John G. Roberts, Jr.: We will hear argument next this morning in Case 09-1272, Kentucky v. King. Mr. Farley.
Joshua D. Farley: Mr. Chief Justice, and may it please the Court: The issue before you today, of whether or not police can impermissibly create exigent circumstances, arises from the improper suppression of reasonably seized evidence after a reasonable warrantless entry. The test set forth by the Kentucky Supreme Court is improper for several reasons, the first of which is that this Court has routinely held that the subjective intent of police officers when effecting a warrantless entry is irrelevant.
Ruth Bader Ginsburg: Where did the -- where did the Kentucky Supreme Court -- where did the Kentucky Supreme Court say that it was looking to a subjective state of mind on the part of the police?
Joshua D. Farley: Well, the Kentucky Supreme Court's first prong of their test, and I believe it's in our petition appendix on page 26 -- I'm sorry. Their -- their discussion starts on page 44a and carries over to 46A. The first question of their test is whether or not the officers acted in bad faith in an attempt to purposefully evade the warrant requirements.
Ruth Bader Ginsburg: That didn't -- that didn't apply in this case?
Joshua D. Farley: That is correct. The second prong of the Kentucky Supreme Court's test is whether or not the actions of the Respondent in this case or the occupant of the home would have been foreseeable by the police officers before they knocked and announced their presence. Now, the problem with the foreseeability test--
Ruth Bader Ginsburg: Why is -- why is that subjective? Why isn't that, wouldn't it be foreseeable to a reasonable police officer similarly situated?
Joshua D. Farley: --Well, Justice Ginsburg, it -- it isn't directly a subjective inquiry. However, police officers are trained to expect and foresee illegal activity so that they may carry out the duties of their job in protecting the citizens. So under a foreseeability test, a police officer will always foresee illegal activity in response to his actions. Be it walking down the street or knocking on your door, a reasonable officer will always foresee illegal activity, and for that reason, the Kentucky Supreme Court's test is completely unworkable. Several of the other circuits and the lower courts have adopted tests that also attempt to add an extra exception, an unwarranted closure of the exigent circumstances exception that narrows the use of that exception by police officers. The test that the Commonwealth would propose is a simple lawfulness test. Now, under this test, as long as an officer behaves lawfully, there should be no suppression of evidence seized after an otherwise reasonable search--
John G. Roberts, Jr.: So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs, drug transactions. Every 2 weeks they walk through and knock on every door and wait for evidence of the destruction of -- of -- of drugs. Is that all right?
Joshua D. Farley: --Well, there's -- I would say yes, if there is probable cause as well as--
John G. Roberts, Jr.: Well, the probable cause, of course, comes when they hear the, you know, flushing and, you know, the hiding or whatever behind the door.
Joshua D. Farley: --Well, I would assert that there are -- there are two separate issues here. You must have probable cause separate from the existence of exigent circumstances. In this case there was probable cause due to the smell of marijuana.
Ruth Bader Ginsburg: They go to the apartment building and they sniff at every door, and when they sniff, when a strong smell of marijuana emanates from the door, then they go through this routine, but they do it as a matter of every 2 weeks, as the Chief said, as a routine matter. They don't just knock on every door, but they knock on the doors where they smell marijuana, and they do that just as a routine, in all the buildings where they suspect there may be drug -- drugs being stashed.
Joshua D. Farley: Justice Ginsburg, under a simple lawfulness test, since the officers have not violated the Fourth Amendment prior to the exigency arising, there would be no need to suppress any evidence. That would be perfectly fine for the officers to do that. It may not be the most--
Sonia Sotomayor: --to the Chief Justice when he said -- and I think this was the Solicitor General's position -- that the police can routinely knock at a door and wait to see if they hear a toilet flushing. I -- I've taken it out of this case but -- because I don't know what noise means. But your answer would be yes?
Joshua D. Farley: --Yes, if -- if probable cause exists.
Sonia Sotomayor: Well, why -- why do you need the probable cause inquiry? What does it have to do with anything?
Joshua D. Farley: Well, under the Fourth Amendment for a reasonable warrantless search to occur, a police officer must have--
Sonia Sotomayor: Before they can go in--
Joshua D. Farley: --Yes. The police officers must have--
Sonia Sotomayor: --because they have just heard the toilet flushing?
Joshua D. Farley: --They must have probable cause coupled with exigent circumstances.
John G. Roberts, Jr.: I'm sorry. I think I have got two different probable causes that's caused -- causing me some confusion. I understand their requirement of probable cause, and that they hear sound of evidence being destroyed and therefore enter. Is that -- or are you talking about the probable cause to think there's something going on in the first place?
Joshua D. Farley: There are two separate issues here. They must have probable cause aside from exigent circumstances. Then they must also have a reasonable--
Anthony M. Kennedy: To knock on the door? They must have probable cause to knock on the door?
Joshua D. Farley: --No, Justice Kennedy. They can just--
Anthony M. Kennedy: Take us--
Joshua D. Farley: --they could knock on the door. However--
Anthony M. Kennedy: --Take us through it -- take us through it chronologically. The policeman is walking through the hallway, he has no probable cause. He -- he--
Joshua D. Farley: --He could knock on the door.
Anthony M. Kennedy: --He smells marijuana--
Joshua D. Farley: The smell of--
Anthony M. Kennedy: --then he knocks on the door. When does the probable cause arise and when must it arise?
Joshua D. Farley: --Well, the smell of marijuana would give probable cause to obtain a search warrant. Once he knocks on the door and hears noises consistent with the destruction of physical evidence, then an exigency has arised. Now the officer has both probable cause and an exigent circumstance--
Elena Kagan: But I don't understand why the smell of marijuana is necessary. This goes back to what Justice Sotomayor was saying, you don't need probable cause to knock on a door. Knocking on a door is perfectly lawful. So, if there's just a lawfulness test, the knock is fine. And then when you hear whatever it is that you hear that you think creates exigent circumstances, whether it's a toilet flushing or whether it's just noise, that too gives you the ability to go right in. So -- so if it's just lawfulness, you don't need the marijuana smell even, do you?
Joshua D. Farley: --Well, I think -- I think we're confused. In order to enter with exigent circumstances, you must also have separate probable cause, and--
Elena Kagan: Probable cause beyond thinking that the evidence--
Joshua D. Farley: --Beyond the reasonable belief--
Elena Kagan: --is being destroyed?
Joshua D. Farley: --Yes. Correct.
Elena Kagan: Okay.
Joshua D. Farley: That is correct.
Antonin Scalia: It might just be somebody going to the toilet, right?
Joshua D. Farley: It could be. It could very well be.
Antonin Scalia: So, you have to suspect that the reason the toilet is flushing is somebody is trying to get rid of evidence. And in order for that to be the case, you have to have smelled marijuana?
Joshua D. Farley: Yes, Justice Scalia, you're absolutely correct.
John G. Roberts, Jr.: So there's only one probable cause, right?
Joshua D. Farley: Yes.
John G. Roberts, Jr.: Okay.
Joshua D. Farley: Yes. The exigent circumstances is a reasonable belief based upon the totality of the surrounding circumstances. Here, given that the officers had a reasonable belief that they were chasing a fleeing felon, they had a reasonable belief that this was the doorway he had entered, then you couple that with the noises that they heard, they testified were based on their training--
Ruth Bader Ginsburg: And may we just--
Joshua D. Farley: --and experience.
Ruth Bader Ginsburg: --Mr. Farley, may we just go back over -- you're putting in the fleeing felon, but as far as I understand from this record, it was never shown that the dealer that the police were following was aware that he was following and that he was fleeing from them. I mean, this is the -- it's not part of the question you presented, because we've granted only on the exigent circumstances, but I didn't think that there was -- the dealer wasn't called and he wasn't asked did you even know that the police were following you?
Joshua D. Farley: That -- that's correct, Justice Ginsburg. However -- and -- we cannot divorce the officers' chase of this suspect, regardless of whether he knew of their hot pursuit or not, we cannot divorce those facts from what the officers knew when they knocked on the door.
John G. Roberts, Jr.: Sure, you can. There's nothing illegal about walking down the hall and knocking on somebody's door; and if as a police officer you say, but I smell marijuana, and then you hear the flushing, then there's probable cause. You don't need any business about the dealer and the breezeway and all that at all.
Joshua D. Farley: Certainly. Certainly, Mr. Chief Justice. You're absolutely correct. I was -- I was just speaking in terms of this case, saying that there were -- there was ample evidence that exigent circumstances existed here, coupled with the probable cause.
Sonia Sotomayor: And in your view--
Ruth Bader Ginsburg: Question -- may I ask a question that goes back to what you said? You have clarified very nicely that there has to be probable cause to think that there's something wrong going on in the -- the apartment; and you said that is, at that point when they -- the marijuana strong smell comes from the door, at that point police could go and get a warrant. Then they don't have to, because then they knocked on the door. We start out with a strong presumption that the Fourth Amendment requires a warrant, a strong preference for getting the warrant. So why in this situation wouldn't the first response of the police be, instead of knocking -- because once they knock they alert the people in there -- let's get a warrant; we'll come back?
Joshua D. Farley: Well, the officers testified under these circumstances that they believed that they were in hot pursuit of this felon. So at the time they were at the door they believed he had entered this apartment and was aware of their presence and was destroying evidence of his deal of crack cocaine, so this is an evolving--
Sonia Sotomayor: --Counsel, why was -- how does this holding by us not become a simple warrantless entry in any drug case, meaning police knock on the door, suspect doesn't answer it, gets up and moves to their bedroom? Because there's no noise that was described by this police officer. It was simply not answering the door and moving. So if that's all it takes, any police officer will come in and say: In my experience, most drug dealers destroy the evidence when we knock.
Joshua D. Farley: --Well--
Sonia Sotomayor: Aren't we just doing away with Johnson? And aren't we just simply saying they can just walk in whenever they smell marijuana, whenever they think there's drugs on the other side? Why do we even bother giving them a -- a warrant?
