William H. Rehnquist: We'll hear argument now in No. 87-154, Joshua DeShaney v. Winnebago County Department of Social Services. Mr. Sullivan, you may proceed whenever you're ready.
Donald James Sullivan: Mr. Chief Justice, and may it please the Court: We are here contending today not for a broad constitutional mandate to the states to do all good things to all people, nor do we contend for a broad constitutional duty to prevent all harm or all sadness, nor do we contend for a broad constitutional duty to protect all children in all cases.
Byron R. White: xxx narrow one [inaudible].
Donald James Sullivan: None in those situations--
Byron R. White: Oh.
Donald James Sullivan: --Justice White. We do suggest that there is one and only one exquisitely narrow circumstance where there is an affirmative duty. I would suggest that there are two primary elements to the one and only one circumstance for which we argue. The first is the existence of a child/parent relationship. The other is what I term enmeshment, intricate intimacy, enmeshment of the agents of the state in a particular circumstance which would have three characteristics: the first, an extreme danger to a particular individual child; the second, abundant actual knowledge on the part of the agents of the state; and the third, an actual undertaking by the state to protect the child.
William H. Rehnquist: You derive all this from the language of the due process clause?
Donald James Sullivan: Indeed, Your Honor. We think it arises from that and from the nature of the relationship and from the way the Court has... has accorded the relationship. If I may... if I may explain. It is my view... it is our view that the protector of the child, the raiser of the child, the person with the right and the power and the authority and the duty to educate the child, teach the child, provide medical care, all those parental things, including setting bedtime, is the parent and not the state. The... the other side of that coin is that there is one and only one circumstance where when the family unit... and I don't care whether it's a married family or a step-parent or whatever, but when the child is at home and the door is closed to the world, the people with whom that child is locked in, his natural and his inherent protectors, from those individuals alone, whether it's a father, a step-mother, a live-in girlfriend of what have you... from those protectors alone he has no protection. And in that one and only one circumstance, I think that's appropriate. And I would further respond to your question, Mr. Chief Justice, by saying this. It is only in that one circumstance, as I understand the cases... it is only in that one circumstance that the Court has already interposed any aspect of the Constitution. And I don't want that changed. I don't ask that that be applied to a different circumstance. What I'm saying is this. Take the situation where the child is locked behind the door with his protector and the protector becomes the predator, and a proceeding is brought at the extreme end of the child protection spectrum to terminate the parental rights. The Court has already said that the Constitution governs that relationship. The Court has already recognized it in the relationship between the adult and the child that the Constitution prevails and it prevails both substantively and procedurally. What I mean is this. We know that any parent has a constitutionally recognized right to the... if I may simplify it, to the possession of the child, care, custody, companionship, all those... all those kinds of things that go with being a parent. We also know that that right of parenthood cannot be terminated except by procedural due process protections. So, I'm saying to the Court that in that most intimate relationship, the Court has already recognized that the Constitution has application. The Court additionally has recognized, I believe, that a child... indeed, any of us... has a constitutionally protected right to physical integrity, to bodily protection. What I'm suggesting--
William H. Rehnquist: A... a right against the state.
Donald James Sullivan: --And a right that... that arises out of the Constitution to remain alive, yes, sir.
William H. Rehnquist: Well, but... but it's protected only against the state. It's not protected against private individuals.
Donald James Sullivan: Well, I think that's part of what the Court is going to have to address in this case.
William H. Rehnquist: Well, why don't we start with the language of the Fourteenth Amendment which says that a state shall not... what does it state... deprive any person of life, liberty or property without due process of law.
Donald James Sullivan: Yes, sir.
William H. Rehnquist: Now, certainly we've held in many cases that the state may not deprive someone of life, but we've never held that that provision protects in the constitutional sense a private... a private attack on another person.
Donald James Sullivan: I agree with that, Mr. Chief Justice. And I would further agree that in the... in the context in which prior to today that question has been addressed by the Court, I agree that that's the correct holding. For example, if you were to hold otherwise, then the police department would have an obligation to prevent the mugging and a whole host of things that are simply unworkable and are not to be found in the Constitution. What I... what I'm suggesting to you is that, first of all, this is a question in the most intimate relationship. That has not been addressed, to my knowledge, by the Court before. And I think that it's consistent with the nature of the circumstance that we're dealing with, and I think it's consistent with the other constitutional applications the Court has afforded to the child/parent relationship. If you have... if you have the parent and child in an intimate relationship and the Constitution properly lies in... in that setting, and if the rights of the parent with all of his natural powers in addition... if the rights of the parent are recognized, why should the rights of the child be less recognized? It... it seems to me that it's simply a balancing in--
Anthony M. Kennedy: But... but the rights of the parent are recognized to the extent that the state may not interfere with it.
Donald James Sullivan: --I think that's entirely true. And--
Anthony M. Kennedy: And the... and the question here is the extent to which you impose a mandatory duty on the state to act affirmatively to protect the child.
Donald James Sullivan: --That's right, Justice--
Anthony M. Kennedy: And the fact that it's... that other cases are not workable seems to me not the point. The question is where do you derive the duty.
Donald James Sullivan: --Well, it occurs to me that you derive the duty first and foremost from the nature of the... of the relationship that you're... that you're analyzing in a... in a constitutional setting, and secondly, from the fact that the Constitution does admittedly apply in that relationship.
Sandra Day O'Connor: Well, the only... the only cases in which the Court has found an affirmative duty on the part of the state to provide basic services is in a setting like a prison or a state institution where the state has already deprived the individual of the individual's liberty and institutionalized them.
Donald James Sullivan: Justice O'Connor, I... I generally--
Sandra Day O'Connor: This is certainly a step far beyond that that you're asking us to take.
Donald James Sullivan: --The only word I would... I would differ with you is... is the word "far". It occurs to me... obviously, the prison cases are in an Eighth Amendment context, so they are not... they are not the identical setting. The institutionalized, hospitalized settings like Youngberg is the other category to which... to which I think you refer. And I think that... I think that's what the notion of enmeshment... and that's not a phrase that I'm aware the Court has used. That's... that's a... that's a word that I use for my own understanding and the clarity... I hope the clarity of my own thinking... that I think that's what's described there is to what extent has the state become involved in... in the life of this person. If I may give an example.
Sandra Day O'Connor: If... if your theory were to be accepted, it seems to me it would have a real deterrent effect on state child abuse programs. Why would a state want to undertake a child abuse program at all if they face liability if they guess wrong? I can't... I think you're asking the Court to take a step that is perhaps quite unwarranted and quite dangerous.
Donald James Sullivan: If... if the circumstance were as you... as you phrased it, Justice O'Connor, I would agree. If... and the Seventh Circuit addressed that in its razor's edge argument. The Seventh Circuit said you would put child protection authorities in a damned if we do, damned if we don't situation. But this Court relatively recently decided Daniels and decided Davidson, and I think solves that problem entirely because I understand under... under those cases that even if we guess wrong, we are safe from liability. And that's... that's vitally important here. I understand Daniels and Davidson... again, to simplify in... in paraphrasing... to say even if you're negligent, it's okay in a 1983 setting. And the Court reserved for another occasion... I think this may well be the occasion... the... the question of something more aggravated than... than negligence. But what I'm saying is this. In the whole range of state action dealing with children, all conduct that is... let's assume that we can recognize some standard. All conduct that is proper, obviously, is not actionable. All conduct that is negligent is not actionable. And it has never been in contest that if we had the circumstance where the police officer or the child protection worker or someone else were inflicting a beating... you know, that's not the kind of case we're talking about. And the next topic, obviously, that we have to address is the question of whether it's gross negligence, deliberate indifference or what have you. So, I... I respectfully and very strongly suggest that it's not a question of do we guess wrong at our peril. We... under the existing holdings of this Court, which I do not ask the Court to change, we've already said to the child protection agency it's okay to guess wrong. It's okay if you make a mistake. And that has to be. I think government can't function without that--
Harry A. Blackmun: Well, Mr. Sullivan, don't you have to persuade us that the child has an entitlement under Wisconsin law?
