Warren E. Burger: We will hear arguments this afternoon in Fred N. Walker against ARMCO Steel Corporation. Mr. Manners, I think you may proceed now.
Don Manners: Mr. Chief Justice and Members of This Honorable Court. Fred Walker was a carpenter, and on August 22, 1975, he was driving an ARMCO nail into a piece of wood and it shattered, putting out his eye. He came to my firm and eventually we filed a suit on August 19, 1977, within the two-year statute of limitation in the Federal Court. And the summons were, what shall we say, lost? We thought the marshal had them and the marshal thought the Clerk had them. And we did a file review some 90 days later and we found them in our filing cabinet. We took them down there. I want to be square with you.
Warren E. Burger: In your filing cabinet?
Don Manners: Yes, sir. I can't find who -- no one will admit in the firm ever bringing them back but, anyway, we found them in an unmarked folder in the filing cabinet on a file review. That's how we found out they didn't get to the marshal. In any event, the summons are taken to the marshal and ARMCO is served some 104 days later. Now, Oklahoma has a statute that they must be served within 60 days beyond the statute of limitation, part of their statute. It's a question of whether or not it is procedural or substantive, I guess. And, of course, under Rule 3, you don't have that problem. Anyway, service was had and then the Ragan Case came like a falcon out of the skies and struck down our lawsuit, and here we are.
Warren E. Burger: The Ragan Case was decided somewhat before your lawsuit, wasn't it?
Don Manners: Yes, sir. The Hanna Case is a group barn burner on our side, but it didn't overrule Ragan.
William H. Rehnquist: There are only nine of us up here too.
Don Manners: Anyway, Judge Doyle of the Tenth Circuit, when he wrote his opinion, the last paragraph states, "The Supreme Court would perform a great service if it were to clear away the dilemma which exists as a result of the conflict between Ragan and Hanna." He says, "We recognize that decisions are frequently allowed to die on the vine, so to speak. We also recognize under such instances death does not, as a practical matter, take place. If, however, Ragan was intended to die a natural death, it failed to happen." So what we are here -- I am attempting to persuade--
Byron R. White: You come not to praise Ragan, but to bury it, I take it?
Don Manners: I come to bury Ragan, if possible. Now, Chief Justice Warren in the Hanna Case wrote a spectacular decision, well-reasoned, well thought out. And Justice Harlan in his concurring --
Harry A. Blackmun: And carefully saved Ragan.
Don Manners: And carefully saved Ragan.
William H. Rehnquist: Well thought out.
Don Manners: Well thought out; carefully saved Ragan. But Justice Harlan stated in his concurring opinion that he thought Ragan was wrong. And you know, going back at the beginning, under 28 -- Section 2072, when they enacted the Rules, the Federal Rules, it said, "All laws in conflict with such Rules should be a little further force or effect unless, of course, they invade the substantive portion." So, really what we are talking about is whether or not the Federal Rules of commencement of an action in service are procedural or substantive. You know, I am from Oklahoma and I don't like to say this. Basically speaking, we've got an awful good State there, but I'm not much in favor of a service statute where your defendant can hide out for 61 days and you've lost your case. If you can't find him in 61 days or prove he's out of the State, you're just dead in the water down there. I don't think it was intended that the Federal Rules for the Courts of all the Federal Courts here, I don't think it was intended that the 60-day--
Thurgood Marshall: I don't see why you put all that weight on distance. I think you have a very hard time trying to find somebody in Manhattan, and that's a lot smaller than Oklahoma City.
Don Manners: We've got more brush down there in our country for them to hide in. This is not the first time I have run afoul of the 60-day deal. Sometimes you just can't find them, and you're dead. But in this case I feel particularly bad because Mr. Walker had an injury and somehow or other, like something dropping from the skies, I find the summons in the filing cabinet back in the office on a file review.
Warren E. Burger: You wouldn't be arguing this to any Oklahoma Court, would you, that you didn't like the law the legislature had enacted?
Don Manners: No, sir, because Oklahoma Courts are not covered by Rule 3.
Harry A. Blackmun: This is a Federal question.
Don Manners: A Federal question, right.
William H. Rehnquist: What is the principle you want us to adopt?
Don Manners: I want you to adopt the principles elucidated in Hanna.
William H. Rehnquist: And what are those?
Don Manners: Those are for uniformity, the Federal Rules should govern service. This case turns on Rule 4 1(d), which is where the statute requires that you thrust it directly in the hand of an executor and they left it with his wife. And the Court held that under the Federal Rules, the Rule having to do with service would apply.
William H. Rehnquist: What if the Federal Rules had no provision which was a counterpart to Oklahoma's provision here?
Don Manners: What would I do? I would be defending a case of malpractice; that's what I would be doing, probably.
William H. Rehnquist: You say that there must be an affirmative Federal Rule of Civil Procedure covering this point?
Don Manners: Without Federal Rule 3 and Federal Rule 4, I have no standing.
William H. Rehnquist: You don't urge us to go back to Swift against Tyson, or the days of the Federal common law?
Don Manners: No, sir. The Federal Rules set up for the maintenance and the handling of Federal cases in this country, I think should be controlling of cases filed in the Federal Courts. Now, I am embarrassed, and I should be that this matter happened at my law firm. But I think under the pure question of law that Fred Walker is entitled to relief. I think that the Federal Rules, Rule 3 should govern what commences an action. The Federal Rule states it very succinctly. It says, it's told when the case is filed, under Federal Rule 3. Now, your Rule 4 --
William H. Rehnquist: Does Federal Rule 3 say "told"?
Don Manners: Let me get it exactly, Your Honor. Rule 3, "A civil action is commenced by filing a complaint with the Court." That is what it says specifically. Rule 4 puts the burden upon the Clerk. It says, "Upon filing of a complaint, the Clerk shall forthwith issue a summons and deliver it for service to the marshal or persons specially appointed to serve it.
William H. Rehnquist: What is there in the Rule though that says that the beginning of an action is just the filing of the complaint satisfies the State's statute of limitations? I mean, it may start the action, but does it say that?
Don Manners: It says, "A civil action is commenced by filing a complaint with the Court."
Byron R. White: I know a civil action is commenced, but what makes -- why is that -- would that necessarily -- what if a State law said just specifically that, and by the way, we mean what we say, just the starting of an action does not satisfy our statute of limitations.
Don Manners: Your Honor --
Byron R. White: It has to be some other event that happened before the statute of limitations is satisfied.
Don Manners: Oklahoma State law does provide that an action is commenced by the filing of the petition, but it has an additional statute, two sections down, that says if you can't get service with due diligence within 60 days that you're just through.
Harry A. Blackmun: What is there in Rule 3 to prevent the State from having such a provision? This is a matter of State law, a State statute of limitations law.
Don Manners: Excuse me, Your Honor. There is nothing to prevent the State from having that law. My position is that under the Federal Rules, Fred Walker is entitled to the Federal Rule law, under Hanna, which goes into Erie. I am sure everybody is familiar -- I think you were on the Court when Hanna was decided.
Warren E. Burger: I understand. Ragan wasn't overruled.
Don Manners: No, but a lot of people thought it was. I've got a beautiful Second Circuit opinion here.
Warren E. Burger: Yes, I know.
Don Manners: And Judge Doyle says he prefers the Federal Rules. Really, we're talking about making uniformity. Every citizen --
Warren E. Burger: You don't have uniformity under substantive law in diversity cases.
Don Manners: I don't believe that it's substantive, Your Honor.
Warren E. Burger: I say you don't under the substantive law.
Don Manners: No, Sir.
Warren E. Burger: What you want is the traditional, the Erie rule under substantive law but the Federal law on the procedural.