Joshua D. Farley: --Well, I would disagree with you. I think that when determining whether an exigent circumstance exists, you look at the totality of the circumstances. So -- and there would be a myriad of cases in which a court would determine that, simply based upon the testimony or the noises that were heard, with no surrounding circumstances, that exigent circumstances may not have existed.
Antonin Scalia: What if -- what if the defendants here had not flushed the evidence down but had answered the door and said, "Yes"? Would the policeman have been able to do anything just because they had smelled marijuana?
Joshua D. Farley: They could have sought a consensual encounter with the occupant--
Antonin Scalia: Oh, yes, but they say: Oh, heck, no, you can't come in; do you have a warrant?
Joshua D. Farley: --Then the officers would not have been able to force entry.
Antonin Scalia: So basically the -- the police were taking advantage of the stupidity of the criminals, is that right? That's terrible, that's not fair, is it?
Joshua D. Farley: Well, I don't if I -- I don't know that I would phrase it -- there is no -- there is not a requirement to inform an occupant of a right to denial. However, the officers could not have forced their way into the home. That would have made this a case like Johnson.
Sonia Sotomayor: What if the officers had simply knocked, said we're going to kick the door in if you don't open it?
Joshua D. Farley: I believe that's still fine under a lawfulness test, unless the occupant of the home submits to that show of authority and comes to the door and allows entry. Now, if--
Antonin Scalia: Well, after -- after they've heard the movement inside or the flushing or whatever, you can't just kick it in because you've smelled marijuana. Can you do it, because you -- you knock on the door because you smell marijuana, nobody answers, and you kick the door in?
Joshua D. Farley: --Well, I believe that the noises that they heard were consistent with destruction of physical evidence based upon--
Antonin Scalia: Yes, but without that noise. Just--
Joshua D. Farley: --No, no.
Antonin Scalia: --No, of course not.
Joshua D. Farley: So no, no, of course not. They would have to obtain a warrant at that point. If the person came to the door and denied them consent, they would have to obtain a warrant. If the person did not come to the door and made -- no exigency arose, then the officers would still have to go and obtain a warrant.
Anthony M. Kennedy: But this may be a bit rudimentary, but can you tell me why isn't the evidence isn't always being destroyed when the marijuana is being smoked? Isn't it being burnt up? [Laughter]
Joshua D. Farley: I -- Justice Kennedy, I -- I would tend to -- I would tend to agree with you. However, I know this Court in Johnson stated that the smell of burning opium was not the destruction of evidence, and the only thing they could have obtained would have been the fumes or the vapors. I tend to agree -- disagree with that personally. However, from a legal viewpoint. The simple smell of burning marijuana is not--
Anthony M. Kennedy: So the distinction is being destroyed as opposed to being consumed?
Joshua D. Farley: --Correct, that is -- that is correct.
Ruth Bader Ginsburg: How is it -- you mention Johnson.
Joshua D. Farley: Yes.
Ruth Bader Ginsburg: And I think the other side says it was the same thing except it was a hotel room instead of an apartment building. The police smell, in that case it was -- what was it?
Joshua D. Farley: Well, what occurred in Johnson, I believe, is -- is completely different than what occurred here. What occurred in Johnson was the officers forced their way into the occupant's apartment -- the occupant's hotel room, and then said: Consider yourself under--
Ruth Bader Ginsburg: Didn't they smell marijuana or opium or something?
Joshua D. Farley: --Well, they did, and they knocked on the door, and she came to the door and they -- they forced their way in. There was no -- there was no "let us in", there was no demand for entry, there was no even ask for consent to enter. They then said: Consider yourself under arrest. They searched, and then held her under arrest based upon the evidence that they obtained.
Ruth Bader Ginsburg: You left out one thing. I thought they heard rustling noises before they attempted to get into the apartment -- into the hotel room. There was something about noises.
Joshua D. Farley: Well, I believe they heard sounds when they knocked on the door. But she actually came to the door and the officers forced entry. Here we don't have that. We have no forced entry. These are two different circumstances. Johnson, an exigency did not exist. Here an exigency does exist. If there are no further questions, I would like to reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, Mr. Farley.
Joshua D. Farley: Thank you.
John G. Roberts, Jr.: Ms. O'Connell.
Ann O'Connell: Mr. Chief Justice, and may it please the Court: If police officers act lawfully in conducting their investigation, they may respond to any exigencies that arise. It is up to police officers to determine how they will collect evidence in any given case as long as they stay within the confines of the Fourth Amendment. Although securing a warrant--
Sonia Sotomayor: Could you -- does a ruling in this case that any lawful conduct by the police mean that the police knock, somebody gets up on the other side and walks through a closed door, and closes a door in the back, and police say in my experience it's -- it's consistent with the destruction of property that drug dealers will go into a closed room to get rid of it. Is that enough?
Ann O'Connell: --I don't think so, Justice Sotomayor. I think that in any case--
Antonin Scalia: Why -- why not? I mean people -- you know, when there's a knock on -- on the door, is the normal human reaction to walk into the other room and shut the door?
Ann O'Connell: --Well, a person might not--
Antonin Scalia: That's peculiar behavior, isn't it?
Ann O'Connell: --A person doesn't have to answer the door. A person might come to the door, they might also ignore whose ever at the door. Both of those options are fine.
Antonin Scalia: Is that a common experience, that you knock on a door and all you hear is somebody walking out of the room and shutting a door?
Ann O'Connell: I mean, I -- I guess that a person is entitled to do that.
Antonin Scalia: I don't recall it ever happening to me, but maybe -- maybe I'm a likable fellow and people open the door. [Laughter]
Ann O'Connell: I mean, I think that that -- that's certainly a lawful option that somebody has when the police officers knock at their door. And certainly in this case--
Antonin Scalia: They could say: Go away. They could do a lot of stuff. But walk in the other room and shut the door?
Ann O'Connell: --That's--
Antonin Scalia: Strange.
Ann O'Connell: --I guess some people might do that if they don't want to give consent to police entry. I think that in order to go in based on an exigent circumstance the police would have to be able to articulate to a court that they objectively, reasonably believed that there was destruction of evidence occurring inside.
Ruth Bader Ginsburg: And what was that here? Because it is kind of vague. They heard movement. What kind -- what kind of movement? It said nothing about a toilet flushing--
Ann O'Connell: Justice Ginsburg, it's our position that the Court should assume that there was an exigency in this case. In the Respondent's brief in opposition, he argued that there was insufficient evidence of exigency. The Court nonetheless granted cert on the question of whether a police-created exigency would be okay under the Fourth Amendment. The Solicitor General believes that the Court should assume there was an exigency, and if it agrees with Kentucky on the question presented and then reverses, it should remand to the Kentucky Supreme Court for a determination of whether an exigency existed. The trial court in this case certainly found that the movement inside of the apartment was enough for the officer to reasonably conclude that somebody inside was destroying evidence. The Kentucky Supreme Court assumed that that was so in order to reach the question presented in this case that the Court granted cert on.
Elena Kagan: Ms. O'Connell, if I could ask you about the government's proposed standard: You say that as long as each step in the police conduct is lawful, that's sufficient, and each step would -- the way the Fourth Amendment works, each step, we're asking, essentially, whether each step is reasonable. What some courts have done in addition to that -- and this was not the approach of the court below -- but what some courts have done is to say, we also ask a more holistic reasonableness question. We say: Is the whole process by which the police operated with respect to this person reasonable? So, for example, we might say, you know: Was there time to get a warrant or did it look like the police were just -- they preferred not to have to deal with a magistrate? So what's wrong with that sort of standard? In addition to asking whether each step is reasonable, to say: Look, is the whole pattern here of what the police did to come up with this evidence reasonable?
Ann O'Connell: I think the problem with that test, Justice Kagan, is that police officers have options of how they can conduct searches and seizures. Getting a warrant is one way that they could do that. Getting consent to conduct a search or a seizure is another way. There's no justification in this Court's precedents for requiring police officers to choose one of those options over another if both options are lawful. In this case, the police officers knocked on the door, not sure which apartment the person that they were pursuing fled into, in order to determine whether that was the correct apartment. There's no reason why they needed to get a warrant before knocking on the door and seeking cooperation of the people inside.
Anthony M. Kennedy: Is it your position that the police can do anything that's lawful, even if the purpose of doing so is to create exigent circumstances?
Ann O'Connell: Yes, I think that under this Court -- the way that this Court has interpreted Fourth Amendment warrant exceptions, as long as there is no violation of the Fourth Amendment, that is okay. The police officers can rely on any ensuing exigency.
Anthony M. Kennedy: The -- the question presented in the blue brief used the word "impermissible", and we're talking about unlawful. I take it that there is a difference in those, or no difference?
Ann O'Connell: Well, yes, there is a difference. I think that that comes up in Respondent's argument that if there was an impermissible demand for entry -- for example, if the police officer said, I have a warrant, let me in, even though he didn't, as in Bumper v. North Carolina -- that that could still be okay under a lawfulness test as long as the suspect reacted by destroying evidence instead of by coming to the door like in Bumper or Johnson and going about with--
Stephen G. Breyer: What are the objections to adding in the alternative, "or in bad faith"?
Ann O'Connell: --Justice Breyer, the objection to that is simply that in all cases that are founded upon probable cause that are not programmatic searches that are conducted without any individualized suspicion, this Court has repeatedly rejected prongs of a Fourth Amendment test that -- that rely on the subjective--
Stephen G. Breyer: Objectively? I mean, what we're trying to rule out is they -- they hitch -- they get this bright idea, the police: We'll go knock on every door. So what about that, objectively determined bad faith.
Ann O'Connell: --I'm sorry, I don't--
Stephen G. Breyer: My point is a solely unlawfulness test would allow the police to get into the habit of just knocking at every door, but if you say that also, it has to survive a bad faith test, where bad faith is objectively, not subjectively, determined, then you will rule out the possibility of the police hatching -- which I don't know if they would, but hatching such a plan.