Donald James Sullivan: --Well, I... I think first I have to persuade you that the child has an entitlement and the--
Harry A. Blackmun: What... what's your argument that he does?
Donald James Sullivan: --Well, there are two. The one... the one I've addressed, which is the... the substantive due process inherent in the relationship and inherent in the constitutional control of the child/patient... parent relationship. The second one--
Harry A. Blackmun: You mean from that arises an entitlement?
Donald James Sullivan: --I feel that from that arises an entitlement in the extreme and only in the extreme circumstance that I posit to the Court.
Harry A. Blackmun: Has a Wisconsin court said that it--
Donald James Sullivan: The Wisconsin standard is mere negligence. The Wisconsin state tort law standard is mere negligence, and this Court has already said that's not acceptable in a 1983 context. Justice Brennan, your... your question to me was... was do I have to persuade you--
William H. Rehnquist: --Yes.
Donald James Sullivan: --that the child has an entitlement under Wisconsin law. That's addressed in the briefs. That would be basically the Roth approach to it, and that's a... that's a separate approach which I'm happy to address at this juncture since you... since you put the question.
William J. Brennan, Jr.: Mr. Sullivan, let me put it another way. This child was severely injured.
Donald James Sullivan: Yes, sir.
William J. Brennan, Jr.: And the state placed him in a position of extreme danger, did it not?
Donald James Sullivan: Eventually they did, yes, sir. And the reason for that--
William J. Brennan, Jr.: Well, they put him in... not eventually, but they put him in a position of extreme danger. It certainly turned out to be that way.
Donald James Sullivan: --When they... when they unilaterally returned him to the abusive father, yes, sir.
William J. Brennan, Jr.: Now, suppose the... the state or the county, municipality knew that it was putting the child... placing the child in a situation of extreme danger. Do you have any trouble in working out liability on that situation?
Donald James Sullivan: No, Your Honor. I have no trouble. And I would further say that that's not a supposition in this case.
William J. Brennan, Jr.: Well, I wonder why you don't argue it.
Donald James Sullivan: Well, I did--
William H. Rehnquist: I haven't heard you--
Donald James Sullivan: --I did in my pleadings, but I... I would... I would remind the Court that one of the... and we addressed it three or four or five times in our brief. Not to rehash, but because I think it's so important, this case worker... the evidence in the record before the Court demonstrates that she told witnesses... and I think I'm quoting accurately... "I always knew the phone would ring some day and Joshua would be dead. "
William J. Brennan, Jr.: --That she knew--
Donald James Sullivan: I understand it that way.
William H. Rehnquist: --or should have known.
Donald James Sullivan: I understand it that way, yes, sir. Now--
William J. Brennan, Jr.: And in... in effect admitted that she knew--
Donald James Sullivan: --Yes, sir.
William H. Rehnquist: --or should have known.
Donald James Sullivan: That was... that's how I understand that... that language.
William J. Brennan, Jr.: Well, that's the way I parse your case, and maybe it is a step ahead. But it doesn't shock me as much as it seemed to shock some of my brethren.
Donald James Sullivan: Yes. The... the... the hangup that... that I think I've seen in reading the colloquy in our briefs on the notion of intent... we do not argue... we certainly do not argue that the case worker or the supervisor or the county wanted this child dead. That would be irresponsible, and we don't make that claim. But we do, based on the record that's in... in front of you... and I think the joint appendix at 109 to 160 is the... is the DSS case file itself, and that I find shocking... quite candidly, I find shocking. We know that there were... and Justice Brennan, you alluded to this. There are black and white absolute mandates in the state statute that... that say when you receive a report from a doctor or from a nurse or from an outside social worker or from a police agency suggestive of child abuse, you shall investigate. It doesn't go into you got to do it this way or that way, but you got to make a real investigation. You got to do it in a timely manner. On the first occasion in January of 1982 that the police reported suspected child abuse, they made an investigation which was cursory but I can't fault them at that point. They complied with the statute. In January of 1983, they had a doctor report from a hospital... they... saying I am finding an abused child here. They take custody of the... of the child. Three days later they send the child back to the abusive home.
Antonin Scalia: Did they at that point commit a constitutional violation? That is the time when they placed the child in extreme danger, as I understand Justice Blackmun's question, is it not?
Donald James Sullivan: I think that's right.
Antonin Scalia: And why... why was that a constitutional violation to return the child at that time?
Donald James Sullivan: I'm not prepared to say that that was, but I am prepared to say that the next incident was. And the difference was that they were informed by--
John Paul Stevens: But they didn't... the child had already been placed by then.
Donald James Sullivan: --They took the child out and placed the child in the technical custody of the hospital during his period of hospital confinement. That's right.
John Paul Stevens: That's January of 1983.
Donald James Sullivan: Yes, sir, which is the--
John Paul Stevens: All right. And you say that was not a constitutional violation to return the child then. When did the constitutional violation occur and what was it?
Donald James Sullivan: --I think it was the very next contact they had with the child and each succeeding contact--
John Paul Stevens: Well, in the very next one then you say it did occur. And what was the constitutional violation?
Donald James Sullivan: --At that point... and by way of background information so that we're clear on this, if I may, Justice Stevens... the... when the case worker made the decision to return the child... and this is in the record at 159 and 160... she dismissed the protective proceeding that they had started, and--
John Paul Stevens: Was that a constitutional violation?
Donald James Sullivan: --I don't think so. What she said, though, in--
John Paul Stevens: I want to get to the constitutional violation and when it occurred.
Donald James Sullivan: --All right. What I... I need you to understand that she made a written promise to the child and to the family court that the very next time there was a suspicious lesion on this child, she would bring the matter back to the court for the child to be protected. She made that... that promise to the... now, the child was a toddler, so I don't mean to say that child understood that. But she made that guarantee and it was on that premise that the child I think erroneously was returned. The very next time she was in the house all of the things that she had insisted on, all of the things that had been guaranteed by the birth father, all of the things that were necessary for the child's protection had been absolutely thrown out the window. For example, the father told the county that it was the girlfriend who had abused him on this occasion. And that's probably credible because he was out of town on a fishing trip. So, he... he probably was not the physical abuser in that case.
John Paul Stevens: But just summarizing, what you're saying is it's... she got sufficient information on that occasion that she had a constitutional duty to remove the child. And that was the... that was the constitutional violation.
Donald James Sullivan: On the... on the ensuing occasion?
John Paul Stevens: Yes. Isn't that your theory?
Donald James Sullivan: Yes, yes.
John Paul Stevens: So, your theory is not that the state placed the child in a position of extreme danger, but rather that the state failed to remove the child from a position that they should have known was extremely dangerous.
Donald James Sullivan: Subsequently. I think... I think that that placing the child back is the ultimate act--
John Paul Stevens: Would your case be any different if you had none of this history but a very stupid social worker who went in and saw lots of evidence of child abuse and failed to remove the child from the home immediately?
Donald James Sullivan: --It's a... it's a question of the level of... of... and that's why I'm using the word "enmeshment".
John Paul Stevens: Well, I know. The word "enmeshment" is not one that really helps me very much.
Donald James Sullivan: Okay. I... I think that--
John Paul Stevens: My question is if you just have those stark facts, a social worker visits a home, sees the child that a reasonable social worker should have known was in extreme danger--
Donald James Sullivan: --Yes.
John Paul Stevens: --and fails to remove the child, has the state committed a constitutional violation?
Donald James Sullivan: In an appropriate fact setting, yes, I believe so.
John Paul Stevens: Well, I've given you the facts. The answer is yes.
Donald James Sullivan: If we... to... to... to illustrate what I think your question is, if on the very first occasion--
John Paul Stevens: That's right.
Donald James Sullivan: --maybe even by accident, stopping to use the phone, no official business, and the... and a case worker finds the... the parent holding a knife to the throat of a toddler, I would say that obligation arises at that point. Yes, sir. Now, that's not the factual setting that we have here.
Antonin Scalia: Now, how do you... how do you place within the words of the Fourteenth Amendment again? How is the state depriving... depriving the child of--
Donald James Sullivan: It is the state alone--
Antonin Scalia: --You see I can... I can understand it's depriving the child of something when the child is safe with the state and the state turns it back, which happened here. But you... you acknowledged that when that happened, it was all right. The state had no inadequate reason to believe that... that the parent was abusive.
