court should abstain from deciding the claims of the three indigent defendants.
Ruth Bader Ginsburg: --So that means that the defendants could never bring this 1983 suit. Only the lawyers arguably could.
Thomas L. Casey: No. Younger v. Harris is only... only defers the time when a proper Federal civil rights action can be brought. There were... at the time this action was brought, there were pending State appeals in two of the cases. One of the defendants never appealed at all. The Sixth Circuit recently issued an opinion not--
Antonin Scalia: Why didn't these lawyers instead of... instead of trying to sue on their own, why didn't they just offer their services to... to these defendants through the State courts?
Thomas L. Casey: --Your Honor, perhaps opposing counsel could answer that better than I. We say that is the--
Antonin Scalia: I mean, that's what I don't understand about... about the fact that they won't... won't have the right to counsel. It... it's at least as easy for... for counsel to appear in cases in which indigents need counsel as it is for counsel to bring their own lawsuit.
Thomas L. Casey: --That is our point on the standing issue precisely, Your Honor.
Ruth Bader Ginsburg: Didn't... didn't the Michigan Supreme Court already rule on this issue and said that the statute was constitutional, that there was no right to counsel, therefore no possibility of appointing counsel, paid counsel?
Thomas L. Casey: That's correct. In... in 2000, the... the... while this case was pending, the Michigan Supreme Court issued an opinion, the Bulger decision that's discussed in the briefs, saying that the practice of denying appointed counsel was constitutional. The statute was not in effect at that time. The statute took effect, and in a case just decided in June of this year, People v. Harris, the Michigan Supreme Court relied on Bulger and said this statute is constitutional. It does not violate any rights.
Ruth Bader Ginsburg: So going through the State system, there's no possibility that these lawyers or the defendants could successfully assert a right to paid counsel--
Thomas L. Casey: That is correct.
Ruth Bader Ginsburg: --because that's already been decided by the Michigan Supreme Court.
Thomas L. Casey: As... as a matter of jurisprudence by the State supreme court, yes. Both State and Federal constitutional--
Antonin Scalia: There... there's an appeal from... they could request certiorari from the State supreme court to this Court, I assume.
Thomas L. Casey: --There are, in fact, two cases pending, the Harris case that I just mentioned. A petition for certiorari was filed about 2 weeks ago raising this precise claim. There is another case Halbert v. Michigan. It's docket--
Ruth Bader Ginsburg: Was there... was there a cert petition in Bulger itself?
Thomas L. Casey: --There was a petition in Bulger.
Ruth Bader Ginsburg: And it was denied.
Thomas L. Casey: It was denied. In... in addition--
Sandra Day O'Connor: But there... there is a cert petition filed in what case? In the June case?
Thomas L. Casey: --In the... the case is pending in this Court as Melody Harris v. Michigan. It was filed about 2 weeks ago. I have not been able to find out the docket number. There was another case, Halbert v. Michigan, which is a pro se defendant who was denied counsel. His applications, pro se applications, were denied in the State appellate courts. A pro se petition was filed. I filed a response to that about a month ago. That's docket No. 03-10198. It's on this Court's conference for Friday, October 8th.
Sandra Day O'Connor: So your point is that there are petitions filed here that would enable this Court to decide whether the Michigan Supreme Court was correct in holding the statute constitutional.
Thomas L. Casey: That's correct. There are at least those two petitions pending that I'm aware of in this Court now.
Sandra Day O'Connor: Do you acknowledge there is a good Federal question there at least?
Thomas L. Casey: Oh, yes. It's... it's an important question.
Sandra Day O'Connor: Yes.
Thomas L. Casey: We... we... in the Bulger case, I opposed certiorari, saying that yes, it's an important question, but it was correctly decided. At that time, there was no conflict. Then when the Sixth Circuit opinion came up, we filed the petition saying it's an important question and now there's a conflict between the State supreme court and the Federal court of appeals.
Ruth Bader Ginsburg: That's the position you've taken in... in the Halbert case, that the Court should take the case?
Thomas L. Casey: What I said in the Halbert case is that the Court need not grant this petition now because, although it's an important question, the issue is pending in... in this Tesmer, the current case, Kowalski v. Tesmer. If this Court rules in our favor on standing and then does not reach the constitutional question, then it would be appropriate to grant certiorari in either the Halbert case or the Harris case because the... the determination of the constitutionality of this statute is important to the State of Michigan.
Antonin Scalia: Do they have lawyers in those cases?
Thomas L. Casey: Now, the Halbert petition is pro se. The Harris petition has either retained or pro bono counsel. But the... the constitutionality of the statute is... excuse me... is directly challenged in both of those petitions.
John Paul Stevens: May I ask you if in exercising prudential judgment on whether to accord prudential standing, because I guess there's article III standing here, is it appropriate to take into consideration as one fact that it's already been argued in this case and it's now ripe for decision, or should we just totally ignore that aspect of the case?
Thomas L. Casey: As a matter of judicial economy, there is a point to be made that it... the issue has been briefed and argued. So perhaps it should be decided. Just last term in Elk Grove v. Newdow, the Court faced a similar situation. They disposed of the case on standing--
John Paul Stevens: No, but in that case there was a conflict between the interests of the third party and the interests of the litigant or a potential client. Here there's no conflict between the lawyers and the clients.
Thomas L. Casey: --That's true. That's true.
Antonin Scalia: Of course, also bearing upon our prudential judgment, I... I suppose, would be that in order to reach the merits, we have to do what you assert to be an end run around the Younger abstention. And--
Thomas L. Casey: That's... that's correct. In my view, the... the most logical, most appropriate disposition would be to say that these attorneys do not have standing. Therefore, reverse the Sixth Circuit's judgment. There are these other vehicles pending now to reach the constitutional issue.
John Paul Stevens: But... but why isn't the Younger abstention problem just like the mootness problem in Craig against Boren? It took one class of litigants unavailable but then allowed the third party to have standing. Why... why aren't... aren't your opponents here just like the bartenders in Craig against Boren?
Thomas L. Casey: Well, in determining prudential standing, there are several criteria that should be examined in deciding whether there's an exception to the general rule where a litigant cannot argue the rights of third parties. In Craig v. Boren, the statute directly affected the vendor in that case. It was a statute against sale of certain alcoholic beverages. And in this case we don't have that. Also, in Craig v. Boren, nobody argued prudential standing considerations until the case reached the Supreme Court apparently. But in our case, we have a situation where we have lawyers who do not have any present clients who are not directly affected by the statute. They're not claiming rights--
John Paul Stevens: No, but they have the same interest that the bartenders had because they won't make some... sell their services and the bartenders wouldn't sell the booze. I don't see the difference.
Thomas L. Casey: --Well, in... in Craig v. Boren, the... if the bartenders did not comply with the statute, they'd be subject to criminal penalties. Here, the attorneys will not be subject to any criminal penalties.
David H. Souter: Well, why--
Ruth Bader Ginsburg: That wasn't true... that wasn't true in the Pierce v. Society of Sisters case and it wasn't true in the Singleton case. Both of those cases recognized third party standing, although the prohibition was not on the plaintiff who was seeking to raise the rights of another person.
Thomas L. Casey: That's... that's true. The parties have discussed many cases. Almost all of them have some factors similar to the circumstances here, and as we've argued, all of them have distinguishing factors too.
David H. Souter: --But isn't... isn't the biggest distinguishing factor the one that you raised in response to Justice Scalia's question? These... these lawyers can represent somebody on a direct appeal, the same way and raise exactly the same issue that they're trying to raise on third party standing now. Isn't... isn't that true?
Thomas L. Casey: That... precisely. Just normal principles of litigation counsel that it is appropriate to have a real party in interest. The criminal defendants whose rights are at stake in the statute litigate that case. If you take the step and allow standing for an attorney, based on speculative claims about future clients and economic harm to the attorney, as the dissent in the Sixth Circuit says, that opens up the possibility of vastly expanding the doctrine of standing beyond what this Court has ever said.