Ann O'Connell: --I guess that it's not totally clear what bad faith would mean in this context.
Stephen G. Breyer: Well, there are circuits who have adopted a bad faith test in the alternative with other things than the word "unlawful". The Second Circuit uses only the word "unlawful", and I thought we took this case to iron out that discrepancy. And if we did, I would like to know your objection to ironing it out by taking the Second Circuit test but adding on an objectively determined bad faith rule.
Ann O'Connell: Justice Breyer, I don't -- I don't know what it means to act in bad faith in a case like this as a police officer.
Samuel A. Alito, Jr.: Maybe it could mean having no reason for knocking on the door other than to create exigent circumstances.
Ann O'Connell: Well, Justice Alito, I think that it would be difficult to determine objectively whether that was the case. Certainly--
Stephen G. Breyer: Well, the police say, oh, I don't want to get a warrant. It's such a bore. We have other things to do. I have a great idea; let's knock at the door, and then as soon as he starts moving around, I know what he's going to the -- going into the bathroom means, and we'll hear that, and we'll be able to get in. Hey, great idea. Okay. Now suppose that's the record.
Ann O'Connell: --I think that there's already a significant risk built into the Fourth Amendment that police officers, if they knock on the door and they don't hear somebody destroying evidence inside, they're going to have to leave and get a warrant. I think that's enough of a--
Antonin Scalia: You don't know that they're destroying evidence unless you have reason to believe that there is contraband inside. I mean, the -- the hypothetical is an unrealistic one. They knock on the door and somebody moves inside, that doesn't give them any--
Stephen G. Breyer: No, I mean to add: And in fact, there's probable cause.
Antonin Scalia: --Okay.
Stephen G. Breyer: In addition, he smelled the marijuana. I just was trying to stick to the relevant points.
Antonin Scalia: Well, that's a different hypothetical. There's a hypothetical in which--
Stephen G. Breyer: All right. I add that to the hypothetical.
Antonin Scalia: --they knock on every door under which they smell marijuana.
Stephen G. Breyer: Correct. That's what I mean, and I don't always spell it out.
Antonin Scalia: Perfectly okay.
Ann O'Connell: --Right, and I think that there's -- the Court shouldn't be concerned, and certainly shouldn't be concerned enough to adopt a bad faith or a subjective motivation prong to a test that it creates--
Sonia Sotomayor: But what makes that different than knocking on the door and saying, open the door or I'm going to kick it in? You're saying that's lawful because until the person submits, you're suggesting there's no coercion in that whatsoever.
Ann O'Connell: --That's true, and, Justice Sotomayor, to be clear--
Sonia Sotomayor: So why wouldn't that objectively be bad faith if what we find out is they now have a tactic which is they go through this building and every time they smell marijuana, hash, or -- I don't know if crack cocaine smells or not when they're smoking it, but whenever they smell something, they just do that.
Ann O'Connell: --I think the fact that if the person actually does what the police officer says and answers the door will mean that the evidence would be excluded as a coerced consent search is enough of a deterrent to that sort of conduct.
Sonia Sotomayor: So there's no bad faith measure whatsoever in your--
Ann O'Connell: I don't think it's necessary.
Sonia Sotomayor: --analysis, and lawfulness is defined by actual physical seizure. So if we have cases that suggest something else, a command to submit, your argument would be lost, correct?
Ann O'Connell: I think that's right, if the person submits to the command.
John G. Roberts, Jr.: Thank you, Ms. O'Connell. Ms. Drake.
Jamesa J. Drake: Mr. Chief Justice, and may it please the Court: The odor of burnt marijuana, coupled with Officer Cobb's cursory and equivocal testimony about the sounds of movement he couldn't discern exactly and that his training and experience led him only possibly to conclude was consistent with the destruction of evidence, is insufficient to establish exigent circumstances.
John G. Roberts, Jr.: Well, you're--
Antonin Scalia: I'm sorry.
John G. Roberts, Jr.: --You're describing what you think the evidence was to support exigency, and the suggestion we have heard on the other side is that that's an issue that can be addressed on remand once we, according to the other side, correct the State court's error in that this -- you -- the police cannot create exigent circumstances. So I -- I don't know that it's terribly relevant what the underlying facts about what they heard was. That will be relevant depending, or not, depending on what our opinion says.
Jamesa J. Drake: It's relevant because it goes to whether exigent circumstances existed. And as to the question of whether a remand would be appropriate in this case, the question of whether exigent circumstances existed is logically antecedent in any created exigency case.
John G. Roberts, Jr.: No, it's -- it's not at all. The court said: I don't care whether exigent circumstances existed; you cannot create exigent circumstances; so I don't care whether they were or not. The legal standard is antecedent to the application of the facts.
Jamesa J. Drake: There's no point in delving into whether an exigency was created by the police if there is no exigency to begin with.
Anthony M. Kennedy: Well, I -- I think the Court is interested in taking the case on the question whether or not the police may create exigent circumstances and use those exigent circumstances to enter. Now, whether or not there were exigent circumstances here because of the sound is -- is it seems to me a subsidiary question.
Jamesa J. Drake: The other problem with remanding this case for further determination on this issue is, as this Court is aware, the procedural posture of this case is troubling. The case has already been dismissed. There is no potential for further proceedings here. There is no--
John G. Roberts, Jr.: Oh, sure, there is. It was dismissed because the State Supreme Court held you can't bring this evidence in. If we say, oh, yes, you can, then the issue comes live again.
Jamesa J. Drake: --That conclusion is dependent on the notion that in an indictment it's merged with the judgment such that a decision in the Commonwealth's favor in this case would vacate the decision of the Kentucky Supreme Court, which in turn vacates the underlying suppression order. But there is no authority for the notion that an indictment and a judgment merge as a matter of Kentucky law, and so a decision--
John G. Roberts, Jr.: This is the argument you presented to us in the letter, right?
Jamesa J. Drake: --Yes, Your Honor.
John G. Roberts, Jr.: And, yet, we nonetheless decided to have argument?
Jamesa J. Drake: Yes, Your Honor.
John G. Roberts, Jr.: So maybe it would be -- it's your case, but maybe it would be best to move on to the legal issue.
Jamesa J. Drake: If we move to the question of whether the police have created exigent circumstances, it's important that we're all operating on the same understanding of the facts in this case. This case does not involve a simple knock at the door, and -- and -- and the distinction is important. In this case, at 9:50 p.m., the officers banged on the door as loudly as they could.
Sonia Sotomayor: Did the trial court make those findings? I know that you said it in your brief, and I thought I read the trial court record. I know they knocked loudly.
Jamesa J. Drake: Yes.
Sonia Sotomayor: But what else did they do?
Jamesa J. Drake: Yes. And this is located at the appendix to the petition in the bottom of page 3a carrying on to 4a. The trial court found: Detective Maynard, who was accompanying Officer Cobb in the breezeway attempting to locate and arrest the suspect in question, banged on the door of the apartment on the back left of the breezeway, identifying themselves as police officers and demanding that the door be opened by persons inside. Officer Cobb testified at the suppression hearing, and this is at page 22 of the joint appendix: Detective Maynard made contact with the door, announced our presence, banged on the door as loud as we could, announced: "Police, police, police". This is not the case where--
John G. Roberts, Jr.: Where's -- no "open up". I thought you said earlier they said "open up"?
Jamesa J. Drake: --Yes. Then Officer Cobb later goes on to explain, and this is on page 24 of the joint appendix: Detective Maynard with Sergeant Simmons we explained to them, referring to the occupants of the apartment, we were going to make entry inside the apartment.
John G. Roberts, Jr.: Is that after -- after the exigent circumstances or the alleged exigent circumstances were presented? That's after they heard what they thought, and I know you disagree, was the destruction of evidence?
Jamesa J. Drake: It's -- it's unclear from the trial court's factual finding what the order of events was. The trial court found, banged on the door of the apartment, identified themselves as police officers, and--
Antonin Scalia: Loudly. Is any of that unlawful? Is -- is -- is knocking loudly on the door unlawful?
Jamesa J. Drake: --It's unreasonable conduct.
Antonin Scalia: Is it -- if it unlawful? Is -- is saying "Open up, police", is that unlawful?
Jamesa J. Drake: Well, it's certainly not unlawful in the sense that it violates any provision of the penal code. But this is a Fourth Amendment case, so the question is whether it's reasonable.
Antonin Scalia: Miss Drake, the problem I have is there are a lot of constraints on -- on law enforcement, and the one thing that -- that it has going for it is that criminals are stupid. [Laughter] And we had a case some years ago in which the issue was whether the Washington police could enter buses arriving from -- from the south and -- and randomly ask passengers, do you mind if we look in your luggage? And the -- the -- the mules who were carrying marijuana were stupid enough to say: Oh, of course, just to show that they had nothing to fear. And an enormous number of arrests were -- were effected in that fashion. We didn't say that's not fair because you're taking advantage of the -- of the ignorance of these -- these poor criminals. We said that's perfectly okay. And it seems to me the same thing is going on here. These people could have answered the door. There's a policeman knocking on the door. All he's saying is open the door, open the door, say, yes, what do you want? Say, you know, blah, blah, blah. They say, well, get a warrant. Shut the door. They didn't do that. But everything done was perfectly lawful. It's unfair to the criminal? Is that -- is that the problem? I really don't understand the problem.
Jamesa J. Drake: I have two responses to Your Honor's question. The first is that -- and along with this notion that criminals are stupid and so that's why we get all these criminal cases, there is no difference between what happened in this case and how an innocent person would respond. Recall Officer Cobb's testimony is simply that after banging he heard movement. Any innocent person at 10:00 at night would have to move in order--
Samuel A. Alito, Jr.: Could I ask you this? It might -- it might make a difference to me whether the police demanded entry prior to the time when the alleged exigent circumstances arose. And the only testimony on this point that I am aware of is on pages 22 and 23 of the appendix when police banged on the door as loud as they could and announced police, police, police, and then Detective Maynard banged on the door and said this is the police. Now, is there any -- anything more in the record? Any evidence that they, prior to the time when they heard what they allegedly heard, they said open the door?
