Warren E. Burger: We will hear arguments next in Lugar against Edmondson Oil Company,... 80-1730. Mr. Morrison, I think you may proceed whenever you're ready.
Robert L. Morrison, Jr.: Mr. Chief Justice, and may it please the Court: The case before the Court today is another challenge of the pre-judgment seizure, somewhat on the order of the Fuentes case and its various progeny. It bears a rather unusual past history which I would like to go into just a little bit because it bears on where we are today. Mr. Lugar, the petitioner, was the lessee/operator of Lakewood Truck Stop in Pittsylvania County, Virginia, down near the North Carolina border. He was its sole proprietor. Mr. Barbour is the President of Edmondson Oil Company who sold fuel to Mr. Lugar for resale, and Mr. Lugar had an open account with him. That was the only relationship between Edmondson Oil Company and Mr. Lugar. On the 31st of May, 1977, Mr. Barbour as President of Edmondson Oil Company swore out a pre-judgment attachment petition in the Circuit Court of Pittsylvania County, which is the trial court of general jurisdiction in Virginia. The petition in question alleged that Mr. Lugar was, I believe, assigning, concealing, disposing or converting his assets with the intent to hinder or delay his creditors. No fraud was alleged in the petition. This, as I said, was sworn out on the 31st of March, 1977. On the 1st of April, 1977, it was filed in the clerk's office of the Circuit Court of Pittsylvania County. The clerk, upon receipt of the petition for pre-judgment attachment, as mandated by the Code of Virginia, issued a writ of attachment to the Sheriff of Pittsylvania County directing him to levy on Mr. Lugar's goods. The sheriff did levy, as is shown in the Appendix, in his return on the 1st, the 2nd and the 4th of April on Mr. Lugar at Lakewood Truck Stop and also on his bank accounts. At that point, his business assets were frozen, his bank accounts were frozen and he was prevented from doing business. In Virginia, the pre-judgment attachment petition process is materially different from the detinue process. We have both. For a pre-judgment attachment petition you need only appear before the clerk with a sworn petition alleging that the defendant debtor is concealing, disposing, assigning or converting his assets with intent to hinder, delay or defraud his creditors. Now, there are other grounds but they are not applicable here; they deal with out-of-state defendants.
Speaker: But you filed a suit either simultaneously or suit had been filed either simultaneously or before that, hadn't it?
Robert L. Morrison, Jr.: The petition for an attachment is the filing of the suit.
Speaker: They are combined in one document?
Robert L. Morrison, Jr.: Yes, sir. If the attachment petition is dismissed... if the levy is dismissed, I should say, the action proceeds as a motion for judgment, which is the same thing as a complaint in Virginia by federal procedure. So even though in this case the levy was dismissed, it went on as a motion for judgment and ended in a judgment against Mr. Lugar. The writ issues by the clerk under the law as a ministerial act on the filing of the petition. He issues a writ to the sheriff, no bond is required for the levy, although a bond for an actual physical seizure would be required. The sheriff goes and levies and really shuts them down, because the bank was not about to allow him the use of the money with a levy attached to it.
Speaker: Do you say this is just like Fuents against Shevin, then?
Robert L. Morrison, Jr.: I would say it's very similar to Fuentes v. Shevin, Your Honor. The difference that I would make between this and Fuents v. Shevin is that in Fuentes v. Shevin you had various items of personal property such as, I believe, a stove, seized. In this case we had everything seized, or everything levied upon.
Speaker: So you think it's an even stronger case than Fuentes.
Robert L. Morrison, Jr.: Yes, sir, I do. I think that this is also very easily comparable to the North Georgia Finishing case. Then, when the sheriff levies, the defendant may then come in and file an affidavit of substantial defense. When he files that, the creditor has ten days in which to post a bond to protect his levy. The levy will be dismissed if the bond is not filed. And in this case, a bond was filed after the affidavit of substantial defense was filed by Mr. Lugar. The statute provides that when the petition is issued, there will be a return date on it, and in this case, the date of the hearing was set for one day after the return date; the return date was the 18th of April, the hearing date was set for the 19th, and a hearing was held on that date. No decision with respect to the levy was received. A second hearing was held, I believe, on the 1st or the 4th of May, I am not sure which. And on the 4th of May, 1977, a the Circuit Court of Pittsylvania County finally dissolved the levy finding that no grounds whatsoever had been proven which would support the attachment. Then, after the state proceedings were concluded, Mr. Lugar filed a complaint in federal court seeking damages for deprivation of rights guaranteed under the Constitution under 42 U.S. Code Section 1983. The creditor filed a motion to abstain, alleging that a decision of the Virginia Supreme Court might eliminate the need for a decision on federal grounds. That was the only thing that was contained in that motion. We briefed the issue of abstention. The district court turned around and ignored the abstention issue and dismissed on the authority of Flagg Brothers, describing the conduct in Flagg Brothers as more flagrant than the conduct in this case. Lugar sought to amend the judgment or to have it modified, was unsuccessful in doing so on appeal. In the Fourth Circuit Court of Appeals, the parties addressed the issue of whether or not the reliance on Flagg Brothers was appropriate. The court of appeals decided that the district court's reliance on Flagg Brothers was not appropriate, but affirmed dismissal on a different ground that was, again, not addressed by the parties, there being a requirement in suits of this sort for a... either an allegation or a finding of a direct conspiracy, a corruption, if you will, of state power between the private party and the state officials, or, in the alternative as I understand their opinion, such an abdication of control over state power is to make the state merely agents or the state just gives the power to the creditor.
Speaker: Well, this goes to a fairly fundamental point, doesn't it? Is there a difference between the Fourteenth Amendment's prohibition which is addressed only to states, and the language under color of state law in 1983? Do those mean the same thing?
Robert L. Morrison, Jr.: I believe they do, Your Honor. But I believe that this Court has put a gloss on the meaning of under color of state law to include actions by private parties which are joint and with the state. And in this situation here, the state acts as an agent of the private party. The point that I have made in the court of appeals and that I tried to make to the district court was that in the situation that we have here where there is no pre-attachment property interest whatsoever in the property that is going to be seized, that the creditor has no self-help remedy whatsoever. If he was to act for a self-help remedy, he would be liable for criminal penalties and we wouldn't be here today if that's what had happened. But instead, what happens is the state, so to speak, on a silver platter says here, you may use us to take sides in your dispute with your defendant debtor initially; we're going to seize his property for you.
Speaker: Would you take the same position if it were a garnishment?
Robert L. Morrison, Jr.: If it was a pre-judgment garnishment, yes, sir.
Speaker: Host garnishments are pre-judgment, are they not?