John Paul Stevens: Well, is it correct as a factual matter that these particular lawyers do have clients that they could be representing--
Thomas L. Casey: That is not in--
John Paul Stevens: --on direct appeal?
Thomas L. Casey: --that is not in the record. In their response brief, they said that they currently do have clients, but in the complaint... this case was, again, a facial challenge. It was decided on summary disposition or it was a motion to dismiss. It was filed and decided within about a month. And there was no factual development here. If they had actual clients, there would be clearly a closer relationship, but again, those clients would not be hindered from making the claims themselves. There is no reason--
David H. Souter: But the... the claim that... I'm sorry.
John Paul Stevens: Well, it just would seem to me that the lawyers who are advancing this claim may or may not be representing individuals who want to make the same claim, but there... there must be some lawyers who want to make these claims who don't have any clients, and the question is whether they have standing. And are they to be defeated standing because there are a lot of other lawyers who might also sue?
Thomas L. Casey: --In our view, as a general proposition, lawyers should not be given independent standing to raise claims of their clients. When the clients can present their own issues themselves, as they can in this case or in this situation under the statute, there's no need--
Ruth Bader Ginsburg: Is that different from Caplin & Drysdale where the lawyers didn't raise the interest of the client and--
Thomas L. Casey: --Again, there was an actual client in that case and there was significant money at stake. The lawyers had been paid money from drug forfeiture. They had been paid $25,000, and they wanted another 107--
Ruth Bader Ginsburg: --But as far as the actual client, you moved to dismiss. So that's why there's no... was no back-development. You moved to dismiss. Therefore, you have to assume whatever facts--
Thomas L. Casey: --That... that's correct.
Ruth Bader Ginsburg: --in favor of the opponent of the motion.
Thomas L. Casey: That's correct. But my response on that was to the question of, you know, do they in fact now have clients. There is no allegation in the complaint and no proof that they now have clients. They may--
David H. Souter: But if... if you assume... you assume the correctness of the allegations, which you... you have to do at this point, the allegation is that they would get clients and would be paid but for this bar to payment. Isn't that correct? So if you take them in terms of their claim, you've got to assume that they will have clients and they can bring this... this issue on behalf of the client.
Thomas L. Casey: --Correct. That goes to the criteria of injury in fact and close relationship with the third party. We still have the criteria that I wanted to discuss this morning about hindrance to the right... to the ability of the third party to litigate for themselves. Excuse me. In our view, there is no need to expand the doctrine of standing to permit lawyers to have independent standing to make these claims because the clients, who are directly affected by the statute, can make them themselves. There are the two pending habeas... or two pending petitions for certiorari that we've mentioned. There is another case, the Bulger case. Mr. Bulger himself, after he lost in the Michigan courts, he filed a petition for... for habeas corpus. And the district court granted the writ of habeas corpus. We appealed. That case is now pending in the Sixth Circuit. So that's another vehicle. It is also possible that an indigent inmate himself could bring a section 1983 case. It's simply not necessary to expand the doctrine of standing to give lawyers--
Ruth Bader Ginsburg: How could an indigent bring a 1983 case? I thought you said that that would be barred by Younger.
Thomas L. Casey: --If they had a pending prosecution, it would be barred by Younger. Once that pending prosecution is over, they could bring a 1983 action.
Ruth Bader Ginsburg: Could they? Because I thought this Court had held that... that you can't bring a 1983 suit if what you're seeking to do is overturn the conviction.
Thomas L. Casey: Under Heck v. Humphrey, if the outcome of the 1983 case would necessarily imply that the conviction or sentence is invalid, you cannot bring the 1983 case. Here, the allegation is simply that they were entitled to counsel. That's not the substantive merits of whether the claim... whether they are properly convicted or properly sentenced. The Sixth Circuit, in a case decided August 31st--
Ruth Bader Ginsburg: Well, if that... that... that's... you're saying that the defendants themselves could not sue now under 1983?
Thomas L. Casey: --A... a defendant who is currently in the State system on direct appeal is barred by the abstention doctrine from filing a 1983 action. But after they go through the State court and lose, in addition to filing a writ of certiorari with this Court--
Antonin Scalia: --And presumably up to this Court, if they want to come that far.
Thomas L. Casey: --Oh, certainly. After... after they go through the State court, they could file a writ of cert in this Court, as the two pending petitions have. They could file a complaint for habeas corpus. They could bring a facial challenge under 1983. In a case called Howard v. Whitbeck from the Sixth Circuit, just decided about a month ago, that was the very question that was decided. An inmate... a prison inmate, challenging another statute, litigated and lost in the State court, then filed a 1983 action. We argued in a Federal case under Rooker v. Feldman, he was actually trying to seek review of the State court judgment. The district court agreed. But the Sixth Circuit just said Rooker v. Feldman bars the as-applied challenge, but they remanded for a trial on the merits of the facial challenge, which is not barred by Rooker v. Feldman. So an inmate who has been unsuccessful in the State court, under Sixth Circuit law in my jurisdiction, can bring a 1983 action. So there are at least three vehicles that an inmate can bring--
Ruth Bader Ginsburg: And do you... do you agree that that's right? And you said that that's their theory, that they could bring a 1983 action.
Thomas L. Casey: --We are not filing a petition for certiorari from that decision. We are abiding by that decision. We're going back and we're going to try that case on the merits of the facial challenge to the statute. That... that case is Howard v. Whitbeck, docket No. 03-1396.
Antonin Scalia: Of course, what the other side says is, well, yes, maybe they can bring these suits, but in all of those suits, they don't have counsel, what they... what they--
Thomas L. Casey: That's true. That... that gets into the... the merits of the constitutional claim. And in our view, talking about the merits, all that is required in the Michigan application for leave to appeal process is that a defendant identify the issues and ask the appellate court to review it. Unlike Douglas, this is not a review on the merits. An order denying an application for leave is not an affirmance. It's not an adjudication of the merits of any legal issue.
Anthony M. Kennedy: What... what do we look to in order to verify what... what you've just said? Do the Michigan appellate courts catch mistakes all the time? And if so, what's the standard that they use?
Thomas L. Casey: The court rules concerning applications for leave do not set out specific standards. What... what the court of appeals can do on an application for leave is grant the application, deny it, or issue peremptory relief.
Anthony M. Kennedy: But what are the standards they use? Where... where do I look to find out what standards they use, if I get there?
Thomas L. Casey: To the best of my knowledge, there are no published standards in court rule or statute on that. The court is free to exercise its discretion to... to deny leave for any reason that it chooses.
Anthony M. Kennedy: Can you give me an example of where they grant leave to appeal, and if not... and it's not one of the exceptions listed in the statute such as incorrect--
Thomas L. Casey: If... if--
Anthony M. Kennedy: --such as incorrect sentencing?
Thomas L. Casey: --Well, if... under the statute, if the court of appeals grants leave, counsel is automatically appointed.
Anthony M. Kennedy: Right. What are the instances in which they grant leave, other than sentencing or some other statutory--
Thomas L. Casey: They're... most often they are sentencing issues. The statistics we put in our brief, in footnote 25 of our brief, indicated that out of the... in 2001, there were 38,000 guilty plea convictions. The court of appeals that year disposed of 7,600 cases. 14 percent of them were guilty plea appeals. Most of them were disposed of by order. There were somewhere in the neighborhood of about 50 decisions... opinions issued in guilty plea cases. I have not canvased all of them. I suspect that the vast majority of them are sentencing issues.
Ruth Bader Ginsburg: Do we... do we know whether any of those were cases that didn't fall under the four categories where you a... a right to?
Thomas L. Casey: In every case where there was an opinion, counsel was appointed. The statute requires it.
Ruth Bader Ginsburg: But one of the problems, I thought, for the indigent is the rulings... am I correct... in Michigan, that they're not required... say, there's an objection. There's no written record that the indigent could look to, even assuming he could understand it, to... to determine what issues might be raised on... on appeal.