Donald James Sullivan: --Well--
Antonin Scalia: But I don't understand how the state is depriving the child of anything when... when the child is already in the home and all the state has done is failed to take the child out of the home.
Donald James Sullivan: --Well, that's the... that's the final argument in the Seventh Circuit's opinion that all we did was not stop it. And what I'm saying is in this one and only one circumstance, the child has no one else. The... the only protector he has in the world is now the predator.
Antonin Scalia: That's... that's not... well, I... I could think of a lot of cases. Well, that's true in every child abuse situation. Sure. Wasn't that always true in a child abuse situation? When a social worker visits a home, has very good reason to believe an abuse is going on, you're saying there's an immediate constitutional duty arise to remove the child if it's close enough to the knife at the throat example.
Donald James Sullivan: Right.
Antonin Scalia: But there is, of course, all shades of evidence. This is not quite a knife at the throat example.
Donald James Sullivan: That's correct.
John Paul Stevens: It's pretty serious, but you say the evidence is clear enough so that the constitutional duty arose to remove the child.
Donald James Sullivan: I think the evidence... and, yes, I do. And I want to... I want to mention as well that the evidence, of course, is cumulative so that even if the second or third or fourth instance, if you feel that's not enough, the 14th or 15th or 20th instance certainly is. You know, I... I lose track of how many different doctor reports of abuse there were and how many different nurse abusive reports there were... reports of abuse there were and how many direct observations on separate occasions by the case worker. But I suggest to you that after two years, approximately, of this, when the case worker goes to the home and sees cigarette burns on the face of the child, I suggest that's knowledge.
Antonin Scalia: What is magical about the fact that the citizen, here the child, is in threat from... from his father rather than from someone else? Suppose a case worker goes in and finds an elderly person starving. Why wouldn't there be a similar obligation on the part of the state? Why wouldn't you... you find the state liable for depriving this person of life if the person dies because the state did not provide food? Why wouldn't that--
Donald James Sullivan: To the... to the best of my knowledge, in the first place the Constitution does not intrude into each individual life in the sense of an obligation to provide food, shelter, clothing. That's a political issue. The Constitution is interposed in the relationship between the child and its... and its parent. And that's the only place in that... in that child's life where the... where the Constitution--
Antonin Scalia: --How... how is the Constitution interposed there? I don't... I don't see how it's interposed. It's interposed when the state moves in and takes the child away and then gives it back.
Donald James Sullivan: --It's interposed, more precisely, when the... when the state says we suspect there might be a problem for this child. We're going to terminate your rights. At that point there's no question but what the parent's constitutional rights in the relationship are recognized, both his substantive rights to his possession of his child and his procedural rights to have witnesses and hearings and burdens of proof and all those kinds of things. And if we have one... one equation... and the Constitution is in here for the parent and we know the Constitution recognizes the child has at least the right to be alive and more or less healthy--
William H. Rehnquist: But that's a... that's a limitation on the state... those cases. They say the state can't do certain things. You're trying to turn that around and say that arising out of that same relationship is a duty on the state.
Donald James Sullivan: --I... I think that the procedural things, Mr. Chief Justice, clearly are... are limitations on... on the mechanics by which you can effect a termination.
William H. Rehnquist: Well, no doubt. And what I'm saying is I don't see how you turn that around and say from these limitations on the state, we also derive a duty on the state.
Donald James Sullivan: Well, if we've recognized... and... and manifestly--
William H. Rehnquist: Can you answer that question?
Donald James Sullivan: --Well, I... I hope so. I hope so, Mr.--
William H. Rehnquist: Why don't you try?
Donald James Sullivan: --Okay. The... the situation of the child, his place in the world, when the door is closed, there... there literally is no one else. And if the child has--
William H. Rehnquist: That has nothing to do with the limitations on the state's authority to take the child away from the parent.
Donald James Sullivan: --No. And I don't... I don't propose that for that--
William H. Rehnquist: I thought... but I thought that was the basis of your argument.
Donald James Sullivan: --Well, what I'm saying is that we recognize that the Constitution has a legitimate place in the relationship between the parent and the child. If it does, I... I suggest that it should fairly apply both ways. It doesn't make sense to me that the... the Constitution applies between the parent and the child only for the benefit of the parent. And I think that's the... that's the result.
Anthony M. Kennedy: xxx. Well, it applies in Justice Scalia's hypothetical too if the state can't take away the person's food, but that doesn't mean the state has to give the person food. And you're... you're in the same box either way it seems to me.
Donald James Sullivan: Well, I agree that there's no obligation to... to provide food to somebody. In fact, I would say there's not a constitutional obligation to provide food to a child. That's not what I'm... that's not what I'm suggesting.
Anthony M. Kennedy: But there is a constitutional obligation I would assume not to arbitrarily take it away.
Donald James Sullivan: Yes.
Anthony M. Kennedy: All right. So, there's a--
Donald James Sullivan: That's a--
Anthony M. Kennedy: --So, the Constitution is in the house with the elderly woman just as it's in the house... just in the same sense that it's in the house with the parent and the child.
Donald James Sullivan: --I... I'm not sure I follow your question or... or I'm seeing it very differently. Clearly you can't send the agent of the state in to empty out the old person's refrigerator, you know, without... that's... no one is going to fight about that. That's different from saying that you have to create a responsibility where you have to bring food to the... to the elderly person.
Byron R. White: Do you think it makes any difference what agent of the state finds outs that this child is in danger from his father? Suppose it's just a... suppose it's a trash collector that goes around and finds out that it's official... and he just knows that that child is in real danger.
Donald James Sullivan: Yes. I do think it makes... it makes a difference. In contemporary society, we have... in all the states, we have child protection agencies. And certainly I would think they would be within the scope of the--
Byron R. White: So, it has to be a certain kind of a... of a state agent who has a duty under state law or not?
Donald James Sullivan: --I think that would be correct. Certainly someone with the power under state law.
Byron R. White: Well, isn't it a state law... isn't it a state law issue here then as to... do you... do you suggest that this social worker was violating state law when she--
Donald James Sullivan: In addition, yes... yes, sir, we do because of--
Byron R. White: --Is there any... do you have some Wyoming cases for that? Wisconsin. Wisconsin cases. Sorry.
Donald James Sullivan: --I'm... I'm a citizen of Wyoming.
Byron R. White: I know you're from Cheyenne, aren't you?
Donald James Sullivan: Yes, sir. The--
William J. Brennan, Jr.: Well, Mr. Sullivan, aren't there any Wisconsin tort remedies assuming you're right--
Donald James Sullivan: --There clearly are.
William H. Rehnquist: --Hmm?
Donald James Sullivan: There clearly are state tort remedies.
William H. Rehnquist: Well, what are they?
Donald James Sullivan: A negligence--
William J. Brennan, Jr.: If they're... if they're adequate, isn't that the end of your claim?
Donald James Sullivan: --I think it would be as to the property interest claim. What I... what I have to say on that is this. I believe that the child's entitlement... and this is the Roth analysis. Now, I believe the child's entitlement is to the procedural protections of the investigation and the intervention.
William H. Rehnquist: Did you argue that in the lower courts? I looked through Judge Reynolds' opinion.
Donald James Sullivan: No, it wasn't addressed, Mr. Chief Justice, at--
William H. Rehnquist: You... you didn't argue the Roth entitlement in the lower courts.
Donald James Sullivan: --No. We raised... we raised the statutory claim in the... in the complaint. It was not a factor in either Judge Reynolds' or Judge Posner's decision. That's correct.
William J. Brennan, Jr.: Now, is... there's a limitation of some amount, isn't there, on a--
Donald James Sullivan: There is--
William J. Brennan, Jr.: --State tort remedy?
Donald James Sullivan: --There is--
William H. Rehnquist: Fifty thousand dollars?