Jamesa J. Drake: --The portion of the Joint Appendix that I quoted to the Court, we explained to them we were going to make entry, appears on page 24.
Samuel A. Alito, Jr.: Right.
Jamesa J. Drake: So, if Your Honor keeps reading--
Samuel A. Alito, Jr.: It starts -- it says we knew that there was possibly something that was going to be destroyed inside the apartment. At that point Detective Maynard -- this is after they heard the sounds, after they claim to have heard the sounds.
Jamesa J. Drake: --Yes. Officer Cobb's testimony suggests that the demand came after they heard the sound of movement. The finding by the trial court, however, is that this was all happening simultaneously and in very quick fashion.
Samuel A. Alito, Jr.: Is there any -- is there any evidence of that? Did anybody else testify to what happened?
Jamesa J. Drake: No, Your Honor. Officer Cobb's testimony was -- was all the Commonwealth offered. But the chronology of the demand is not dispositive in this case because the demand itself is not dispositive. The demand removes any doubt that the officers were not seeking a consensual encounter, but you still have the behavior of banging on the door.
Samuel A. Alito, Jr.: Well, does it -- does it turn on how loudly they knocked? If they just knock on the door and say this is the police, is -- is that -- is there anything wrong with that?
Jamesa J. Drake: It -- it -- it depends entirely on whether a reasonable person would interpret that behavior as the officer conveying the impression that entry was imminent and inevitable, and this feeds back to Justice Scalia's question which is, well, what -- what is unreasonable about what the officers did here?
Samuel A. Alito, Jr.: What was there here to make a reasonable person believe that -- that entry was imminent and inevitable, if -- if all that's done is a knock on the door and they say police, police, police, this is the police? Maybe it turns on how loudly they spoke or how loudly they -- they knocked, is that the point?
Jamesa J. Drake: That is the point. Those are all relevant criteria because in every Fourth Amendment case we're considering the totality of the circumstances.
John G. Roberts, Jr.: It seems to me that you're trying to change the case. I mean, this is not a case where they come in and, in effect, demand entry. My understanding is that the issue in the case is whether or not after a request for entry, they can then base probable cause and dispensing with the warrant based on what they hear from behind the door. Now, I know you think whatever they hear is perfectly innocent; but the issue is whenever they knock on the door, "police", or "can we come in" or whatever, and then they hear that -- the activity behind the door, they have reason and can -- can enter. Now, what you're -- it seems to me what you're arguing is well, they did something else. They banged on the door, they yelled police; it wasn't simply knocking on the door and seeking entry. And you may be right, again, on the facts, but it seems to me that's for -- for later on. I want to know what your position is on whether they can assume, at least for me, they knock and say can we come in or knock and say police, no demand to get in.
Jamesa J. Drake: If I understand Your Honor's question, the officers are engaging in what we would call a true knock and talk. They're seeking -- they're on -- the scenario is such that no one would doubt they're attempting a consensual encounter. Our position is because that behavior is reasonable, it is not made unreasonable by the fact that evidence may be destroyed, and so suppression would not be the remedy. But again--
Stephen G. Breyer: So you agree that -- that the court below is wrong because what they say as I read it is irrespective of how reasonably the police behave, if it is reasonably foreseeable that their tactic will create exigent circumstances -- and I would think it's reasonably foreseeable when you knock on the door very politely and say "the police" that somebody might shout out "hide the pot", all right? That if that's reasonable foreseeable, says the court, then that violates the Fourth Amendment. But we have the Second Circuit that says as long as the police behaved unlawfully -- it -- lawfully, lawfully, it does not violate the Fourth Amendment; and we have the First Circuit that has some kind of bad faith test plus an unreasonable or improper test; and we have the Fourth and Eighth circuits that yet have some different kind of test. And one of the things I would be interested in hearing your view on at some point is just what the Chief Justice said; that assuming from your point of view this is a hypothetical case, nonetheless we would like your view on which of those tests or some other test is the appropriate test and why. That was the question he started with, and Justice Kennedy started with, and I also would be interested in your view on that.
Jamesa J. Drake: --The appropriate test is the test that we propose. Under our test, the police act unreasonably when they convey the impression to an -- to a reasonable person that entry is imminent and inevitable. Our test follows directly from the Fourth Amendment requirement that people in their homes deserve precision. By conveying the impression that entry is imminent and inevitable, the police are -- and they don't have judicial authority for doing that; that is, there's no warrant -- they are engaging in behavior that would confuse an ordinary citizen and make him or her uncertain about whether the assertion of right to privacy and security in the home--
Elena Kagan: Well, Ms. Drake if that's the case, in some way you're agreeing with the government. You, too, are saying that -- that there's a lawfulness test. You're just disagree about what's lawful.
Jamesa J. Drake: --And to the extent that lawful is defined as a synonym for unreasonable, and to the extent that there does not need to be a completed antecedent Fourth Amendment violation, we would agree. There is area of agreement between the Commonwealth and I and it is on the issue of this knock and talk. Of course, police officers need to have the investigative tool of a knock and talk. There's nothing wrong with an officer attempting to gain consensual entry; and our position is that that's not made unreasonable by factors outside the officer's control, no matter how foreseeable.
Samuel A. Alito, Jr.: So what took this outside of the category of the ordinary knock and talk?
Jamesa J. Drake: This is not a knock and a -- knock and talk case, this is a knock and announce case or a knock and demand case, which is how the trial court characterized it. And the staff--
Samuel A. Alito, Jr.: Well, I don't know about the labels, but what did they -- what did the police do that went beyond would be permitted under your understanding of a pure knock and talk? It's -- it's the volume of the -- the knocking?
Jamesa J. Drake: --Yes, it's the -- it's the banging, not knocking. It's announcement.
Samuel A. Alito, Jr.: Banging, not knocking?
Jamesa J. Drake: Banging, not a soft -- not the knock that you would expect a reasonable person to engage in, in the ordinary discourse with another person, or that you would expect from an officer attempting to gain consensual--
Antonin Scalia: But I -- you -- you -- you might have considerable support on the Court for the proposition that if the exigent circumstance is created by unlawful activity by the police, which would include conveying the impression that they are about to kick the door in, then -- then you have a different case. But -- but I thought the case we had before us is what if the police officers are behaving perfectly lawfully and they're not threatening to kick down the door, and they smelled the marijuana and then they hear the motion inside, does that justify their going in? And that's what I thought we took the case for, and that's a different question. You're trying to -- you're trying to make the police officers' actions unlawful, and I will stipulate that if their actions were unlawful you have a different case, and probably the evidence would have to be suppressed, but I didn't think we were here to decide that, whether they knocked too loud, whether they threatened to kick in the door. The opinion below says if they created the exigent circumstances whether they did so lawfully or unlawfully, they cannot go in -- and that's, that's the issue.
Jamesa J. Drake: --What the officers did in this case is the functional equivalent of saying we're going to kick in the door. Now, I wouldn't go that -- that far, but it -- it's the functional equivalent of a knock and announce, which is exactly the behavior the police engage in when they are executing a warrant; and it is that behavior that conveys the impression that an occupant has no authority to keep the officers at arm's length.
Antonin Scalia: That wasn't the basis for the decision below, though. The court below didn't say these police officers were behaving as though they had a warrant and were about to kick in the door. The opinion below just said, yes, there were exigent circumstances, but they were the result of the police knocking on the door and saying we're the police.
Jamesa J. Drake: I don't disagree that the lower courts did not analyze the problem in this fashion, did not analyze the question in this fashion, but it's a legal question that calls for an examination of how a reasonable person would interpret the behavior, and so--
Sonia Sotomayor: But what does that have to do with the -- the police officers' lawfulness? Now, I -- I grant you that attempting -- that there is something troubling about the police attempting to coerce entry as opposed to requesting entry; but as my colleagues have pointed out, it's not clear from this record which of the two the police did, in a loud voice or not. You're saying just a loud knock, a scream, "Police", that that would be coercive? That's how I'm reading you.
Jamesa J. Drake: --I--
Sonia Sotomayor: Or -- or are you going further and trying to say that as a matter of fact the testimony's critically clear that they knocked loudly, said "Police", and said let us in or we're going to bust it?
Jamesa J. Drake: --The factual record is clear. The -- Officer Cobb testified he banged as loud as possible. This is -- this not the normal knock that an officer engages in when he's seeking consensual -- consent, you know, consent to search, and this is at 10:00 at night. He's saying we announced, police, police, police, exclamation point; that -- that's how it appears in the record. Again--
John G. Roberts, Jr.: So just assume for -- for my sake that the police comes to the door. It's not 10:00 at night, it's you know, 6:00 at night, knocks quietly on the door, and says we're the police, can we talk? And then there was the smell of marijuana. And then he hears the sounds that do convey to a reasonable police officer that evidence is being destroyed. At that point can they enter without a warrant?
Jamesa J. Drake: --Yes.
John G. Roberts, Jr.: Okay.
Stephen G. Breyer: But you said -- just add on to that. Look, the question presented that they raised which of the five tests currently being used by the U.S. court of appeals is proper? Now, you've said something about your view on that, but I would like you to say anything else you would like to say about that: Which of the five tests or some sixth test if you like, and you tell me the words that you like us to use when we answer that question.
Jamesa J. Drake: I would like this Court to adopt the test that we have proposed.
Stephen G. Breyer: Which is?
Jamesa J. Drake: Which is that an officer acts unreasonably when he or she conveys the impression that entry into a home is imminent and--
Stephen G. Breyer: No, no, no. But the test you're using there, the key word there is unreasonable.
Jamesa J. Drake: --Yes, Your Honor.
Stephen G. Breyer: Okay, and the reason you choose the word "unreasonable" rather than the Second Circuit's test of "unlawful" is?