Thomas L. Casey: I believe you're incorrect on that, Your Honor. The... what an indigent inmate will... or defendant will have available to him to prepare an application for leave to appeal is a transcript of the proceedings. He's entitled to that for free. He will have whatever written motions and written decisions the trial judge may have issued. He will have... in the transcript, he will have the oral motions and the decisions of the judge, and then in addition to whatever pro se materials, as in the Ross v. Moffitt case, the inmate can muster. In... in these cases, there are other pro se materials available. The district court's opinion in this case noted that there is a... a form brief, 38-page brief that was circulating among inmates on the precise question of entitlement to counsel, which two of the defendants used in their State court appeals. But in determining whether counsel is constitutionally required under Ross v. Moffitt, this Court has said you look to two things. Are the merits decided? What is the nature of the appellate process? And if the merits are not being decided, as in the Michigan case, we say that falls within the Ross v. Moffitt line of cases, unlike the Douglas case. In... in addition to the nature of the appellate proceedings, he--
William H. Rehnquist: Well, now, your... your opponents quote some language from the... one of the Michigan court of appeals which suggests that the reason that an appeal was denied was it had no merit.
Thomas L. Casey: --A... a typical order that the court of appeals issues when it denies an application for leave to appeal says, denied for lack of merit on the grounds presented. But there is published, controlling Michigan authority, which we cited in our brief, that says that language does not mean that the court of appeals looked at the merits of the underlying legal issue. What... what the court is looking at is the question of whether to grant leave or deny leave. If they grant leave, counsel will be appointed. In a very real sense--
David H. Souter: What... what are they getting at when they say merit? I mean, I take it you concede there was a quotation from that Contineri case on... cited on page 30 of their brief. I mean, what... what is the reference to merit supposed to mean?
Thomas L. Casey: --I... I do not know why the court of appeals uses that language. What I do know is that the--
David H. Souter: Isn't the reasonable thing to assume that they use it as we would normally expect it to--
Thomas L. Casey: --Well, the--
David H. Souter: --to mean by the words they use?
Thomas L. Casey: --On its face, that would be the first impression that is given from those words. However, the published opinions of the court of appeals we've cited in our brief reject that, and they say that in an application for leave to appeal, the court of appeals is not adjudicating the merits. My opposing counsel in this case was counsel of record in the Bulger case in the Michigan Supreme Court. He made exactly that same argument. He persuaded the dissent in that opinion, but he did not persuade the majority. They didn't decide the issue precisely, but he has been arguing that ever since. But the... all the precedent that Michigan has on that point we've cited in our brief. Those are not decisions on the merits.
Ruth Bader Ginsburg: Is it true that Michigan is the only State in the Union so far that denies counsel on a first appeal, whether discretionary or mandatory?
Thomas L. Casey: I believe that is incorrect. The plaintiffs have cited a 1987 habeas corpus case that purports to make a national survey. In the Michigan v. Bulger Michigan Supreme Court opinion in footnote 3, they cited a 1992 Arizona study which reached almost an opposite conclusion. They said there were only seven States which give unrestricted right of appeal, and there were 21 States that prohibited appeals--
Ruth Bader Ginsburg: Not... not the right of appeal. The right to counsel, whether it's a mandatory or--
Thomas L. Casey: --It's my understanding that Michigan may be the only State that has a specific statute prohibiting it with exceptions like this, but it's also my understanding that the practice in many other States is that counsel is routinely denied in appeals from guilty pleas. I'd like to reserve my remaining time.
William H. Rehnquist: Very well, Mr. Casey. Mr. Moran, we'll hear from you.
David A. Moran: Mr. Chief Justice, and may it please the Court: In fact, in the 41 years since this Court's decision in Douglas, no State, not one, not even a... a territorial jurisdiction, except for Michigan, has even attempted to deny counsel to any indigents appealing any type of first tier appeal.
Sandra Day O'Connor: Well, Mr. Moran, this is a very important question, whether the Michigan law can survive. But I think before we can address that, we have to decide whether there is standing for the lawyers you represent here today, and that's a much tougher question I think. Is it possible that this Court could grant certiorari in one of the pending petitions and resolve the underlying issue of constitutionality of Michigan's unusual law?
David A. Moran: It is, of course, possible, Justice O'Connor, that this Court could do that.
Sandra Day O'Connor: And if we were to grant you standing here, wouldn't we have sort of expanded our existing holdings on who has standing?
David A. Moran: Not at all, Justice O'Connor. This case fits squarely within the two prior lawyer-client standing cases, the Triplett case in which this Court unanimously found standing for a... for a lawyer representing black lung claimants, and the Caplin & Drysdale case in which this Court found standing for a third party assertion by a firm representing a criminal defendant. And what those three cases have in common and what makes them unique is that this can only arise in a case in which the statute or law being challenged disentitles the client either through loss of funding or through, like Michigan's law, a statute... disentitles the client to representation. Any other change in the law, tort reform brought up by my--
William H. Rehnquist: Well, it doesn't really disentitle the client to representation. It says counsel won't be appointed for him. But presumably these lawyers could have offered their services.
David A. Moran: --Mr. Chief Justice, that wouldn't be practical, and that raises a point that Justice Souter also raised in the argument. It wouldn't be practical for Mr. Fitzgerald or Mr. Vogler to offer their services pro bono to some indigent in this position because to do so would probably... probably be unethical or malpractice. First of all, they can't be appointed. What the statute prohibits is the appointment of counsel like Mr. Fitzgerald and Mr. Vogler. So they... they cannot form an attorney-client relationship by operation of law.
David H. Souter: But isn't the answer that all they have to do is to say, okay, I will represent him but I am representing him with a claim for funds? And at the end of the day, regardless of what the Michigan law says, I'm going to say to the State of Michigan, through the court, pay me for what I did. That isn't a waiver and there's nothing unethical about it.
David A. Moran: But Justice Souter, that's impractical and unethical in this case because if Mr. Fitzgerald and Mr. Vogler were to do that, they would have to represent the indigent on his or her underlying plea and sentencing issues--
David H. Souter: Right.
David A. Moran: --or those would be lost forever--
David H. Souter: Absolutely.
David A. Moran: --because the time would fly. And so if they also represented him on the underlying plea and sentencing issues, then this person would not... then the underlying defendant would not be a person with standing to raise the lack of counsel because in fact they have counsel.
Sandra Day O'Connor: Well, which... which indigent defendants are the attorney plaintiffs asserting claims on behalf of here? Is it past defendants?
David A. Moran: This was... this was... for Mr. Fitzgerald and Mr. Vogler, they were challenging both the prestatutory practice of the three defendant judges.
Sandra Day O'Connor: You're talking about the two individuals, but they've been dismissed.
David A. Moran: No. Mr. Fitzgerald and Mr. Vogler, Justice O'Connor, are the attorneys. They were... they--
Sandra Day O'Connor: Well, I'm trying to find out what indigent criminal defendants are these attorneys attempting to represent here.
David A. Moran: --They routinely take appointments. They are on a list of--
Sandra Day O'Connor: Future defendants?
David A. Moran: --Presently and future defendants.
Sandra Day O'Connor: Past defendants?
David A. Moran: Past defendants. They... they--
Sandra Day O'Connor: Well, if it's past defendants who were convicted and didn't have counsel, how is it consistent with Heck v. Humphrey that they could be here, these attorneys?
David A. Moran: --I think I... I think I misspoke. At the time the statute was passed, it had not gone into effect. This challenge was filed in order to prevent the statute from going into effect, to prevent approximately 2,000 Michigan indigents a year being denied the right to counsel.
Sandra Day O'Connor: Well, are you asserting then that these attorney respondents are here trying to represent future defendants?
David A. Moran: Present and future defendants.
Sandra Day O'Connor: And if it's present defendants, how is that consistent with Younger? How can they do that?
David A. Moran: Well, they're not representing any named defendants. The... the problem is that as the statute goes into effect, they will presumably not receive any further funding for--
Sandra Day O'Connor: Well, if it's future people, how is it consistent with Los Angeles v. Lyons? I mean, I just don't see how these attorney representatives get here.