Robert L. Morrison, Jr.: I have not seen any in my practice, Your Honor. I have filed a good many post-judgment garnishments against debtors when I was conducting collection cases, but I have not, that I can recollect, seen a pre-judgment garnishment in Virginia, although it is allowed by this statute.
Speaker: Mr. Morrison, the court of appeals said that it was not clear to it whether you were alleging or asserting that the Virginia statute is unconstitutional. What is your position? Are you attacking the constitutionality of the Virginia statute?
Robert L. Morrison, Jr.: At this point I am, Your Honor, and the reason for their statement is... I have been trying--
Speaker: It wasn't briefed, so it was hard to know if that was your position.
Robert L. Morrison, Jr.: --No, it wasn't briefed and we never even addressed the issue because we were addressing the question of whether or not Flagg Brothers applied.
Speaker: Mr. Morrison, I thought the issue of constitutionality of the Virginia procedure was not here.
Robert L. Morrison, Jr.: Your Honor, I think the Fourth Circuit Court of Appeals has brought it here. They have said that the arguments made by Lugar... and the district court has said the same thing... amount to an attack on the statute and that that is what they are deciding; whether or not the statute is constitutional.
Speaker: I thought the court of appeals said it was not deciding that because it was unclear what your position was.
Robert L. Morrison, Jr.: It said it was not deciding it because under the circumstances it didn't have to decide it. It found that there was no action under color of state law by the private parties. But what it said was, in its opinion and I don't know the exact page reference, was that Lugar had said that he was not attacking it, but in fact, that is what he was doing. But what I was attempting to do, and I didn't articulate it very well, was say to both the district court and the court of appeals there is no need to decide the constitutionality of a statute because the state and the creditor acted without conforming to the state statute. In other words, there is no need for this Court or any other court to decide the constitutionality of the statute if the creditor and the state break their own law, just as in Monroe v. Pate.
Speaker: That wouldn't be a 1983 suit anyway, then.
Robert L. Morrison, Jr.: Yes, Your Honor, I believe it would, because in Monroe v. Pate and in Adickes v. Kress and the others, if the state is acting even in violation of its law, it is still action under color of state law.
Speaker: Well, it may be under color of state law, but what's the constitutional violation?
Robert L. Morrison, Jr.: The denial of due process, Your Honor, under color of state law. The power and authority of the state under the alleged attachment statute, the attachment statute we are dealing with, are what brought the levy on the Mr. Lugar's assets. The state acted. The state acted at the sole behest of the creditor, but it acted without the fraud that the statute requires being present or even alleged.
Speaker: You say... didn't you have some appellate remedy in Virginia if the state broke... or the private party broke his Virginia's law?
Robert L. Morrison, Jr.: Well, Your Honor, I don't think the private party broke Virginia's laws in the sense of a... for instance, a criminal violation. What happened was the private party filed a petition for attachment which didn't meet the full requirements of the Virginia law, and the clerk looked at it and issued a writ anyway.
Speaker: And it was set aside as improvident later, wasn't it?
Robert L. Morrison, Jr.: Yes, Your Honor, it was.
Speaker: In the Virginia court.
Robert L. Morrison, Jr.: In the Virginia court, it was dismissed as being improvidently--
Speaker: Do you feel the constitutional issue is covered in your questions presented?
Robert L. Morrison, Jr.: --Yes, Your Honor, I do.
Speaker: Where? I didn't see it. I just read them over and I share Justice Marshall's reaction. It said federal law, and I guess that includes the Constitution, also the Declaration of Independence.
Robert L. Morrison, Jr.: Yes, sir, I stand corrected. The initial question is whether there was joint participation or engagement by private litigants with state officials, which is what the court of appeals decided, but it--
Speaker: Yes, but that's not a constitutional issue.
Robert L. Morrison, Jr.: --No, sir, it's not.
Speaker: How far would you carry this concept of state action? Suppose a divorce decree is entered erroneously in some way. Is that decree of the court state action in the sense that you're arguing it here today?
Robert L. Morrison, Jr.: Yes, sir, it is under Shelly v. Kramer, but I am not quite sure how the erroneous divorce decree is going to affect the person that it's entered against.
Speaker: It might affect a person in the sense that it might expose one or both of the parties to a criminal charge of bigamy if, in fact, the divorce was not a divorce, a valid divorce.
Robert L. Morrison, Jr.: I believe theoretically it might, but I know that Virginia has procedures for dealing with that.
Speaker: Mr. Morrison, my comments about the constitutional issue, don't regard them as undercutting your case. I think your case is here, but I thought the issues were other than the constitutional ones.
Robert L. Morrison, Jr.: I agree with Your Honor. The issue is whether or not the court of appeals should be reversed and this case should be sent back to the district court for finding of facts. We are here on a very, very skimpy record. What is being attacked in the district court is the action of the creditor with the state under color of state law.
Speaker: Does that mean, Mr. Morrison, if you prevail and there's a reversal on the ground that indeed, this was action under color of state law, then your allegations of unconstitutionality are still to be determined in the district court or the trial?
Robert L. Morrison, Jr.: If they have to be made, yes, Your Honor.
Speaker: What do you mean if they have to be made? You don't have a cause of action under 1983 unless you allege either a federal constitutional violation or violation of federal law, do you?
Robert L. Morrison, Jr.: Your Honor, the original complaint alleged a denial of due process under the color of state law.
Speaker: And that's your constitutional violation?
Robert L. Morrison, Jr.: That's the constitutional violation.
Speaker: And that hasn't yet been determined.
Robert L. Morrison, Jr.: No, sir, it has not.
Speaker: But if you prevail, this conduct was under color of state law, then you'll have that issue determined. Is that it?
Robert L. Morrison, Jr.: Yes, sir, we'll have to get--
Speaker: But we don't have to determine it here.
Robert L. Morrison, Jr.: --No, sir.
Speaker: That's why I don't want to complicate your case with determining it in any way.
Robert L. Morrison, Jr.: No, sir, and I don't want to determine it here because we don't have the sufficient facts.
Speaker: But, Mr. Morrison, we do have sufficient facts if I understand the problem correctly. The court of appeals said the "under of color of state law. " or state action issue, however you describe it, is quite different if you are alleging a failure to follow the Virginia statute which resulted in the deprivation of due process on the one hand, or are you alleging that the Virginia statute if followed to its letter, would be unconstitutional. And the court of appeals said you are making the latter kind of contention. It's on that assumption that the color of state law issue must be addressed. And they assume that if you merely allege deprivation of due process because you didn't follow the Virginia law, clearly you have no 1983 case.