Jamesa J. Drake: Because, frankly, I'm not sure what that means, and I think that's become clear in the context of this briefing. Does unlawful mean the police have had to violate a provision of the penal code? Does unlawful mean, as the Commonwealth is contending, that there has to be a completed Fourth Amendment violation?
John G. Roberts, Jr.: You know -- you don't know what -- you don't know what unlawful means, but you know what unreasonable means?
Jamesa J. Drake: Yes. Unreasonable is the touchstone of every you know, Fourth Amendment case, and so we're saying there does not have to be an antecedent completed Fourth Amendment violation. The question is, as is the case in every Fourth Amendment case, did the officers act--
Antonin Scalia: Do you have any doubt that it's unlawful for a police officer to threaten to burst into a home?
Jamesa J. Drake: --No, Your Honor.
Antonin Scalia: So why do you need unreasonable? If, indeed, there -- there was a threat of imminent entry, we're going to bust down the -- if that was the threat, then it's unlawful, surely.
Jamesa J. Drake: Yes, and that's why my answer to Justice Kagan's question was to the extent that unlawful and unreasonable are synonyms, we would agree. Now, if the Court is not terribly -- does not find our test convincing, the next-best test, we believe, is a foreseeability test.
Ruth Bader Ginsburg: If your test is something novel -- Justice Breyer mentioned there are some five tests in the different circuits, and the foreseeability test is the one that the Kentucky Supreme Court used, but is your -- does your test coincide with the tests of any other circuits or is it different?
Jamesa J. Drake: Our test is a novel test. It has not been, to my knowledge, considered by any of the other circuits.
Stephen G. Breyer: Your test, it's -- it's not wild. It just says unreasonable in the Fourth Amendment. Probably when they act lawfully, they are acting reasonably and not unreasonably, but it could be sometimes they're not. That's your view?
Jamesa J. Drake: That's correct, and by the way--
Stephen G. Breyer: No test. All right.
Jamesa J. Drake: --We're not saying that -- we're essentially saying the police shouldn't act as though they have a warrant when they don't have one, which is exactly what they did in this case, and that proposition is not new. In Bumper, this Court made clear that if the police act as though they have a warrant when they don't have one, any consent would be coerced. So reviewing courts are already making these determinations about how loud was the knock and how aggressive was the demand, simply in another context. By the other -- on the other hand, police officers are already receiving the same instruction that they would need in order to apply our rule, which is, don't act as though you have a warrant. Don't engage in the functional equivalent of a knock and announce if you do not have prior judicial authority. And what is appealing about our test, unlike the foreseeability test, which we believe it's a refinement of, is it allows for conduct by the police that's reasonable at its inception to remain reasonable regardless of the suspect's response, no matter how foreseeable.
John G. Roberts, Jr.: What is -- what is an example of conduct that you would consider unreasonable resulting in suppression of the evidence that would not be unlawful?
Jamesa J. Drake: Well, it's very hard. It's very hard to conceive of where the daylight would be--
John G. Roberts, Jr.: Right.
Jamesa J. Drake: --between those terms, reasonable and unlawful, so long as unlawful doesn't mean violation of a penal code provision and so long as it doesn't mean, as the Commonwealth is suggesting, that there has to be -- that the defendant would have to first demonstrate that the police were seized in order to be able to convincingly argue that the search was unreasonable.
John G. Roberts, Jr.: So you can't -- can't give me one example of some conduct that's unreasonable under your test that would not be unlawful?
Jamesa J. Drake: I can't -- I can't think of one, Your Honor.
Antonin Scalia: The problem is that as reasonable as the test is, it's not the test that was used by the Court below, and you want us to affirm the decision below, which simply said if the exigent circumstances are -- are the consequence of the police action, whatever the police action was -- lawful, reasonable, whatever -- the evidence has to be excluded. Now, how can we affirm that decision as you want us to do, even -- even applying your test?
Jamesa J. Drake: Well, the factual record in this case is fully developed, and how a reasonable person would interpret the scenario is a mixed question of law and fact, which -- this Court would review the decision of the Kentucky Supreme Court in that regard de novo anyway. In that regard, it's no different than any other case that makes its way to this Court where this Court is asked to review the record, make a determination of how an ordinary person would interpret the officers' conduct. It is simply unreasonable and unlawful for purposes of the Fourth Amendment for an officer to convey the impression that he has the authority of a warrant when he doesn't have one. And when that prompts, as it obviously would, an occupant of a home to move, and then that movement is used as evidence that exigent circumstances exist and warrantless search is justified, if this Court were to, you know, adopt the framework the Commonwealth is arguing for, the exception to the warrant requirement would be the rule. So we would ask this Court to affirm the decision of the Kentucky Supreme Court.
John G. Roberts, Jr.: Thank you, counsel. Mr. Farley, you have four minutes remaining.
Joshua D. Farley: My time is short, so I would like to just make a few quick points. I believe Mr. Chief Justice and Justice Kennedy were absolutely, absolutely correct. The question before this Court is: Can lawful police action impermissibly create exigent circumstances? And the answer to that question is no. There is never a circumstance in which lawful police behavior under a Fourth Amendment analysis can impermissibly create an exigency. I would point the Court to Hodari D., which I believe Justice Scalia wrote for the Court, that we should not punish police officers for attempted Fourth Amendment violations or Fourth Amendment violations that do not reach fruition, because it does not serve the point of the exclusionary rule.
Elena Kagan: Mr. Farley, one of the points of the Fourth Amendment is to ensure that when people search your home, they have a warrant, and of course there are exceptions to that. But if there is one place where the warrant requirement has real force, it's in the home. And I think that the concern here, and you have some strong arguments on your side, but the concern here is that your test is going to enable the police to penetrate the home, to search the home, without a warrant, without going to see a magistrate, in a very wide variety of cases, that all the police really have to say is: We saw pot, we heard noise. Or: We think there was some criminal activity going on for whatever reason and we heard noise. How do you prevent that from happening? How do you prevent your test from essentially eviscerating the warrant requirement in the context of the one place that the Fourth Amendment was most concerned about?
Joshua D. Farley: Well, Justice Kagan, I would disagree with you. I don't think that it would. I believe that what the Commonwealth is asking for is no more or no less than reviewing courts have done for generations. You look to determine whether there was a Fourth Amendment violation, whether there was an unlawful entry, whether there was an unlawful seizure, or whether there was a coercion that then they gained consent for entry. If those things occurred, they are clearly Fourth Amendment violations. There should be a suppression of the evidence. The exigent circumstances--
Antonin Scalia: It wouldn't technically be a Fourth Amendment violation, would it, if the police gave the impression that they had a warrant and were about to kick in the door? Is that a Fourth Amendment violation in and of itself?
Joshua D. Farley: --I don't believe so.
Antonin Scalia: So your -- the -- the unlawfulness test would not prevent that?
Joshua D. Farley: No, Justice Scalia, it would not.
Antonin Scalia: It would not? Oh. Maybe we have to come up with an unreasonable test, then.
Joshua D. Farley: I believe under Hodari D., if the officers demand entry and there has been no response to that demand, there has no -- been no completion of the Fourth Amendment violation. The officers could stand outside the door--
Antonin Scalia: Well, it'd be okay for officers to do that? Pretend they have a warrant? Open the door or we'll kick it in. That's perfectly okay?
Joshua D. Farley: --I believe that there are -- there are large restrictions and prohibitions to that, that officers are well aware of, because if the person does answer the door, the officers know, well, everything is going to be suppressed. Or it's--
Antonin Scalia: Why, you say that what they've done is not lawful. Why would it be suppressed?
Joshua D. Farley: --Well, if they demand entry and entry is given, that is then a Fourth Amendment violation, because they've demanded entry without a warrant. And in that case, suppression -- once they have entry, the evidence would be suppressed.
John G. Roberts, Jr.: They can't gain entry by deception. They can't knock on the door and say, pizza, right?
Joshua D. Farley: No.
John G. Roberts, Jr.: No? Okay.
Joshua D. Farley: We would just assert that under the lawfulness test, we aren't asking for anything more or less than this Court has done or other reviewing courts have done for generations, and this is a simple Fourth Amendment analysis. There was no demand in this case. This was a simple knock-and-announce case, regardless of the time of day. There was no coercion. There was no seizure. There was no consent given. Officers should not be held accountable for unlawful reactions by suspects. Thank you.
John G. Roberts, Jr.: Thank you, counsel. You will have noticed that Justice Kennedy left the bench a few minutes early. He is going to Tucson to represent the Court as the circuit justice for the Ninth Circuit at the memorial service there. He will review the tapes and transcripts of the rest of the argument and fully participate in the decision. This case is submitted.


Warren E. Burger: We’ll hear arguments next in 73-466, Arnold against the Carpenters District Council. Mr. Jones, you may proceed when you're ready.
John Paul Jones: Mr. Chief Justice and may it please the Court. The case before you is a case involving a state court's jurisdiction to enjoin the violation of a no-strike promise by a union. The petitioner in this case is a general contractor and for purposes of clarity and keeping the party straight, I'll refer it to the William E. Arnold Company petitioner in this case as Company. The Company and the union had an agreement, which provided that there would be no strikes over a jurisdictional dispute. The general contractor, the Company’s subcontractor who had a contract with another union pursuant to that agreement assigned certain work to this other union. The respondents here, the union, then struck in violation of the no-strike clause, which also provided that the grievance arbitration procedure of the National Joint Board would obtain in any disputes over jurisdictional dispute. The company then filed an action in the state court for a temporary restraining order, which was granted after a notice to the union’s attorney and after the preemption doctrines had been argued before the state judge. A temporary restraining order was issued enjoining the union from further breach of the collective bargaining agreement. The union then filed a suggestion for writ of prohibition in the First District Court of Appeal and state --
William J. Brennan, Jr.: That was (Inaudible)
John Paul Jones: Pardon sir?
William J. Brennan, Jr.: That was a 301 suit in state case, was it?