David A. Moran: --Well, they're in exactly the same position as the bartender in... or the beer vendor in... in Craig v. Boren. They're representing prospective clients, prospective patients as in Singleton v. Wulff again. This Court has over and over again... in fact, in Triplett itself, this Court recognized that... specifically said that in Triplett that it applied to prospective clients, that the... and it said that in Triplett that... it quoted the three factors. And it said that... excuse me. I'm looking at the wrong page. It said in Triplett that a restriction upon the fees a lawyer may charge applied to the lawyer's prospective client of a due process right to obtain legal representation falls squarely within this principle. And that was the principle of third party standing that this Court cited--
Anthony M. Kennedy: Well, of course, in Triplett, the attorneys themselves were subject to discipline. They were raising third party rights in order to defend a proceeding brought against themselves. It seems to me that's distinguishable.
David A. Moran: --That's--
Antonin Scalia: And the same thing in the bar case. The... the restriction against the sale of... of liquor was a restriction imposed upon the person seeking to raise the third party right. But here, there's no restriction that applies to these lawyers who are seeking to raise the third party right.
David A. Moran: --But Justice Scalia, this Court has never held that such a restriction is a condition precedent or required in order for a person to assert third party rights.
Antonin Scalia: That's so, but we've never held what you want us to hold either, that... that when the law does not bear upon you personally, you have the right to raise the claim of a prospective client. We've never held that either.
David A. Moran: Well, in... Singleton is a case in which there was no direct sanction against the doctors who provided Medicaid abortions.
Anthony M. Kennedy: Well, just as... as to Triplett and Boren, you can't cite those two cases and say those are controlling and then say, well, we've never held it.
David A. Moran: I'm sorry. I didn't follow that question, Justice Kennedy.
Anthony M. Kennedy: Well, we've said that Triplett and... and Boren are... are distinguishable, and you said, well, we've never ruled on this point. Well, then Triplett and Boren aren't controlling.
David A. Moran: Well, I think you have ruled on this Court... point by many times recognizing that even persons against whom the statute or law would not directly affect... for example, all the way back to 1925 with Pierce v. Society of Sisters, there was no legal prohibition against the school. The legal prohibition was against the students not going to public school. So 80 years ago this Court recognized that. In a situation analogous to this, the school--
Ruth Bader Ginsburg: It was... a prohibition was on the parents and there were no parents as plaintiffs in that case--
David A. Moran: --That's right.
Ruth Bader Ginsburg: --only the schools.
David A. Moran: That's correct, Justice Ginsburg. It was the school that was... was held to have standing to assert the rights of future and current students, and the same is true of the Singleton case where, again, there was no particular restriction against the doctors. It was simply that they would not get funding.
Ruth Bader Ginsburg: But there was a problem, wasn't there, in Singleton that... that the part that said that the doctors could raise the patients' right as opposed to the doctor's own right to practice or whatever, that that was only a plurality?
David A. Moran: That was a plurality portion of the opinion.
Antonin Scalia: Well, it shouldn't be cited then. You're citing it for something that the Court didn't hold.
David A. Moran: Well, actually we've cited it in our brief only for the article III proposition which this Court unanimously agreed that the doctors had article III standing because there was an economic energy--
Antonin Scalia: You... I thought you were citing it here for the quite different proposition that... that you can raise third party rights.
David A. Moran: --But ultimately this Court in Singleton allowed the doctors' claim on behalf of the patients to proceed. I understand that it was a plurality opinion on the... on the jus tertii standing.
David H. Souter: I... I could accept... I guess I probably would accept your position if I did not think there... there was another equally workable alternative here. And I didn't understand your answer to my earlier question in which you said, if I recall correctly, that it would be unethical for these lawyers to represent a... a future client, subject to a claim to be paid and on behalf both of the client and, I suppose, of themselves, but essentially on behalf of a client, say, there is a right to State money to pay the lawyer who is representing them. It would be, as I understood you to say, unethical for the lawyer to proceed on that basis. And I don't understand the reason for your answer.
David A. Moran: I think I might have misunderstood your question, Justice Souter. The question I understood was why don't they represent people and raise only the entitlement to right to counsel. In the Bulger case, for example, the Michigan Supreme Court--
David H. Souter: Oh, no. I'm assuming they... they represent the client for all purposes and one of the client's claims is, pay my lawyer. I don't have any money. Your statute is unconstitutional. Why cannot the lawyer pursue that claim on behalf of the client and... and raise exactly the issue that is being raised in substance here?
David A. Moran: --If that attempt... if that method were attempted, Mr. Casey would undoubtedly argue that the attorney would not be entitled to any funding because the attorney was never appointed. You can't just go out and find indigents that you would like to represent. You have to be formally appointed.
David H. Souter: Well, except that that's a very formalistic answer. The... the claim, in effect, would be I have a right to be appointed whatever your statute says because... or my... the... the client would say my lawyer... I have a right to appointed counsel, whatever your statute says, with the consequence of payment. So to say, well, they're not appointed, that's the question. Should they be appointed? I don't see why they cannot raise that issue.
David A. Moran: The problem is is that the way the Michigan system works, it works on a strict rotation system, and so there's no... there's no line-jumping here. There's no right for a... a client to... to request a certain attorney, for a certain attorney to go the head of the queue and say I would like to represent that fellow and be--
David H. Souter: Okay, but these... these lawyers are in the rotation. Are you suggesting that the rotation is so enormous that it will be 20 years before they get another client?
David A. Moran: --No, not at all. They--
David H. Souter: Okay.
David A. Moran: --They routinely--
David H. Souter: I mean, your... your claim is that they are going to get clients in the future and they... they ought to have a right to be paid when the time comes. So why doesn't, number one, a lawyer representing the next client, whoever he may be, have a right to raise this, and why doesn't each one of these lawyers have a right to raise it presumably within a reasonable time when they next come up in the rotation?
David A. Moran: --I think it's clear that the Michigan courts would unquestionably hold that a lawyer who simply inserts himself into a relationship without formal court appointment is not entitled to be paid.
David H. Souter: Sure they would, and that's what will get brought to this Court. That's what we're here for.
David A. Moran: But the problem is, Justice Souter, we would then have an issue of Michigan law inserted as to whether--
David H. Souter: No, because the claim is that they have a right under Federal law to an effective procedure whereby paid counsel can be supplied to them. That's a Federal issue, not a State issue.
David A. Moran: --That part is a Federal issue, but what Michigan--
David H. Souter: That's all you've got to get up here.
Antonin Scalia: It's at least an argument.
David H. Souter: It's an argument.
Antonin Scalia: And even if they lose on it, they still will have... would have raised the issue that you are most concerned about getting raised. They're not... they're not so much interested in the so many dollars for this particular representation. Even if they lose on what seems to me at least a close argument, they will have raised the question you're trying to raise today.
David A. Moran: --And they will have to do so without any prospect of being paid, and that's... that's the problem.
Antonin Scalia: Who's paying them for this lawsuit?
David A. Moran: They're not being paid for this lawsuit.
David H. Souter: Right. Exactly the same situation. They can... they can bring the case directly for the client they're representing just as readily as they can bring this one. And if that is true, why is there an impediment to raising the issue unless we recognize third party standing?
David A. Moran: Because Justice Souter, they would have to represent them on all of their issues. They would have to represent them on their plea and sentencing issues without being paid. And that's not what they're doing in this--
David H. Souter: Without being paid if they lose--
David A. Moran: --in this litigation.
David H. Souter: --being paid if they win. In this case, if they win, they don't get a dime because they're not representing a client. All they get is a declaration.
David A. Moran: And--
David H. Souter: And they'd be better off to represent a real client.
Antonin Scalia: That's right. They have a shot at getting paid using this other method.
David A. Moran: --In... in this lawsuit, if we win on the merits, they will then get far more appointments on the rotation system and then they will get paid for those appointments.
David H. Souter: Why will they get more appointments?
