Earl Warren: W. W. Neese, Administrator of the Estate of William Neese, Deceased, versus Southern Railway Company. Mr. Hammer.
Henry Hammer: May it please Your Honors. This case is here on a writ of certiorari granted by this Court to review the decision of the court below. The United States Court of Appeals for the Fourth Circuit, which reversed a judgment of the District Court solely as -- as to the factual issue of damages assessed by a jury, as reduced by the trial judge and remanded the case to the District Court for a new trial confined to this issue. The questions presented herein are important questions of law pertaining to federal appellate review, which are first does a federal appellate court have the power to review the inadequacy or excessiveness of a jury verdict in an action brought under the Federal Employers' Liability Act where the damages are unliquidated, and not ascertainable with mathematical certainty. Secondly, as an order of the District Judge refusing to grant a new trial pursuant to which a plaintiff remits a portion of the verdict subject to review by a federal appellate court. And we submit if the Court please, that before going questions include as fairly comprised therein in accordance with Rule 41 (d) (1) of the rules of this Court. The subsidiary question of whether the United States Court of Appeals for the Fourth Circuit in the instant case committed error in reviewing the factual issue of damages found by a jury as reduced by the trial judge, whether damages were unliquidated, not ascertainable with mathematical certainty and rested upon in absolute elements and where the petitioner pursuant to the order of the District Judge refusing a new trial remitted a portion of the verdict. The facts in this case briefly are these, the petitioner, as the administrator of the estate -- of his deceased son, William Neese, brought this action in the District Court of the United States for Eastern District of South Carolina under the Federal Employers' Liability Act to recover damages against the respondent company for his negligence in having provide petitioners interstate, son, age 22 years, a safe place to work as the result of which he was struck and killed by a train of the respondent Railroad Company, while engaged in its employee as a car inspector at its yards in Columbia, South Carolina. The case was tried before the District Judge and a jury and resulted in a jury verdict in favor of the petitioner for the benefit of the parents, of the deceased son, who are the beneficiaries under the Federal Employers' Liability Act, in the sum of $60,000. The damages assessed by the jury, as reduced by the trial judge, which under the Act is compensation for loss of reasonably expected pecuniary benefits, which will have resulted to the parents from the continued life of the deceased son and which damages were unliquidated and not ascertainable with mathematical certainty was supported by the record evidence of the earning capacity of the deceased, his habits or clear this and tendencies to provide for the support and maintenance of his parents, the amounts that the parents would have require for their support and maintenance, which amounts together with the son's services on the basis of his past (Inaudible) conduct, the parents could have reasonably expected from him as he not met his untimely death. After the entry of judgment on the verdict, the respondent company filed a motion for judgment, non obstante veredicto or the alternative for a new trial. The District Judge refused the motion for judgment non obstante veredicto and having found that the damages were excessive but not the result of passion, prejudice or caprice and also refused to grant a new trial condition, however, upon the petitioner remitting $10,000 of the verdict. This, the petitioner's dad and accordingly judgment for the reduced amount of $50,000 was duly entered. Thereupon, the respondent company appealed to the court below, which on appeal affirmed as to the issue of liability, but after having to review the way and appraise the evidence as to the factual issue of damages upon which fair-minded men could disagree and reach different conclusions, the court below in its opinion concluded that the damage were excessive and not supported by the record and consequently reversed as to this -- as to the issue of damages and remanded the case for a new trial confined to this issue. Adverting, if the Court please, to the questions presented for the determination of the Court, it is our contention that the United States Court of Appeals for the Fourth Circuit, in the instant case committed clear error in reviewing the factual issue of damages assessed by the jury, as reduced by the trial judge where the damages herein were unliquidated and rested upon in absolute elements and where the petitioner, pursuant to the order of the District Judge remitted a portion of the verdict. We rest our contention, if Your Honors please, upon a well settled principles of law. A principle of law firmly established by a long and non-broken line of decisions of this Court to the effect that a federal appellate court will not review the action of a trial judge in refusing or granting a new trial. And this rule is applicable where the ground of the motion for a new trial is that the damages awarded by the jury were inadequate or accepted.
Felix Frankfurter: Wasn't this very question left open the last time the case was here?
Henry Hammer: In my opinion, I do not believe the question was reserved.
Felix Frankfurter: So wasn't it in Fairmount Glass?
Henry Hammer: In the Fairmount case, Mr. Justice Brandeis who wrote the opinion of the Court simply said they were not presented with the question as to whether they can review for abuse of discretion, the refusal of a trial judge to grant damages where the jury does not award substantial damages.
Felix Frankfurter: That's what I mean by leaving it opened.
Henry Hammer: To that extent, I agree with Your Honor, sir.
Felix Frankfurter: What difference does it make? Was there (Inaudible)
Henry Hammer: But I say this, Mr. Justice Frankfurter, if we read the full import of the decision and the language of Mr. Justice Brandeis, we find that he said and clear in an unmistakable language this that the mere refusal of a trial judge to grant a new trial where the jury awards normal damages is clearly not abuse of discretion. And he --
Felix Frankfurter: In that -- in that case under the circumstances of that record which is a very different thing in a general (Inaudible) In that case that he (Inaudible) and the reason for doing it in the relation of dissent that the question was (Inaudible) and abuse of discretion can be claimed that they do for appellate review where they -- whether -- whether they complete this harmony between what the record show that the damages were (Inaudible), then he found can be an abuse of discretion (Inaudible) question of law and therefore reviewed. I'm not saying -- I'm not saying he gave any light of what he thought. Well, I have my own discretion reading between the lines. That's what I'd say if it's explicitly left opened and when you got that question in front of you, I don't think it helps and support much what you told in that decision of the foreclosure.
Speaker: Mr. --
Henry Hammer: I -- yes, sir.
Speaker: Mr. Hammer, if instead of a verdict of $50,000 here, the verdict was $150,000. Would your position be just the same?
Henry Hammer: You -- Your Honor presents the most difficult question, but I think I will answer it in this fashion that rather than to tear down the benefits of the safeguards of a jury system provided in the Constitution, it would be far better in an isolated case to commit a mistake on the part of the jury. And we must remember that the safeguards of controlling the verdict of a jury which is excessive is placed in the District Judges. And we must rely upon them for safeguarding the jury verdict or appraising the jury verdicts. And as Mr. Justice Brandeis said, we must be slow to impute the juries, a disregard of that duty and to trial judges, a lack of diligence in appraising the conduct of the jury.
Felix Frankfurter: That -- that's your case. That's the case you're arguing but not what this Court is foreclosing.
Henry Hammer: I say this --
Felix Frankfurter: You're making the argument not I. (Inaudible)
Henry Hammer: I say this when we were adverting the question, Your Honor, posed to me Mr. Justice Frankfurter. When we refer to the language of Mr. Justice Brandeis, he said in this in the Fairmount case. He said that this Court has frequently refused to disturb a trial judge -- the judge's approval of a jury verdict, which seemed excessive or inadequate. And he cited among other cases, the cases -- the case of Southern Railway Carolina Division versus Bennett, a case in which the facts were less stronger.
Felix Frankfurter: Refusing to disturb and saying you have that power is the difference between an active proposition and a live exercise to have a jurisdiction.
Henry Hammer: If we follow the argument of respondent and proceeding with reference to the question Your Honor posed me, if we permit an appellate court to exercise discretionary power over the power vested in the trial judge by the common law, the effect would be to nullify completely the discretion vested in the trial judge by the common law and would in fact be place in the arbitrary power in the appellate court. And as Mr. Justice Clark said in Knauff versus Shaughnessy, that the word discretion means anything, it means that it must be exercised by the recipient of the power according to his own understanding and conscience.