John Paul Jones: Yes, Mr. Justice Brennan it was. It was not denominated as such in the pleadings, but it was in 301. The suggestion for writ of prohibition was filed in the First District on the basis that the Garmon doctrine as it had been enunciated by the Supreme Court of Florida in both the Sheet Metal and the Florida Heat and Power cases preempted the state court from taking jurisdiction in any labor dispute regardless of whether or not it was a contract violation, if the conduct involved was either arguably protected or arguably prohibited under the National Labor Relations Act. The District Court rejected this argument, affirmed the jurisdiction of the state court. The union then filed -- filed a petition for writ of certiorari with the Supreme Court of Florida, which was granted and the Florida Supreme Court reversed the District Court in a five to two decision, relying on its previous holdings in the Scherer and Sons case and in Florida Heat and Power. In both of those cases, the Florida Supreme Court had enunciated this Court’s doctrine of Garmon. We filed a -- the Company filed a petition for rehearing which was denied and we are here today on writ of certiorari to the Florida Supreme Court. Our petition for writ of certiorari was filed because as we contend in our brief and in the petition for writ of certiorari, the decision of the Supreme Court of Florida applies in the face of Smith v. Evening News and Lincoln Mills and Dowd Box. We submit that the simple question in this case is whether or not a state court is preempted from enjoining the breach of a no-strike promise in a collective bargaining agreement simply because the conduct which is involved in the breach is also an arguable or admitted unfair labor practice. In this case, we concede that the conduct of the union in striking over jurisdictional dispute was a violation of Section 8 (b) (4) (D) of the Act. So it was concededly an unfair labor practice. We submit that the simple question can be answered by reviewing this Court’s holding in Smith v. Evening News and Carey v. Westinghouse. We submit that if the state court has jurisdiction to entertain an action for breach of a collective bargaining agreement for damages or to compel arbitration as was the case in Carey v. Westinghouse, which also involved a jurisdictional dispute or a representation question depending on how you look at the case, then all the more so, the state court should have jurisdiction to enjoin the breach of a no-strike clause because this promotes the free flow of commerce, which is so basic in the purposes of the Act and it merely reduces an industrial strife by requiring the party who committed the breach to be bound by the promise they made in that agreement and to settle this dispute in a peaceful manner. We submit that the only distinction that can be had between the Smith case and the Carey case and the case before you is that this case involved an injunction to enjoin the further breach of a no-strike promise. And we submit further that the Florida Supreme Court’s reliance on the Garmon doctrine is erroneous in that there is a major distinguishing factor between Garmon and the instant case. In Garmon, we were not concerned with a contractual relationship between the parties and in both of the cases relied upon by the Supreme Court of Florida, the Scherer and Sons case, and the Florida Heat and Power, we admit that the result was right but the reasoning was wrong because a reason that any activity arguably prohibited or protected is preempted with -- in a broad spectrum and not taking into account the fact that there maybe a contractual relationship between the parties. Now, in neither of those cases Scherer and Sons nor in Florida Heat and Power was there a contractual relationship between the parties. It did not involve a contract breach. It involved activity which should have gone to the National Labor Relations Board because it was activity prohibited under Section 8 of the Act. We submit therefore that under the prevailing labor law, the state courts are not preempted in circumstances such as the instant case and that the Supreme Court of Florida should be reversed. We turn next to what we believe is the larger question in this case and that is the role of state court in the adjudication of disputes over breaches of collective bargaining agreements and the uniformity of National Labor Policy in both among the states and the relief that’s available for breaches of no-strike clauses or other contractual promises as between the state and the federal courts. We respectfully submit that this court’s opinion in this case can lay down guidelines for the state courts to be guided in their jurisdiction as to the adjudication of breaches of collective bargaining agreements and that this will go a long way in achieving uniformity of the result between both state and federal forums.
William H. Rehnquist: Mr. Jones, is that really before us? My understanding is that the Supreme Court of Florida issued a writ of prohibition saying that whatever standards might apply to the Florida state courts in enforcing a 301 action if they had jurisdiction, they were simply preempted by the National Act and they didn’t pass and the District Court of Appeal didn’t pass on what standards would guide them if they had the right to entertain this suit?
John Paul Jones: Well, Mr. Justice Rehnquist, what we would submit is that this question so far as we can tell is one for the first time for this Court to decide as far as the jurisdiction of the state court to enjoin the breach of a no-strike promise by way of injunction. And as was pointed out in the footnote in Dowd Box that question was not before the court whether or not Norris-La Guardia applied to the state so as to preclude their issuance of an injunction. I believe that question was answered in Mr. Justice Brennan’s opinion in Boys Markets where in that opinion, you adopted the reasoning of Justice Traynor in the McCarroll case that in that regard, Norris-La Guardia, although Congress could have precluded the states from jurisdiction to issue injunctions, they did not do so, that Norris-La Guardia applies only to the federal courts. Now, we submit that the question is before the Court in terms that we’re here to decide whether or not a state court has jurisdiction to enjoin the breach of a collective bargaining agreement and in that context, then the opinion in this Court will decide for the first time, “Do state courts have jurisdiction to enjoin a no-strike promise by injunction?” And we submit that they do, that it would be consistent with the - this Court’s prior holdings, it would be consistent with the objective of the National Labor Relations Act to achieve a uniform policy and to promote industrial peace rather than industrial strife. We -- I think that the parties here agree, both the respondent and the amicus the National Chamber that there should be a uniform policy throughout the country.
William J. Brennan, Jr.: But would this be met do you think that simply by holding applicable or pertinent federal law as to govern the state court determination?
John Paul Jones: Yes, Mr. Justice Brennan. I would submit that this question could be answered in a holding by this Court that state courts have jurisdiction to enjoin no-strike breaches by injunction and that the equitable relief --
William J. Brennan, Jr.: Well that is the federal law?
John Paul Jones: Yes, in the Boys Market --
William J. Brennan, Jr.: The federal law would produce that result and the state courts may apply federal laws as I understand?
John Paul Jones: That’s correct Mr. Justice Brennan I believe it --
Potter Stewart: [Voice Overlap] must, isn't that?
John Paul Jones: I’m sorry?
Potter Stewart: The state courts not only may apply federal law, but they must do so?
John Paul Jones: Under Lincoln Mills, they must, yes sir and we submit that for clarity and for uniformity of National Labor Policy that that’s what this decision should mean that state courts are bound by federal law. The law is unclear at this point because the question was left open in Boys Markets opinion as Mr. Justice Brennan, you are well aware. But we would submit that under Boys Markets, it answered the question for whether or not federal courts could issue an injunction in a labor dispute, not withstanding Norris-La Guardia restrictions. We submit though that Boys Markets has left open certain questions and placed certain restrictions upon the parties in their free collective bargaining process. We submit that the holding in this case should be that a modified Boys Markets' holding would apply to both state and federal courts in their entertaining any suit to enjoin the breach of a no-strike promise and that we submit further that no-strike promises are generally enforceable in either state or federal courts. We would turn now to several of the items in Boys Markets, which we consider were left open and would like to advance argument to the Court on. In Boys Markets, one of the conditions precedent, which Mr. Justice Brennan outlined in that opinion which was the adoption of course of the dissenting opinion in Sinclair, was that as a condition precedent, the subject matter of the dispute had to be subject to a final binding agreements and arbitration clause. We submit that a no-strike promise in a collective bargaining agreement should be enforced in either state or federal court notwithstanding whether the underlying grievance is subject to a binding grievance and arbitration clause or not. Now, to do otherwise, we submit, dictates the terms of a collective bargaining agreement, which goes against this Court’s decisions in American National Insurance Company in 1952 and then the HK Porter case. The reason we say that is this. When the parties sit down at the bargaining table and negotiate, there are a lot of factors that play at that table when they meet and discuss the terms of a collective bargaining agreement. The employer may well be willing to pay more in terms of wages and fringes to the members of the bargaining union. If he gets in return therefore a specific exclusion from the arbitration clause of some management decision, for example in subcontracting, the matter that was involved in Steelworkers Trilogy and Warrior and Gulf. Now, we submit that the party should be left free to negotiate their own terms of the agreement. In Warrior and Gulf, Mr. Justice Douglas recognized that the parties could have specifically excluded from arbitration that matter of whether or not they had the right unqualifiedly to subcontract the work and that it would not be subject to the grievance and arbitration procedure. We note that in the Gateway decision, Mr. Justice Powell noted that the parties could, if they chose, negotiate a broad grievance and arbitration clause and yet specifically by terms in the agreement negate any no-strike promise. We submit that if the parties can do that, then albeit they can exclude a narrow area from arbitration. And that to do so, and to still have the no-strike promise enforceable even though the subject matter of dispute maybe within that narrow confine that’s not subject to arbitration promotes the policies of the Act rather than to do them violence because the underlying purpose of the Act of course is to promote industrial peace and harmony and to reduce interruptions of work through strikes and work stoppages. The whole underlying purpose of the Taft-Hartley Amendment was to equalize the bargaining positions and the enforceability of collective bargaining agreements as between employers and unions because at that point, employers had little incentive to enter into collective bargaining agreements, if they could not have them enforced, and therefore, came the Section 301 jurisdiction which it seems clear takes into its sphere not only legal relief, but equitable relief. The legislative history of that seems somewhat clear. We submit that the rule as to enforcement of no-strike promises should follow along the lines of a doctrine enunciated by Mr. Justice Douglas in Warrior and Gulf. And in that case, the arguably arbitrable doctrine was established that anything that was arguably arbitrable would be deemed to be subject to the arbitration clause of the contract. We submit that no-strike promises should be arguably enjoinable and that if the union promises for the duration of the contract not to strike --
William J. Brennan, Jr.: This is a jurisdictional dispute in this case, isn’t it?
John Paul Jones: Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: And is it -- let’s see, I have forgotten, it is an arbitration provision?
John Paul Jones: Yes, sir.
William J. Brennan, Jr.: So this is mandatorily mis --
John Paul Jones: Yes, Mr. Brennan.
William J. Brennan, Jr.: An arbitration procedure -- mandatory arbitration procedure?