David A. Moran: Because--
David H. Souter: I thought you said there's a strict rotation system. When your name comes up, you get an appointment. How is that going to change regardless of how this comes out?
David A. Moran: --Because the statute, which is now in effect... and this goes, by the way, back to the issue of prudential standing--
David H. Souter: Oh, you're just saying there... there's going to be a further class of clients to be represented on the rotation.
David A. Moran: --Correct. Far more.
David H. Souter: Okay, but that's... that's true.
David A. Moran: And... and while this Court considers these issues of prudential standing, thousands of Michigan defendants will be denied the right to counsel--
Stephen G. Breyer: And while this suit is being brought, we can't do the simple thing, which is to take a case from an indigent who's raising it that we happen to have on our docket and face it directly because everybody is tied up in these knots on standing. I mean, what... what is it that... that you... led you to bring this case rather than just filing an amicus brief in a case brought by a real indigent who wants a lawyer?
David A. Moran: --Because there... there was no person in position at the time. The problem was we had to file this litigation before the statute went into effect because once the statute went into effect, thousands of Michigan indigents would be denied the right to counsel every year and would suffer probably irreparable damage to their right to appeal--
Stephen G. Breyer: I see... I see that. That's a good answer. And the... the question I have is if I now, since we have real indigents, believe that there absolutely is a way for a real indigent to raise this claim that isn't even hard, you could file an amicus brief. Suppose I believed that, and I do believe it actually. If I believe it, then does your third party standing claim disappear?
David A. Moran: --No.
Stephen G. Breyer: All right. Now, if it doesn't disappear and I hold in your favor, would I then be opening the door to any lawyer whose pocketbook is hurt by tort reform, by any change at all, you know, that means less money for him, and we'd be besieged with people? Instead of the clients, we'd have all the lawyers in complaining that they want to be richer. Now, that's what's worrying me. So on my assumption, how could I possibly decide in your favor without opening that door?
David A. Moran: Your--
Stephen G. Breyer: That's the question I'd like answered.
David A. Moran: --Your Honor, the only kind of case to which this applies is a case exactly like Triplett, a case exactly like Caplin & Drysdale where the claim is that the underlying change in the law or the underlying law disenfranchises or disentitles the indigent or the criminal defendant or the defendant to representation.
Stephen G. Breyer: Because?
David A. Moran: Because, first of all, if the indigent or the client still has representation, then there is no hindrance to the third party raising it themselves.
Antonin Scalia: Why is that? Why would a change in substantive law--
Stephen G. Breyer: No, no. I assumed there's--
Antonin Scalia: --have the same result? Suppose there's a change in... in the antitrust law and... and the person says this change... this change has the... the effect of... of denying me equal protection of the law. That's the claim that the... that the client would have. But there's a lawyer who says, my goodness, this change will mean there are many... many fewer antitrust suits. I can demonstrate that. That's my specialty, antitrust law. I'm going to lose a lot of business. Why wouldn't he have the right to raise the equal protection claim of the prospective client?
David A. Moran: Because the client could raise it directly, represented by the attorney. And so the third prong in jus tertii standing would be clearly missing in that case.
Stephen G. Breyer: --No. I'm sorry. I... I... Justice Scalia and I were assuming the same thing. If I assume that there's no problem with the real person, the indigent, raising the claim himself... and I'm saying on that assumption, which I believe, then if I were to decide in your favor, how would I not be opening the door that I wanted to keep firmly closed?
David A. Moran: But this Court's precedents indicate, Justice Breyer, that the indigents do have a significant hindrance to filing their claims themselves.
Stephen G. Breyer: Oh, okay. No. I agree with you. If in fact you think that there's a problem about a real indigent bringing a claim in Michigan, although we have two on the docket, if I accepted that premise, I would begin to think you were right. So then what I was trying to explore is whether the whole thing comes down to whether I accept that premise. And of course, that's what's everybody has been talking about, and I do see at the moment a couple of very good ways that indigents can bring it themselves, and indeed they have.
David A. Moran: But I think--
Stephen G. Breyer: But everything comes down to that. Right?
David A. Moran: --I think an answer I need to give to... to cut through all of this is that third party standing is never predicated on the impossible. Third party standing is never predicated on the idea that third party standing is appropriate only if it is impossible for some indigent to make it into court or some third party or the person whose rights are being violated to make it into court. All that must be shown from this Court's precedents is a hindrance. So this Court did not require in Craig v. Boren that it was impossible that some young man could get his claim in front of the court.
Ruth Bader Ginsburg: It was altogether possible there had been a young man. The problem was he turned 21. So the case would... from his point of view was moot.
David A. Moran: Right, but this Court never suggested that it was... showing that it was impossible for someone to quickly get his claim before the court was--
Stephen G. Breyer: I think I agree with you on that. I'm just... the reason I think it's so easy is because we get indigents. We get thousands of them. And all you have to have is some indigent saying, hey, I want a lawyer. Okay? That's all. He has to be able to write those words. And at that point, you and the others come in with amicus briefs, if necessary, and support him.
David A. Moran: --Well, the problem is is that in the meantime thousands of Michigan indigents are going to be denied counsel.
Ruth Bader Ginsburg: May I ask you a practical question about what is currently before the Court? Mr. Casey I think told us that the Halbert case is on for the October 8th conference. If we should grant cert in either of those direct from the Michigan Supreme Court... Michigan Supreme Court following Bulger, so you always leave before then. If we should grant in either of those cases, wouldn't the wise thing be to simply hold this case till those are decided?
David A. Moran: That may well be a wise course of action... action, Justice Ginsburg. I should point out that Mr. Casey, when he filed the response to the Bulger cert petition, brought this Court's attention to the fact that this underlying litigation was proceeding in a case that was then called Tesmer v. Granholm. And so he brought to this Court's attention that we had already prevailed in Federal district court in Tesmer v. Granholm as a suggestion as to why this Court did not need to grant cert in the Bulger case, and so this Court did not grant cert I don't know, of course... I don't know why this Court did not grant cert in Bulger.
Ruth Bader Ginsburg: But he said now he's not taking that position in the Halbert case.
David A. Moran: But I can be confident that if there are any procedural hurdles to this Court's exercise of jurisdiction in any of the State cases, Mr. Casey will alert this Court of them. And there may well be. For example, in the Melody Harris case, the Michigan Supreme Court remanded for further... remanded for her to then file an application for leave to appeal on her underlying plea and sentencing issues without the assistance of counsel. Was the Michigan Supreme Court's order a final order? I don't know. This Court would obviously have to resolve that. But I can be confident that Mr. Casey will certainly bring up any procedural hurdles. And of course, this Court cannot exercise jurisdiction it does not have in a case just because it would be more convenient to do so. This Court does have jurisdiction in this case. The petitioners never challenged prudential standing at any point in this litigation... they... they challenged only article III standing, injury in fact... until this Court. And so part of the reason we don't have a better record is because this came on a motion to dismiss. This Court recognized in Lujan that a motion to dismiss is different than a summary judgment, requires a... a different procedural posture. It requires the assumption of facts being true.
Antonin Scalia: But... but no facts... no additional facts would... would affect the central point that... that we've been devoting most of this discussion to, which is whether there is an impediment or not to... to the... the actual individuals whose rights your clients are asserting raising their own rights. No additional facts bear upon that it seems to me.
David A. Moran: I agree with you on that, Justice Scalia.
John Paul Stevens: Then what case holds that there must be an impediment for the third party? I keep coming back to Craig against Boren. They could have filed another class action and say that they filed a class action and had standing. Would we have suddenly decided we won't decide the merits even though it's been argued and both sides have had their day in court?
David A. Moran: I agree with you, Justice Stevens.
John Paul Stevens: What is the source of the requirement there must be an impediment to the third party suit?
David A. Moran: Well, this Court has said so many times, and Powers v. Ohio, for example, noted the impediment to the--
John Paul Stevens: That... where they granted standing.
David A. Moran: --That's right.
John Paul Stevens: Have they ever denied standing on the ground that there was no impediment to the third party suit? I don't think we have.