Don Manners: That's correct, Your Honor.
William H. Rehnquist: What's the virtue of uniformity, as you put it, on the procedural side when basically you are dealing with practitioners in Oklahoma City or Tulsa who practice in both the Federal and State Courts?
Don Manners: Well, it would make it a lot easier on the Circuit Courts, for one thing, because they would not have the higgledy-piggledly mess of each State having a different set of semi or quasi substantive or procedural law. Procedural or substantive is a difficult question at best. But, if you file a case in Court, you ought to go by that Court's procedures. What commences an action, how service is made--
Harry A. Blackmun: What if the statute of limitations in Oklahoma said that the statute of limitations will run until a complaint is served? Unless the complaint is served within the period, the case is over. Rule 3 wouldn't prevent that, would it?
Don Manners: Well, Rule 4 did in the Hanna Case.
Harry A. Blackmun: Why? No, it didn't. That isn't what the Court said there.
Don Manners: Your Honor, they served the executor by leaving it with his wife. The State statute provides that you had to serve the executor in hand. And they held that the Federal Rules of Service circumvented the State Rule required that the executor be served in hand. There is very little difference between that and the Rule 3, of following the Federal Rules so far as filing the case commencing it and the service being sent out by the Clerk to the marshal and served. Rule 4 gives the Clerk the duty--
William J. Brennan, Jr.: But Hanna didn't say -- Hanna certainly didn't say that if the State law required service to toll the statute, that just the filing of the complaint will toll the statute too. That isn't what Hanna held. It didn't say that at all. It said -- what you are suggesting to us is that that is what we should hold now.
Don Manners: No, sir, I am saying if you extend the Hanna rule to cover Rule 3, like the Second Circuit thinks it should be--
Warren E. Burger: Does the Second Circuit think it should be, or do they think that's what Hanna did?
Don Manners: They think that Hanna overruled Ragan.
William H. Rehnquist: What's the virtue of uniformity on the procedural side if you're not going to have it on the substantive side?
Don Manners: Well, I guess the virtue would be that under the Federal Rules and under the Federal system to make them the same. Each citizen and each State would have the same rights under the Federal law.
William H. Rehnquist: Well, that was the same justification that Justice Storey advanced for Swift against Tyson IN 1842, that the law does not lay down one rule in Athens and another rule in Rome; that the law should be uniform throughout the Federal Court System substantively. You don't agree with that, I take it?
Don Manners: No, sir.
William H. Rehnquist: Why not?
Don Manners: That's the way life is.
Byron R. White: That's your answer to Brother Rehnquist's question whether or not you agree or don't agree, that is the law.
Don Manners: Yes, sir.
Byron R. White: That under Erie Railroad against Tompkins, Federal Courts and diversity actions are required to apply State substantive law. It is equally well-settled that, as a matter of procedure, and everybody agrees that it is a matter of procedure, then there is a uniform Federal law applied in diversity cases, in Federal Courts as well as all other cases in Federal Courts.
Don Manners: Yes, sir.
Byron R. White: Whether that's good or bad or philosophically supportable or not, you don't need to say. It is the law.
Don Manners: Sir, I do feel very strongly that service of summons and the Rules about commencing an action are procedural.
William J. Brennan, Jr.: Well, let's assume that Rule 3 does cover when an action is commenced for Federal purposes, and that there is nothing that the State can say that will change that, that if you file the complaint, the action is commenced, the State doesn't argue with you about that. Your opponent doesn't have to worry about that. He will just say, however, that that just isn't enough to start to toll the statute of limitations. The State law says you have to do something else to give you 60 days. They say our statute of limitations runs until you are served a complaint.
Don Manners: No, sir, it says commenced upon filing a complaint, but you must obtain service within 60 days.
William H. Rehnquist: What was the statute of limitations in this case? You've got two years and 60 days. And you have got two years and 60 days to file the complaint, rather serve the complaint. If you don't serve it, you're out. Whether or not you have commenced the action.
Don Manners: That's correct. The Federal Rules don't say that though. And I think we out to follow the Federal Rules in this case.
Warren E. Burger: Let's go back a step. What was the purpose of the diversity provisions of the Constitution? That was just giving what was thought to be a neutral forum.
Don Manners: Stop forum shopping.
Warren E. Burger: Now, how does uniformity advance the idea of getting a neutral forum, one where citizens of another State were at least thought to have a better chance to get fair treatment in a Federal Court than a local court? How is that advanced, that concept advanced by saying that the service or process must be uniform?
Don Manners: It would advance, each person would know from whence they hailed that the same rules applied insofar as procedure in their courthouse in Milwaukee would apply so far as procedures are concerned in the courthouse in Oklahoma City.
William J. Brennan, Jr.: Isn't it more than that, Mr. Manners? Isn't there also the point that you do have cases in the Federal Courts that are not diversity cases. And I presume there is some advantage in having the same rules apply in Federal trials, whether it raises a Federal question or a State law question or a mixture of both?
Don Manners: Yes, sir.
William J. Brennan, Jr.: And man cases are a mixture of both.
Don Manners: Yes, sir.
William J. Brennan, Jr.: Isn't there another question here? If your Federal Rules apply, as I understand them, the duty to effect prompt service is rested with the Clerk of the Court?
Don Manners: Yes, sir.
William J. Brennan, Jr.: Delivering the summons to the marshal. How does the procedure work under Oklahoma law? Is it your burden under Oklahoma law?
Don Manners: You go up to the Clerk's office and you file it, and there is a big basket there, and they pitch it in the big basket, and if you don't want it three or four days getting to the Sheriff, you say, "Let me have that" and you take it back and give it to the deputy.
William J. Brennan, Jr.: Are you talking about the Federal Court or the State Court?
Don Manners: State.
Byron R. White: In the State Court, in other words, there is a responsibility of the plaintiff and his counsel to cause the marshal to be delivered -- to cause the summons to be delivered to the marshal?
Don Manners: No, sir. They put it in a basket, but if there is a two or three delay getting it to the Sheriff, if you want it down to the Sheriff that day, then you ask them to give it to you and you walk down and give it to the Sheriff.
Warren E. Burger: I see. But you have told us already that you never got around that far; you didn't get it into the basket.
Don Manners: I thought we got it into the basket.
Harry A. Blackmun: But you weren't in State Court.
Don Manners: No, sir, I was in Federal Court.
Harry A. Blackmun: In the Federal Court, it is not your to put it in the basket as I read the Rules.
Don Manners: Rule 4 says it's not. It says the Clerk shall cause it to be served, to be given to the marshal. Now, I can't fathom, and don't understand what could have happened to those summons, because the case was filed and we kept calling the Clerk to ask if we have got service, and they would say no. And then we found them on a file review. It's terrible.
William J. Brennan, Jr.: Somebody thought he was in the State Courts.
Don Manners: Gentlemen, I think I have used a lot of my time. And, if you'll tolerate me a second, I think this is the highest -- the finest thing that has ever happened to me in the practice of law, being allowed to come up here. A judge, named Judge Mills when I was a beginning lawyer said you didn't have to use all your time. He said it reminded him of a picture of Lincoln. A little boy asked the teacher, said, "How long shall I make Lincoln's legs"? And she said, "Make them until they touch the ground." So, unless there are further questions, I think my legs have touched the ground here.
Warren E. Burger: Very well. Mr. Galt, you may proceed whenever you are ready.