Felix Frankfurter: But discretion doesn't usually mean you can go back in the judges that they could do what they please.
Henry Hammer: Exactly.
Felix Frankfurter: That is not the definition of judicial discretion.
Henry Hammer: I'm not -- I'm mindful, if Your Honor please, of what this Court said in Langnus v. Green that they cannot exercise an arbitrary discretion, that they must exercise a sound discretion in accordance with what is just, right and inequitable, but it must be directed by their own conscience and judgment to a just result, not the conscience and judgment of someone else or the Court of Appeals because that in effect would completely nullify the discretion vested in the trial judge by the common law and will open the doors to a parade of litigants to the federal appellate courts, the ultimate result which would be that in every case where the trial judges' discretion was involved, we -- this Court would be flooded with petitions for writs of certiorari.
Felix Frankfurter: What do you mean by the common law in this -- in this conflict?
Henry Hammer: Common law with reference to review of the findings of a jury is the law, which was in existence at the time of the adoption of the Seventh Amendment. At that time, if the Court please, the -- there was known three cause, as the Court of King's Bench, Exchequer and Common Pleas, which were composed of trial judges traveling from one Circuit to another. And when the motions for a new trial came up, they were addressed to the entire Court sitting en banc as a whole and they were not appellate courts. They were the same courts. They were not different courts sitting as an appellate court. And this Court was careful to point out that if in Metropolitan versus Moore cited in our brief, with reference to the practice, which existed in the District of Columbia, where motions for new trial were addressed to the Court en banc, this Court was careful to point out that the Court en banc was not an appellate court. And that if it did said as an appellate court, it would likely be unconstitutional for -- to have motion for a new trial in view of the expressed prohibition of the Seventh Amendment of the United States Constitution which provides that no fact, tried by a jury shall be otherwise reexamined in any court of the United States and according to the rules of the common law.
Felix Frankfurter: And the common law had 17 --
Henry Hammer: 1791.
Felix Frankfurter: (Inaudible) is that it?
Henry Hammer: I believe was 1791 if Your Honor please.
Felix Frankfurter: I believe I will count the whole history for that provision of common law. And it had pointed out in the Miller case as Mr. Justice Brandeis referred in the Fairmount case, a very technical thing of what physically taken off, not a technical, but physically. And all the common law courts had was the record and the record was the rule that was filed with the clerk, physical things. If it wasn't part of that physical role, it wasn't before the Court.
Henry Hammer: That's correct, sir, as being --
Felix Frankfurter: That you want to -- you want to go on that ground today?
Henry Hammer: No, sir, no, sir. I agree with, Your Honor, that that was simply one of the reasons. And when I say that, I mean the historical limitation of the writ of error to which Mr. Justice Frankfurter adverts I believe. Under the old cases, one of the reasons for refusing to review the action of a trial judge in refusing to grant a new trial was the historical limitation of the writ of error. That has been abolished and we do not rely upon that for our contention. But we do rely and we vigorously rely for our contention upon the expressed prohibition of the Seventh Amendment to the United States Constitution, which provides it. No fact tried by the jury shall be otherwise reexamine in the Courts of the United States then according to the rules of the common law.
Speaker: You take that literally it will prevent any examination by the District Court, wouldn't it?
Henry Hammer: No, sir. I believe according to the rules of the common law, the District Judge had the discretionary power to control the amount of damages rendered by the jury. As I read Parsons versus Bedford decided by this Court back in 1830, I believe, by Mr. Justice Story, he states the rules of the common law which were that a new trial or that facts found by a jury maybe reexamined by the trial court or the Court to which the record was detainable and upon a new trial, a trial de novo, granted by an appellate court for some error of law. That was the common law, Mr. Justice Harlan. As I read it according to the decision of Parsons versus Bedford. The constitutional limitation has a reason for refusing or not giving or prohibiting the federal appellate courts from exercising the power to review the action of a trial judge is deeply rooted in our jurisprudence. We find it clearly stated by Mr. Justice Holland, the late Mr. Justice Holland, in Railroad Company versus (Inaudible) in which he clearly relies upon a constitutional limitation as a reason for refusing the appellate courts, the power to review the action of a trial judge.
Speaker: As I -- as I understand your argument, you suggest at least that the District Court has power to review excessive judgments as a matter of discretion.
Henry Hammer: Yes, sir.
Speaker: That -- that's not the trial of the case, otherwise by a jury or a fact, otherwise by jury, is it?
Henry Hammer: That's correct, trial by jury.
Speaker: Is that -- what's that?
Henry Hammer: That's correct, sir. And that's in cases where the trial is by a jury.
Speaker: Trials by a jury and -- and the trial judge has the discretion to set it aside.
Henry Hammer: Yes, sir.
Speaker: And his -- the exercise of that discretion is not a matter -- a trial as the matter of fact.
Henry Hammer: Yes, sir, it is a trial of the matter of fact, the exercise of that discretion by --
Speaker: You mean the judge is trying a matter of fact?
Henry Hammer: The judge is determining question -- the weight of the evidence, he is. He is given that power.
Speaker: Well, how -- how can -- I understood you're defending on the constitutional provision that you couldn't try a matter of fact otherwise by a jury?
Henry Hammer: Other than according to the rules of the common law and according to the rules of the common law, the trial judge was vested the discretionary power to set aside a verdict when his discretion is against the weight of the evidence.
Speaker: But when he did that, he'd be doing it not as a matter of fact but as a matter of law, wasn't he?
Henry Hammer: I --
Speaker: Exercising his discretion, you have the trial as a matter of fact.
Henry Hammer: I think it is, sir. I think he would be doing that.I would treat it clearly as weighing the evidence, reaching a finding a fact different than that reached by the jury and he has the right.
Speaker: Well, assume -- assume it's the -- an exercise of discretion as a matter of law. If it were enacted then, the exercise of the discretion is exercising a matter of law as to whether or not it's excessive, then the Court of Appeals would have jurisdiction.
Henry Hammer: Your Honor, with reference to that question, again, I would like to refer to this language of Mr. Justice Brandeis in the Fairmount case, where he notes the circumstances at length under which the action of a trial judge maybe reviewed in connection with his refusal to grant a new trial and they are these.
Speaker: Well, he says we have no occasion to decide that.
Henry Hammer: But when we read the decision, we find that the Court of Appeals can interfere with the action of a trial judge only under the circumstances noted in the Fairmount case. And that is, one, where the trial judge on the motion for a new trial, acts under the erroneous belief that he has no power to grant the motion or he erroneously excludes from the consideration of the motion matters, which are appropriate to a decision on a motion. Also, in cases where the trial judge refuses to grant a new trial with the damages exceed a statutory limit or are more or less than an undisputed amount or are clearly in contravention of the instructions of the Court or are based upon erroneous instruction. And in additional circumstance is where the damages are the result of passion, prejudice and caprice. But clearly, none of such circumstances is present in the instant case, so we submit merely for a Court of Appeals to call a review of a factual issue of damages, a view -- and abuse of discretion or a review of an abuse of discretion does not in itself justify the Court of Appeals from exercising the power to review. And we submit that what the Court of Appeals did in the instant case was exactly that. It reviewed and weighed the factual issue of damages merely by calling it a review of the action of the trial judge for abuse of discretion. It employ the process of reasoning, which Judge Learned Hand of the Second Circuit criticized as a scholastic refinement of reasoning leading to an impracticable rule. And we urged that just as this Court in Tiller versus Atlantic Coast Line Railroad Company reasoned and concluded that the very same court below cannot permit the defense of assumption of risk in a Federal Employers' Liability case by merely changing its name or calling it abuse of discretion, so likewise in the instant case. The court below should not be permitted to review the factual issue of damages assessed by a jury, as reduced by a trial judge, merely by changing its name to a review for abuse of discretion.