John Paul Jones: Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: So we’re not -- we don’t have in this case at least the situation you're addressing now, do we -- of simply a no-strike clause without an arbitration provision?
John Paul Jones: That’s correct, Mr. Justice Brennan.
William J. Brennan, Jr.: But you nevertheless are asking us to decide that?
John Paul Jones: I’m asking this Court to look at that question in terms of the fact that the Boys Markets decision has left open whether or not it applies to state --
William J. Brennan, Jr.: Well, I guess somebody left it open rather purposely I thought in Boys Market?
John Paul Jones: To --
William J. Brennan, Jr.: We limited -- we said that the Boys Market decision dealt narrowly with the question of enjoinability of a strike in the situation where there was an arbitration provision for handling the grievance, which provoked the strike?
John Paul Jones: That’s correct, but in Boys --
William J. Brennan, Jr.: (Voice Overlap) to go beyond that.
John Paul Jones: Yes, sir but in adopting the Boys Markets decision of course, it was the dissenting opinion from Sinclair --
William J. Brennan, Jr.: That’s right.
John Paul Jones: -- which setup these -- these conditions precedent to invoking the arbitration, to invoking the court's jurisdiction to enjoin the breach of a no-strike promise.
William J. Brennan, Jr.: But one of those conditions, was it not, was that they determine whether or not it was an arbitrable grievance. Was that in the Sinclair dissent?
John Paul Jones: Was one of the conditions.
William J. Brennan, Jr.: Yes.
John Paul Jones: In the Sinclair dissent, that was listed and adopted I think just verbatim as this Court's holding in Boys Markets was that one that had to be -- the dispute had to be subject to the grievance and arbitration.
William J. Brennan, Jr.: It had to be over a grievance, which both parties are contractually bound to arbitrate?
John Paul Jones: Yes sir and also that in the court’s order, it should order the employer to arbitrate that. Now, we would submit that the order should run both ways. It should order both parties and I believe that in the Boys Markets case that that was the case. The District Court did order both parties to submit to arbitration. We're simply Mr. Justice Brennan pointing out that in the Boys Markets’ decision, the loopholes that were left there we're pointing on here will provide an opportunity unless state courts are granted through this decision broad jurisdiction to enjoin those strike promises, that were going to be faced with the situation where --
William J. Brennan, Jr.: Well, but it may be that the whole underlying premise of Boys Markets was that you may enjoin violation of a no-strike provision only if there is a compulsory arbitration provision applicable to the grievance which provokes the strike.
John Paul Jones: Yes, sir and that Mr. Justice Brennan is our point in that if that is declared holding in Boys Markets then through that decision, we are dictating the substance of terms of a collective bargaining agreement because if an employer knows that in order to have a no-strike promise enforced, he has to have everything subject to the grievance and arbitration clause --
William J. Brennan, Jr.: Yes.
John Paul Jones: -- then we’re telling the employer you must agree if you want your no-strike promise which you paid dearly to get to have peace for a year or two years or three years, you must agree to a broad grievance arbitration clause that covers everything. Then we are dictating to that employer the terms of -- a substantive of term of that collective bargaining agreement. We submit that if that is the holding, then we are placing restrictions on the employer that are not contemplated nor desired by the Act which promotes and encourages free collective bargaining between the parties and leaves the parties at the door of the bargaining realm. And that depends then on the relative strength of the parties and the skill of the negotiators and how much each party is willing to pay to get an agreement. We submit that there are several areas that are left open in Boys Markets, several loopholes. For instance, if the union wants to say we’re going to strike but we don’t -- we’re not going to tell you what we’re striking about if they're dissatisfied with their union representation, Collyer can strike. Under Boys Markets that would not be subject to the grievance arbitration clause. We submit that the instant case presents a perfect opportunity of demonstrating what will happen unless there's uniformity of decision among the states and that the thrust of the Florida Supreme Court’s decision is that the employer can sit and negotiate the terms of a bargaining agreement, extract a promise from the union through give and take process. And yet if that process is not enforceable in a state court, then for all intents and purposes, the employer has been undermined in his bargaining attempt. And we would point out too that unless the -- unless the rule is the same as to state and federal courts that one, if state courts have broader jurisdiction to grant greater relief from the federal courts, we’ll get into a situation of pre Boys Markets where its removed under the F code because if they can narrow their relief, they’re removed from the federal court. And if this is the case or if the state courts do not have jurisdiction to enjoin breaches of no-strike promises, then we are going to add greatly to the workload of the federal court system. And in that regard, I would point out that in our jurisdiction in Jacksonville, we have 20 general jurisdiction state courts that are available to apply for a temporary restraining order. We have two already over docketed federal district judges. And --
Warren E. Burger: Mr. Farley in his brief tells us that there's no binding arbitration clause here. I suppose you’d be willing or are you willing to submit the case turns on that?
John Paul Jones: Well, Mr. Chief Justice, we don’t believe that the case turns on that. We would submit that there is a binding arbitration clause when the whole contract is read which is in the appendix, beginning at page 820. We submit that the parties have agreed to abide by the terms for settlement of jurisdictional disputes under the joint board and that that incorporates by reference that document which would set up the final binding provisions of the agreement.
Warren E. Burger: Well if he is right in his position that there's no binding arbitration agreement then what happens to your case?
John Paul Jones: If there is no final and binding arbitration? We would submit that the state court still has jurisdiction to enjoin the no-strike promise because the union agreed there shall be no work stoppages because of jurisdictional disputes. Now, in this context --
William H. Rehnquist: Mr. Jones, wouldn’t you contend that once you get to the end of the preemption issue that if there is no preemption here, the state court has jurisdiction to decide as the Chief Justice says whether there was a binding no-strike clause of binding arbitration clause and decide whether that is required by the law? I mean, all -- what you're appealing from is the decision of your highest state supreme court that said the circuit court of Duval County can’t even entertain an action like this, not how to decide it on the merits once it’s entertained?
John Paul Jones: That’s correct Mr. Justice Rehnquist. They decided that they had no jurisdiction in the first place ab initio because of the Garmon Doctrine, which is what they incorporated in their two decisions on which they relied. And we submit that that is erroneous reasoning and erroneous result that the state court is not preempted, that the state court has jurisdiction, that the case is the Smith case except in this case there was an injunction issue. And this is where we submit is a broader question in this case which should be examined along with Boys Markets that there ought to be uniformity both among the states and between state and federal courts.
William H. Rehnquist: But if the circuit court has jurisdiction, if it isn't preempted by Garmon, then I take it that it has a right to issue an injunction erroneously under Boys Market as well to issue an injunction correctly under Boys Market. There was an intonation in the District Court of Appeal decision that maybe the Judge writing the opinion for the District Court of Appeal thought that the circuit court had made the wrong decision, but that that didn’t deprive them of jurisdiction?
John Paul Jones: Well, that’s correct and I think that the District Court of Appeal made some mention about the application of Boys Market and the state of whether or not it’s free of error because he did not issue also an order for the employer to arbitrate.
Warren E. Burger: Mr. Farley.
Joseph S. Farley, Jr.: Mr. Chief Justice and may it please the Court. I am in complete agreement with Mr. Jones as to we all would like to have uniformity in the Federal Labor Law. The problem that this case presents is that you have two relatively well gone over doctrines in the Federal Labor Law that are presented in this case. The first is the doctrine of federal preemption over unfair labor practices. The Garmon doctrine, Garner, Weber decisions saying that if a case presents a dispute that is arguably an unfair labor practice or a protected activity under the Act that the Federal Government has preempted the area and that state courts should defer to the federal jurisdiction. Then in this particular case, you also have the question of the Norris-La Guardia Act and the prohibition on federal courts of issuing injunctions in labor disputes. The Florida Supreme Court held essentially that the fact that a contract is involved does not remove the prohibitions of preemption that the Federal Government has placed upon the states. That this area of the law, the injunction in a labor law dispute is sufficiently of national concern and national interest that the state courts should defer at least initial jurisdiction to the National Labor Relations Board when injunctive relief is what is requested and when it is concededly an unfair labor practice involved. Our position is simply that if state courts would follow this position, you would have your uniformity in your federal labor law. There's nothing to prevent the company if they feel -- if they feel as though a no-strike provision has been breached from going into federal court. There's nothing to prevent the company if they feel an unfair labor practices being practiced upon them to go to the National Labor Relations Board and there's nothing in the world preventing the National Labor Relations Board from doing something about it. That’s the whole purpose for which they were setup. They have the machinery to acquire injunctions. They have the machinery to issue cease and desist orders against activities like this. This area of the law has long been within the federal curtilage and jurisdiction, although it might also have been somewhat within the state jurisdiction. The states haven’t known what to do because the federal law is always changing with the times to keep up with the situations that arise in labor disputes. And our position --
Warren E. Burger: If the state court, Mr. Farley, if the state court is required to enforce the federal law, is it necessary to defer to their jurisdiction in order to accomplish that result?
Joseph S. Farley, Jr.: No, Your Honor, but I would point that this Court has held long before now that state court is entertaining 301 suits are bound by federal law. But I think its fairly clear that doesn’t happen all the time when you got 50 states with numerous lower level trial courts coming in and accepting jurisdiction and --
Warren E. Burger: Well this would have to be a general jurisdiction court in the state, would it not?
Joseph S. Farley, Jr.: Yes, sir.
Warren E. Burger: That’s not very low level, is it? A general jurisdiction court?
Joseph S. Farley, Jr.: Well, I don’t know, there's 20 in Jacksonville--
Warren E. Burger: Twenty Judges.
Joseph S. Farley, Jr.: Yes, sir. Presumably and hopefully, each one with roughly the same opinion, but again as it turns out --
Warren E. Burger: Well, there’s nothing unique about that, you have 27 trial judges in New York City in the federal court.
Joseph S. Farley, Jr.: Yes, sir.
Warren E. Burger: And probably I don’t know, 50 or 75 state court judges. What is the -- how does the number enter into it?