Robert L. Morrison, Jr.: Well, Your Honor,--
Speaker: I don't know if I made that clear or not, but they were quite clear, it seemed to me, in saying that they, despite your ambiguity in the trial court, they read your complaint as an attack on the constitutionality of the Virginia statute.
Robert L. Morrison, Jr.: --Yes, sir.
Speaker: But they didn't decide it because they said even as so read, there's no state action or color of state law. Well, as the court of appeals asked me in argument, do you think the statute is unconstitutional, and I said yes, and I do think the statute is unconstitutional. And if you don't so contend, they also indicated you wouldn't have any basis for a 1983 claim. We don't have to decide the constitutionality of the statute; but I think we must decide the state action issue on the assumption that you seek to challenge the Virginia statute.
Robert L. Morrison, Jr.: Yes, sir, I understand your point. The complaint as filed does allege a denial of due process, and it alleges that the parties acted under the color of state law, acted jointly. There is a specific paragraph in the complaint alleging that Mr. Barbour and Edmondson Oil Company were joint participants with the state and that they acted under color of state law.
Speaker: But that question is not here; at least it is not in the questions presented, is it?
Robert L. Morrison, Jr.: The question presented is whether on the facts alleged, there was no joint participation or engagement by private litigants with state officials, amounting to action under color of state law.
Speaker: But it says nothing about the due process.
Robert L. Morrison, Jr.: No, sir, we never reached the due process. What is... at least, I don't believe we reached the question of due process there. What we are arguing here is that the case should be returned for a decision on the factual and legal positions taken by the parties. We are here in part because the lower courts have changed the grounds of the decision from what the parties were arguing each time they made a decision, so that the questions I'm arguing now never were really addressed in the court of appeals, as I understood it, because we were addressing the question of the applicability of Flagg Brothers. But the question of color of state law--
Speaker: Well, how does it get here? If you say the court of appeals didn't consider it at all, how does it get here?
Robert L. Morrison, Jr.: --The court of appeals considered the question of the color of state law, but we were arguing about is whether or not the Flagg Brothers decision, which said that a private warehouseman's lien does not amount to action under color of state law, was dispositive of this case.
Speaker: Then isn't your real complaint that the court of appeals so far departed from normal usage; you argued a claim to it that you had raised in the district court and it refused to pass on it?
Robert L. Morrison, Jr.: Well, it passed on it. It said that it did not find Flagg Brothers to be dispositive. That was in the first page or two of its opinion. It specifically made that statement, and then it said that it was going to affirm on other grounds.
Speaker: Counsel, I'm still uncertain what your claim is. Do you now concede that you are not here on a claim that the creditor and the state acting with the creditor simply violated Virginia's statutory law and procedure?
Robert L. Morrison, Jr.: Your Honor, we are here with the initial complaint which was not drafted by me, and I might say that it was drafted by my then-employer and was given to me as it stood after it had been filed when I left his employment, so I was stuck with that. The complaint attacks the action of the creditor, and the state with the creditor, on the basis of being a denial of due process under color of state law. We've never--
Speaker: Is that on the theory that the creditor and the state simply improperly applied Virginia's law?
Robert L. Morrison, Jr.: --No, Your Honor.
Speaker: Or improperly applied the facts to Virginia's law?
Robert L. Morrison, Jr.: No, Your Honor. The claim is that the action as taken, even if it were just line by line in accordance with Virginia law... whether or not they did it right, the claim is that it was in violation of Lugar's constitutional rights. I don't care if they alleged fraud; we would still claim--
Speaker: It's just that I'm still confused as to whether you're relying on constitutionality of the statute or on some erroneous allegation of facts by the creditor.
Robert L. Morrison, Jr.: --We are relying on the involvement of the state of Virginia in a process which we believe is, on the face of it, unconstitutional.
Speaker: Why didn't your raise that in your questions presented?
Robert L. Morrison, Jr.: I don't know, Your Honor. I tried to draft the questions presented to meet the force and effect of the Fourth Circuit Court of Appeals' opinion.
Speaker: Well, you lost your case in the Fourth Circuit, they said your case is over because there's no color of state law involved.
Robert L. Morrison, Jr.: Yes, sir, that's what they said.
Speaker: And you're saying they were absolutely wrong in saying there was no color of state law in this case.
Robert L. Morrison, Jr.: Yes, sir.
Speaker: That's one of the things you're arguing anyway. And you want whatever the court of appeals decided reversed, and what they decided was that there was no color of state law.
Robert L. Morrison, Jr.: Yes, sir.
Speaker: That's what you answered me earlier. If you prevail as to that, and what you want is a trial on your allegations that the Virginia statute is unconstitutional.
Robert L. Morrison, Jr.: Yes, Your Honor.
Speaker: And one of the reasons is Shelly v. Kramer, right? Didn't you say that?
Robert L. Morrison, Jr.: No, Your Honor. That was in response--
Speaker: You don't rely on Shelly v. Kramer.
Robert L. Morrison, Jr.: --I have not relied directly on Shelly v. Kramer; I cited--
Speaker: Because I notice it's not in your brief.
Robert L. Morrison, Jr.: --No, sir. The Chief Justice asked me about an erroneous divorce decree as being an action under color of state law, and I said that I would assume that it would be based on the Shelly v. Kramer case, that a judicial act is an act under color of state law. We submit to the Court that in this situation there is action under color of state law. The state is fully involved up to its neck, figuratively speaking, with the private party. As I said, to do for the private party what the private party cannot do for itself, by any means, without the private party even having the basic requirement that was found to be important in the Mitchell case of a prior property interest which must be protected and prevented from being depreciated. In this situation, the creditor simply started the lawsuit with a petition for pre-judgment attachment, which the court of appeals characterized as submission to the neutral arbiter, and then the neutral arbiter turned around and took sides immediately and seized the property. And when it seized the property, it shut the man down so that you have the same sort of effect as you do with a pre-judgment garnishment of wages in both Lynch and Sniadach. And we submit to the Court that under the circumstances, where the state is going to involve itself to that extent, that in fact, there is action under color of state law, sufficient at least for an evidentiary hearing. And as a result, we would ask that the Court reverse the court of appeals and send it back for trial. I'd like to reserve any time I have left for rebuttal, if the Court has no more questions.
Warren E. Burger: Very well, Mr. Morrison. Mr. Haskins?