Felix Frankfurter: (Inaudible) it wasn't the word juggling because if they can say the Court of Appeals inserting that the refusal to set aside the verdict due to the trial court's discretion (Inaudible) Court of Appeals has not declared that the trial judge abused his discretion, merely (Inaudible) trial is not an abuse of discretion. Therefore, you leave the question open. He was -- he was accustomed in way the words are used and many said that he pointed out the Court of Appeals to go underground of abuse of discretion, even before that was relevant. I'm not suggesting he decided it because he said the argument. I'm merely suggesting that the Court is relevant, particularly in light of the fact that in the earlier (Inaudible) opinion, the instant 17 cases -- if my count is wrong, 17 cases in this Court in which this Court refused to review on the ground when they said it was an exercise of discretion. 17 cases in which this Court did not read on the common law indication, but it was for the exercise of discretion. Now, why did it matter from the state for that point, just for nothing?
Henry Hammer: In my opinion, I believe he matched those cases to show that where there are facts upon which reasonable men might reach different conclusions. The Court of Appeals for the federal appellate courts cannot undergo circumstances to review for abuse of discretion.
Felix Frankfurter: That's your second point in this case.
Henry Hammer: And in this connection, I would like to call the Court's attention to what in my opinion is a very important case cited by Mr. Justice Brandeis when he made the statement that he affect, “This Court has frequently refrained from disturbing a trial court the approval of an award of damages which seemed accessible and adequate and the Circuit Courts of Appeals have generally follow this similar policy.” And I refer to the case of Southern Railway-Carolina Division versus Bennett. That case was an action brought under the Federal Employers' Liability Act in which the damages, in which the facts were somewhat analogous to those in the instant case. There is held, the respondent or rather the Railroad Company urged that based upon the earning capacity of the deceased, his life expectancy and the amount of contributions that he could or would have made to his beneficiaries under the Act, the present cash value of the future benefits could not exceed $10,000, whereas a judgment of the lower court and the sum of $20,000 was entered. This Court rejected the argument of the respondent company and refused to treat as mathematical certainties, the life expectancy of the deceased, his earning capacity and the amount of contributions that he could or would have made to the beneficiaries under the Act and affirmed the judgment of the lower court for $20,000.
Speaker: And they said in that case that that was not a case for reexamination.
Henry Hammer: Exactly. They said that --
Speaker: Not -- not that they didn't have the power to reexamine.
Henry Hammer: Mr. Justice Holmes speaking for this Court said that a case of mere excess on the record is a matter to be dealt with by the trial judge and presents no case for reexamination or presents no question for reexaminations by this Court. In our case, if the Court please, the facts are much stronger than those in the cited case. Here --
Speaker: Well, isn't what he said there that this is not a case for reexamination?
Henry Hammer: He said any case, which presents a mere excess upon -- a mere excess upon the record or upon the evidence does not present a question for reexamination in this -- in this Court. And in our case, the fact is so much stronger than those in the Bennett case. Here, we have a young boy, 22 years of age, who is here, he left surviving his parents, his earning capacity if he had lived at the time of the trial would have been $4300 a year. And with the prevailing yearly increases in wages amongst railway workers, the jury certainly had a right to infer that his wages would have been even more with increase seniority and experience. The record also shows that the relationship between the boy and the parents was close. He stayed at home, he live at home, did chores around the house with his parents and even offered to them, of course, during the time, there was nothing to eat. His full paycheck to do with them as they please and he made the expression or expressed himself that he would provide for his parents as long as they live. We also had the evidence of record that the father was planning to retire and that he would need for his financial support upon his retirement, the sum of approximately $3300 per year exclusive of his independent income. Which amounts, we submit, upon the bases of the past statute in conduct of the deceased together with the son's services, the parents could have reasonably expected had he not met his untimely death. And computing the amount of damages mathematically according to standards, annuity tables and standard mortality tables, the present cash value of the future benefits that would have accrued to the parents exceeds $50,000. And we submit that when -- that when the court below undertook to review, weigh and appraise the evidence and when it viewed the evidence in the like most favorable to the respondent company is that of in the like most favorable to the petitioner as it was required to do on appeal according to the prior decisions of this Court. And when he treated as mathematical certainties, the life expectancies of the parents, the ironic passage of the deceased, the safe rate of interest that money was earned and the amount of contributions that the son would have given to the parents without taking into consideration, the different status of the parents during the life of the deceased and their changed status wherein they would be in need of financial support upon the father's retirement. The trial judge or rather the Court of Appeals clearly invaded the province of the jury and clearly usurped the prerogative of the trial judge contrary to the firmest established principles of this Court and contrary to the expressed prohibition of the Seventh Amendment to the United States Constitution. And we submit on the basis of that evidence, on the basis of those facts upon the basis of the fact that the Court of Appeals waived the evidence. It clearly constituted reversible error. And moreover, we submit that when we consider that the petitioner in the instant case remitted a portion of the verdict pursuant to the order of the trial judge refusing a new trial. It furnishes additional reasons based upon equitable considerations why a Federal Court should not be permitted to review the factual issue of damages. We say that it would hardly be fair to a plaintiff who remits a portion of the verdict pursuing to the order of a trial judge refusing a new trial on the basis that the error of excessiveness if any is cured thereby. And for reasons of public policy and public convenience as stated by this Court in the old case of (Inaudible) cited in our brief appeals in matters of discretion should not be encouraged. And borrowing if I may from the language of Mr. Justice Douglas in Dickinson Industrial Site versus Cowan appeals in matters of discretion should not be allowed because to do so would encouraged an unseemly parade of litigants to the appellate courts and that to the time and expense of the administration of justice. And as stated in 13 Federal Rules of Decisions, page 67 in an article in Federal Employers' Liability Act, the grounds of such appeals would be but prevalent and the purposes to delay the payment of merit and verdicts, the needy clients and thereby force upon them inadequate sentence. Now if the Court please, adverting to the contentions of the respondent Railroad Company which is narrowed down on pages 23 and 24 of it's brief, we wish to call the Court's attention to the significant admission made by it that according to the weight of authority in the decisions from 1789 down to the decision in the Fairmount case in 1932. The federal appellate court, the Court of Appeals in the instant case did not have the power to review the factual questions, which it reviewed in the instant case. This submission is made by respondent with two reservations upon which it relies for it's contention that a federal appellate court has the power now to review the factual issue for damages. Its first contention is that because the historical limitations of the writ of error was abolished and that having been a reason which it seeks to create the impression was the sole reason for the refusal to review the action of a trial judge in granting a new trial. The rule itself has become obsolete and must disappear. The short answer to that contention, if the Court please, is simply this, and although one of the reasons for the refusal to review the action of a trial judge in refusing or granting a new trial was the historical limitation of the writ of error, another and more coaching and compelling reason was the expressed prohibition of the Seventh Amendment of the United States Constitution.