Jay M. Galt: MR. Chief Justice, may it please the Court. I am Jay M. Galt, from the Law Firm of Looney, Nichols, Johnson & Hayes, Oklahoma City, representing the Respondent ARMCO Steel Corporation, an Ohio corporation. The facts of the case are much as outlined by Mr. Manners. However, I would like to point out to the Court that ARMCO Steel Corporation retains a National Service Corporation as its resident agent in the State of Oklahoma, whose office is located within four blocks of the Federal Courthouse. And when service was effected, 101 days after the statute of limitations had run, that was the very first notice, the first notice that ARMCO had received of any claim by Mr. Walker against ARMCO for injuries he allegedly sustained by reason of a defective nail. The Petitioner in this case is a resident of the State of Oklahoma, took advantage of the diversity statute, and chose his forum in the Federal Court. The Petitioner admits that had he filed this case in the State District Court, and, in fact, it might have been an after thought that he filed it in the Federal Court, his initial pleading is denominated a petition rather than a complaint, and in our State Court we would call our initial pleading a petition, he chose the Federal Court and has admitted that had he filed this in the State Court, and the same facts had existed, no service for 101 days, without question, his case would have been barred and dismissed. But because he was fortuitous enough to file it in the Federal Court, we are now before this Honorable body today asking and questioning whether or not Ragan should prevail as the rule covering this case. It is the position of the Respondent, obviously, that Ragan is good law and that if this Court were to reverse Ragan and hold that Hanna applied, and that the commencement of this action by filing with the Clerk tolled the statute of limitations.
William H. Rehnquist: How can we -- How is a Federal matter, when you say that for State law purposes, the statute of limitations is tolled?
Jay M. Galt: I don't think you can. What the Petitioner in this case is asking that you do is rule that by filing under Rule 3, that mere act tolled the statute of limitations, and --
William H. Rehnquist: And that the State is incompetent to require another step.
Jay M. Galt: That's correct. And we honestly don't agree with that. We think that Rule 3 does not apply. State law applies, and the State law is very clear that if you file your action within the appropriate statute of limitations period, from the time that that statute runs, you then have 60 days to effect service. And there is a case Taylor v. Taylor that Judge Doyle cites that is out of our Court of Appeals, that says that the filing commences the action, but there is one step more required to effect jurisdiction of the State District Court, and that is service on the Defendant. And it sets that other step that the Petitioner in this case failed to take for reasons that he has been very honest with the Court about today. The important thing that I see in this case is that should this Court decide that Rule 3 commences an action to toll the limitations, what happens to the diversity defendant who has the same case filed in the State Court, the same facts being present, no service for 101 days, and then mistakenly that diversity defendant to obtain the benefits of the diversity rule removes his case to the Federal Court, files his motion to dismiss and finds that it will be overruled. Because had he stayed in the State Court, his motion to dismiss would have been sustained but because the Federal Court--
Byron R. White: He had probably better get another lawyer if he does that.
Jay M. Galt: Well, I would think so.
Byron R. White: He is just waiving a perfectly good defense, but that is hardly a legal argument.
Jay M. Galt: I think it is because isn't the object of Erie and Tompkins to avoid forum shopping and to avoid inequitable --
Harry A. Blackmun: There wouldn't be any need for forum shopping there. All he has to do is go in and get the case dismissed as a matter of State law.
Jay M. Galt: I agree, Your Honor.
Harry A. Blackmun: And we have to presume people are going to act in their best interest, I would assume.
Jay M. Galt: Yes.
William H. Rehnquist: So far as you know, Counsel, is there any provision in the Federal Rules that sets a time limit on actual service on the part of the Defendant once the complaint is filed? Suppose this complaint or summons hadn't been filed for six years after the complaint had been filed in Court, would the Federal Rules have nonetheless have held it to be a good complaint?
Jay M. Galt: Mr. Justice Rehnquist, the procedure in that case would be that had the summons not been issued for six years, we had no similar statute, the Defendant would most likely file a motion under Rule 41 to have the case dismissed for lack of diligent prosecution. I believe that's the correct rule.
William H. Rehnquist: How would he ever know there was a case if he hadn't been served?
Jay M. Galt: He would not know that there was a case until at some point in time, six years later--
Warren E. Burger: I am sure he would say -- I assume he would say one of the functions of the pleadings is to give him notice.
Jay M. Galt: But he would never have that until he was served.
Warren E. Burger: He can assemble his evidence and get ready to protect.
Jay M. Galt: That's correct, Mr. Chief Justice, but I thought Mr. Justice Rehnquist questioned what if the summons was not served for six years. We would not know, we would not know now that we had been sued if we had not finally been given a service.
Byron R. White: Mr. Galt, can I ask you a question?
Jay M. Galt: Sure.
Byron R. White: About the Oklahoma practice, because I have been a little confused. I thought I heard some argument to the effect that as a matter of Oklahoma law, this action was commenced, but then there just wasn't service within 60 days. That's not right, is it? The action was not commenced, as a matter of Oklahoma law, as I read the statute. It says it is commenced at the time the summons is served on him; isn't that right?
Jay M. Galt: That is what (Inaudible) Mr. Justice Stevens, but the Taylor v. Taylor Case that is cited in the Tenth Circuit Opinion would indicate that Oklahoma would say that it was commenced when the petition was filed, or the complaint. But to toll the statute of limitations --
Byron R. White: It was commenced at that time if service was made within 60 days?
Jay M. Galt: Yes. Really, what I think Taylor says is the case is commenced, for the purpose of commencing, let's say, the word "commencing" means filing, the case was filed --
Byron R. White: That's not what the statute says. The Oklahoma statute says, "shall be deemed commenced upon service of summons", as I read it.
Jay M. Galt: I agree with what Your Honor --
Byron R. White: Isn't that the way it's construed in Oklahoma?
Jay M. Galt: The Taylor Case --
Byron R. White: Is the Taylor Case a -- I don't recall --
Jay M. Galt: It is a State Case. It is really a State Court of Appeals case, but it seems to say that you file your case and that means commence with the connotation of the word "file", and then a second step is required in that Plaintiff must effect service to give the Court jurisdiction within 60 days.
Byron R. White: The second step is required for what to have occurred, for the action to have been commenced?
Jay M. Galt: Yes, to give the Court jurisdiction to toll the statute of limitations.
William H. Rehnquist: What does the statute of limitations say?
Jay M. Galt: The statute of limitations says that there should be two years from the time the injury occurs to file the action.
William J. Brennan, Jr.: To file the action or commence the action? Does it say "file", or what does it say?
Jay M. Galt: Your Honor, I can't --
William J. Brennan, Jr.: Because I think that's rather important what the statute of limitations requires to toll the statute. If it required service of process, I wouldn't think there would be much of an argument. But if it says "commencement of an action", that's another matter.
Jay M. Galt: Our statute says you have two years for bringing personal injury action.
William J. Brennan, Jr.: Bringing it? What is the exact wording? I can't find it anywhere in any of the briefs or papers here.
Jay M. Galt: It has never come up. We have talked about 12 OS 97.
William J. Brennan, Jr.: Well, why wouldn't it come up, because that's the question. If the state said you only toll the statute of limitations by painting the State Capitol red, it wouldn't help you to commence the action in Federal Court.
Jay M. Galt: No.
William J. Brennan, Jr.: And if it says, if the statute of limitations says the statute runs until you serve the complaining, is that what it says?
Jay M. Galt: No, no. I think it's best that we supply that to the Court.
William J. Brennan, Jr.: Well, we've got it in the statute.
Harry A. Blackmun: Counsel, does it help any, the District Court said an action is commenced in State Court when process issues, provided process is actually served within 60 days.
Jay M. Galt: I think that's 12 OS 97. That is correct.
William J. Brennan, Jr.: I want to know what --
Jay M. Galt: That I can't answer, Your Honor. It is the position of the Respondent that we believe that Ragan and Hanna, in the vernacular of our Diplomatic Corps, can peacefully co-exist. I think that Ragan looks to the State law to determine what it takes to toll the statute of limitations while Hanna is a service case dealing with what is necessary under the Federal Rules to effect actual service of process.