Donald James Sullivan: --Yes. Yes, Justice Brennan. I am not here arguing that the dollar amount makes that remedy insufficient. I am not arguing that at all. What I am saying is that under the state system, the objective, the stated objective of it, is the well-being of the child, the safety of the child, and I suggest that no after-the-fact damage action can address that question. The only--
William H. Rehnquist: How can we be confident that this social worker violated state law?
Donald James Sullivan: --Well, you have the record before you which reflects that on countless occasions--
William H. Rehnquist: I know. But where... where do you find the duty on a social worker to do anything more than the social worker did?
Donald James Sullivan: --The statute says by its terms when you get notice of evidence of child abuse, you shall make a fresh, de novo investigation--
William H. Rehnquist: All right.
Donald James Sullivan: --promptly and you shall intervene as appropriate. On time after time after time, there was notice of--
William H. Rehnquist: Do you have some... do you have some case in... in Wisconsin that--
Donald James Sullivan: --This is the only circumstance we've been able to find in Wisconsin where this has occurred. We're not trying to pick on Wisconsin.
William H. Rehnquist: --[inaudible].
Donald James Sullivan: But the fact is that if... if the... if the rule says that when the members of the court come in, I have to stand up, it's a simple matter of whether I stood up or not. And that's the... that's the situation that we have. They simply in the face of doctors' warnings, nurses' warnings, their own observations of profound abuse--
William H. Rehnquist: Well, do you think it was intentional?
Donald James Sullivan: --In the sense that the--
William H. Rehnquist: Or was it just negligent?
Donald James Sullivan: --No. I think... I think that it was not malicious. I think it was intentional in the sense of knowing and understanding the significance of the action and nonetheless choosing not to act to do the things the statute says you must do.
Anthony M. Kennedy: Was that... was that just a negligent omission or what?
Donald James Sullivan: No. I think it was a very conscious, a deliberative, a thought-through decision. And I think that's part of... and--
Anthony M. Kennedy: Wasn't it just a failure to realize that... that a breach of duty was involved, a negligent failure to know... know her duty?
Donald James Sullivan: --If we didn't have the factual setting in the record of... of the lady saying to people she believes on a current basis the child is being abused and saying later I believed the child was going to die, that might be the case. But I think given the facts that exist, I don't think that's the situation. I have only two minutes left. Obviously, I'll answer your questions. I would like to reserve what little time there may be, if that's acceptable.
William H. Rehnquist: Very well, Mr. Sullivan.
Donald James Sullivan: Thank you.
William H. Rehnquist: Mr. Mingo, we'll hear now from you.
Mark J. Mingo: Thank you, Mr. Chief Justice. May it please the Court: We believe this case involves an attempt by the Petitioners to transform the private wrongdoing of a natural father into state action for purposes of invoking the Fourteenth Amendment. The primary issue presented is whether a county's failure to prevent the infliction of harm by a third party upon a person at liberty constitutes a due process violation of the Fourteenth Amendment. We believe that there was no state deprivation of a constitutionally protected right for three main reasons. First, the Fourteenth Amendment's concept of liberty does not include a right to basic protective services from the state. Secondly, there is no state action in a constitutional sense which caused a deprivation in this case. Third, we believe that the actions of the social worker did not evince the state of mind necessary to invoke the Fourteenth Amendment. In addition, we believe that there are two independent reasons for urging affirmance of the Seventh Circuit's decision. First, with respect to the municipal Respondents, there was no policy or custom which led to a deprivation and with respect to the individual Respondents, we believe they are clearly entitled to the defense of qualified immunity.
William H. Rehnquist: The lower courts didn't reach any of those issues, did they, because they found there was no constitutional duty?
Mark J. Mingo: That's correct, Mr. Chief Justice. It seems to us that what Petitioners are attempting to do is use Section 1983, on one hand, and the Fourteenth Amendment on the other hand to affirmatively compel the states to act to protect. Yet, in analyzing the... the legislative history and intent of Section 1983, it's quite clear that the statute was not designed for those purposes. Section 1983 is remedial in nature. Therefore, we must look to the... the constitutional right that the Petitioners seek to invoke by way of use of Section 1983, which brings us precisely to the Fourteenth Amendment. The Fourteenth Amendment has been viewed by this Court as imposing no constitutional duty upon the states to provide substantive services to its citizens. The Court also has held that if the state chooses to provide some form of protective services, the Fourteenth Amendment does not tell the state how far they must go in providing those services.
Sandra Day O'Connor: Mr. Mingo, if this child had been in foster care placed by the state or the county, would there be potential liability?
Mark J. Mingo: Justice O'Connor, in that instance, we believe there may well be potential liability because in that case we have, at least arguably, state action in the sense that the state took a child out of his natural surroundings, arguably put him in state-controlled surroundings and thereby increased the risk of harm to that child. In that instance, I believe we may well have a case somewhat analogous to the prison setting and perhaps more analogous to the mental institution setting that was present in Youngberg v. Romeo.
John Paul Stevens: What... I... I'm sure Justice Stevens is going to ask the same question. So, go on. You take it, John. [Laughter] Why wasn't that what happened in January of 1983 when they returned the child? Is that what you were going to ask?
Mark J. Mingo: In January of 1983--
John Paul Stevens: Because they had custody of the child for a few days.
Mark J. Mingo: --the hospital had custody of the child because of the fact that the juvenile court... not the social workers, not the Department of Social Services, but Wisconsin juvenile court... through its intake worker placed the child in the temporary custody of a hospital.
John Paul Stevens: All right. And assume, having done that, the hospital now learns if we return the child to his father, the father has the knife and is about the abuse the child, do you say the state can go ahead and return the child?
Mark J. Mingo: Although that is certainly not the case before this Court, in that instance, I believe from a constitutional standpoint only a county or a department of social services could return the child without facing constitutional liability.
John Paul Stevens: Even with knowledge that there's... even with knowledge of extreme danger and almost certain serious abuse of this kind?
Mark J. Mingo: Even with that knowledge, Your Honor.
John Paul Stevens: Well, why is that different then from the foster home case that Justice O'Connor asked you about?
Mark J. Mingo: In the foster home setting, we have the state taking a child away from his natural surroundings, putting him in another set of surroundings, which are state controlled, state operated--
John Paul Stevens: That's exactly what happened here.
Mark J. Mingo: --No, that's quite different from what happened here. Here we have a child being taken out of his home for three days by the juvenile court and then, because no petition was filed by the Corporation Council which was... had nothing to do with the decision of the social worker, but the Corporation Council failed to filed a petition. Therefore, the--
John Paul Stevens: No, but during those three days, the child was in the custody of the state, wasn't it?
Mark J. Mingo: --No. The child was in the custody of the hospital.
John Paul Stevens: Who owned... who operated the hospital?
Mark J. Mingo: As far as I know, it was a public hospital. The child was placed there for purposes of examination only.
John Paul Stevens: But... but who had custody? You... you don't think the state or this agency had custody of the child during that period?
Mark J. Mingo: The agency I believe definitely did not have custody of the child. I also don't believe this was a state-run institution. The reason that the child was placed in this hospital was for... primarily for... for observation and secondly because his father could not be located. The child was examined. After the three days in the hospital, it was the concurrence by the hospital personnel and by the Corporation Council that evidence of abuse could not be substantiated. That automatically triggered Wisconsin's statute coming into play which required that the child automatically be returned to the parent in the event a petition was not filed--
John Paul Stevens: And the statute required whom to... to return the child?
Mark J. Mingo: --Pardon me?
John Paul Stevens: Who was it that had the duty to return the child?
Mark J. Mingo: Wisconsin's statutes say that the juvenile court... not the social worker, but that the juvenile court must return the child to the home in the event a petition is not filed within 72 hours.
John Paul Stevens: All right. Supposing the juvenile court is given evidence that if you return the child to the home, the child will be seriously abused forthwith? xxx. Would the state be liable if it went ahead and returned the child?
Mark J. Mingo: Even though we may have the requisite state of mind, Your Honor, present in that case, I do not believe--
John Paul Stevens: xxx state action too.