Felix Frankfurter: Mr. Hammer, Mr. Burton asked you earlier what your view would have been if they've give him a verdict of (Inaudible) and you answered according to your (Inaudible) central aspect of position. I think if you give the same answer from this case, the jury has brought in a normal verdict (Inaudible)
Henry Hammer: Yes, sir, that would be the same answer.
Felix Frankfurter: Because the jury would find that there was negligence and the man was killed and his earning power was cutoff and his parents were vindicated and brought in (Inaudible), you think --
Henry Hammer: I think if we --
Felix Frankfurter: -- that's all right? The juries can do that.
Henry Hammer: I think --
Felix Frankfurter: And that is a verdict brought in according to the instruction of the jury, is it?
Henry Hammer: I think if the Court -- the trial judge sitting in judgment upon that verdict is of the opinion that it should stand. I think we have received the benefits of the safeguards, which the law provides.
Felix Frankfurter: Of course, we know that the Court of Appeals for the Ninth Circuit held the opposite.
Henry Hammer: I don't understand that the Court of Appeals for the Ninth Circuit follows the Court of Appeals for the Fourth Circuit.
Felix Frankfurter: But, I'm talking way back, years ago.
Henry Hammer: (Inaudible) I understand they did the same thing and I say that they acted in contravention of the Seventh Amendment to the United States Constitution. And I say as --
Felix Frankfurter: Although that -- although that requirement derived from this difficult question of the rule, constitution of the United States and forever it may have imposed and is (Inaudible) forever this physical thing of what constitutes the role although that is (Inaudible)
Henry Hammer: Your Honor, I can't believe that there's any District Judge in the United States that we have to fear would not take care of a judgment. And I -- just as Mr. Justice Black said in the opinion which he read earlier this afternoon, there's no reason to fear that because if we have that problem, the people would rise up and see to it that the Seventh Amendment was repelled and changed so that such situations could be taken care of.
Felix Frankfurter: People are (Inaudible)
Henry Hammer: I still think our country is founded upon our people and if the people don't care, I don't know who are. And if we're to preserve the jury system, we cannot permit federal appellate courts under such circumstances to use its own discretion as to what is a reasonable verdict or reasonable amount of damages. There are maybe isolated instances where the Courts go wrong but I think therefore, apply. And if we will permit that change of the federal appellate courts to review the action of a trial judge and we can't depend upon the trial judges and I think it's high time for us to device a different system of selecting our judiciary.
Felix Frankfurter: Mr. Hammer, it is a fact, is it not, that there must have been -- there must be a score, literally a score. I haven't come to that. Maybe I will before I get to (Inaudible). Score, in which the appellate court, the Court of Appeals and the Courts of the last 50 years have set aside verdict as being either capriciously expected or proficiently inadequate, score all over the United States. You know that as well as I do that you won't believe this.
Henry Hammer: And I would like to point out --
Felix Frankfurter: The issue isn't between letting them do what they please, the Court of Appeals can do what they please because this Court is (Inaudible) Isn't it a question of letting them do what they please or not letting them do it at all? That is the issue.
Henry Hammer: But the verdict must be the result of capriciousness as Your Honor said, but this Court in this case has clearly indicated that the result was not to -- that the verdict was not the result of capriciousness because if it did, it would have reversed the whole case because the verdict would had tainted with that capriciousness and no part of it could stand.
Felix Frankfurter: I'm not concerned in my case review whether 50,000 or 75,000 or 40,000 is correct. I know myself take this generally be brought here when if in that realm of confidence, that isn't the problem we have to face. The problem is whether this Court should now serve that the issue which justice -- the Court left opened in their mind (Inaudible) against this dispute of power. That's the question.
Henry Hammer: I say that -- I say the Court can say it with reference to certain circumstances as noted in the Fairmount case when -- when it permits a court to weigh the evidence, then we are giving the federal appellate court the power of the jury. And just as Mr. --
Felix Frankfurter: I don't propose to do that anymore unusual. The question is what is the power of the jury and what if --
Henry Hammer: The power of --
Felix Frankfurter: The power of the jury is not to do what the jury pleases no matter what and it's not the power of the jury that if there's anything true about the common law system of the jury that was not the common law of jury. The jury can do what it pleases.
Henry Hammer: I agree with you, Your Honor. But I say that where there are facts sufficient to support what the jury found then the only other judicial officer who may examine those facts and weigh them as the trial judge, otherwise, we might as well scrap the Seventh Amendment of the United States Constitution.
Felix Frankfurter: That you're qualified under the state of jury in the criminal case can do what it please and nobody can call it your time.
Henry Hammer: I exceed to that qualification, Your Honor.
Speaker: Assuming that the Court of Appeals has power to examine the excessiveness, what do you say as to their mathematics of this case?
Henry Hammer: I think their mathematics is entirely wrong. I think when they say that 5% --
Speaker: You -- you would take in affirmance on that basis or --
Henry Hammer: No, I -- I'm not -- I wouldn't argue that point too vigorously. We all can differ about mathematical computations about what is the safe rate of interest about what a boy who's closed to his family would contribute which subject to different inferences, different conclusions, Fairmount may reach different conclusions. I don't say that their conclusion is not a reasonable one but I say theirs is not the only conclusion.
Speaker: Have you had occasion to examine the state cases that the state court -- whether the states have the same provision with the federal constitution?
Henry Hammer: The State of South Carolina clearly permits no review by appellate court of the issue advantages. They simply say that it's clearly a matter to be dealt with by the trial judge unless the trial judge finds that there's passion, prejudice or caprice and then in all circumstances, the whole verdict is tainted with that capriciousness and accordingly, it cannot stand. If I may, I'd like to --
Speaker: The very excessiveness -- they don't examine.
Henry Hammer: Now, if I may I'd like to reserve the balance of my time.
Earl Warren: You may, Mr. Hammer.
Henry Hammer: Thank You, sir.
Earl Warren: Mr. -- Mr. Alderman.
Sidney S. Alderman: May it please the Court. I do not think that this Court took this case on a certiorari to determine whether $50,000 should be paid by the respondent, the petitioner in this unfortunate case or whether in some lesser amount should be paid. There's a fix data in this case, all courts below held and nobody challenges that holding that a verdict of $60,000 on the facts in this case were the excess as a matter of law. The trial judge stated that he would set aside the verdict unless the plaintiff would grant or file a remittitur in the amount of $10,000 refusing the jury verdict from $60,000 to $50,000. The Court of Appeals and I take some exception to the statement of what the Court of Appeals held below, the Court of Appeals and the Circuit disclaimed that it was substituting it's judgment on any question of fact for the judgment of the trial court. It held and reversed the trial court in terms for an abuse of discretion. Mr. Justice Reed mentioned a question about the mathematics, which indicates what the court below has said about the evidence in this case had been read. Without reading extensively from the decision of the court below, it showed from the record in the case that $50,000 put out prevailing rates of interest would have produced for the beneficiaries here more than the take home pay of this young man so long as he work for his family. The Fourth Circuit does not make any habit of reviewing quantum of damages. In all of its latest series of cases, it has held that automatically, in any ordinary case, such question of excessiveness is exclusively a question for the District Court, the trial court. And the only exception which it -- it makes is that in case of an abuse of discretion as where nothing in the record could reasonably justify that amount of a motion for a new trial, only in the case of what it cause, a very rare instance of abuse of discretion does it under to review that question at all. In that respect, the Fourth Circuit is in complete harmony with the Ninth Circuit and so far as I can read the cases, it's in complete harmony with what of all there the Circuit say. And the last point in my brief, you will find to be a complete review of the decisions of the different Circuits since Fairmont Glass Works case was decided by this Court in 1933. There has been a complete shift in the authorities as declared by the Courts of Appeal since 1936 and not one of the Courts of Appeals as I read their decisions denies for a moment that it has power to review a trial court in a matter of this kind for abuse of discretion. The very question which was pre-committed by this Court in the Fairmount case in which Mr. Justice Brandies was so careful to pre-commit and not to decide for causing that case, the Court of Appeals had not even planned that the trial court had abused it's discretion and there was nothing in the record in the way of the statement by the trial court as to why he acted as he did.