Byron R. White: What about page 3 of the Opinion of the Tenth Circuit, in the Petition for Writ Certiorari? I think it is probably A-3, where it cites Oklahoma statute annotated Title 12, Section 97, "An action shall be deemed commenced within the meaning of this article", and then it goes on to say "intent to commence an action"; is that the --
Jay M. Galt: That is not a statute of limitations. The Oklahoma Court has construed 97 to be an integral part of the actual statute that created the Plaintiff's right in this case.
Byron R. White: Since we don't have the statute of limitations before us, assume for a moment it provides that it runs until -- I mean, an action must be commenced, what is your position as to the time, if ever, when the action against your client was commenced?
Jay M. Galt: The action against my client was not commenced until we were served with summons some 101 days after the statute of limitations had run --
William J. Brennan, Jr.: Again, if you had been served, say 35 days after the complaint was filed, you would say the action was commenced on that 35th day; is that right?
Jay M. Galt: I would think for the purposes of filing my answer that I would calculate from the 35th day.
Byron R. White: In other words, your view is that the action is commenced upon the date of service. If that is true, I fail to see any relevance whatsoever to the 60-day provision in the Oklahoma statute. It is either commenced when the complaint is filed, which the Federal Rule provides, and you disagree with it -- so does Ragan -- or, alternatively, it is commenced upon service, or attempt to make service. You say it is the latter and your opponent says it's the former. So why do we have to look at the 60-day problem?
Jay M. Galt: Because our Legislature in whatever wisdom has said, "We are going to give you two years to file a lawsuit and you must effect service within 60 days from that date." And if you do not effect service within 26 months from the date of the injury --
Byron R. White: All that means is that your statute of limitations, instead of being 24 months long is 26 months long, but you have still got to commence the action within the 26 months.
Jay M. Galt: That's correct.
Byron R. White: It is commenced for your purposes being served. That is what you are arguing.
Jay M. Galt: That's correct.
Harry A. Blackmun: On the other hand, if commenced in a Federal lawsuit means filing the complaint, we don't have to worry about the 60 days either. I Just don't see how the 60 days affects the case.
Jay M. Galt: Well, if this Court were to hold that the mere filing of the complaint tolled the statute of limitations, then we are going to have different results obtaining in the State Court and a Federal Court.
Harry A. Blackmun: Mr. Galt, it is not a question of tolling the statute of limitations; the action would have been commenced within the statutory period, if that is an adequate commencement of the action. There is no question of tolling. The question is did they commence the action before the statute ran.
Jay M. Galt: I suppose the question is what does the word "commence" mean?
Harry A. Blackmun: That is the issue.
Jay M. Galt: Yes. And Rule 3 does not say that commencement --
Harry A. Blackmun: Rule 3 is perfectly clear it says it is commenced when you file a complaint. But you just say it doesn't apply.
Jay M. Galt: That's correct.
William H. Rehnquist: If you say Rule 3 doesn't say that commencing an action stops the statute of limitations, or means that after that time, if it was filed within the statute of limitations, the statute of limitations has no more applicability.
Jay M. Galt: I think that's what I am saying.
William H. Rehnquist: I am not sure, the question certainly wasn't too clear. What you are saying, as I understand it, is that the commencing of the action doesn't put the statute of limitations out of the picture under Rule 3, even though the action was commenced within the appropriate statutory period?
Jay M. Galt: That's correct.
Harry A. Blackmun: I understood in your response to one of the questions where you said that for purposes of filing an answer, you would compute from the date of service. That doesn't really answer the question as to when the action is commenced for me.
Jay M. Galt: Well --
Harry A. Blackmun: I can see where, for purposes of filing a responsive pleading, that you would compute from the date of service, as distinguished from the date of commencement of the action, if it relates back under Oklahoma practice. And somewhere in these briefs I have the impression, isn't there a State Court holding that it does relate back?
Jay M. Galt: I don't believe so, Mr. Justice Blackmun, but in doing the research and preparation for this argument, it appeared to me that the drafters of the Rule, when they looked at Rule 3, thought about putting a proviso in there that filing the complaint would toll any statute of limitations problem. They thought better of it and did not include that. Some of the writers have said that the word "commencement" is in the Rules to have a figure to calculate time from. The only thing I can relate to in answer to the question is that the Oklahoma statute says that the action is commenced when you are served and, for my purposes, as a trial lawyer, defense lawyer, when an action is commenced, it is commenced on me when I receive service, and that is when I start my preparation for a defense.
Warren E. Burger: Conceivably, it might commence for one purpose under the statute of limitations and another purpose in terms of tolling your time, in determining your time to respond.
Jay M. Galt: Yes, sir.
Warren E. Burger: On the matter of supplying this information, while it's true we have the statutes available, you are both Oklahoma lawyers, you submit whatever you wish to submit on it as promptly as possible.
William H. Rehnquist: That section is Section 95, two sections ahead of this.
Jay M. Galt: Yes, sir.
Warren E. Burger: You perhaps can do that before you leave the building.
Jay M. Galt: Yes, sir, we will. Thank you very much, Mr. Chief Justice. Thank you for permitting me this opportunity.
William H. Rehnquist: Thank you, gentlemen, the case is submitted.


Mark: Mr. Chief Justice and if court please, to continue with my preface, if you will to the argument, yesterday I was expressing the proposition that perhaps the court has not become acquainted with the realities of the situation which lawyers and perhaps judges are faced with when approaching an obscenity case when it is put into the criminal context. For instance the Fifth Circuit in a case of US vs Groner decided January 11, 1972 Mr. Justice Thornberry expressed some apprehension that he could not understand what was happening in the obscenity field and certainly could not make any determinations for himself as to what was obscene or not obscene in the absence of expert testimony and also express that we thought in line with several other cases that a national standard as far as contemporary standards would seem to be just the ticket under the circumstances of that material goes between states. The case at bar is very interesting I think when you examine the history of this case Mr. Miller and it illustrates in my opinion why Harris v. Younger was decided wrongly. Mr. Miller has a company which publishes and it's in Covina, which is in the County of Los Angeles. They send mailers out, brochures out. Brochures went to Los Angeles County, Orange County, San Diego County, and to the various states. You must understand that within the various Counties there are district attorneys and city attorneys who are responsible for bringing prosecutions and it's up to their discretion as to whether or not a prosecution will be had. That is a complaint filed. Now, in Mr. Millers case there were prosecutions filed in perhaps 15 different municipal courts on the same brochures within the County of Los Angeles in different municipal courts, different district attorneys, deputies of the same County, prosecution in Orange County, prosecutions in San Diego County, and this is what happened in Orange County. First of all, in Los Angeles County we brought a motion and that is just illustrated in the clerk's transcript before Judge Arguelles in East Los Angeles Judicial District and the motion was presented in which we had expert witnesses testifying that the material was not obscene, and was constitutionally protected and Judge Arguelles made a determination dismissing the action that the material wasn't that protected as set forth -- for the reason set forth in the various cases. After that, the Orange County prosecution was started, same brochures, same defendant, same plaintiffs to -- with the people of the State of California. So what did we do in Orange County? We went to the first trial judge and we made a motion to dismiss on the grounds that it was constitutionally protected, presented expert witnesses. The people presented none, the judge denied the motion. We then took a petition to writ of prohibition to the Superior Court in Orange County to stay the proceedings, writ of prohibition denied out of hand, appealed to the Orange County to the Court of Appeals, Second Appellate District for a stay, a writ of supersedeas. Denied, Supreme Court of the State of California denied, no stay. We then went habeas corpus route through the courts alleging that the material was protected. We went to the Superior Court, the Court of Appeals, Supreme Court, all denied out of hand. Also alleging if you please in the habeas corpus proceedings that there was a res judicata, as estoppel, Ashe versus Swenson, Waller versus Florida decided by this court. The material is protected, it can't be prosecuted, denied, out of hand. No court to date as a matter of fact, if you now consider the fact and I think I misspoke myself, that I said a seven week trial, it was not, it was a seven day trial. But this is not, this is a very short trial for obscenity cases as a rule. After all of these pre-trial proceedings in which we were trying to get nothing but an adversary hearing, we then went to trial with a jury, a conviction, an affirmance without an opinion in which the Appellate Court completely abdicated its own responsibility, and that is to review the material, a simple, affirmance and remanded it and finally an appeal to this court.