James W. Haskins: Mr. Chief Justice, and may it please the Court: One thing that the respondents specifically disagree with as stated by the petitioner... and this was subject to comment by the district court in his opinion and, of course, as this Court has already pointed out, subject of some comment by the court of appeals. When the initial complaint under Section 1983 was filed in the district court, the respondents filed a motion to abstain on the theory that the complaint had to be, in effect, to be a 1983 action it had to be some sort of challenge to the constitutionality of the Virginia attachment statutes. The respondents, in filing the motion to abstain, requested the district court to abstain so that this issue could be properly determined by the Supreme Court of Virginia. Now, in arguing the motion to abstain from the outset of this case, the petitioner has affirmatively disavowed any challenge of a constitutional nature to the Virginia attachment statutes. On page 5 of the district court record, he specifically wrote the district court in memorandum... this is cited in our brief... saying there's no question of the constitutionality of the statute being in issue. Now, as the court of appeals pointed out, this ambivalence, this lack of any sort of clear challenge to the constitutionality of the statute persisted in the Fourth Circuit Court of Appeals. On page 53 of the Petition for Write of Ceriorari, which contains the opinion of the court of appeals, it's obvious that the decision of the Fourth Circuit is premised in part on the presumptive, valid state judicial proceedings. The opinion of the Fourt Circuit, taking the narrow issue as presented to the district court and, of course, to the court of appeals, is that the attachment statutes of the state of Virginia are constitutionally sound. The petitioner, in answer to Justice Rehnquist's question, seems to assume and has assumed throughout this case, that state action and acting under color of state law for purposes of a 1983 action are the same thing. Now clearly, the Fourth Circuit Court of Appeals says they are not the same thing. The Fourteenth Amendment, and, of course--
Speaker: Mr. Haskins, they did allege in their complaint due process.
James W. Haskins: --Yes, sir. The complaint--
Speaker: You said that they didn't ever raise the constitutional point. They did raise it in their complaint.
James W. Haskins: --Well, Justice Marshall, it is the opinion of the district court and the opinion of the Fourth Circuit that the only constitutional challenge at that point, as in all of the cases from Fuentes v. Shevin, right through Flagg Brothers, whether the case was a 1983 case or whether it came up through an appeals process from a state supreme court, there has been a direct attack on--
Speaker: This says on page 6 of the Appendix, Giles M. Lugar has been deprived of his property by state action without due process of law, as guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution.
James W. Haskins: --Yes, sir, now--
Speaker: That's kind of direct, isn't it?
James W. Haskins: --Justice Marshall, what the petitioner--
Speaker: Well, I ask you how you would be more direct.
James W. Haskins: --To say that the state of Virginia, sir, is responsible in some way... the Fourteenth Amendment and the Fifth Amendment, and specifically the Fourteenth Amendment, deal with deprivations of property by the state. The Fourteenth Amendment, as I understand it... and I would stand corrected very quickly I'm sure,... but it offers no protection from deprivations of property from citizen by citizen. In the entire complaint, the three counts, sir, the petitioner is that Edmondson Oil and Mr. Barbour, its President, deprived him of these constitutional rights. Nowhere in this complaint is it alleged... in fact, the petitioner, as I said, in the district court specifically disavows any challenge to state action.
Speaker: But, Mr. Haskins, I know he did that in the district court. But in the court of appeals on page 45 of the Cert Petition, the court recognizing this problem, as a footnote says, "We construe Lugar's claim to include a constitutional challenge to the statute itself. " Now, we must so interpret the claim, must we not?
James W. Haskins: Justice Stevens, I'll be quite frank with you, sir. I don't understand that footnote in relation to the statement of the issue on page 53, some five or six pages over.
Speaker: Well, this is rather unambiguous, and the court of appeals did make it quite clear that if they thought he was merely alleging a misapplication of the Virginia statute, that there would be no 1983 claim at all.
James W. Haskins: That's correct, sir.
Speaker: So in order to have something to write this rather long opinion about, apparently the court of appeals said we at least read the complaint to include a challenge to the statute itself. And therefore, the state action issue is whether the Virginia legislature's statute, plus the involvement of the clerk and the sheriff, is enough state action to trigger 1983.
James W. Haskins: That's correct, sir, I agree with that. But certainly, the basis of the court of appeals's opinion, again as they call it the dispositive issue, the reasoning that follows certainly assumes that the petitioner has invoked presumptively valid state judicial proceedings. There's no question about that.
Speaker: Mr. Haskins, in your brief you... I think you do anyway... you disavow the rationale of the court of appeals. Do you adhere to that position here?
James W. Haskins: Yes, sir. Justice Blackmun, our position is... and I think the position of the court of appeals is, following up Justice Stevens' question... that state action and acting under color of law are not the same thing. If state action is all that was involved, certainly the state of Virginia in this case, through the actions of the clerk and through the actions of the sheriff who issued the attachment and levied the attachment, certainly there was state action. Now, the question is where the state judicial proceedings are presumptively valid, as in this case, as the court of appeals stated, where there is no even insinuation that the clerk and the sheriff did anything wrong, anything out of the ordinary, in fact the petitioner clearly states that they acted only according to law... he states that in the statement of facts to the brief on the merits in this Court. The question then, as the court of appeals formulated it, is granted there's state action: but for purposes of a 1983 action, is that action under color of state law to sustain a complaint filed under the 1983 section. And of course, the court, of appeals, and I think properly so, held that it was not. Now, Justice Blackmun, I don't agree... or I think probably the language of the court of appeals may be too severe to say that in a 1983 action, the plaintiff has got to show corruption of the state official in such a manner that it, in effect, reduces the state's power to a joint concert and joint action between the private defendant. I think--
Speaker: Mr. Haskins, it's obvious that there is some confusion as the case progressed through the courts, and perhaps further questioning is not a satisfactory way of resolving it, but what do you make of the pen ultimate paragraph of the footnote 1 of the court of appeals on page 44 where they say, "As will appear, it has not been necessary in our disposition of the appeal to address the question of whether the property seizure was constitutionally invalid on either ground. " "We therefore note this confusion only to observe that had the challenge been limited to a claim of unconstitutional application of the statute in the course of the state attachment proceeding, we would have had a clear alternative basis for affirmance of the dismissal. " "It is well settled that no cause of action lies under Section 1983 to redress deprivations of procedural due process occurring during state court litigation between private parties. "
James W. Haskins: --Yes, sir? What is my reaction to that?
Speaker: Yes.
James W. Haskins: I think what the court of appeals is saying, Justice Rehnquist, as pointed out by Justice Stevens in his dissent to Flagg Brothers, that a petitioner, if what he is saying is simply that the clerk or the sheriff in issuing or levying the attachment, that there were just certain procedural defects in the Virginia law, certainly that would provide an alternative basis for dismissal of the complaint. To have any sort of challenge, again to paraphrase Justice Stevens' dissent in the Flagg Brothers case, for a jurisdictional basis of 1983, there has to be a challenge to the constitutionality of the statute itself. As I read all of the cases, Fuentes, Sniadach, North Georgia Finishing, Mitchell v. Grant, in each of these cases there's been an unquestioned constitutional attack on the statute itself in order to give the required state action or acting under color of state law.