Joseph S. Farley, Jr.: Just in the reasoning behind Garmon with so many different --
Warren E. Burger: Isn't your emphasis really they aren't just familiar with the federal law as the district -- Federal District Judges at least presumed to be?
Joseph S. Farley, Jr.: Exactly Your Honor, exactly and I don’t think that there's any question but this is the case. And I think that its just with the federal machinery that is setup particularly with the National Labor Relations Board with this Court’s holding in Boys Market making it obvious how important the injunction is in federal labor law that you should allow all the trial courts in the different states to try and interpret the law. That because the labor injunction is of national concern, that outweighs the consideration that a contract was also involved and is sufficient reason to employ the Garmon doctrine of federal preemption. Especially in this case where there is concededly an unfair labor practice involved. Especially in this case where at least in my opinion there is not a binding arbitration clause. There’s no provision whatsoever for arbitration and I’m not sure that there is actually an agreement as to what is going to be binding upon the parties and of course then you have a problem with the labor union, it wasn’t even a part of this contract. The record unfortunately is silent as to what procedures were taken by either the union involved here, the Carpenters union or the company to attempt to follow the grievance procedure that was somewhat set out in the contract. There was no transcript made of the hearing and it’s unclear whether the Lathers' union was unwilling to follow this procedure, whether the company was unwilling to --
William H. Rehnquist: Of course what you're defending here is the decision of your Supreme Court that says the Circuit Court in Jacksonville can’t even inquire into these issues, that they simply have no jurisdiction to look into the things that you're talking about?
Joseph S. Farley, Jr.: Yes, Your Honor. But my position is that the Florida Supreme Court held exactly foursquare with Weber and with Garmon. And in attempting to keep the law uniform, the federal labor law uniform, they followed what the United States Supreme Court said in those cases. They followed it very strictly that if arguably you have the unfair labor practice then the state court should defer jurisdiction.
William H. Rehnquist: But then the kind of facts that you are just mentioning whether the Lathers did this or did that really don’t bear on the jurisdiction with, do they?
Joseph S. Farley, Jr.: Only to the extent that you also have the question of the contractual agreement and if you get into Boys Market, the area of injunctive relief which this Court with this case did present to the Florida Supreme Court. They had been concerned in prior cases with the issuing of ex parte injunctions in labor disputes. It becomes important as to what went on because of Boys Market saying that there must be -- for the federal courts anyway to enjoin an activity, there must be the binding arbitration procedure.
William H. Rehnquist: Well but supposing that that is the rule of Boys Market and supposing you're wrong on your Garmon point that the Circuit Court in Duval County has jurisdiction to entertain this action, but it must follow Boys Market and that’s the rule of Boys Market. The fact that it may have wrongly issued an injunction in this particular case wouldn’t support what the Supreme Court of Florida did here because they said it had no business even inquiring into this subject?
Joseph S. Farley, Jr.: Yes, Your Honor. I wasn’t trying to imply that it would. I understand that if the court -- if the state court had jurisdiction of this matter, it doesn’t make it. That’s the question that we have here. Not whether it wrongfully or rightfully enjoined if it had jurisdiction, but rather does it have jurisdiction. I believe it was the Attorney General that brought in their memorandum to the Court, brought up the question of abstention of state courts. I don’t really see a big distinction between the Florida Supreme Court saying we are going to abstain -- we are going to defer our jurisdiction.
Warren E. Burger: They didn’t say deferring that, did they?
Joseph S. Farley, Jr.: Well, they -- not in this case. They didn’t say they were deferring.
Warren E. Burger: So deferring, have any?
Joseph S. Farley, Jr.: Right.
Warren E. Burger: So there is no jurisdiction at all?
Joseph S. Farley, Jr.: Well, but the way they phrased it in the prior case, I believe it was Sheet Metal, but it might have been Scherer that state court -- that the state court should defer initial jurisdiction -- should defer jurisdiction at least to the point of letting the National Labor Relations Board make the initial decision as to federal jurisdiction. It maybe that the Florida Supreme Court was taking a position of deferring in and abstaining to the National Labor Relations Board. That was -- my reading of their opinion was that they would be happy to take jurisdiction of the case if the National Labor Relations Board did not feel it came within the federal preemption doctrine or it came under the National Labor Relations Board jurisdiction. They didn’t say flat out we’re not going to take jurisdiction of cases that arguably come under the Taft-Hartley Act. They just said initially, they would prefer in the interest of uniformity to have the National Labor Relations Board make a decision.
Warren E. Burger: First to mind which in, if I am reading the correct opinion, Judge McCain -- Justice McCain is the court’s opinion, isn't it? The bottom paragraph is, “We hold that the District Court erred in failing to prohibit the further exercise of jurisdiction by the circuit court.” That does have some overtones of what you suggested perhaps, but further exercise --
Joseph S. Farley, Jr.: That I tried to point out in my brief that regardless of the dictum that the Florida Supreme Court threw out that the case that they decided was a case for injunctive relief that on the face of the complaint alleged in an unfair labor practice. And that they decided that in that situation where there's no binding arbitration clause at least the way I read it, that the state court should not utilize its jurisdiction, it should defer jurisdiction. And again to repeat, it seems to me that the best way to ensure national uniformity in our federal labor law and relations and especially in the area of unfair labor practices and injunctive relief is to allow the state courts to defer to the federal courts or the National Labor Relations Board. Congress has set out what the unfair labor practices are. Congress determined that a national agency should oversee and should try and curtail and prevent these unfair labor practices. This Court has been very definitive in -- under what situations the district courts could grant injunctive relief. It seems to me that if the injunction is of such interest to Congress and to the federal labor law that they would pass a law, the Norris-La Guardia Act, prohibiting the district courts from granting injunctive relief, then that I think is a national policy that represents the national policy of being very careful under what situations you grant injunctive relief. Now, I don’t see any sense at all in having one layer of law, one pathway of law being the federal law saying only under these circumstances can injunctive relief be granted in the federal court, but under any all circumstances, they can be granted in the state courts. That’s just not in the interest of the national uniform labor policy.
William H. Rehnquist: Of course -- what do you do about the limitation and the language of the law in Norris-La Guardia Act that says it applies to courts of the United States and certainly intimates it doesn’t apply to state courts?
Joseph S. Farley, Jr.: Well, I don’t know that this is a case where this Court could extend the language of the Norris-La Guardia Act to state courts. I will point out though that in Boys Market, this Court noted that a good number of the states already have anti injunction statute so that you got sort of a hodgepodge anyway with the state courts. What I am saying is that to allow state courts, as this one did, to defer to the federal jurisdiction would be better than allowing 50 states to go in 50 different ways on federal injunction labor law. I don’t know -- on the face of it, your contractual question; there is a conflict between the Florida Supreme Court’s decision and the decision in Smith v. Evening News. But to say that it is such a conflict that we're going to just throw out to all the 50 states the question of federal injunctive relief and let them decide at it as they may, I think that the latter is more important and that the contractual question should yield to the federal preemption doctrine in this situation. Thank you.
Warren E. Burger: Thank you Mr. Farley. Do you have anything further Mr. Jones?
John Paul Jones: Mr. Chief Justice and may it please the Court, just one or two closing points. My adversary has pointed out that in regard to the National Labor Relations Board that they could well take cognizance of the matter and grant relief. We would point out; one, they do not have the power to issue cease and desist orders. They must be enforced through a circuit court if it’s an order of the board or also under Section 10 (k), they are required by statute to defer to a voluntary method if it’s outlined in the agreement. We would point out as Mr. Justice Douglas pointed out in Lockridge dissent that the machinery of the Board is one of the slowest grinding processes that one could experience and someone would be out of business by the time they invoke those procedures. The NLRB has held in the VMC Brooklyn case, the Collyer case, and the Laborers case that they will defer to an arbitration process even when there may be a specific violation of an unfair labor practice. We would point out also that in Carey, there were two unions involved and that it wasn’t clear of whether both of them were subject to the arbitration clause, but arbitration was ordered by the holding in this Court. We submit that the question as to Norris-La Guardia and the application of the states was answered in the Boys Markets opinion in which Mr. Justice Brennan adopted Justice Traynor’s reasoning in the McCarroll case. We would submit that by virtue of that, that question has been answered. The states courts do then have jurisdiction to issue injunctions in labor disputes in contractual matters when you apply the reasoning of Smith v. Evening News. And we would submit that the best effectuation of national labor policy, of freedom of collective bargaining, of the free flow of commerce and of deferral to the parties choice of the terms of that collective bargaining agreement that all of these things are best served by permitting the states to enjoin breaches of no-strike promises. And that this will go a long way toward achieving uniformity among the states and between the state and federal systems. That in -- as was pointed out in Boys Market, damage action may lie for the breach of a no-strike promise, but a damage action is hardly compensation for the irreparable harm that occurs to an employer when a strike occurs and that the injunction is so important device in the enforcement of no-strike promises, that it should not be denied that in the maxim of “Justice delayed is justice denied” has no truer meaning than in this context. When a strike occurs, irreparable damages begin to run and the employer is left with no forum. He cannot go to the state court. If he goes to the federal court, it’s a longer way or if he is required to go to the National Labor Relations Board which really can’t grant him no immediate relief anyway, then he is left without any remedy at all. And even under the injunction procedures of the National Labor Relations Board in 8 (b) (4) (B) or 8 (b) (4) (D) situations, where under the statute, the Board is required to give them priority treatment. Our practical experience has been that if you can get to the U.S. District Court within ten days, it’s a miracle. And from that regard then we submit that the National Labor Relations Board is no forum to adjudicate this. They do not have the power to do so and they do not have machinery and they’ve said themselves that they will defer to the parties. We submit therefore that the basic question here that we face in determining the matter of whether or not state court should be allowed to enjoin no-strike promises is how can the purposes of the Act be frustrated or the employees rights be infringed if they are required to do what they promised to do in a collective bargaining agreement?
Warren E. Burger: Thank you Mr. Jones. Thank you Mr. Farley. This case is submitted.