Speaker: What did you say Mr. Alderman in the case where the issue was not as to how much money his son would contribute to his parents out of his earnings but an issue of pain and suffering? There's no mathematical measure if it's available.
Sidney S. Alderman: Well, I don't know how you can make pain and suffering by mathematics. That element is not (Voice Overlap) here.
Speaker: That is not here and if that were here, the -- the case would be entirely different.
Sidney S. Alderman: It might be. I don't think even in that case that the sky would be the limit for a jury all for the discretion of a District Judge.
Speaker: Could I --
Sidney S. Alderman: Yes, sir.
Speaker: (Inaudible)
Sidney S. Alderman: You're being asked to do it solely on the ground of absolute lack of jurisdiction of the District Court of that question. The merits of the -- of a -- the Court of Appeals decision are not even raised broad here by the writ of certiorari. The only questions brought are the questions of appellate jurisdiction and power which I'll shall come to after the recess.
Earl Warren: But we're not quite ready for recess. You might as well --
Sidney S. Alderman: Excuse me.
Earl Warren: -- continue until the time is up.
Sidney S. Alderman: Yes, sir. I have read from the rule that counsel would watch the clock themselves and now that these questions to the Chief Justice --
Earl Warren: Red light -- red light will come on.
Sidney S. Alderman: I over -- over spoke what I said. The Court of Appeals below in this case followed a recent case, which it decided in 1948. Virginian Railway Company against Armentrout quoted from its decision in that case and that -- rather than raising a purely hypothetical instance of what might happen --
Earl Warren: Now, we can -- we can adjourn.


Warren E. Burger: We will hear arguments next in the case of Kush versus Rutledge. Mr. Gallagher, I think you may proceed whenever you're ready.
Michael L. Gallagher: Thank you. Mr. Chief Justice and may it please the Court: This case turns on your determination of the breadth of the first clause of 42 U.S.C. Section 1985(2), a Reconstruction Era civil rights statute. The case arises from the alleged mistreatment of a white college football player by his coaches. Respondent Kevin Rutledge attended Arizona State University in 1977 and 1978 and played intercollegiate football. The Petitioners are Frank Kush, his former coach, two assistant coaches, and Arizona State University's former athletic director. After Mr. Rutledge left Arizona State University and transferred to the University of Nevada at Las Vegas, he filed a claim with the Arizona Board of Regents reciting a veritable chamber of horrors to which he had been exposed while a student athlete at Arizona State. The filing of that claim was a statutory prerequisite to the initiation of a lawsuit in Arizona against a state agency such as the Arizona Board of Regents. That claim was denied by Arizona and Mr. Rutledge's federal court lawsuit followed. One of his claims in the federal suit was that Mr. Kush and others had conspired to intimidate witnesses in violation of 14 U.S.C. Section 1985(2). The district court dismissed the entire lawsuit as to all defendants. On appeal to the Ninth Circuit Court of Appeals, as pertinent here, the Court of Appeals determined that Mr. Rutledge had stated a claim under the first clause of 1985(2) and specifically held that there was no requirement for invidiously discriminatory class-based animus in such an action. This holding of the Ninth Circuit aligned it with the Third Circuit and the District of Columbia Circuit, which previously had ruled the same way.
William H. Rehnquist: Mr. Gallagher, I would like to get a time sequence straight if I could. This action alleged intimidation of witnesses in the federal court system?
Michael L. Gallagher: Justice Rehnquist, this complaint in this lawsuit alleges that from the time Mr. Rutledge filed his claim against the Arizona State University Board of Regents, which was prior to the initiation of any suit, and continuing the conspiracy supposedly went on. Initially, there was no claim pending. As it turned out, Mr. Rutledge filed his case in federal court and shortly thereafter filed virtually the same case in state court, presumably to protect his one-year statute of limitations under 1983.
William H. Rehnquist: Did the federal court case go to trial on the merits?
Michael L. Gallagher: No, Justice Rehnquist. However, the state court case did.
William H. Rehnquist: Well then, the only case in which there could have been witnesses would I'm sure be the state court case.
Michael L. Gallagher: My understanding of what the Ninth Circuit found in that regard, Justice Rehnquist, was that the language in the complaint, the continuing language, if you would, if you will, suggested that there was intimidation of witnesses going on after the federal court case had been filed.
William H. Rehnquist: Well, but there are no witnesses in a case until the case has been tried. There may be potential witnesses.
Michael L. Gallagher: Well, that raises the next question, Justice Rehnquist, as to how broad 1985(1) as to what is a pending action. There have been discussions as to what "attending court" means in that situation. But the Ninth Circuit said, while it was a close question, it did state a claim and that it should be remanded, and specifically suggested that the district court ask Mr. Rutledge to file an amended complaint setting forth in specificity the specific acts he claimed gave rise to his cause of action.
William H. Rehnquist: Have there been any proceedings on remand in the district court?
Michael L. Gallagher: There have not been, Justice Rehnquist. As I was pointing out, the circuits have split on the question of a requirement for invidiously discriminatory class-based animus in a 1985, Section 2, clause 1 case. Generally speaking, 1985(2) deals with conspiracies which interfere with the judicial process. The language consists of two clauses separated by a semicolon. The first clause prohibits conspiracies to deter by force, intimidation or threat parties or witnesses in the federal court processes. The language which follows the semicolon, the second clause, prohibits conspiracies to impede, hinder, obstruct or defeat due course of justice in any state or territory with the intent to deny any citizen equal protection of the laws. It is the Petitioners' position that a cause of action under either clause of 1985(2) requires a finding of invidiously discriminatory class-based animus. There seems to be no question today but that that is a co-requirement under second clause or state action lawsuits. That seems to be the teaching of Griffin versus Breckenridge, 1971, and all five circuits who have directly dealt with the question of 1985 have not had any problem realizing that second clause lawsuits have to be based on invidiously discriminatory class-based animus because of the equal protection language. The diversity of opinion and the problem arises because the first clause simply does not have equal protection language. We believe that the analysis of this Court in Griffin versus Breckenridge applies with equal vigor to the case at bar and that there should be a finding that invidiously discriminatory class-based animus is a requirement under either clause of 1985(2). In Griffin this Court did not engage in a hypertechnical dissection of the syntax of the language, but instead took a look at the legislative history in depth, with an eye towards the realities of what was going on in this country in 1871 when the 42nd Congress enacted the Ku Klux Klan Act, which of course is the original Act on which both 1985(3) and 1985(2) are based.
Sandra Day O'Connor: Mr. Gallagher, why do you think the Congress in 1871 did not include the equal protection language in the first clause?