William H. Rehnquist: Mr. Mark, following the conviction you appealed from the Appellate departments affirmance to the Court of Appeal for discretionary review, is that right?
Mark: I asked what is called a petition for certification and this is discretionary with the Appellate Department of the Superior Court, whether or not they want to certify the important question over to the Court of Appeals.
William H. Rehnquist: But does not the Court of Appeal also have a right without certification to grant you a discretionary hearing?
Mark: That is correct, they can. If the opinion is published, if there is a published opinion in the Appellate Department which is entirely discretionary with them, then the Court of Appeal has the right to exercise its discretion to determine whether or not it wants to decide that question and take jurisdiction.
William H. Rehnquist: So do you have no right after the conviction, the petition of Supreme Court of California for discretionary review?
Mark: No. Absolutely, as a matter of fact, it is expressly prohibited that you do make such an application. I believe there was a case that came out that said, once your petition for certification is denied in the Appellate Department, you have no right to appeal that or that it is purely discretionary under the court rules.
Speaker: What are the opinions in California Court enuntiated?
Mark: The only opinion that is in any court in the California court with respect to the material in this case is found in the clerk's transcript at page 17, that is Judge Arguelles memorandum opinion and order and this is the case out of the municipal court of the East Los Angeles Judicial district, it is not in the appendix, it is in the clerk's transcript and this was the basis of the res judicate claim that we have.
Speaker: Mr. Marks what was the sentence Mr. Miller received? I failed to find it in your brief.
Mark: 60 days County jail on this particular chart and $1000 fine as I recall, which has been stayed. To continue, taking this history of the case procedurally, I have the following quote which I picked up from a recent case and that is I entertain more than a mild suspicion however that this is an exercise in futility that the court is merely marching up the hill only to march right down again and it is timely become just a little realistic in the face of a record such as this one, US Vs Tucker decided January 12, this year. Mr. Justice Burger said that in a different context.
Warren E. Burger: Well, that was Mr. Justice Blackmun and I agreed with it.
Mark: I think that in taking the history of this case if you please, it illustrates the futility of making a decision by this court in the ordinary manner as to whether or not for instance contemporary standards are national or local because it really does not matter, the judges below simply will not pay any attention to the cases. They do not rule as a matter of law and obscenity cases. It is a very visceral reaction. You get a shock value on obscenity in no other cases. They, in my experience do not function and I suggest to the court that the answer to the dilemma which is posed that the paradise, that your reconcilable conflict between the cases is that this court set up a series of rules by which courts must act in obscenity cases and that is that they must for instance prior to initiating a criminal proceeding have the type of hearing on the material which is set for it in Freedman versus Maryland, Blount versus Rizzi and there should be rules whereby they are compelled to either state that it is protected or not protected, so that somewhere along the line before the criminal process starts, the person who is going to be involved in a criminal prosecution will at least have the vaguest idea that what he is trying to purvey or so is not or is within the marketplace and I give you the following example and I say this is why I believe it comes within the context of the certiorari questions because we have here the question national standards or state standards. If we do not have national standards, I think our brief pointed out that in the area of film, in the area of books which cross straight lines, there must be a common standard because otherwise state A can impose unreasonable burdens upon what kinds of films are shown in the motion picture theaters in their neighborhood, perhaps one community, local community or state does not like R films, because R-rated films have sex portrayed in them. Some X-films sometimes have more violence than an R film and less sex. It depends upon the individual idea of the censor himself.
Warren E. Burger: Let me ask you about this administrative process you were just suggesting to be interposed before a criminal proceeding starts. So you are suggesting something like the old fashioned board of censorship to take a look at it first and advise the publisher?
Mark: I am suggesting a process whereby if there is cause to believe, probable cause to believe that a material which is being sent out or is being sold on the stand is or maybe violative of the penal statute or maybe obscene within the area of the state statute that the judge issues a show cause order and perhaps even a seizure warrant. The material has seized, it is brought into court, one day hearing, expert testimony, two days to make a decision. The decision should be in writing stating the judge's reasons for believing that the material is or is not protected. At that point, you have some sort of adjudication because the real proposition and problem is with Scienter, Mr. Miller and every other seller of pornography has a justice in this case. A judge which says the material is protected in one jurisdiction to no avail in another, because he can not get any recourse. If he goes to a jury trial and gets acquitted, the judge in the next jurisdiction says, well, I do not know what the acquittal was based on, maybe it was just as the jury was not satisfied beyond a reasonable doubt that he was the person who sold it. Maybe they were not satisfied with Scienter. The criminal process is not equipped to deal with obscenity questions. It never has been and never was. There has to be a different type of process dealing in the civil area to deal with the sensitive area of suppression and censorship. That is why I suggest for instance that the national standard has to apply, but it has to apply in the area of inter-state commerce, it has to apply also. We have a very interesting question, what happens with the Full Faith and Credit Clause? If one court says, it is obscene in one state, does not this bind another court under the Full Faith and Credit Clause or if it is obscene, what happens? Is the man entitled to plead the other judgment in bar as an estoppel or just as a defense in the grounds that he has no scienter, how could I possibly know that it is obscene if a court said it is not obscene.
Byron R. White: Mr. Mark, in the case tried in the Municipal Court from which you are appealing, was the question of Federal versus State standard raised by a request to charge the jury?
Mark: There was no request to charge the jury on the national standards. The charge was made in the terms of state standards because at the time, there was and still is a case of in re Giannini, which is cited in our briefs. In the Giannini case, our California Supreme Court said in the matter of dancing, topless dancing, they said, at least the standards have to be statewide because there has to be some sort of uniformity, although they felt that you can not cross a dance act between across county borders then obviously the local community should be the best judge, but there at least has to be some uniformity. Applying that rationale of the Giannini case to motion pictures, books, those magazines that travel across state lines and which seem that the national standard is the only standard which has any reasonable grounds.
Harry A. Blackmun: Mr. Mark, can you help me out on one other thing? Your section, in this transcript, I think there is Section 311 and this was amended about the time of the prosecution here. Am I correct in assuming the indictment and the trial were after the amendment?
Mark: It is a complaint Mr. Justice Blackmun, but the -- I believe both were after the amendment.
Harry A. Blackmun: So it is under the new statute now then?
Mark: Well, no because the Acts were before the amendment. So the question was at one time, whether or not you have the definition, the original definition was knowing the matter to be obscene. The second definition was having knowledge or being aware of the contents of the matter, which to me is just as vague a statement as some of the other definitions that we have had regarding obscenity.
Harry A. Blackmun: Well, then we are dealing with the old form of the statute in the old constitution?
Mark: I don't know because if you read the instructions that were given, one of them says that the person to be convicted, Mr. Miller had to know that the matter was obscene and know all of the elements that it went beyond contemporary limits of candor etcetera, and tha set of instructions said that, very confusing, that it only many had to be aware of the contents of the matter.