David A. Moran: I don't believe in all of the cases that both parties cited that there are any cases in which this Court has said that there was no impediment to the third party. It is... it is certainly not the standard--
William H. Rehnquist: Well, do you think that was just idle observation then?
David A. Moran: --Not at all, Mr. Chief Justice. I didn't mean to be light about that.
John Paul Stevens: It doesn't have to be idle to be dicta, though, does it?
David A. Moran: There... we... we fully concede there need to be an impediment, but what it does not require is the showing that it is impossible for someone to get here. What is a showing is that for most... for the average person in the class, just like the average grand juror in Campbell v. Louisiana, or the average venire person in Powers v. Ohio, there are impediments to getting here.
John Paul Stevens: Do you fully concede there must be an impediment even though the Court has never so held?
David A. Moran: I'm willing to concede that because it is so clear to me that there is, that there is an impediment that trying to get into Federal court, trying to get here, for that matter, trying to get into Federal district court... for an indigent, a typical person who is very likely... someone like Mr. Carter, functionally illiterate, poorly educated, completely unaware of his rights, to try and navigate the... the procedural hurdles of the Michigan system to get all the way through the Michigan system and then into Federal court, that is a daunting hurdle. And that's Evitts v. Lucey. This Court has recognized time and time again in... in plea cases, Roe v.... Roe v. Flores-Ortega. This Court has recognized time and time again in Peguero that even in a plea case a typical indigent is completely incapable of getting his or her case held... heard, especially if you have to go through multiple layers of appeal without a counsel for the first tier. And that is the problem here. On the merits, I certainly would like to correct Mr. Casey's representations about the... the nature of the Michigan system. The... a properly filed application for leave to appeal is invariably denied for lack of merit in the grounds presented. I certainly urge this Court to look at each and every one of the cases that Mr. Casey has cited for the proposition that that is not a determination on the merits because not one of them says that. Not one of them specifically says that a order denying leave for lack of merit on the grounds presented is not a decision on the merits.
Anthony M. Kennedy: Could... could you give me an example, just from your experience in practice, where there's an important issue raised after a guilty plea that requires an appeal where it's not one of the statutory exceptions?
David A. Moran: Many, many.
Anthony M. Kennedy: Most... what are... what are those cases?
David A. Moran: Improper denial of jail credit, making... improper denial of jail credit.
Anthony M. Kennedy: That's not sentencing?
David A. Moran: That is a sentencing error.
Anthony M. Kennedy: Okay, but that's covered by the statute.
David A. Moran: No, it's not. The statute... the only exceptions in the statute are for guidelines departures--
Anthony M. Kennedy: Okay.
David A. Moran: --and for... and then if the indigent gets the appeal granted, but that's putting... that's after the indigent has had to file an application identifying his or her own issues without any assistance of counsel. Double jeopardy issues. Double jeopardy issues arise in Michigan all the time; whether sentences should be consecutive or concurrent; whether there's been a breach of the plea bargain. All of these issues arise in Michigan courts every day, and while we are--
Anthony M. Kennedy: Are there instances where Michigan has denied the right to appeal when those claims are raised?
David A. Moran: --The problem, Your Honor, is that an indigent can't raise... a typical indigent would be completely incapable of identifying this... these sorts of issues.
Antonin Scalia: His counsel will have raised them. And... and most, if not all, of those have to have been raised by counsel.
David A. Moran: Your Honor, Michigan requires that ineffective assistance of counsel claims be raised on direct appeal. So if counsel has not raised the issue, then the indigent would have to recognize that by... by himself, and then raise that issue, the ineffective assistance of counsel, on direct appeal. Further, even if counsel has recognized it, what we typically would have would be an oral objection at a sentencing hearing. For example, Your Honor, I think these sentences should be concurrent, and the judge says, no, I'm going to make them consecutive. That's an oral objection. The indigent will have to be able to get the transcripts, get the register of actions, get all the necessary documents, realize that that's a winning issue, that it does not put him at additional risk. That's another factor. One of the... one of the points that a counsel can help with is tell an indigent, you don't want to take this appeal because success may result in revocation of the plea bargain and an additional risk... will have to realize that this is in my best interest to go ahead with this appeal. This is my issue. Find the cases, find the controlling authority. And even issues as complex as a Blakely issue, which this Court, of course, will be dealing with this afternoon, that is an open issue of Michigan law right now. Is... are the Michigan sentencing guidelines unconstitutional or at least the application of them as a result of this Court's decision in Blakely? Right now, as a result of the order in Melody Harris, a typical Michigan indigent will have to raise that complex issue of Sixth Amendment law by herself or by himself, and that's simply an impossible burden, or the issue will be lost forever. And that is... that is a burden that no indigent can meet. And so I would hope that this Court would not get hung up on the standing issue because this issue is so important right now, as a result of the Michigan Supreme Court's order. Right now these issues are happening and right now Michigan indigents are being denied the assistance of counsel. Unique in the Nation. And so this case has been adversely argued. That's the point of prudential standing. The petitioners waived the prudential standing issues below. They challenged only article III standing. And so there is every reason for this Court not to wait for a perfect case that may never come.
Ruth Bader Ginsburg: Are you familiar with the Halbert case? You mentioned that there might be a finality problem in Harris.
David A. Moran: I'm not familiar with that case, Your Honor. I just became aware of it by letter a few days ago and I have not had a chance to find out anything more about it. I have not seen the cert petition in that case. I'm not aware of the underlying... excuse me... the underlying order from the Michigan courts in that case. But there may never be a perfect case, but this case is adverse and that meets all the... all the requirements for prudential standing. Article III standing is clearly met in this case, and I hope this Court will affirm the decision of the Sixth Circuit. If this Court has no further questions.
William H. Rehnquist: Thank you, Mr. Moran. Mr. Casey, you have 3 minutes left.
Anthony M. Kennedy: Did you waive the objection to prudential standing--
Thomas L. Casey: We did not waive any of the standing claims in this case. We've discussed that in our reply brief. I've cited pages of the briefs where these issues were discussed. And the overriding fact is that the district court, the three-judge panel in the court of appeals, and the en banc Sixth Circuit all decided these issues. They have been properly raised and preserved and they're before the Court.
Ruth Bader Ginsburg: Did you file a brief in opposition in Halbert?
Thomas L. Casey: Yes, I did. I filed that about a month ago.
Ruth Bader Ginsburg: And does that have any procedural impediments?
Thomas L. Casey: Not to my knowledge. That individual was convicted in pleas, asked for counsel citing the Federal litigation in this Kowalski v. Tesmer case. It was denied. He filed a pro se application for leave to appeal challenging the denial of counsel and raising his sentencing issues--
Ruth Bader Ginsburg: So what was the basis for your opposition to cert?
Thomas L. Casey: --That the Court need not grant cert in that case because the issue is pending in this case. If... if this case goes away, then I suspect we will agree that that would be an appropriate vehicle to decide the constitutional issue. As long as this case is pending in which the issue is raised, I suggested that the Court need not grant cert in that case to decide the issue. If the issue is not going to be decided in this case, then that would be an appropriate vehicle to raise and decide the issue. On the standing point, if the plaintiffs here are given standing, it would be a significant expansion of this Court's standing doctrine. This Court has never found third party standing when a litigant is not directly affected by a statute and there is no close existing relationship with the third party and there is no hindrance. We've discussed many cases in which some of these factors are present and others are distinguishing factors. This... this case is, in some respects, unlike all of them. There would be a significant expansion of the doctrine. On the merits of the issue, a constitutional right to appointed counsel, under the Michigan system, please read the cases I've cited in my brief, particularly the Bobenal decision, which I've cited in my principal brief. In a footnote in my brief, I quote the orders that the court of appeals was considering. They have the same language that is at issue here. Controlling Michigan precedent says that applications for leave to appeal are not decisions on the merits. All an inmate has to do is identify the issues. That can be done. It has been done, as seen by the two pending petitions for cert.. If the Court has no further questions.