Speaker: Well, Mr. Haskins, I gather from the citations in that footnote that my brother Rehnquist referred to, there's no decision of this Court that no cause of action lies under 1983 to address deprivations of procedural due process. And those citations indicate that the circuits are in conflict over it. That the Fifth and Second so hold, perhaps also the Tenth, but the First apparently... note the "But see Kermit"... apparently goes the other way.
James W. Haskins: Yes, sir. But I think these circuits are in conflict. Justice Brennan, in regard to the opinions of the circuit court of appeals which the petitioner has cited in his brief,... there are some five or six from the various circuits throughout the country... again, in each of these cases as well as the cases that I've mentioned by this Court, each case involves a direct challenge to the constitutionality of a state statute.
Speaker: Not a procedural default--
James W. Haskins: Rights through the substance of the statute itself. That, in our opinion, sir, is what is lacking in this case as far as giving the district court any jurisdiction under 1983.
Speaker: --Again, though, apparently court of appeals, as Justice Stevens suggested earlier to Mr. Haskins, going on with that footnote 1, "Therefore constitute this complaint as a constitutional challenge to the statute itself. " and not merely a procedural default. Did they not?
James W. Haskins: Again, I will try to respond to Justice Stevens. I think that is somewhat in conflict with the statement on page 53 of the issue they framed. They definitely assumed on page 53 of the Petition for Writ of Certiorari, that the statute was certainly presumptively valid. And the judicial proceedings were valid--
Speaker: But really, all that means is that if you get to the merits of the statute, the burden is on the person challenging the statute to overcome the presumption of validity. That's all that means.
James W. Haskins: --Well, I think it could mean this also, Justice Stevens. Of course, this case was dismissed on the complaint for lack of any federal jurisdiction under 1983. What they are saying, as I understand it, due to the petitioner's constant disavowal that he is making any attack on the Virginia statutes, we must therefore assume the statute is valid.
Speaker: Well, if that's true you don't have to worry about state action or anything else. They wouldn't have written this long opinion if that was their rationale. I think he's saying it's presumptively a valid statute and therefore, you've got to have something more than the action of the clerk and the sheriff in order to say that it was a deprivation by the state. And that is that half of the two-pronged inquiry.
James W. Haskins: Well, I think this. That you can assume the Virginia statute is valid, and you can assume, as the court of appeals points out, that there is state action involved by the Virginia court clerk and the Virginia sheriff. Now, that does not mean or does not necessarily preclude that the defendants, the respondents, were not acting under color of state law if some way there was some sort of concerted action between as they call him the private actor/respondent, Edmondson Oil and Mr. Barbour, with a state official. The statute can be perfectly valid, and they say that we assume it's a valid statute. We assume that there is state action. There's no question there was state action. But a 1983 action requires a third element, and that element is that the private respondent act under color of state law to deprive the petitioner of a federal constitutional right.
Speaker: That's like analyzing the case in terms of the bribery of the judge in that case.
James W. Haskins: In Dennis v. Sparks.
Speaker: That would be one theory and they reject that theory. But I really don't think it's a fair reading of the complaint to say that he has alleged that kind of corruption in this case. It seems to me, given the gloss that the court of appeals puts on it in its footnotes, it seems to me we should analyze the case as though he made a clear-cut attack on the constitutionality of the statute. And then ask on that assumption, is there sufficient state involvement. And shouldn't we also ask as to whether the court was proper in denying a motion to abstain?
James W. Haskins: Yes, sir. I think under this Court's decision in Carey v. Sugar, the New York case, that if the constitutionality of the Virginia statute, the substantive constitutionality is to be challenged, then the district court should have abstained and this case should have been referred back or dismissed--
Speaker: Why should he abstain? There's no ambiguity in the Virginia statute, is there?
James W. Haskins: --No, sir, I don't think there's any ambiguity in it. I think the Virginia statute, as far as--
Speaker: Why would he abstain then? I don't understand.
James W. Haskins: --Well, he did not abstain, sir.
Speaker: I know, but you're suggesting now that he should have.
James W. Haskins: No, I thought Justice Rehnquist said if the constitutionality of the statute was an issue. Of course, when that issue came up, the petitioner clearly wrote the district court a memorandum saying he was not challenging the constitutionality, so what else could he do? In the trial if the man says this is not an issue, Judge, I'm not challenging the statute--
Speaker: Once again, give the case of this Court that said that in order to maintain an action under 1983, you must attack the statute.
James W. Haskins: --I don't know of any case that says that, Justice Marshall.
Speaker: Well, isn't that your point?
James W. Haskins: No, sir. My point is this: in order to maintain a 1983 action, you have got to file a complaint that states in some way clearly that the state has deprived the petitioner of a federal constitutional right. In this case, if there's no--
Speaker: Cite me a case that says that. Because 1983--
James W. Haskins: --I think Flagg Brothers says that. I think--
Speaker: --Well, quote it to me, let me see it.
James W. Haskins: --On page 6 of my brief, the red brief, Justice Marshall, "A plaintiff must meet two requirements to show a valid cause of action under 1983. " and this, of course, is from Flagg Brothers. "The deprivation #"--
Speaker: I don't see any quote on this page at all.
James W. Haskins: --Well, this is what Flagg Brother says.
Speaker: Well, I asked for the quote. Well, with all respect to my colleague, Justice Marshall-- --Well, with all due respect to you, I have a right to ask the question. Well, with all respect to you, I was just going to suggest that certainly, the requirement-- --Go right ahead, I don't want to delay anything. --that the constitutional issue be raised-- --If he doesn't want to convince me, it's all right. And you're suggesting I won't either. [Laughter] --at its earliest possible moment and preserved throughout, doesn't date from Flagg Brothers. It dates from cases like Holbrook v. Chicago and cases that go back to the nineties and eighties, it is my recollection.
James W. Haskins: Yes, sir, correct, sir. This just came to mind. Justice Marshall, I do have the direct quote. It's on page 436 of the U.S. Reports, page 157, and the quote is this: "A claim upon which relief may be granted to respondents against Flagg Brothers under 1983 must embody at least two elements. " "Respondents are first bound to show that they have been deprived of a right secured by the Constitution and the laws of the United States. " "They must secondly show that Flagg Brothers deprived them of this right acting under color of any statute of the state of New York. " And in footnote 4, Justice Rehnquist said on the same page, "Even if there is state action. " --and I think this hits the nail on the head in this case... "the ultimate inquiry in a Fourteenth Amendment case is of course whether that action constitutes a denial or deprivation by the state of rights that the amendment protects. " I think clearly, the petitioner in this case is basically alleging deprivation of his property by these malicious creditors, the respondents, not by the state of Virginia. And for that reason, I think the district court and the court of appeals was correct in dismissing this complaint for lack of any 1983 jurisdiction. Thank you.