Harry A. Blackmun: The question of (Inaudible)?
Mark: Well, it is a very confusing subject because to some judges and I suppose lawyers, it means the same thing. To me it doesn't. It means an entirely different thing, because being aware of the character of the matter, that's what the new section means, and what the character of the matter is, is a very, very illusive quality. Does it mean that the character is that of a sex, is it the character of violence, is it the character of sadism, sadomasochism, one of the characteristics of pornography, we do not know. It is -- probably whatever the jury wants to think it means. One of the big problems that comes up in the prosecution or the trial of the case and the defense of a case is this question of the various and I might say paradoxical rules that this court is set up, because in Roth, court said that briefs, and I am paraphrasing a little bit, paraphrasing, in Roth, the court said that obscenity is not speech. Then, in Stanley versus Georgia, the court said that obscenity is speech. Then in Reidel, the court said we adopt both Rob and Stanley and we do not vary one way or another. So we come to the unusual proposition that speech is not speech. I adhere perhaps and this is my final argument to the add on theory of constitutional protection. It appears that from reading the various cases that if you have the First Amendment protection and you add on for instance the Ninth Amendment, the right to privacy as in Stanley, 1 and 9 equal 14, and you have a constitutional protection. In our case, we have a few other add on protections that Mr. Miller should avail in himself. He has the First Amendment protection, he has the Fifth Amendment, which is the res judicata or estoppel, he also has the Ninth Amendment. So in this case, we have 1, 5, and 9, including 14 and he should be able to have a reversal just on that theory of law. Getting back to the more mundane, I say very seriously, we need guidance from the court, this court, and I think it cannot be done in the framework of deciding whether national or local standards applied because the courts below do not know how to apply them even if it is shown to them what it means. They work on a case by case basis and I had one judge said to me, when I pointed out Blount versus Rizzi, he says, that only counts if the defendant's name is Rizzi and the plaintiff's name is Blount, and otherwise it is distinguishable on that fact. So set us up some rules, give us some guidance, let's get this type of action out of the criminal area unless there is a distinctive criminal case with knowledge and the type of pre-warning that is generally accepted as a part of Due Process.
William O. Douglas: Well, I have read the opinion, pertaining to that opinion results in the dismissal of the complaint?
Mark: Yes sir.
Harry A. Blackmun: The Judge held that this material is constitutionally protected.
Mark: Right, in the East Los Angeles, municipal district.
William O. Douglas: Is that the only opinion in this case?
Mark: Yes, there is no other opinion.
William O. Douglas: And then what happened?
Mark: He was prosecuted in the Orange County municipal district.
Harry A. Blackmun: What is the opinion in that?
Mark: There is none.
Harry A. Blackmun: Where is the record in that?
Mark: The record in the Orange county case, it consists of the appendix which is a jury verdict of conviction and an appellate order which says the conviction is affirmed.
Harry A. Blackmun: We don't have any evidence?
Mark: You have the brochure on which they are related it. You have the reporter's transcript in the. --
Harry A. Blackmun: The expert witnesses who testified in this Los Angles case, testified the Orange County case?
Mark: Yes.
Harry A. Blackmun: The same effect?
Mark: The same effect. You see in Orange County, there was a pretrial hearing in which we had our experts testifying and the people offered no evidence. Then, on trial, we again offered the people, then offered their experts who said the matter is obscene or whatever other elements they thought were present. Our experts testified to the contrary and it became the battle of experts and the jury looked at the material and said, guilty.
Harry A. Blackmun: Where are the instructions to the jury?
Mark: The instructions to the Jury are found in the clerk's transcript and I believe a part in the Third Appendix which is the --.
Harry A. Blackmun: Do you think that Roth should be overruled?
Mark: I think that Roth should be clarified to show what it actually meant because it makes no sense the way it reads now in light of subsequent opinions because the way the court has ruled for instance in Redrup, and there is various qualifying matters with respect to Roth and then all of a sudden the outcomes right out of 37 Photographs and it doesn't mean what we said. I think it should be overruled. I think that the First Amendment should bar criminal prosecutions in the absence of direct knowledge I think.
Harry A. Blackmun: In the absence of what?
Mark: In the absence of direct knowledge, a prior knowing hearing that the matter is probably within the context or framework of the prohibited speech.
Warren E. Burger: Do you suggested in your briefs that you have filed with this that you have laid down this standard that you want us to adopt, that will solve all the problems.
Mark: No, I am just saying that this seems to be after going through the various cases in the paradoxes that are arisen in the decision by the Fifth Circuit as late as January 12, that there is no other answer because you can't resolve the decisions of this court and the various justices and the only resolution is to take everything and say, okay, that is that way it is. Speech is not speech if it is obscenity and then set up a set of rules so that the judges will know exactly what to do when they get with an obscenity case. I would say bar the criminal prosecution, take it out of the criminal area until you have a prior hearing as to the obscenity or non-obscenity of it. Thank you justice.
Warren E. Burger: Very well Mr. Marks. Mr. Capizzi?
Michael R. Capizzi: Mr. Chief Justice, may it please the court. Initially I would like to attempt to set the records straight in this matter and in the April of 1969, a complaint was filed in the Municipal Court of the Harbor Judicial District for Orange County. Thereafter on April 16th, 1969 the demurrer was filed by Mr. Marks, the defendant of that action. Thereafter, an amended complaint was filed May 9th, 1969 and following the amended complaint the same demurrer was held to apply to the amended complaint. The hearing and the demurrer, under California law is limited to face the complaint. However, Mr. Marks did introduce expert testimony at that time, expert testimony related to the obscenity of the material in question. That was not controverted by the prosecution simply because on demurrer, no evidence can be taken, the inquiry is limited to the face of the complaint. Thereafter there was an appeal to the Appellate Department in the Superior Court in Orange County, and the denial of demurrer was sustained. Now this record --
William O. Douglas: I have heard to Mr. Marks, I am not sure I understand it but I gathered that his compliant is that the issue that he is pendering is akin to decision in this court on the vagueness test for constitutionality of the criminal statute. Do you understand that? That what we have done, what we have set the standards are to emphasize, too vague -- as muster under criminal constitutional law, Due Process.
Michael R. Capizzi: I understand that to be one of his contentions Mr. Justice Douglas. However, I think he is also -- maybe contention that action in the joining county constituted res judicata.
William O. Douglas: I understand that too.
Michael R. Capizzi: I tend to disagree with him. I think depending on how the standard, was a definition announced by this court is interpreted, it is workable. I think the procedural aspects and there must be a clarification.
William O. Douglas: The California adopted the statute saying that it is a crime to publish book that has -- is without the social values that past muster by the California Supreme Court decision?
Michael R. Capizzi: Well, California has gone one step beyond Roth and has adopted a position that is not (Inaudible) by majority of this court as being constitutionally required, and that the California statue requires that the prosecution established that the material goes substantially beyond customary limits of candor that it predominantly appealed to prurient interest and the material considered as a whole, utterly without revealing social importance. So by statue in California, all three elements must be established by the prosecution and must correlate.
William O. Douglas: The California statute has adopted two of the basis of Redrup decision?