William H. Rehnquist: Thank you, Mr. Casey. The case is submitted.


Earl Warren: Number 440, United States, Petitioner, versus Utah Construction and Mining Company. Mr. Jaffe.
Irving Jaffe: Mr. Chief Justice, may it please the Court. This case involves primarily two issues. One deals with the scope of the disputes clause and that is whether or not that clause requires submission of all disputes concerning questions of fact to agency determination. We believe that that issue was not covered in the Bianchi decision. The second issue presented by this case is whether fact determinations concededly made by an agency under the disputes clause and concededly final under the Wunderlich Act, a binding on the parties and on the courts for all purposes or may the same facts be tried and determined de novo by the Court if deemed relevant to a breach of contract action allegedly outside the scope of the disputes clause. We believe that that issue has been decided by the Bianchi decision of this Court. The facts of this case are pertinent only to the extent that they illustrate the legal arguments that will be made. Suffice it to say that this case concerned a contract which was entered into in 1953 for the construction of an aircraft nuclear reactor project in the State of Idaho. During the course of performance of this contract, several disputes arose, many of them were -- well, and they were submitted to the agency for determination, some were favorably acted upon, some unfavorably. Four of these disputes, all of which had been submitted to the agency before are in -- present in this Court. Each of those claims are presented in the same manner as they were presented administratively. Two -- three of them at least include damages for delays. The fourth one was not conceded by the Board because it was deemed to be untimely. That too was a claim for damages for delays. There is added in the petition however, an overall claim for delays damages allegedly resulting from the interaction of each of these four specific matters. Now, if we look at the disputes clause itself, we find that its language is apparently clear. The pertinent phrase of that clause says, “All disputes concerning questions of fact arising under this contract shall be decided by the contracting officer.”
Tom C. Clark: Where is that, do you have it in the record?
Irving Jaffe: We have that on page 3 of our brief or page 4 -- just a moment. It appears on page 6 of our brief, excuse me, on page 6 of our brief, subject to appeal and the decision shall be final. The Court of Claims however, in construing the phrase arising under the contract reads that clause as though it read all disputes concerning questions of fact arising under other clauses of this contract in which the granting of relief is specifically authorized shall be decided by the contracting officer, etcetera. I might also point out that the clause itself begins with the words except as otherwise specifically provided in this contract, all disputes shall be decided by the contracting officer. The Court seemingly says, “Only as otherwise specified in this contract shall the contracting officer be authorized to decide disputes.” We believe as a practical matter, certainly, the disputes clause ought to read in a manner in which the word says, that is all disputes arising under the contract. This clause is the only one, as you will notice, which requires that the contracting -- the contractor shall proceed diligently with the work during the resolution of the dispute and until it is resolved. If -- as the Court of Claims contends, there are some disputes that are outside the scope of the disputes clause, there is no provision on the contract that would require the work to continue while the dispute was resolved. Conceivably, the contractor did say, that this dispute between me and you Mr. Contracting Officer is outside the scope of the disputes clause. It's going to be costly for me to continue as you direct and since it's outside the clause, I'm going to stop working, go to court and find out which of us is right. Now, the fact is that that has never been done, which I consider or at least I have no knowledge that it has been done. And I consider that a factor to show that the contractors themselves had never construed this clause as being limited only to certain types of disputes. But there's another reason --
Byron R. White: Are you suggesting that Judge Davis below said that the -- there was a – historically, quite a limitation on this --
Irving Jaffe: Your Honor, if your --
Byron R. White: -- that the factual disputes -- there's simply factual disputes underlying breach claims for example, just automatically wouldn't be found -- wouldn't be decided by the contracting officer --
Irving Jaffe: If your --
Byron R. White: He said it was just too late to -- for the Government to contend this, I gather you disagree with that.
Irving Jaffe: Mr. Justice White, I do. I disagree with that and I think that I will be able to show or I think I could demonstrate now that the historical treatment of the disputes clause has not created such a firmly rooted or firmly entrenched judicial or administrative course of conduct which would in any way foreclose this Court from examining --
Byron R. White: Except -- except in the Court of Claims?
Irving Jaffe: Well, that is one of the reasons. The District Courts and the federal courts have not so construed the clauses (Voice Overlap) --
Byron R. White: Which the only -- which is about the only court that has anything to do with it.
Irving Jaffe: Well, the District Courts have concurrent jurisdiction under $10,000 and while they don't have anywhere near the same number of cases or those involving as large amount of money. They do have these cases with some degree of (Voice Overlap) --
Byron R. White: You're not suggesting the Court of Claims has ever held – held the disputes suppose to have that -- the scope you suggest?
Irving Jaffe: Oh no, I don't suggest that the Court of Claims hasn't -- has done that. I do suggest however that when the Court of Claims treated with this subject, they were treating with it under misconceptions of the law and in two circumstances the rationale that they used was rejected by this Court. In other words, we do not have an ancient practice. I think that we will show that the Bianchi decision itself is the first reason for the Court to focus on the arising under because prior to the Bianchi decision, the Court of Claims tried all cases de novo whether it was a breach of contract claim or whether it was an arising under claim as they conceive that clause. So I believe that until the Bianchi decision, which is only approximately three years ago, we cannot look at the practice that that was engaged in then as foreclosing any further examination of this subject.
Byron R. White: You are going to talk about what's the administrative fact?
Irving Jaffe: Yes I shall. If you like, I will discuss it now.
Byron R. White: I just wondered -- I gather you say that the -- contracting officers have not regularly rejected breach of contract claims as (Voice Overlap) --
Irving Jaffe: Only --
Byron R. White: -- outside the clause or is --
Irving Jaffe: There is only --
Byron R. White: -- not within their work?
Irving Jaffe: Only in the sense that it might have been characterized as a pure breach of contract. Actually, most breach of contract claims as the Court of Claims would define it, have been submitted by contractors to the contracting officers and to the Board. They have always determined as they did in this case and as you thought it in this case, submitted -- delays damages claims to the contracting officer --
Byron R. White: That was in other clauses of the contract.
Irving Jaffe: Pardon?
Byron R. White: That's under other clauses of the contract.
Irving Jaffe: Well, the Court of Claims says they are not.
Byron R. White: Well, I know but --
Irving Jaffe: The Court --
Byron R. White: The submission Utah made in this case was under other clauses, was it not?
Irving Jaffe: Well, if Your Honor please, they submitted three claims, the Pier Drilling claim, for example, asked for excess cost in the sum of $17,000 and damages due to the delays (Inaudible) by the problems in the Pier Drilling, for going into the winter months for $83,000. Now in the Court of Claims, they asked for the same $17,000 and instead of asking for $83,413.46, they asked for $183,413.46. They merely put a “1” before it.In the concrete aggregate claim, they claimed and were paid for the extra sand, the extra materials, general supervision and a margin for profit. That's not in either place. Administratively, that claim was allowed. They then asked for a $109,000 some odd dollars for the increase cost caused by the delays. Now, all of those claims that is except for the concrete which was held untimely, all of those claims, the Board of Contract Appeal said, “Our jurisdiction is clear.” Now if this is going to be a situation of a label, then I will admit that the Boards, if a contractor said this is a pure breach of contract or a pure breach of warranty, have said this is outside the scope of our jurisdiction. But if they had to determine the facts if they called it increased cost because of delays are being thrown into the wintered months, the Boards have always determined that very kind and type of fact as they did in the Utah case here. Now the -- besides of which, the Administrative Boards whenever they did say that, we refer to one place in our brief where the Armed Services Board of Contract Appeals in discussing the -- in refusing to hear what they considered a breach claim in the Simmel-Industrie case said, decisions by the Court of Claims have stated that it was not bound by findings of fact made by this Board in appeals involving breach of contract claims. We cannot in good conscience compel the parties to undertake the great expense involved in presenting this matter before us when it must be admitted, then our decision or findings of fact may be of no avail to either party. I submit that the Board -- of Boards of Contract Appeals have sometimes declined to entertain what they recognized as a breach of contract claim because it would serve no purpose. The Court of Claims would try it all over again, they wanted to comply with the decisions of the Court of Claims. In many instances, they thought they were complying with this Court's decisions in the Rice case and the Crook case where this Court said that the delayed damages clause which appears as a standard clause in most contract did not authorize the Government, not the Board but even the courts to grant any damages for delay because that clause merely provided as an equitable adjustment and extension of time and a remission or non-imposition of the liquidated damages stipulated in the contract. The Boards have frequently said, “You are asking for delay damages, and under the Rice doctrine or the Crook case, we can't give you any and nobody else can.So therefore, we won't hear it.” So, I do not believe that there was any firmly established judicial or administrative course of conduct which would not allow this clause in the contract to be read now as the Government contends, it speaks plainly and as it should be read. As a matter of fact, the words arising under is not peculiar or unique in this contract. The words arising under are used as a base for federal jurisdiction for example, District Court jurisdiction, when you talk about a case arising under a federal law. Now that has been construed to be satisfied if rights or obligations are created or controlled by a federal law and then if one comes into court to either establish the -- those rights or to complain of a violation of those rights or obligations the federal court has jurisdiction. I see no reason why the clause in the disputes clause should be read any differently. The contract governs the rights and the obligations of the parties and if there was a violation of those rights or if there was a need to enforce one of those rights, there is no warrant for saying that that is not a matter which arises under the contract in the same manner that any right or obligation arising under a federal law for jurisdictional purposes isn't equally affected.