Warren E. Burger: Do you have anything further, Mr. Morrison?
Robert L. Morrison, Jr.: Yes, Your Honor. To address the last point made by Mr. Haskins first, I would submit to the Court that the complaint clearly states what the plaintiff alleges; that the creditors maliciously and jointly with the state deprived him of his rights. And that's what is alleged. The Flagg Brothers opinion in footnote 10 specifically accepts that from the effect of that opinion, the pre-judgment seizure cases which this Court has decided in Fuentes, Lynch, Sniadach, North Georgia Finishing and in Mitchell.
Speaker: Mr. Morrison, you don't quarrel with the proposition, do you, that if one is attacking the constitutionality of a state statute, that issue must be raised at its earliest possible moment and preserved throughout the case?
Robert L. Morrison, Jr.: I think the issue has to be raised when the complaint is filed, Your Honor.
Speaker: And preserved?
Robert L. Morrison, Jr.: Preserved as best possible. As I have said to the Court, the problem in the district court and in the court of appeals rose from perhaps my misapprehension of the holding in Monroe v. Pathe among others that action taken because of state authority and power, whether or not legal under state law, still amounts to state action under color of state law because the state's power and authority is what makes the act possible. And that is exactly what has happened here. The state's power and authority is what has made the deprivation possible; not the individual acts of the private defendants, taken outside of the context of the state. The state provided... and under the decisions of this Court in Fuentes, the state statute effectively abdicates its control. The state provided--
Speaker: Mr. Morrison, let me put it another way. Could either have done it alone?
Robert L. Morrison, Jr.: --Could the state have done it alone? The state could have done it alone if the state had the necessary pressing reasons that this Court has found in cases relating to health or drugs or cases like--
Speaker: This whole thing wouldn't have happened without the filing with the clerk.
Robert L. Morrison, Jr.: --No, sir. It took them both to do it.
Speaker: Exactly.
Robert L. Morrison, Jr.: It took them both to do it, and the creditor could not have done it by itself without being subject to criminal penalties, because it had no self--
Speaker: Well, the state wouldn't grant a divorce, presumably, if no one asked it to.
Robert L. Morrison, Jr.: --Yes, Your Honor, I concede the point. But the thing is that when the state grants a divorce, it does so after a hearing. It does so as a neutral arbiter. That's what is lacking here. The state does not act as a neutral arbiter; the state comes in and immediately takes sides and freezes one man's complete livelihood and assets. And does it under color of state law. The creditor here acted with knowledge of the statute and with intent to take advantage of it, as this Court has found to be a requirement. And he took advantage of it, and Mr. Lugar's assets--
Speaker: And certainly a divorce claimant or anybody else invoking the judicial process of the state, if he's trained in the law, is presumably invoking some state procedure that is recognized by the courts of that state.
Robert L. Morrison, Jr.: --Yes, sir, I have no quarrel with that. I would also like to address the point that was discussed by Mr. Haskins concerning presumed validity of state judicial proceedings. As I understand it, any act by the legislature is presumptively valid, no matter what attack is made on it until proven otherwise. And I submit to the Court that Justice Stevens has hit the nail on the head there, that that is what the Fourth Circuit meant. That has been my understanding of the presumption of validity of legislative enactments. If the Court has no further questions, that's all I have.
Warren E. Burger: Thank you, gentlemen, the case is submitted.


Earl Warren: Number 111, Gonzales versus Landon. Mr. Davis, you may proceed.
Oscar H. Davis: May it please the Court. Before embarking on the discussion of the matter which was being considered when the Court rolled this yesterday, I'd like, if I may, to touch upon two preliminary matters. The first is it relates to a question that Mr. Justice Frankfurter asked as to why the trial judge in his oral statement felt that he was troubled. He said that he was troubled and he wished a review of one of these cases was sought in the Court of Appeals. We agree with Mr. Wirin that the reason for the statement by the trial judge was that he was uncertain whether statements, admissions made in administrative hearings could be the basis for expatriation. We think that was the reason why Judge Harrison suggested that -- that review be sought. The second matter that I failed to mention yesterday and I think it bears upon Judge Harrison's evaluation and -- and characterization of the personality and the type of person petitioner was is that the trial judge pointed out that he had had another simiar case involving a person whom he thought to be a different kind of young man, and in that case, he felt that expatriation had not been proved. He differentiated this case from that case and I bring it forth to indicate that it shows a degree of selectivity and a special consideration given to this particular case by Judge Harrison. The rules of civil procedure on providing for a review and findings of fact provide that due regard shall be given to the opportunity of the trial judge to observe the witnesses. And we believe that that is a factor which should be considered in this type of case as well as on others. In the (Inaudible) denaturalization case, this Court, in upholding the denaturalization of (Inaudible) mentioned the fact that it paid due regard to the opportunity of the trial judge to weigh the credibility and characteristics of the witnesses.
Stanley Reed: Suppose they don't decide the case of denaturalization involving the application in respect?
Oscar H. Davis: No, Mr. Justice, but we do not. As I explained yesterday, we do not accept from the standard which was laid down in the Baumgartner and Schneiderman cases and which was accepted also in the (Inaudible) case. We accept the standard laid down in those cases. We believe that it was fulfilled in this case.
Harold Burton: Do you think that the trial judge accepted that standard?
Oscar H. Davis: Yes, Mr. Justice Burton, I think he did. I think a reading of the closing statement at the end of the case plus his consideration of the -- consideration of the matter of the admission of the immigration testimony before in the case that he did. At the close of -- of his opinion, he says that he doesn't believe the -- the petitioner. He believes that the petitioner was more accurate and more nearly truth in his testimony before the immigration authorities. And at the bottom of the page 33, he says, “I don't know how you can ask counsel. You can ask me to find for the plaintiff here in view of his admissions and statements before the immigration officer.”
Felix Frankfurter: Isn't that the crux of the question where they did or didn't apply those standards.
Oscar H. Davis: That is certain.
Felix Frankfurter: -- or whether -- or whether the record is unambiguously clear that he did. Isn't that the real question?
Oscar H. Davis: Well, that is one -- certainly one of the questions.
Felix Frankfurter: Throughout under this --
Oscar H. Davis: Yes.
Felix Frankfurter: -- and that's none of the constitutional question, isn't it?
Oscar H. Davis: Yes.
Felix Frankfurter: They're not reaching for (Inaudible)
Oscar H. Davis: We would certainly say that the trial judge had to follow the standard. If he did not, then the judgement should be reversed.