Michael L. Gallagher: I think, Your Honor, that they were not thinking about federal courts as much as they were thinking about state courts. And there were not as many federal courts then. The limitation on jurisdiction of federal courts was much less. I do not think they needed it for a constitutional nexus because under Article I, Section 8 or elsewhere, obviously, there is no problem there. It is very difficult, Justice O'Connor, to discern what that Congress had in mind 100 years ago. There is a little something in the legislative history for everyone. And as this Court expressed in Navatny, construction, statutory construction in these Civil War, post-Civil War era Reconstruction statutes have given lots of difficulty to statutory construction problems. There was already a criminal statute in place, Justice O'Connor, and it had been in place for 40 some odd years at the time, governing people that would attempt to impede witnesses in federal court. I don't know why the language was not specifically included here. I believe it was included and sprinkled throughout the Act because of the problems Congress had--
Sandra Day O'Connor: Well, to assure constitutionality in its application to the states, right?
Michael L. Gallagher: --I would agree with that, yes, Justice O'Connor. And it wasn't... there was no constitutional problem with this particular law. As this Court recognized in Griffin, 1985(2) was initially a criminal statute, but the broad sweep of the language caused the amendatory process to go into gear and ultimately the civil remedies provided by 1985(3) were added to the Act. As you said in Griffin versus Breckenridge, and it's equally applicable here, the overwhelming concern as expressed by the heated lengthy debates at the time was with the animus or the intent required. That's where all the discussion centered. I might point out that you also said in Griffin versus Breckenridge that that was the type of case, involving three Mississippi blacks that had had their constitutional rights impaired because they'd apparently been associated with somebody someone thought was a civil rights worker, was the type of case that went to the core of what 1985 had in mind. This case sub judice is a far cry from that. The country faced a number of problems in 1871... political, economic, social. It was not the intent of the 42nd Congress to solve every ill of the times by enacting the Ku Klux Klan Act back then. Their overwhelming concern was with the attempted disenfranchisement of the newly freed slaves. They were particularly concerned with the dangers presented by the hooded conspirators grouping together to deprive these newest citizens of their federal constitutional rights. There is no suggestion anywhere in the legislative history that the federal courts were somehow pulled out and examined to see if added protection was needed for the federal courts. It seems reasonable that what happened in connection with the federal courts is that Congress intended to provide them protection from the civil upheaval being caused by the Ku Klux Klan activities of the time, and there simply was no independent consideration given. It is abundantly clear that the problem Congress was responding to was racially and otherwise motivated by Ku Klux Klan activity. In view of the fact that there were already ample criminal statutes on hand, they were not attempting... and such statutes, of course, have never been construed by this Court to create private causes of action, and the 42nd Congress was not attempting to do that with 1985(2). They were concerned with interference in the federal process, and for that matter the state process. But it was only interference, we respectfully submit, which was grounded on invidiously discriminatory class-based animus. Extending the coverage of 1985(2) past the point ever intended by the Congress that enacted it will in truth and in fact, we submit, not do one thing to advance the cause of justice. There are today sufficient criminal statutes on the books to act as a chilling effect or a deterring effect to people who would interfere with the process. Furthermore, the underlying activity, the force, the coercion, the threats, are ordinarily going to be able to be compensated for under state tort action. Lastly, in any event the Respondent here is not a proper party to maintain this action. This statute, unlike 1985(3), does not talk in terms of indirect suffering. It talks about direct action. Admittedly, the only court that we were able to discern which has ever addressed this proposition is a district court in Maryland in 1978, but the holding was clear and the holding was sound, and that was that a party does not have a cause of action for interference with his witnesses. One further indicia of this is the fact that 1985(2), first clause, provides a cause of action for after the fact retaliation or retribution. It provides a cause of action for a juror or a witness who has already testified or already rendered his verdict and is later harassed, intimidated or threatened. That would indicate that someone with standing such as Respondent here, a party, who is not himself intimidated, would have no complaint after the verdict had been entered or after a witness had already testified. And because of the narrow issue, as we see it, presented to the Court, I would like to reserve the rest of my time for rebuttal, Mr. Chief Justice.
Byron R. White: Could I ask you a question?
Michael L. Gallagher: Surely, Justice White.
Byron R. White: You indicated that the state trial did go forward and was completed?
Michael L. Gallagher: Yes, sir.
Byron R. White: And is part of your claim that any federal issue is res judicata?
Michael L. Gallagher: I don't think, in all candor, we can go far enough, Justice White, to claim that they are all barred, because in truth and in fact a lot of the underlying facts were presented to a jury. As an evidentiary matter, a jury heard--
Byron R. White: But couldn't all these claims in federal court have been presented in the state proceeding?
Michael L. Gallagher: --They could have been had the state court judge presumably not dismissed the 1985(2) count on, number one, the ground it was barred by res judicata, and number two that it failed to state a claim. That did not... the civil rights actions were dismissed.
Byron R. White: Didn't the federal court... didn't the federal court... didn't the Court of Appeals remand to the district court to see whether any claim survived the state action?
Michael L. Gallagher: Yes, and the state action had gone to verdict by the time the Ninth Circuit remanded, and there have been no further--
Byron R. White: Well, it could be that... it could be that the district court will decide that the entire matter is res judicata.
Michael L. Gallagher: --I think it may well, Justice White.
Byron R. White: Well, so we're just whistling in the breeze.
Michael L. Gallagher: Well, there's no indication, of course, what the district court's going to do.
Byron R. White: All right. Thank you.
Michael L. Gallagher: Thank you.
Warren E. Burger: Mr. Hing.
Robert Ong Hing: Mr. Chief Justice, may it please the Court: Justice Rehnquist... oh, Justice Rehnquist isn't here right now. With respect to the timing of the amended complaint, this amended complaint was filed after the original complaint, and the allegation is complained in the amended complaint that there was an attempt to intimidate witnesses. And this actually occurred from the time of the filing of the claim itself, but did occur between the time of the filing of the original complaint and the amended complaint.
William H. Rehnquist: Do you say the actual intimidation occurred then? The state court witnesses?
Robert Ong Hing: No, Justice Rehnquist. This action was filed originally in the federal court.
William H. Rehnquist: But witnesses in what proceeding did it claim was intimidated, or were intimidated?
Robert Ong Hing: Mr. Justice Rehnquist, in the federal court proceeding.
William H. Rehnquist: How could you determine whether... who were witnesses in the federal court proceeding if there had been no trial?
Robert Ong Hing: Your Honor, let me explain factually how this occurred, which I think would shed some light on it. One of the principle allegations in the complaint, in the amended complaint, was that the Defendant Kush, subsequent to a football game that occurred up in Seattle, Washington, and after the Defendant had shanked a punt and come off the field, the Defendant Kush punched Kevin Rutledge, on the sidelines. This was an allegation in the complaint. As it turned out, several of the players had witnessed that incident, and when we filed the complaint in the federal court the Defendants did several things to intimidate witnesses.
William H. Rehnquist: Well, perhaps my concern can be solved right there. You say the statute extends to potential witnesses, then, not just people who had been given on witness lists immediately prior to trial or who had been witnesses at depositions?
Robert Ong Hing: Yes, Mr. Rehnquist, I believe it does, because at the point that the action was filed we immediately noticed depositions. In fact, we noticed some 20 depositions. And it was with respect to those individuals who were being deposed or who were being noticed for depositions that some of this intimidation occurred. Meetings were held with the football players at which the coach announced: Well, fellows, there's nothing to all of this, so just ignore it. In the meantime, as it developed, several of the players who were sitting at this meeting said to themselves: Well, gee, we saw this, and what are we supposed to do? We had situations where at the training table the players were called in and asked: Please sign cards as to whether you saw anything happen up in Seattle, Washington. And the players of course all signed cards: I did not see Frank Kush punch Kevin Rutledge. And some of them even went to the extent of handing the cards to the assistant coaches, saying: Well, tell Kush that he owes me one. And we had other incidents where two of the players, or rather the--
Sandra Day O'Connor: Could you explain, Mr. Hing, what happened? These incidents occurred. Then the complaint was amended in the federal court.