Abe Fortas: Is this phrase in the disputes clause -- or you -- concerning all disputes -- concerning questions of fact, are all of these questions of fact that are involved here -- are there some questions of law?
Irving Jaffe: If Your Honor please, there are questions of fact -- many questions of fact that have been decided in the case before us --
Abe Fortas: Yes.
Irving Jaffe: -- by the Board. There may very well be other facts which may have to be decided which have not yet been decided.
Abe Fortas: Well, (Voice Overlap) yes, my question is the other one (Voice Overlap) --
Irving Jaffe: Now if there are questions of law --
Abe Fortas: Yes.
Irving Jaffe: -- the Boards of course will decide those questions of law. The courts however are not bound by the decision on the question of law, there's no finality.
Abe Fortas: Well, I understand that sir, but if this is looked on as a -- some extension or a contractual matter, does this clause which is different from here -- is in fact different from the one in the preceding case we had before us?
Irving Jaffe: Yes.
Abe Fortas: Does this clause make any difference in your view with respect to the result we ought to reach?
Irving Jaffe: No.
Abe Fortas: -- because it seems it confine jurisdiction of the contracting officer who disputes the concerning questions of fact.
Irving Jaffe: Oh well, let me – let me answer that this way.
Abe Fortas: You've been talking about disputes arising under the contract --
Irving Jaffe: Well, I'm speaking -- I should be speaking (Voice Overlap) --
Abe Fortas: Phrase here.
Irving Jaffe: I should be speaking about disputes concerning questions of fact. The only reason that that now says disputes concerning questions of fact whereas sometimes the clause says disputes concerning questions and in former days they said before the Wunderlich Act, it's more frequently said all disputes concerning -- all disputes arising under this contract with the passage of the Wunderlich Act, the dropping of anything or the use of the word fact was merely intended to show that a decision on a question of law would not be final because this disputes clause is itself a finality clause as much as it is a jurisdictional clause. So that when -- and the Court of Claims incidentally -- we're not at odds with the Court of Claims on the question of law. In Morrison-Knudsen, a case -- a decision which they handed down on exactly the same day they handed down the Grace case. The Court of Claims there said that it would not determine whether or not to try cases de novo on the law of fact dichotomy. They recognized that if there was a clause, they still construed this arising under the same way, that if there was another clause of the contract which authorize the examination of facts and the determination of facts by the Board, then they would not grant the trial de novo and would accept those facts as found even though it underlay primarily a question of law. So the Court of Claims itself does not make the law of fact dichotomy, a basis for determination of facts either by the Court or by the agency. So we have -- we don't have that quarrel even with the Court. I think it must readily be understood that no relief could be granted by anyone even under the changes article which no one disputes. Merely upon the finding of facts, the granting of relief, however elementary it may be, involves the application of some legal principle to those facts in order to say, "You are entitled to so many dollars." So that they must -- everyone must who's granting relief, apply legal principles and determine them. Now, there is a second point involved in this case which is embodied in the dissenting opinion of Mr. -- of Judge Davis of the Court of Claims. That point concerns the finding of facts properly found in the court -- under the Court of Claims interpretation of the arising under clause, in connection with relief which the Board might have -- might have granted. The Court now says however that when those same facts have to do with their so-called breach of contract claim that it will determine those facts de novo and they will not be bound by the facts as found by the Board. Judge Davis dissents on the ground that he feels that that -- the disputes clause, the Wunderlich Act and the decision of this Court will be argued, have already declared that any facts properly so found are binding for all purposes. That seems to me to be demonstrable very readily. In the disputes clause, it says -- and speaking of the finality aspect of the clause, it says, “Whose decision shall be final and conclusive upon the parties thereto.” In other words, the facts found by him which withstand the test of the Wunderlich Act and in the -- this case, they do withstand the test of the Wunderlich Act or at least they assume it for the purposes of their decision. If finding on the parties that at a certain fact that now exist, which the parties must accept, they cannot come in as they do in this case and say that the delays which the Government found for 60 days let us say, are no longer 60 days for any purpose but an extension of time and the fact that I can't be assessed for any liquidated damages for that 60-day period. We now come into the Court as the majority opinion illustrates and says, "We now claim that the delay was 120 days. And of that a 120 days, we believe that a 105 were unreasonable delays caused by the Government and therefore, we want damages for that period of time." The dissenting opinion of Judge Davis said that the period of delays found by the Board were necessary for them in order to determine whether they give an extension of time. And in considering those things, the delays damages article, Article 9 which appears in our brief on page 4, beginning on page 4, makes -- delegates the contracting officer the job of finding out the courses and the facts of delay and makes those final. Now are they final only for the period of time that the contract may be extended or to the period of time during which liquidated damages will not be assessed, or does it actually find that this is the period of delay. It includes delays caused by the Government. May the Court now say, “Well, the contracting officer found that the Government only caused 60-days delay.” But now that he is suing for damages for that delay, we can find that it was a 120 days, and try all the facts all over again. Neither the contract nor the Wunderlich Act which doesn't speak about final or limited purposes, or final only for the purpose for which they acted, it is final and is final for all purposes, we think that is self-evident. One other thing that I would like to emphasize is that this Court has ruled that this arrangement, this contract between the parties, that the fact finders, the triers of the fact shall be one party to the agreement is a valid, binding, and enforceable agreement. Now, we ask this Court to find and determine that the disputes clause here without restriction makes the agency, to trier of all questions, all disputed questions concerning a question of fact in the disputes clause which we urge stands on its own feet, not related to any other clause in the contract. We say that that clause makes the Government agency the trier of all the facts that may arise concerning a question under this contract. And if the dispute is bottomed upon this contract, if they must plead this contract in order to be successful in the course of action, then it is a course of action or it is a claim or a dispute arising under the contract and any question concerning that dispute must be tried by the agency. And, the only thing that would happen if the agency did not -- either because it was -- it mistakenly believed it had no jurisdiction, if as this Court said in Bianchi, if the record is insufficient, if it's defective, if more facts are needed, then the trier of the fact, the agency, tries them and it goes back either by suspension or remand, the semantics are unimportant. I would like to reserve my remaining time. Thank you.
Earl Warren: Mr. Johnson, would you like to start your argument now or wait till morning, you may do just as you please. You're almost in adjournment time.
Gardiner Johnson: Yes, Your Honor. Mr. Chief Justice, I think about all I would have time to say this afternoon would be that I dissent.
Earl Warren: Very well, you can do that in extension in the morning.
Gardiner Johnson: Thank you Your Honor.