Felix Frankfurter: Suppose it isn't clear, if it's cloudy where they did this on the record.
Oscar H. Davis: We would say that you have to pay due regard to the fact that what -- findings were waived and that this is an oral colloquy which is taken down. We believe that if you read the entire record, you will see that the trial judge did apply the standard which we believe and which --
Felix Frankfurter: We couldn't agree. The Court has to be satisfied.
Oscar H. Davis: Yes, yes. That -- that is right. That is right. The Court has to be satisfied.
Hugo L. Black: And if satisfied on that and the question, we would, on your side, we'd be compelled to reach the constitutional question.
Oscar H. Davis: Yes, and then --
Hugo L. Black: He could have -- that he could have his citizenship taken away from him as a punishment without a trial by jury in a regular court trial.
Oscar H. Davis: Yes. In that connection, I hope the Court will bear with me when I call the attention of the fact that there is pending case on the Ninth Circuit in which an amicus curiae brief has been filed. This is the blue amicus curiae brief. In that case, the plaintiff who was seeking a judgement of -- of citizenship has waived all factual issues. He has stipulated that he left the country for the specific purpose of evading and avoiding the draft. That case is now pending in the Court of Appeals for the Ninth Circuit.
Earl Warren: You were suggesting that -- if that question will presented in the security in the case you have just referred to and therefore, I don't know if therefore, is therefore we should decide this.
Oscar H. Davis: There are two therefore, Mr. Justice. Either that you can perhaps say some trouble by deciding it here or that you can wait. In either case, if I have the opportunity, I'd like to do a little missionary work if the issue was not --
Felix Frankfurter: Suppose he was not evading. Suppose one accept as what peace and quiet as to waive, could he get the question in purity and suppose one decide against the Government on the question you've been arguing, what do you think then -- what would you submit to the Court as to why the disposition of this case decided against him on the constitutional question or is it a way to do -- we decide the constitutional question on a clean record. I understand that -- that for us to determine --
Oscar H. Davis: Yes.
Felix Frankfurter: -- I would like to get light from you.
Oscar H. Davis: I -- I would say, Mr. Justice, that I would be willing to -- to -- I didn't quite understand the postures of your question if you decide against me on the issue that I've been discussing. Well then, of course, the question was --
Felix Frankfurter: (Inaudible)
Oscar H. Davis: I -- I -- we will be willing to stand in this case on the constitutional issue if the Court decides on our favor on the other issues. We think that it is as clear as in the case, which I mention just before so that we would be willing, from my point of view, to stand on this case as well as on -- on the other case.
Felix Frankfurter: It is clear from your point of view but they may be different on this side for that reason (Voice Overlap)
Oscar H. Davis: That -- that is true but you asked me for -- for the advocate's point of view. Coming now to the -- the question which was being discussed at the close of -- of the argument yesterday, I was asked whether if it were clear that petitioner remained in Mexico because his mother felt that, if he went to the United States, he would be drafted, and therefore, subject to injury and death during the war, whether that would be a fulfillment of the terms of -- of Section 401 (j) or whether that would be another type of purpose. If I may put it in my own shorthand way, the question was whether his purpose in -- in that situation would not be his purpose to obey his mother or to abide by his mother's wishes rather than to evade the draft, and I was asked to comment on that. Before discussing that, the legal issues involved, I would like to summarize, if I may, for the Court, what went on at the treated administrative hearings that did took place? At the first administrative hearing, which is included on Exhibit A, there was hardly any mention of petitioner's mother. The statements I think are pretty clear that he said he did not want to register because the war was on. He did, in one statement, mention his mother but there are, if I may run through them very short, he said, "How did it happen that you were not registered for Selective Service before April 19, 1946?" Because I did not --
Stanley Reed: What -- what page is that?
Oscar H. Davis: It's page -- it's not in the printed record, Mr. Justice. It's in the exhibit here. "Because I did not want to register." “Then, why did you not register at the American Consulate in Chihuahua near your home?” “Well, I will tell you again, I did not want to register.” “Why did you not want to register for military service prior to 1946?” “Because I was afraid to register.” “Why were you afraid?” “I was afraid in military service during the war.” Then, he does say later, “I wanted to come to the United States in 1942 but my mother would not permit me to do so. I would have come to the United States in 1944 or 1945 had it not been for the requirement to register.” And then, later on, he says, “Why did you not come to the United States in 1944 or 1945 to work or to better your life?” Answer - “It was on a kind of a war." “Do you know that hostility ceased in August, 1945?” Answer - “I knew that the fighting had ceased in 1945, but I did know the date." Now, that's the first hearing in October, 1947.
Speaker: Were these --
Earl Warren: Was there anything in there about the mother, about the influence of his mother in that speech?
Oscar H. Davis: Yes, the one sense -- the one sense that I did read, Mr. Chief Justice.
Earl Warren: Oh, I -- I missed that point.
Oscar H. Davis: Yes. “I wanted to come to the United States in 1942 but my mother would not permit me to do so." He did say that.
Earl Warren: That's the only mentioned --
Oscar H. Davis: The only mentioned, the mother in the first hearing. In the second hearing, there was considerably more mention of the mother, and -- and she does -- does have a permanent role at three years later on October 1950. But it is always and I would like to stress this to the Court. In relation to the mother as well as to himself, it's always the fear of the draft and the fear of the war. There is not a suggestion that his mother wanted him to stay in Mexico in order to support her or her -- or for family reasons. It is because his mother feared that if he went to the United States, he would be drafted. So -- so, his mother does play a prominent role in the -- in the second hearing. It's always in that connection. Now, at the third hearing --
Felix Frankfurter: Assuming -- assuming that he knuckled under the Court -- of the power to decide by his mother, the mother's motif in exercising such instrument is immaterial to the question that -- that the inference was exerted upon.
Oscar H. Davis: Well, that is right, and now that's what I'm going to deal with when I come to discuss the legal issues. If I can conclude with the summary of the hearings, at the third hearing, he again emphasized the mother, but he admitted that he had not so emphasize the mother previously. He said, “Now, I wish to say that my position is that my mother. I was afraid that I would be drafted. I was not afraid.”
Speaker: Was the interrogation in each of these earlier hearings through an interpreter?
Oscar H. Davis: Yes, through an interpreter.
Speaker: And did he see the transcript before he was confronted with it in the subsequent hearings? Did he have a chance to go over the --
Oscar H. Davis: I am not certain whether the --
Speaker: -- either the original or the translation?