Robert Ong Hing: --And included the--
Sandra Day O'Connor: To include this allegation--
Robert Ong Hing: --allegation under Section 1985.
Sandra Day O'Connor: --And then how did the state cause of action develop, and did the state cause of action include this same allegation?
Robert Ong Hing: What happened, Justice O'Connor, was that the federal action was subsequently dismissed in its entirety by the federal district court on the ground that the court had no Jurisdiction over any of the parties based on the Eleventh Amendment. We appealed that decision, but pending the appeal, because of statute of limitations problems and not wanting to take the risk of having the statute run on us, we of course filed an action in the state court after the federal action was dismissed.
Sandra Day O'Connor: That included this claim.
Robert Ong Hing: We did include the 1985 claim. However, the trial court in the state court dismissed the 1985 claim on the grounds that the federal court had already dismissed that claim. And therefore we have never had a day in court on the 1985 claim. So regardless of what happens--
Sandra Day O'Connor: And in fact you may never, notwithstanding what we do, is that right?
Robert Ong Hing: --Well, Justice O'Connor, my assumption is that we will have a day in court on not only the 1985 claim, but depending on what happens on the appeal in the state court action we may very well have a day in court in the federal court on all of the claims, for the simple reason that the Plaintiff made a decision long ago that he wanted to try this case in the federal court, and for very good reasons, and that is that there was a strong prejudice against the Defendant locally. He was taking on a hero, an idol of the community. And it got so serious that the Plaintiff's life was threatened, his family's life was threatened, his attorney's life was threatened. So he wanted to have this case tried in the federal court. And if the state court of appeals reverses and sends the case back for a new trial, then obviously at that point the Plaintiff-Respondent would have the choice of determining whether he wants the case retried on the merits in the federal court or the state court. Now, Kevin Rutledge in his amended complaint alleged that the Defendants have conspired to prevent by intimidation and threat various material witnesses from freely, fully and truthfully testifying as to matters raised in the within complaint. 42 U.S. Code Section 1985(2), the first portion, gives the injured party a damage action against those who have conspired to deter by force, intimidation or threat any party or witness from testifying in any matter pending in any federal court. I think the point that counsel made, that Kevin Rutledge is not the injured party, certainly is not supported by the statute, because the portion of Section 1985 which creates the private action, which is contained in the latter part of subsection (3)--
Thurgood Marshall: Mr. Hing, do we have the complaint here anyplace?
Robert Ong Hing: --Yes. The complaint is part of the appendix, I believe.
Thurgood Marshall: Well, I have an appendix here that has nothing, and I mean nothing. Oh, that. Well, now I see what it is. The petition?
Robert Ong Hing: It is part of the appendix to the Petitioner's brief.
Thurgood Marshall: I see. Well, I got mislaid by this thing. I don't know what this is. Thank you. I got that.
Robert Ong Hing: But the enabling or the section of the statute which creates the private rights says the party so injured or deprived may have an action for the recovery of damage occasioned by such injury or deprivation against any one or more of the conspirators. So I would assume that a party who brings an action and who has all of his witnesses intimidated to such an extent that he can't produce his witnesses is in fact the injured party, and I think that it would strain statutory construction to construe otherwise. Furthermore, Section 1985(2), first portion, does not require that the Plaintiff be the subject of racial or class-based invidiously discriminatory animus. The significant fact in this case is that the first portion of Section 1985(2) prohibits conduct which forms the basis for the claim which is a serious interference with the judicial process itself. So that the question really is whether Congress gave the federal courts the jurisdiction to hear private damage actions without regard to class-based discriminatory animus where the action is based on interference with the judicial processes of the federal courts themselves. We suggest that Congress clearly did. First, the language of the statute supports this interpretation. Second, legislative history supports this interpretation. Third, common sense and logic compels this interpretation. There is also no question that Congress had the power to so legislate. Now, a close reading of Section 1985 shows that it had basically four parts or four prohibited acts in the first portion of the statute prior to the semicolon. In the first instance, they prohibited the threatening of parties or witnesses who were about to testify in the federal court. The second item was a prohibition against doing injury to a party or witness who had already testified in a federal court.
Thurgood Marshall: But that is a crime, isn't it? That's a specific crime... to injure a witness--
Robert Ong Hing: Your Honor, that is.
Thurgood Marshall: --Can you enjoin a crime?
Robert Ong Hing: I do not believe so. But in this case, under this statute the Congress made it a private right of action. In other words, the argument that this was already covered by the criminal statutes does not mean that it cannot also be covered by a civil statute giving the injured party a damage claim, and that is precisely what is done in Section 1985(2). The third item which the first part of Section 1985(2) prohibits is that you cannot attempt to influence the verdict of a juror or influence a juror. And the fourth item is that you cannot injure a juror after he has assented to a verdict. So the first part of Section 1985(2) covers all of those four items, the first two having to do with witnesses either before or after testifying and the second two having to do with jurors either before or after participating in a verdict. And then after the semicolon, the two items which are prohibited involve obstructing justice with intent to deny any citizen equal protection of the law. But it says "obstructing justice in any state or territory. " "So as soon as you get past the semicolon Congress is talking about actions in a state or territory, not in the federal court, as it was prior to the semicolon. " Then the second item which is covered after the semicolon is action to injure a person who is attempting to enforce his right to equal protection, and that also presumably would be in a state. So I think clearly Congress delineated what the limits were or what the conditions were with respect to the restricted or the proscribed acts before the semicolon and after the semicolon. There is absolutely no equal protection language before the semicolon. Each one of the proscribed acts relates to protection of the integrity of the judicial process itself. And after the semicolon they don't talk about federal courts; they now talk about acts in the state, and you have broad, sweeping language with equal protection requirements. So the statutory language itself is quite clear, even without regard to exploring the legislative intent. Now, legislative intent in many instances, or rather in most instances, is rather difficult to determine, but I think that there is no ambiguity with respect to legislative intent in this instance. Congress was concerned about restoration of federal courts after the Civil War. They wanted to protect the functioning of the federal courts. There was serious question as to whether state courts were either willing or able to protect the rights of all citizens. And the debates on the legislation show very clearly that where Congress was legislating with respect to any matter which affected an officer or agency of the Federal Government they saw no necessity to insert equal protection language. However, in other areas involving conspiracies having no direct impact on either a federal officer or a federal agency, Congress did insert equal protection language. I think that it certainly is not a great extension of jurisdiction to the federal court to give the federal court jurisdiction to entertain a private damage action under the present circumstances, because each one of those four items which occurs in Section 1985, subsection (2), first phrase or first clause, involves matters which are within the contempt power of the court. And apparently Congress felt that it would assist the court in protecting the integrity of its own processes by giving private actions to all parties who might be damaged by such interference with the judicial processes of the federal courts. Finally, I think that clearly we do not require any Fourteenth Amendment mandate or sanction in order to have Congress legislate with respect to the four items occurring in the first part of that subsection. The power to regulate federal courts and to give federal courts whatever powers are necessary to regulate its own functioning is found in Article I, Section 8, of the Constitution. With respect to the so-called split of districts, or rather Court of Appeals, on this issue, I think that a close reading of the two cases, one in the Fifth Circuit, which is the Kimble case, and the Jones case which was in the Eighth Circuit, would show that actually none of those cases involved a claim which fell within the first portion of Section 1985, subsection (2). In Kimble, the Plaintiff sued employers for denying him employment because of his prior history of filing lawsuits under workman's compensation claims. Well, certainly that doesn't fall under any of the four items of the first clause of Section 1985(2). So I think the court correctly ruled that he didn't have a claim under the first portion. With respect to the Jones case, that involved a case where a mistrial was declared because the U.S. Attorney had used electronic surveillance equipment to monitor a juror to determine whether the juror was going to be contacted by a party. Now, that particular claim I don't think falls under any of the first four items of 1985(2) either. So a close study of those two cases would indicate that there is nothing inconsistent in the opinions of the Fifth Circuit and Eighth Circuit which is contrary to the position of the Respondent here.