Michael R. Capizzi: Well, it adopts the definition of obscenity as first they founded in Roth and then later expanded upon I believe in memoirs, utterly without redeeming social importance aspect. We don't think a majority of the court concurred in that requirement but nevertheless California by a legislative Act has added that third requirement. That is why there were experts produced by the people on all three of those elements definition and the jury was instructed as to all three and instructed that they must pull it up. Nevertheless counsel points to the action that took place in Los Angles County and with respect to that action in the opinion of the Los Angles County Municipal Court judge, that was never directly pointed out to the judge in which the action was pending, the instant action was pending for trial. It's part of the record, the clerk's transcript in this appeal, simply because it was not exhibit to a petition for a writ of prohibition that was filed in our Superior Court, attempting to prohibit the misdemeanor prosecution. In filing that petition for prohibition with our Superior Court, he apparently lodged a courtesy copy with the Municipal Court and that is how it became a part of our record. Then, thereafter just prior to the trial, he did make a motion to dismiss on the basis of res judicata, but no evidence was presented and there was no hearing on that particular motion and in particular, the opinion was not a part of that particular motion.
William H. Rehnquist: In the East Los Angles proceeding was a jury actually handling that case without a dismissal on a preliminary motion?
Michael R. Capizzi: That was a dismissal on a preliminary motion Mr. Justice Rehnquist. It did not go to trial, it was what is known in California, a motion, a determination of the question of law. The mixed question of constitutional fact and law.
Warren E. Burger: Didn't you say it was on demurrer, or was that another case?
Michael R. Capizzi: In Los Angles county, I believe it was a motion to dismiss and demurrer based on two cases, People versus (Inaudible) as I recall. Now, the appellent contends that this court or at least the members of this court had in the past suggested and this court should continue to conduct de novo hearings to determine obscenity going on. And further suggests that in reaching that determination of constitutional fact, that makes question of fact and law, the judge when applying contemporary standards for customary limits of candor should adopt a national community standard. What appellant requests maybe easier for this court than for other courts because the scope of this court's judicial inquiry is nationwide, or suggest even for this court, it's not an easy task and is, in fact, an impossible task. Appellant also suggests that each judge from the trial level through each level of review should redetermine the issue, de novo using the same test, the national test. And I would submit that this is practically impossible, local trial, appellate and state Supreme justice, they just don't have the sufficient scope of judicial inquiry to apply a national standard with respect to their contact with national standards for customary limits of candor, I would suggest that it is no more broad than the average potential juror. I think the case which counsel has just called this court's attention to this morning with their Circuit case, demonstrates that when Judge Thornsbury indicates that he is not sufficiently qualified to determine customary limits of candor.
William O. Douglas: To get the experts who justifies the national standards.
Michael R. Capizzi: Yes Mr. Justice Douglas. In fact, Mr. Marks has suggested experts, but I think that demonstrates another problem that we'll further confound the problems that are already existing. Experts maybe fine for the initial judge, the trial judge, who can examine the witness, determine his credibility, watch the demeanor while he's testifying and all the things that a triar of fact generally does, but what position does that leave the appellate judge, the reviewing judge in? If there are conflicting experts, how does he determine credibility of the varying witnesses? It's totally impossible to say that the reviewing judge would determine credibility, would be a substantial departure from the (Inaudible) rules of the appellate review.
William O. Douglas: I suppose if that's true what you're saying, I gather it is -- it would be also very difficult for a publisher and author to know when he'd crossed the line.
Michael R. Capizzi: I don't think it's that difficult for a publisher to know when he's crossed the line. In fact, the reporter's transcript in this particular case, in this volume 2 around page 50, give or take a few pages, indicates that Mr. Miller indicated to the person who was sending the material out that the brochures themselves he felt were borderline, but the material itself that they were advertising, he considered to be pornographic. The brochures are nothing but the more graphic depictions of sexual activity that are contained in what he himself described as pornography. Well, I think --
William O. Douglas: This was a plea of guilty then?
Michael R. Capizzi: No, it wasn't Your Honor. It was a trial, the statement made by Mr. Miller came in by way of one of the persons who was stopping the envelopes and perisisting in the distribution. I would suggest, however, that if we do apply the approach in the instant case that each level of court must determine a constitutional fact law question that it's readily apparent that in this case, as far as that constitutional fact is concerned, that this material is obscene, no matter what test is used, whether we use a local, state or national community. It exceeds candor of any community. It predominantly appeals to the prurient interest, and is utterly without redeeming social importance, the California test. Having concluded that it's not constitutionally protective, it submitted that this material should fall into the same category as any other conduct that a state can regulate by its police power, any other conduct which is not itself constitutionally protected and the states in regulating that other non-constitutional conduct can define it in any manner they wish. The state's vary in the definition of robbery from state to state, perjury varies from state to state, and assuming this initial constitutional fact law, determinations made by judge is determined that it's not constitutionally protected then the state should be free to adopt whatever standard they wish just as they do in other areas of criminal law.
Warren E. Burger: Has California at any time undertaken to use nuisance statutes or local nuisance ordinances to deal with pornography and obscenity?
Michael R. Capizzi: Yes, Your Honor. In the County of Orange, we've utilized what's known as a Red Light Abatement Act to abate as a public nuisance, places that are used for loot purposes, prostitution and assignation, more often in the area of live entertainment, in the area of printed material. But submit however, that it's not necessary to do as appellant suggests to determine this constitutional fact in this manner, when looking at a state prosecution under state law. The constitution permits the states to adopt the standard that state chooses as long as the standard is compatible with Due Process in isolating obscenity as Justice Harlan said the state by the Due Process liberty provision of the Fourteenth Amendment has not held the same test as has the federal government under the First Amendment. As Justice Harlan indicated, that's readily apparent from the language of the two amendments themselves, the first provides Congress shall make no law and obviously, we can't apply that in its precise terms through the state through the Fourth Amendment because Congress doesn't exist in this state. So obviously, we have to do some initial editing. Additionally, it's rather obvious that if in enacting the Fourteenth Amendment, it was the intent to restrict the state as the First restricts Congress, it would have been very simple and to have so stated that the states are prohibited from enacting any law abridging the freedom of speech. I would certainly not suggest that those persons who framed the Fourteenth Amendment were so imprecise and so inarticulate, that if that had been their intent with the background of the First Amendment, that something consistent with the First Amendment could have been specifically provided to the states.
Warren E. Burger: Is there any reason why California is limited to using its nuisance procedures against what you call live or live obscenity or obscenity which is essentially conduct, would it be available, in other words, to use it against books or moving pictures?
Michael R. Capizzi: I don't know, Your Honor. We haven't progressed in our cases that are pending against a particular bookstore to the point where we have applied it. There have been acts of mootness as well as the sale and distribution of books from that particular bookstore that have gone inside the premises. The act itself states that it applies to places of prostitution, assignation or lewdness.
William O. Douglas: Although your brief doesn't say so -- for these words, I gather from your oral argument, do you think that the decisions of this court making applicable the First Amendment to the states were long decided.
Michael R. Capizzi: Yes, Your Honor, in its expressed terms I feel that --
William O. Douglas: If you were to edict (Inaudible) and all the others decisions should we either overrule in that regard?