Mark J. Mingo: --I don't believe in that instance we would have state action because we have not done anything to increase the risk of harm to that child, whereas in Justice O'Connor's example, we certainly can be said to have increased the risk of harm to the child because we took that child away from his or her natural surroundings and put that child into an arguably more dangerous set of surroundings. And we believe that's what triggers state action.
Anthony M. Kennedy: What if you don't give it back to the father, but you give it back to... to the wrong person? You give it back to some... some-- --Some child-- --right... some... some mad criminal who has just been released from a mental institution knowing or you ought to know that this is not the... not the father. Would the state have any liability in those circumstances?
Mark J. Mingo: Justice Scalia, I believe in that set of circumstances there well may be liable... liability because we have state action--
Antonin Scalia: So, what you're saying is what makes a difference is whether you're just returning him to the status he was in before you took over the temporary custody. Is that... is that the difference?
Mark J. Mingo: --I believe that the important factor to be looked at is whether or not the state action can fairly be said to have increased the risk of harm to that child. If the answer to that threshold question is yes, then I believe we have state action in a constitutional sense.
Antonin Scalia: Increased it from what? From what it was before the state took custody or from what it was when the state had custody?
Mark J. Mingo: From what it was before the state interjected and took custody.
Anthony M. Kennedy: Well, you were just returning it to the person who had the legal right to custody.
Mark J. Mingo: That's correct. When an individual such as the--
William H. Rehnquist: Which is more important than the abuse to poor Joshua?
Mark J. Mingo: --We're not saying it's more important, but the parents certainly have a constitutionally protected right which must be observed by the social worker.
William H. Rehnquist: Poor Joshua. It's the... I... I guess the... the malfeasance was by the person who didn't file the petition to change custody.
Mark J. Mingo: If there was any malfeasance, that certainly would be an argument. The record is quite clear, though, that all of the professionals in this case, the pediatrician, the child psychologist, the police officer who investigated the case... they all believed that abuse could not be substantiated. Every one of the professionals involved concurred, and the record is absolutely clear in that regard. They all concurred that there was no evidence to substantiate a claim for child abuse.
William H. Rehnquist: Well, except the social worker.
Mark J. Mingo: I'm now talking about the January 22 incident where the state arguably took custody or custody was placed with... with the hospital. At that time there was an initial suspicion of child abuse which after the three-day stay in the hospital, all professionals agreed could not be confirmed. In looking at this Court's decisions, it appears to us that state action has been found primarily in two settings: first, and most obviously, where the state goes out and directly inflicts harm upon an individual; secondly, state action has been found in a custodial setting where the state by its intentional act deprives a person of liberty, and by depriving that person of liberty, assumes a degree of control over that individual such that they have a reasonable means of protecting that individual, such as in a prison setting, and where they assume some responsibility for that individual's welfare.
William H. Rehnquist: Well, Mr.... Mr. Mingo, I wonder if you wouldn't be better advised to use the term "constitutional duty" rather than state action. There's no doubt that the social worker was a state actor. She was a... she was a public employee doing this, and her acts were those of the state. Your point really is that she was not under a constitutional duty to do certain things that your opponent says she was under a duty to do.
Mark J. Mingo: Yes, Your Honor, you're quite correct. State action can be quite misleading, and when I use the term "state action", I'm trying to use it in a constitutional sense which necessarily implies a deprivation of a constitutionally protected right.
Byron R. White: And under your theory, I take it if two policemen see a rape and watch it just for their own amusement, no violation of the Constitution.
Mark J. Mingo: We would concede that there is no constitutional violation in that particular case.
Byron R. White: You're not... you're arguing it as well as conceding it. [Laughter]
Mark J. Mingo: That's correct. In this case it is undisputed by both sides that there was no direct deprivation or direct infliction of harm upon the Petitioners nor was the Petitioner in the custody of the state at the time of the alleged wrongdoing. In order to circumvent the... the state action or constitutional deprivation requirement, counsel has proposed in their brief a special relationship theory which today they appear to call an enmeshment theory. No matter what it is, this theory would hold states liable wherever they have expressed a desire to afford protection to an individual and where they have some generalized knowledge of the victim's plight. We submit that such a theory has no support in the language of the Fourteenth Amendment, no support in Section 1983, nor does it have any support in any prior decision of this Court. What their theory would do is open up local governments to massive new areas of exposure precisely because of the fact that the states, if we were to accept Petitioners' theory, become liable for the acts of private wrongdoers. There are numerous governmental agencies other than social services departments which seek to afford some degree of protection to the public. Certainly police departments, fire departments, emergency ambulance services fall into that very same category. It seems to us that if Petitioners are to prevail in these types of cases, the effect will be to greatly expand the financial drain on local governments thereby making the very services that Petitioners claim they wish to encourage less available to the public as a whole.
William H. Rehnquist: Mr. Mingo, under Wisconsin law, does Joshua have a cause of action against his father?
Mark J. Mingo: He certainly would have a cause of action against his father. In fact, his--
William H. Rehnquist: No... no barrier between child/parent relationship?
Mark J. Mingo: --That... that immunity was done away in Wisconsin some 10 or 15 years ago. And, in fact, I might note that Randy DeShaney, the father, was in fact a party defendant to this action when it was first... when the complaint was first filed. He was subsequently dismissed on a voluntary basis by counsel. So, he was in fact a party defendant, and there was no objection on the basis of immunity. Again, we wish to emphasize that the problem with this special relationship or enmeshment theory is that it fails to distinguish between privately inflicted harm and state action. On the other hand, we believe that the Court's adherence to the traditional state action or constitutional deprivation requirement provides a bright line standard which would separate actions of private wrongdoing from actions which can fairly or truly be attributed to the states. We also believe that the Petitioners cannot prevail upon their Fourteenth Amendment claim because the social workers in this case did not evince the state of mind necessary to support a Fourteenth Amendment action. This Court has recently told us in Daniels and Davidson that negligence certainly is not enough. And the Court also indicated to us that traditionally the due process clause has been applied to deliberate decisions by government officials to deprive a person of life, liberty or property. This case we believe is even less constitutionally compelling than Daniels and Davidson because we are not dealing with a custodial setting, and we are faced with claims of inaction versus action. In such circumstances, we have proposed that the requisite state of mind must be that of deliberate indifference or a failure to act. And the reason we propose this heightened state of mind requirement is twofold. First, we believe it avoids trivializing the Constitution by allowing individuals to bring ordinary tort claims in the name of the Fourteenth Amendment. And we also believe that this heightened state of mind requirement recognizes the real-life dilemma which front-line social workers and many other governmental workers face on a daily basis. As the Seventh Circuit indicated below, social workers truly do operate on a razor's edge. First, a social worker must respect the constitutional rights of a parent to the care, custody and management of their children. Secondly, where a social worker's involvement is on a purely voluntary basis, such as it was in this particular case, she must walk a fine line to avoid having the door slammed in her face thereby preventing any future involvement of the department. This--
Byron R. White: You... I take it you don't agree with your colleague on the other side that the social worker was... was disregarding her duty under state law?
Mark J. Mingo: --We certainly do not agree with that position, and we believe the record is quite clear. The only duty she had under state law was to investigate when she received a report of abuse. The only report of abuse which the department ever received in this case was the initial report of suspected abuse. Immediately following that report, there was an investigation. The child was placed in the hospital for three days and then, since there was no filing of a petition at the end of three days, the child was automatically returned to the home. After that first incident, there was absolutely no further reports of abuse.
Anthony M. Kennedy: Yes, but there was further information received by the social worker, wasn't there?
Mark J. Mingo: There was information in the sense that the social worker suspected that there might be abuse.
Anthony M. Kennedy: And the... wasn't there visits after that?
Mark J. Mingo: By the social worker? In fact, there were 12 visits on a voluntary basis.
Anthony M. Kennedy: Well, that's better... that's better than having a written report I suppose.
Mark J. Mingo: In fact, those were tantamount to informal investigations. But there was only one formal investigation, and that was triggered by the initial report of abuse.
Anthony M. Kennedy: Well, but the submission... the submission is that the social worker knew enough that under state law it was her duty to take the child out of the house or do something to... to remove the child from that position of danger. And you disagree with that I take it.