Byron R. White: Well, the Court... of course, the Court of Appeals for the Ninth Circuit, they thought that they were deciding contrary to the Fifth and the Eighth Circuit.
Robert Ong Hing: Your Honor, I believe they were, but I don't think an examination of the precise claim that each plaintiff was advancing--
Byron R. White: Well, the Court of Appeals below was wrong in saying that they were in conflict with the Fifth and the Eighth.
Robert Ong Hing: --Your Honor, I believe they were.
Byron R. White: Yes, all right.
Robert Ong Hing: And I believe that the First Circuit and the Third Circuit and the Court of Appeals of the District of Columbia, of course, were correct in their decisions. But I certainly did not see a claim under the first portion of Section 1985(2) in the Fifth Circuit and Eighth Circuit cases. With respect to the authority of Griffin v. Breckenridge, I don't think that that of course involves or really is relevant to this case at all, because Griffin v. Breckenridge was based on a 1985 subsection (3) claim, which very clearly contains equal protection language. Furthermore, the Court in Griffin v. Breckenridge based its decision not on the Fourteenth Amendment but on the Thirteenth Amendment and on the right to interstate travel. So I don't think that case is on point. We certainly don't think that there's any danger here of creating a federal tort law, because under the circumstances of the case a party would already have to be in the federal court on another matter in order for him to allege that his witnesses were being intimidated. So really, Plaintiff Kevin Rutledge would have to have another claim under federal jurisdiction in order to have a 1985 subsection (2) claim.
William H. Rehnquist: You would agree, then, that if a complaint were not yet filed in federal court there could be no claim that potential witnesses in a later to be filed lawsuit were intimidated?
Robert Ong Hing: Mr. Justice Rehnquist, that could be possible if the plaintiff were so sure that witnesses were already being intimidated and he had every intention of filing that lawsuit in the federal court. I could see--
William H. Rehnquist: How would you define "witness" in that broader sense? I mean, a witness ordinarily is someone who is summoned to testify in court.
Robert Ong Hing: --Mr. Justice Rehnquist, I believe that a witness under those circumstances would involve potential witnesses, because theoretically I think it would be rather hypertechnical to take the position that you really don't have a witness until you go to trial and call him.
William H. Rehnquist: Well, but isn't the harm which Congress sought to avoid here the harm to the functioning of the federal courts? And if you have no complaint filed, conceivably you, if you ever did file a lawsuit, might be in state court, why is there any offense to the federal system if you simply, say, threaten an eyewitness to a traffic accident?
Robert Ong Hing: Well, under those conditions, Justice Rehnquist, I would agree. But if, for example, you had circumstances under which the public passion and prejudice against the particular party was so strong that he was certain that he wanted to proceed in the federal court, then I think it would be a different circumstance. But that would not apply to this case in any respect, because we had a complaint filed at the time the amended complaint was made setting forth this 1985(2) claim. It was also the position of the Plaintiff-Respondent below that he as a matter of fact was a member of a class, and the class of which he was a member was a group of players who did not meet the standards of the Defendant Kush. And I think that a factual statement would explain why that makes some sense, and that is that beginning in 1978--
William H. Rehnquist: If you have an assault case, can't you say in almost any assault case that the person assaulted was a member of a class who didn't meet the standards of the person who assaulted them?
Robert Ong Hing: --Mr. Justice Rehnquist, that... in that context I would agree with you. But the facts in this case were different and I think that you have to recognize that in 1978 Arizona State University suddenly shifted from the Western Athletic Conference, where they were competing with teams like Wyoming and New Mexico and Texas El Paso, to the PAC 10, where they were competing with teams like USC, UCLA, Stanford, Washington, et cetera. At the same time, under NCAA regulations each coach could give out 30 scholarships per year to athletes, but no more than 95 scholarships total. So this created a situation where you had to get rid of some players. In order to give out 30 scholarships this year, you could not have 30 players stay on the team from which you had given 30 scholarships in the three prior years. You'd have 120 and the maximum is 95. Now, that particular restriction has been responsible more than anything else to the recent equalization, you might say, in power among the football teams in the nation. And this restriction provided a grave problem for many coaches, but it had no impact whatsoever on Kush because he had such an effective means of getting rid of players who did not meet his standards. And--
Thurgood Marshall: Counselor, I have to ask you. I still don't see the clause or what you're asking for in this document here. I see in one place you're asking for $1 million punitive damages. What exactly did you ask for in your complaint, in a place where I can read it?
Robert Ong Hing: --In the complaint with respect to this particular claim, the 1985 claim?
Thurgood Marshall: With respect to the case you're asking us to decide.
Robert Ong Hing: That appears on paragraph 56 of the complaint.
Thurgood Marshall: And where will I find that in anything that's here before me?
Robert Ong Hing: I believe that's Appendix E-11 of the petition for a writ of certiorari.
Thurgood Marshall: E-11? E?
Robert Ong Hing: E-11.
Thurgood Marshall: Oh, that's it. I can see that. That's just before count five?
Robert Ong Hing: Right.
Thurgood Marshall: Well, this is some pleading I never understood in my life. Actual damages of a million dollars, punitive damage of another million; that's all you want? [Laughter]
Robert Ong Hing: Basically.
Thurgood Marshall: Oh, except interest.
Robert Ong Hing: Basically, the situation was such that it was necessary to get rid of certain players, and under NCAA regulations you could not get rid of a player for any athletic reason. In other words, once you give a player a scholarship and say come to school, he in effect has a scholarship for four years even though he turns out to be a miserable football player, as long as he comes to practice and makes himself available. Well, the Defendant Kush had an effective means of getting rid of those people in that category, and the Plaintiff Kush was in that group of people, the group that were offered scholarships that did not meet his playing specifications or expectations and players that he wanted to get rid of in order to make scholarships available so that he could continue to give out 30 scholarships every year to incoming players. In conclusion, the Plaintiff Kevin Rutledge--
Warren E. Burger: Counsel, your time has expired.
Robert Ong Hing: --We respectfully submit that the decision of the Court of Appeals be affirmed.
Warren E. Burger: Do you have anything further, Mr. Gallagher?
Michael L. Gallagher: Mr. Chief Justice and may it please the Court, very, very briefly: A lot of conversation here has left the record. I would only say that I've heard it all before, four months in trial in a state court proceeding. Those are the same allegations that resulted in a defense verdict for Mr. Kush of any wrongdoing, and I think the Court needs to know that having heard all of the allegations. The only other point I would make is that, while the Forty-Second Congress in 1871 clearly could have made a law with the expanded interpretation as sought by the Respondents here and as found by the Ninth Circuit, we respectfully maintain that it did not do so in 1985(2). Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.