Michael R. Capizzi: I would suggest that the -- again the decision taken by Mr. Justice Harlan and expressed by him in the Roth case is entirely reasonable and it's consistent with the constitution. When we're talking about the deprivation of one of the fundamental liberties without Due Process of law. The inquiry should be whether or not the state action so subverts the fundamental liberties implicit in the Due Process clause that it cannot be sustained as a rational exercise of power and I would submit that adoption by state of a local or statewide standards for limits of candor as a portion of the definition of obscenity is not subversive of fundamental liberties, but is actually a rational exercise of power, whether -- I would suggest that neither practicality, reason or the constitution require a national standard for customary limits of candor as suggested by the appellant. Initially, I would suggest that practicality demands that something other than a national standard be used. How is a national standard to be determined fully apart from the legal question, the mixed question of constitutional fact law, as a matter of fact presented to the jury, how is a national standard to be determined. Well, as far as that factual determination, I would assume that experts could testify, however in this case, an expert testified as to the statewide standard, an expert who is employee of the Los Angeles Police Department, took him 30 days to conduct his survey analysis of the state and five years on the job. Say, if Los Angeles now charges $400 a day, every time another experts goes outside the city limits to testify to recoup the cost of conducting their survey and updating their survey. Can you imagine the additional cost that would be involved that that expert had to spend 30 days traveling each of the 50 states, why we're taking 50 months just to complete a survey? Long before he completed the survey, he would have to update it because it requires contemporary community standard. So if we multiply the cost by 50 times 400 and a time, 50 times a month, totally impossible and impractical. Now I'm not suggesting that cost to loan is a factor that should cause us to overlook any constitutional rights. I'm simply suggesting constitution itself does not require experts and it's impractical, impractical to prove through experts a national standard. Reason also requires that a local standard, local state standard be adapted. Obviously, one local area will accept material that another local area will not. A national standard who very likely prevents a local community that had liberal attitude and would accept material. From receiving that material, because of the restrict of influence of a conservative community some 2500 miles away. And the opposite is also true. The conservative community would be forced to accept material because of a nationwide standard that is diluted by a more liberal standard of a community again, 2500 miles away. Thus adoption of a national standard would have just the effect that the appellant in this case and in the amici are suggesting as undesirable. It would have the result of making this all one, making this all little thin soldiers out of a mold, all receiving the same material, the same standard and would not provide for differences from one community to another. We suggest additionally that the constitution supports a state or local community standard. Initially in Roth, this court used the term community and inspite of the dictionary definition, that's in the footnote 2 to Jacobellis suggest that the customary meaning of the community is a local community, the area in which people shop, work, live and entertain themselves. I think that definition of community is also consistent with the same paragraph of the dictionary referred to in that footnote of Jacobellis which defines community as society as a whole. Additionally, it's constitutionally permissible to accept that local or statewide standard because of the definition announced in Roth, that the community standard must be contemporary with the times, without that term contemporary we would be stuck, I would assume with the same definition of obscenity that existed in 1791 when the First Amendment was adopted.
Warren E. Burger: Well, are you suggesting that a standard would become outdated and therefore not contemporary after the lapse of two or three years, is that what you think contemporary is?
Michael R. Capizzi: I think it must be a standard, yes, Mr. Chief Justice, that is related at the same time as the distribution or the time of the crime, I think it has to exist in tune with our particular times. It's not a community standard that existed in say 1850 or 1791 because of the term contemporary. We have --
Warren E. Burger: What is the difference between saying that we aren't bound by the standards of 1791 and saying that the standard is outdated if it's based on some sort of a survey, made in 1965. I get it that you're suggesting that this just have to be kept up-to-date almost on a month-by-month basis, to see what people are thinking just lately.
Michael R. Capizzi: I think that is true Mr. Chief Justice that --
Warren E. Burger: Then you set out an impossible task for yourself, haven't you?
Michael R. Capizzi: I think it's a task that has been reported almost by the term contemporary and the California Supreme Court in a case of In re Giannini requiring that community standards be established by experts.
William O. Douglas: Of course, Giannini as I read that opinion, dealt only with the dance in a local tavern in a town, in California, right?
Michael R. Capizzi: Yes sir, Mr. Justice Douglas, however.
William O. Douglas: We are dealing here with the big double dating company and other big publishers of books and tracks.
Michael R. Capizzi: No, in this case we are not dealing with double dating.
William O. Douglas: No, I say but the problem here that we're dealing with deals with a big distribution system, which is national and so on, how does your local standard depicts the normal pattern of American book publishing business or magazine publishing business.
Michael R. Capizzi: Well, the same marked definition of obscene was applied to the topless dancing in In re Giannini as it's applied to printed matter in California because of the California Supreme Court statement that the dancing is an expressive conduct.
William O. Douglas: Yeah, my question really relates to whether or not in this area where we're not really in the area of a common market of literature and ideas require the national rather than the local standard.
Michael R. Capizzi: Well, I'm suggesting --
William O. Douglas: Maybe in California, they have the privilege of doing what they want was topless dancers.
Michael R. Capizzi: I submit that the constitution permits a changing standard based on geographical lines, even if the material is distributed nationwide. Now in this case, we have no evidence that the material was distributed nationwide. The only evidence we have is that it was mailed in either Los Angeles or Orange County and it was received in Orange County, and that's the only evidence as far as I'm aware in the record indicating the scope of its distribution.
William H. Rehnquist: Mr. Capizzi, if, in fact, the court were to adapt a local or community standard as opposed to a federal standard, wouldn't it be guarantee of jury trial in each case, be itself some way of evidencing the jury's reaction, be some evidence of the local communities standard without the necessity of expert testimony?
Michael R. Capizzi: Yes, Mr. Justice Rehnquist, I believe that it would relieve this court and appellate courts from determining that which they are not really capable of determining on their own. The constitutional fact law of question, it would eliminate that for consideration and would permit us to rely on the jury verdict and assuming there was a conviction, a substandard -- sufficient evidence test to determine whether or not it complied with Due Process. I think the changing standard from one geographical location to another, again, has constitutional background, simply because we do have the one variable as I was suggesting, the contemporary community standards. It's a changing standard and it must be a standard that's contemporary with our time. So why is it so inconsistent to say we have another variable? A geographical difference, a variable that -- variation that would differ from geographical location to another. We have procedure for punishing utterances in one location and not in other. Fire in a crowded theater is punishable and in open field it's not, the words are the same, it's the location that constitutes a clear and present danger and maybe that's what we're saying in this case. If one community can consider matter which violates its particular standard for limits of candor, dangerous and within its police power and yet another community, really one is so considerate. The adapting this test, the appellate courts would then use the sufficient evidence test to review convictions and the time saved building into other issues. In other, whichever test is used in a particular case, I would suggest that the judgment should be affirmed. If we use a national standard, I would suggest that the statewide standard in the State of California is a liberal standard, and in effect had -- as a net effect of requiring that the prosecution a greater burden of proof than the national standard had, in fact, been established and could be established. The statewide standard, that was what has done in this case and if it's a local standard, again, it operated to the benefit of the appellant to use a state standard because the statewide standard, I would submit for the State of California, is again somewhat more liberal than a conservative standard of Orange County and again required a prosecution, a greater burden of proof.
Warren E. Burger: But let me ask you, you urged the Orange, the local standard -- would you say the -- law practices by saying let's assume that the First Amendment applies to the states of the same -- to all the states the same way? Would you say that if California can use a local standard that there are no limits to what might be held to exceed the standards of candor in the community?
Michael R. Capizzi: No, because under California law, it would still be required prosecution to prove that the matter taken as a whole predominantly appeals to a prurient interest and the matter taken as a whole is utterly without redeeming social importance, however I would suggest that--
William O. Douglas: Does that read to Giannini case, it wasn't the local standard, that the defense prosecutor should be the local standard.
Michael R. Capizzi: Said that it was a state standard and in California Supreme Court.
William O. Douglas: Said it the statement--
Michael R. Capizzi: --said there was a state standard and California we are bound by a state standard because of the edict of our state supreme court. I'm suggesting however that the constitution requires no more than a local standard, and if the states in enacting their laws wish to adopt the state standard or a national standard, they should, under the Fourteenth Amendment, be free to do just that.
William O. Douglas: In other words, as matter of a federal constitutional law you take the view of Justice Burke in dissent in Giannini.
Michael R. Capizzi: Yes, Mr. Justice Douglas. I submit the matter unless there are further questions.
Warren E. Burger: Very well, Mr. Capizzi. Mr. Marks, I think you have consumed your time, the case is submitted.