Mark J. Mingo: We do disagree with that. Under state law, it's quite clear that the only duty that the social worker had was to investigate. And she only had a duty to investigate when she received formal reports of abuse.
Anthony M. Kennedy: Well, what... what was the purpose of investigating? Wasn't there... didn't the law... doesn't the law say, well, and if you find out certain things, you must do certain things?
Mark J. Mingo: The law doesn't say that, but I believe the law probably presupposes that if there is an investigation and that investigation reveals probable cause to believe that there was child abuse, that that information will be relayed to, in this instance, the Corporation Council who will then file a petition in juvenile court.
Thurgood Marshall: In Wisconsin-- --So, you're relying-- --what's the difference between a formal and an informal investigation? You keep saying that this wasn't a formal one. What's the difference?
Mark J. Mingo: The only formal investigation--
William H. Rehnquist: Well, what is the difference?
Mark J. Mingo: --A formal investigation is an investigation triggered by the statute. And the statute only triggers a duty to investigate when the social worker receives a report of abuse.
Thurgood Marshall: Well, what's the difference in what the social worker does?
Mark J. Mingo: Again, the... a formal investigation is any investigation triggered by the statute, 48... Section 48.981.
Thurgood Marshall: So, there's no difference between a formal and an informal one. Is that right?
Mark J. Mingo: I don't believe that is correct.
Thurgood Marshall: Well, what is the difference? This is my last time I'm going to ask you.
Mark J. Mingo: The only way I can answer that question, Justice Marshall, is to tell you that a formal investigation is one that's triggered by a statute. An informal investigation is one voluntarily undertaken by the social worker. The net effect may be the same, but the triggering process is different.
Anthony M. Kennedy: So, you really are drawing the distinction between a formal report and an informal investigation. No matter how much she uncovers, if no... there is no resulting formal report, no possible liability.
Mark J. Mingo: That's not the basis of our... our... our position is.
Anthony M. Kennedy: I thought that's just what you've been arguing.
Mark J. Mingo: What I've been attempting to argue is that a formal report is required to trigger an investigation. If she receives a formal report, then she does have some affirmative duties imposed upon her by the statute. The statute says she shall investigate.
William H. Rehnquist: Thank you, Mr. Mingo. Mr. Ayer, we'll hear now from you.
Donald B. Ayer: Mr. Chief Justice, and may it please the Court: I want to address the... the due process... the deprivation of due process analysis briefly if I could, but before I do, I'd like to say a few words about the relationship between federal and state government and the role of the federal Constitution because I think it is reasonably clear that the area of child protection is not one that is crying out for federal constitutional oversight. First of all, it is not an area where there is any sort of history of hostility between the state and the interests that we're talking about trying to protect. Quite the contrary. There being no constitutional right to this protection in the first place, it's clear I think that the state programs that have been set up have all been set up as a matter of state and local government initiative born of exactly the same sentiments and concerns that everyone feels toward children who are exposed to the kinds of abuse and hazards that we're sadly reviewing in this case. So, we don't have... we don't have a... a state actor who there is a need to step in front of and stop in any sort of habitual way. The state is actively intervening to do all that it reasonably can do. Second of all, I think there's no reason to think that federal oversight, federal constitutional oversight, is going to add very much to the handling of these sensitive and difficult problems. There is I think little reason to think that federal courts have any special expertise in the reviewing of what is at least in some sense a balance between interests of parents, respect for the interest of parents in controlling their children, as opposed to the priority of intervening when you... when you need to and must in order to protect the child. It's the kind of a sensitive situation that requires close, on-the-scene involvement, the exercise of discretion and the exercise of a great deal of care and concern. It's an area of... of traditional state law involvement and local government handling. And the idea that at a federal court review engrafted on top of what is already in place, machinery that has been put in place by the state and local governments... the idea that that is going to help rather than hurt I think is... is really a misguided one. We're talking about a number of things. We're talking about, number one, creating another layer of judicial action, judicial review, which itself will result in delay. It will divert resources from the... the real everyday problems and the handling of these personal situations. We are talking possibly not only about awarding damages and creating a... a chill and a discouraging factor which Justice O'Connor alluded to being involved at all, also a day-to-day possible, I suppose, injunctive role for the federal courts coming involved not only after the fact when something has happened to award damages, but becoming involved as these cases evolve. You go to the local court. You go to your local social service agency. You go to the local court, and then you go to federal court. The idea that that is somehow going to help the resolution of these problems seems to be... seems to be misguided, and I think there is a good reason to fear that it may well just primarily discourage the involvement of local agencies for fear that they're going to be facing an unmanageable and very expensive situation. All of that is basically irrelevant unless it is wholly consistent with the law and what the Constitution requires. And very briefly I'd like to say that I think it's quite clear that when you take to heart the Court's statements that the due process clause is not to be a font of tort policy which will evolve as tort policy does in response to various economic and distributive concerns and theories and... and sort of comes and goes with... with social concerns and the social situation, it's clear that we can't create the liability which is requested by the Petitioner here without really creating an open-ended possibility--
Byron R. White: What if a police officer responding to a complaint of a neighbor goes into a house and sees a father beating up his son and the officer just says, well, I guess the son deserves it and just watches as the beating goes on? Would there be any liability on the... on the officer himself and--
Donald B. Ayer: --I don't--
Byron R. White: --[inaudible] on the state?
Donald B. Ayer: --I don't think that there is going to... I think the answer is probably no. It might change depending on the particular facts you're talking about, but I... I think it has got to turn on whether what happens can be described as an abuse of government power which is a moving force behind the harm that is taking place.
Byron R. White: But protection is never one of the... one of the things that the Constitution would require the state to furnish.
Donald B. Ayer: I don't... I don't think it is. I don't think that the state is obligated to provide a particular service as desirable as that may be and as concerned as most everyone probably is that that not go on.
Byron R. White: And even if the... even if the state law put... put the affirmative duty on the officer or the social worker to remove the child or stop the abuse if it occurs in their very presence.
Donald B. Ayer: Well, it might be possible to write a statute in a way that created a procedural due process interest. I don't know quite how you'd do that, but you'd have to link... the words would have to be fairly mandatory and would have to link rather closely to the harm that you're talking about now occurring. And if that happened, the question would then be about the adequacy of the remedy that was provided for... for the harm when it did in fact occur.
Antonin Scalia: We're just talking here about whether there's a federal cause of action. I... I presume--
Donald B. Ayer: Absolutely.
Antonin Scalia: --I presume that there would be a state cause of action against the officer in those circumstances if he had a duty to act and didn't.
Donald B. Ayer: Well, in most cases, I would think there would be. And, of course, the point I guess I was making earlier in summary is that there is no reason why we can't rely on the mechanisms of state and local government to create the remedies that are appropriate in these circumstances.
Byron R. White: Well, my only purpose of asking the question is that I... I take it that... that you had to answer that way and... but also it makes irrelevant how much the social worker knew.
Donald B. Ayer: Well, I... I think that's right unless you... unless you are--
Anthony M. Kennedy: Yes, and if... but if we... if we decide... if we... if we decide for the state, it... it really does mean that it's irrelevant how... how much the social worker knew or--
Donald B. Ayer: --That's correct.
Anthony M. Kennedy: --how much of a duty she had under state law or anything else.
Donald B. Ayer: That's correct unless you are thinking of going down the... the Roth line of argument which I think is... is--
John Paul Stevens: Well-- --But your-- --that's never been argued around here. But your basic position is there's no affirmative duty on the part of the government to... to provide the protection of the law to a particular citizen--
Donald B. Ayer: --Well, there... there's a duty--
John Paul Stevens: --even though there is a duty to provide equal protection of the law.
Donald B. Ayer: --That's right. That's right. And... and I think... I think the way that one... what one would have to do to violate equal protection of the law is... is useful in thinking about how to think about a violation of due process in the sense that there the denial of equal protection which could, in fact, be other than an affirmative act or... or the government being a moving force behind the harm, nonetheless it must be intentional. It must be an act which intends the result... the denial of the protection that they otherwise would be entitled to. And I would suggest that that concept of intent... whereas it's... it probably is not the best way to decide this case, I would suggest that an intent to take an action which does deprive one of liberty, such as by putting... putting them in jail, putting them into a mental facility or something like that, that that's the kind of intent that you ought to have to have. That's an issue, of course, the Court did not reach in Davidson and Daniels as to whether that degree of intent is required. We would suggest that it is.
Antonin Scalia: What about giving him back to his father? What... what... what... what's the government's position on that?
Donald B. Ayer: xxx the case?
Antonin Scalia: If the state had... well, let's assume the state had a lot of knowledge at the time the child was returned to his father. Would you consider that to be enough affirmative state action to--
Donald B. Ayer: Well, I... I... I would think not and the reason would be that the removal in this case was a temporary removal for specific purposes. The father remained the legal custodian of the child. No affirmative action had been taken to determine that the... the father was unfit and that the expiration of this temporary period, absent further action, the child was going to go back to... to the parent. And the fact that it did not take that affirmative action, but rather let the status quo continue, I think is not the kind of affirmative action that you've got to have in order to have the state be the moving force... its abuse of power be the moving force behind the injury that occurred. Thank you very much.
William H. Rehnquist: --Thank you, Mr. Ayer. Mr. Sullivan, you have one minute remaining.
Donald James Sullivan: Thank you, Mr. Chief Justice.
Thurgood Marshall: Mr. Sullivan, do you rely on due process or equal protection?
Donald James Sullivan: Due process, Your Honor.
Thurgood Marshall: Due process?
Donald James Sullivan: We... we posed this case in terms of--
Thurgood Marshall: All right. Well, spell it out. Just what due process point--
Donald James Sullivan: --I'm sorry. I didn't hear.
Thurgood Marshall: --What denial of due process is it that you deny... that you object to?
Donald James Sullivan: We feel there... there are two: one, the... what we see to be a... a substantive due process right inherent in the balancing of the constitutional involvement in the child/parent relationship.
Thurgood Marshall: Well, what facts do you object to? Facts.
Donald James Sullivan: We object to the fact that the... the county agency and its personnel knowing and believing that the child was probably going to die or at least be seriously, as he turned out to be, profoundly injured and knowing that he was in immediate need of medical care for lifesaving purposes, nonetheless, despite its power, its exclusive power, refused to help the child. It is that that we believe is the abuse of power. And we agree with Mr. Ayer's comment that abuse of power is the... is the... is the key here. I see my time is up. Thank you very much.
William H. Rehnquist: Thank you, Mr. Sullivan. The case is submitted.


Earl Warren: Number 139, Diamond Kimm, Petitioner, versus George K.Rosenberg, District Director, Immigration and Naturalization Service. Mr. Forer.
Joseph Forer: Mr. Chief Justice, may it please the Court. This case is here from the Ninth Circuit. The question is whether the petitioner -- the question is whether the petitioner was lawfully held ineligible for suspension of deportation because he refused on the basis of his privilege against self-incrimination to testify in the suspension proceeding whether he was or ever had been a member of the Communist Party. The petitioner is a Korean. In 1928, he was admitted to the United States on a student's visa and he went to school in college here and received bachelor's and master's degrees. By 1937, he was ready to return to Korea and rejoin his wife and child. In that year, however, war broke out between Japan and China. Petitioner was unwilling to return to Korea, which, of course, at that time, was part of the Japanese empire, because he thought that if he'd return to Korea, he is a technician, would be put to work for the Japanese war machine.
Earl Warren: What year was that?
Joseph Forer: That was in 1937 --
Earl Warren: 1937.
Joseph Forer: -- that the war broke out. He was ready to go back. But if he went back, it would have meant that he would -- would have been helping the Japanese war effort against China and he was anti-Japanese. So he continued in school for another year up until July 1938. And after July 1938, he stopped attending school and took full-time employment in this country. And in July 1938, the same reason that it induced him not to go back to Korea in 1937 still existed. In 1938, he didn't want to go back because of the Japanese-Chinese War, so he continued on here. Now, that made him deportable because he had overstayed his student's visa. So, deportation proceedings were instituted against him and this culminated in an order of the Board of Immigration Appeals in 1943. And this order found him deportable for overstaying his status as a student. It also granted him the privilege of voluntary departure and this he did on a finding by a hearing officer and which was an essential finding for granting the privilege that he had been a person of good moral character for the preceding five years. But by this time, we were at war with Japan and departure was impossible, so the petitioner stayed on (Inaudible), and he worked in defense industry as a chemist. In July of 1945 --
Potter Stewart: You said he stayed on legally or illegally or neither?
Joseph Forer: He -- he was ordered deported.
Potter Stewart: (Voice Overlap) of necessity, of course.
Joseph Forer: He was granted the privilege of voluntary departure, but he couldn't avail himself up and nobody denies that. He -- he couldn't go to -- to Japan when we were at war with Japan.
Earl Warren: But his conduct was not surreptitious. He --
Joseph Forer: Oh, no.
Earl Warren: --he wasn't hiding or anything of that kind from the --
Joseph Forer: Not only that. As I was about to say, the Government hired him. He stayed on. First, he worked in defense industry as a chemist. And as a matter of fact, the FBI cleared him to work on a secret government contract. And in July of 1945, the Office of Strategic Services recruited him as a volunteer for a projected hazardous mission. He was recruited by the OSS, a group of men, Koreans who are to be trained to be dropped as American spies in Japanese occupied Korea. He was trained for this mission, but just as his group was scheduled to depart overseas, Japan surrendered. So he never did go overseas. Everything was conspiring to keep him here. So in September of 1945, he left the Office of Strategic Services and he returned to private employment.
William J. Brennan, Jr.: Did he -- he didn't have a military rank with OSS.
Joseph Forer: No. They were just -- he was just going to be a spy. He was now anxious to return to Korea because the war was over. Japan had been defeated. And he wanted to get back to his native country. But although the war was over, exit permits were still required. And they were required until late 1948. So he, on several occasions, applied to the State Department to get an exit permit and he never received a reply and never got the permit. As a result, he was still here in the United States on July 1, 1948. On that date, Congress liberalized the statutory provisions for suspension of deportation. Among other things, the Act of July 1, 1948 dropped the racial restrictions which previously had excluded Koreans, among other nationalities, from any possible consideration for suspension. So that as a result of the July 1, 1948 amendment, for the first time, he had a chance for suspension of deportation. And in June of 1950, the Immigration Service, on its own volition, ordered the deportation proceedings reopened so as to allow him to apply for suspension of deportation under the liberalized legislation. Now, by this time, the petitioner didn't want to return to Korea. The Syngman Rhee Regime was then in power in Korea. The petitioner had become the editor of a Korean language newspaper in California. This newspaper was an anti-Rhee paper. And the petitioner was afraid that if he went back to Korea, he would incur physical persecution. So he didn't want to go back. And now, that the suspension possibility, for the first time, became available and the Immigration Service reopened it so as to permit him to apply for suspension, he took advantage of the opportunity and he did apply.
Potter Stewart: So, his parents and wife and family in Korea?
Joseph Forer: His wife and child had come over here the same time he had, but they had come over on visitor's visas. He had come over on a student visa. Now, while he was still attending school, their temporary visitor's visa expired. They tried to get permission to remain on with him even though their visitor's visas had expired. The Immigration Service refused to extend their visitor's visas, so they had to go back. He kept -- he stayed on expecting to finish his education and then go back and rejoin them. And for the various (Inaudible) that I have mentioned, he never did get back.
Potter Stewart: Well, now -- but you didn't answer my question (Voice Overlap) --
Joseph Forer: And his wife and child, they're in Korea when last (Inaudible). Now, the suspension statute, under which he applied and which is the statute which is applicable here, was first enacted by the Alien Registration Act of 1940. And this added Sections 19 (c) and 19 (d) to the Basic Immigration Act of 1917 and Section 19 (c) was amended by this liberalizing legislation that I referred to of July 1, 1948. Now, Section 19 (c), as amended, prescribed certain conditions before a deportable alien is eligible for suspension. If and when these conditions are met, the Attorney General then has discretionary power to grant or deny suspension. If the conditions are not met, the Attorney General does not have discretion to grant suspension. So far as the petitioner here was concerned, the relevant conditions of eligibility under Section 19 (c) where that they have resided in the United States for seven years, that he have resided here on July 1, 1948 and that he proved that he proved that he had been a person of good moral character for the five years preceding his application. But in addition, Section (c) says that except as provided in section (d) or subsection (b) and section (d) or subsection (d), Section 19 (d) says that the suspension provisions of 19 (c) are not applicable to aliens who are deportable under certain specified statutes. And among these various specified statutes was the anarchist deportation statute of 1918.Now, after the petitioner filed his application for suspension, but before it was enacted upon, this anarchist deportation statute of 1918 was amended by the Internal Security Act, the McCarran Act of September 23, 1950. And the McCarran Act amended the anarchist deportation statute so as to require the deportation, not only of aliens who were -- who were or had been anarchists, but also of aliens who were or had ever been members of the Communist Party. Now, the effect of this, so far as this case is concerned, is that it automatically enlarged the scope of Section 19 (d) so as to withhold from suspension the suspension provisions of 19 (c), persons who are deportable on account of Communist Party membership. Now --
Potter Stewart: Now, do you really mean as -- let's see if I understand, both from a right to suspension or a discretion to suspect?
Joseph Forer: I'm sorry, I didn't hear you.
Charles E. Whittaker: Do you mean that there is a right to suspension or a right to invoke the discretion of the Attorney General?
Joseph Forer: If -- if an alien is eligible under the statute, he has the right to invoke the discretion of the Attorney General.
Speaker: Yes.
Tom C. Clark: In order words, if you prevail why the Attorney General could still refuse to --
Joseph Forer: The Attorney General has exercised his discretion, if we prevail. Up to now, he has not. Now, hearings were held in 1950 and 1951 to determine whether the petitioner should be granted suspension. And there's no question but that the petitioner met the resident's requirements of Section 19 (c) for eligibility for suspension. An evidence was introduced at the hearing bearing on the requirements of eligibility that the applicant proved good moral character for the five years proceeding the application. And the evidence on this subject included good character affidavits from persons who were well acquainted with the petitioner. It included the petitioner's own testimony about his history. It included a letter from the Office of Strategic Services which praised him for his service with the agency. It also included a report of a field investigation by the Immigration Service and a report by the FBI. These reports disclosed that petitioner had no criminal record and that no derogatory information about him have been discovered at all. And the fact is that the record contains no evidence of any kind which adversely reflects on petitioner's character. All the evidence is to the effect that he is and was a person of good moral character. But during the hearing, the examining officer, he was the equivalent of a prosecutor, as distinguished from the hearing office, during the hearing, the examining officer asked the petitioner if he was a member of the Communist Party. Now, it has not suggested that this question was asked because the service had any information that petitioner was in fact a member of the Communist Party. The question was asked out of the blue as it were. Now, when petitioner was asked this question, “Are you a member of the Communist Party?” His attorney objected on the ground that the question violated the First Amendment and the privilege against self-incrimination. And on the advice of counsel and on those grounds, the petitioner refused to answer the question. When the hearing was resumed at a later date, the examining officer asked the petitioner, toward the end of the hearing, if he then wanted to answer the question, “Are you a member of the Communist Party?” If petitioner said, “No.” He would decline to answer again. This time, he just mentioned his privilege against self-incrimination. He didn't say anything -- he didn't incorporate the First Amendment. Then, the examining officer asked him whether he had ever been a member of the Communist Party. And on the advice of his counsel at his deportation hearing, the petitioner again -- the petitioner refused to answer the question as to the past on the basis of his privilege against self-incrimination. Now, the hearing officer denied suspension of deportation. And from there, an appeal was taken to the Adjudications Division of the service. That was then no longer, but at that time, they had this intermediate administrative appeal. And the Adjudications Division denied suspension, then the appeal went to the Board of Immigration Appeals and the Board of Immigration Appeals denied suspension. Then, the petitioner brought an injunction suit in the District Court in Los Angeles to review the deportation order and the order denying suspension. And the District Court sustained the denial of suspension and the Court of Appeals affirmed it. So there have been five different levels of decision here, three administrative levels and two judicial levels.
Felix Frankfurter: Was the -- was any step taken to ask if the Attorney General himself to pass on this?
Joseph Forer: I have no -- the -- the -- under the regulations, the Board of Immigration Appeals has the final say on behalf of the Attorney General unless they ask to go on to the Attorney General or the Attorney General himself take it. But there's no question that when he went through the Board, he exhausted his administrative remedies. Nothing -- it did not administratively go beyond the Board.
Felix Frankfurter: Has it -- has it been tested whether -- since the statute says the Attorney General whether the man was dissatisfied with the administrative procedures that I want the Attorney General himself to say?
Joseph Forer: Well, I don't know of any test on that subject and -- that if -- if the alien here did not test it. I mean, he made no such claim in any of the proceeding.
Tom C. Clark: When was that regulation started?
Joseph Forer: Which regulation?
Tom C. Clark: As I remember, when we used to pass (Inaudible) question without -- I thought the Attorney General passed on it.
Joseph Forer: It may --
Tom C. Clark: Does that regulation is saying --
Joseph Forer: It may be. All I know is that -- that the way he has --
Felix Frankfurter: Maybe it's very important if -- if that access to him isn't shut off.
Joseph Forer: Well, it maybe important but the area here never claimed that access to different --
Felix Frankfurter: Well, I'd say it may be important to this litigation.
Joseph Forer: Yes, it may be, but I -- I just don't see it. Now, these five --
Felix Frankfurter: What do you mean you don't see it?
Joseph Forer: No, I mean I don't --
Felix Frankfurter: You said you don't see it. That doesn't answer a question if you don't see it.
Joseph Forer: No, no, sir. Now, these five different levels of adjudication --
Felix Frankfurter: The statute says the Attorney General, not the Attorney General said you can't get to me.
Joseph Forer: I -- I should think he could not. But as far as --
Felix Frankfurter: Well, if he -- if you think he couldn't --
Joseph Forer: -- I know, he did not say that here.
Felix Frankfurter: -- if you think he could not, then it's a relevant question to put it mildly why you didn't -- why you didn't seek to get to him.
Joseph Forer: Well, he didn't. He accepted the Board of Immigrations Appeals' decision as being the decision of the Attorney General. And it is my understanding that that was permissible under that then administrative regulation. Now, at these various levels of decision, there were various reasons given for holding that the --
Felix Frankfurter: We've got that. Could you -- either you or Mr. Davis (Inaudible). I'd like to see that regulation because to me it's a serious question.
Joseph Forer: Yes.
Felix Frankfurter: When the statute tells the Attorney General and the Attorney General says, “You can't knock at my door.”
Joseph Forer: Now --
Felix Frankfurter: And when you say you don't see it, it wouldn't be the first time that -- that lawyers haven't exhausted what is the necessary administrative procedure.
Joseph Forer: I'm sure of that. Now, four different reasons were given for denying suspension varying with the particular agency or court which passed on the question. And I'll take up these four different reasons one at a time.
William J. Brennan, Jr.: (Inaudible)
Joseph Forer: The -- the Government has not taken the position that we should have gone to the Attorney General, and the alien has never taken the position that he was foreclosed from going to the Attorney General. Now, that is -- up to now, that has not been into the case. And what -- all I meant was when I said I don't see it, is that I don't see how, so far as the alien is concerned, he can now claim that he was foreclosed from going to the Attorney General because if he was foreclosed from going to the Attorney General, he accepted that foreclosure. And that's why I don't see --
Felix Frankfurter: But he may be foreclosed from coming here.
Joseph Forer: Well, that is possible. Now, as I already said, a precondition to eligibility for suspension under Section 19 (c) is that the alien proved that he was a person of good moral character for the preceding five years. Now, the hearing officer ruled, and I want to quote his ruling on this subject, “In view of his failure to answer the questions propounded, the respondent,” meaning the petitioner here or the alien, “the respondent has not affirmatively proved,” I guess I'll resume that later on.
Earl Warren: We'll recess now.