Oscar H. Davis: What -- what did happen is that at the second and third hearings, they were read to him what happened at the preceding hearings in Spanish, and he was asked to make any corrections or to agree and he said, “Yes, I made those statements. I -- there's no use in denying them. Now I'm with the view that my mother, that the real reason was that my mother was afraid.” But to answer your question more precisely, at the administrative hearings, the second and third hearings, at the second hearing, the first hearing was read to him in Spanish. At the third hearing, the second and first were read to him in Spanish. Now, what occurred at the trial of the case, I am not absolutely certain. The hearings were available in English. In the trial of the case, of course, for several years later and he had become -- I don't know whether he was literate in -- in English or what, but he had certainly would become -- been able to speak it. I was able to speak it more readily when he was in the earlier days. Well, that's the summary of --
Tom C. Clark: Your -- your duty is no less at the trial.
Oscar H. Davis: Yes. He repudiated. He --
Oscar H. Davis: You're -- you're depending on the witness that he's been impeached. You're on the witness.
Oscar H. Davis: Well, he wasn't our witness, Mr. Justice. We're depending upon his earlier statements which were admitted in evidence, and which were properly admitted in evidence not only to impeach him, but as admissions by a party in interest which the commentators and putting with more and the courts universally hold if admissible as substantive of permeative evidence to prove the fact in which it can be relied upon.
Tom C. Clark: I realize that and I realize to protect the -- not your witness but do you say why with the burden that's all together.
Oscar H. Davis: Yes.
Tom C. Clark: Do the previous prove this, these facts that they're unequivocal if under rules of these cases? So the clear evidence that you present to my mind is to impeach them and impeach the witness.
Oscar H. Davis: Well, it's a witness who later on change --
Tom C. Clark: They have no other evidence, although, it seems that none of the witnesses were available.
Oscar H. Davis: That's frequently true in criminal cases when a man makes a confession and then comes on stand and denies the confession. And yet, convictions can rest upon the confession later on repudiated.
Tom C. Clark: You have other witnesses --
Oscar H. Davis: You may not have other witnesses except to -- to tangential corroborating matters or may not have witnesses to the intent of the -- or the person in committing the crime or other various essential factors.
Tom C. Clark: But on anyway --
Oscar H. Davis: Well, you don't have witnesses here but we think we're entitled to rely upon what he testified to in open court insofar --
Tom C. Clark: I would say that too if you didn't have this rule of their convention and unequivocal truth. I just doubt it. I didn't come into any conclusion without just questioning whether or not this is that's clear since conventions such unequivocal proof as this rule required.
Oscar H. Davis: Well, there are two facets to it, Mr. Justice Clark. One is a general rule which I think we would oppose strongly, a general rule that no court in a case like this can rely upon previous admissions made in administrative hearings which whereas detailed and circumstantial and as repeated as often as -- as this. A general rule against that we think would be harmful. The -- the second problem is whether viewing what there is in this administrative exhibit plus what there is in the record. If the Court is not convinced that the standard was met giving due regard to the power of the trial judge to observe the individual and so forth, then of course, we have not met our burden, and -- and that is a matter relating to this individual case which I would not want to press too hard. We think we have met our burden in this case.
Earl Warren: Is this the practice and is this the usual method of proof and -- and can we take this as a typical case, the department's proof in a case of this kind?
Oscar H. Davis: Well, Mr. Chief Justice, there haven't been many court cases involving expatriation under this provision of the statute.
Earl Warren: What kind of expatriation do we have?
Oscar H. Davis: The Court -- the Court -- well, there have been many administrative cases, cases that have been before this Board of special inquiry and appeal to the Board of Immigration Appeals which have not directly come to the Court. And in those cases, I would say that the basic evidence is an admission by the -- by the individual himself. There's hardly any other evidence that you could obtain in a case of this kind. The man is outside the country and as the Court said -- and the issue involves his intent. And as the Court said last year in the case involving the sincerity of the conscientious objector, it would be naïve to expect that he would make a public admission of his intent to evade or to deceive prior to -- to the institution of proceedings.
Earl Warren: But I thought Justice, I though Judge Harrison said there had been a number of these cases and he -- he hope that -- that one of them would go out so the confusion would be -- would be straightened out.
Oscar H. Davis: Well, there have been three or four in -- in California but there had not been.
Earl Warren: Well, that's in the union.
Oscar H. Davis: Yes. What I meant is that there haven't been a large number. There have been maybe 50 administrative laid and I only know of about six or seven throughout the country. And what I -- what I meant when I said that there weren't a large numbers that there haven't been a -- a large probative cases and I don't know what the practice. What I'd be willing to say that probably the basic evidence was admissions obtained by questioning before the -- the --
William O. Douglas: Have there been any actually expatriates?
Oscar H. Davis: I'm not even sure of that, Mr. Justice -- Justice Douglas. The report of the committee which formed the -- which formed the study of the McCarran Act said that in 1948, they had a statistical table for the year 1948 for all reasons for expatriation. And there are 135, they said in the year 1948. Now, many of those were cases which have been administratively determined and were never appealed, I mean, never brought to Court. Some of them were administratively determined by the immigration service and they never even appealed to the Board of Immigration Appeals. If the Court is interested on this, there is an Article in 1948 in -- in Volume 5 of the monthly review of the immigration and naturalization service by a man named Sharon, S-H-A-R-O-N. It's by monthly review of the Immigration and Naturalization Service in 1948. And he reviews the recorded decisions or -- or the filed decisions of the Board of Immigration Appeals in the central office of the -- of the immigration service.
Earl Warren: Another one of the Yale Law Review, isn't it, too, on the subject?
Oscar H. Davis: I haven't come across the one in the Yale Law Review on this particular subject. There maybe one, I think.
Earl Warren: Well, under this Act, when does a man lose his citizenship? Does he lose it at the boarder when he -- when he gives these statements and they tell him that he can't come in that he isn't -- that he's lost his citizenship for or did he lose it through the -- the order of the Court?
Oscar H. Davis: No, I think he loses it when the Act occurs, and just as he loses it when under the other provisions of the Expatriation Act when the act of taking the ultimate allegiance occurs or the act of being naturalized broader occurs or the act of serving in a foreign army occurs. I think that when the act of evasion occurs, he then loses his citizenship but there's a most --
Earl Warren: What determines that? What determines that, for --?
Oscar H. Davis: Well, he has -- he has under the Act which is applicable in this case. He has a method of review.He can bring the Declaratory Judgement Act under former Section 503 of the Nationality Act of 1940.
Earl Warren: Well, when was the -- when was the first time that the Government recognizes that he has lost his citizenship?
Oscar H. Davis: Well, the --
Earl Warren: The Government didn't know what's in his mind when he's on this little five acre ranch of theirs taking care of his mother --
Oscar H. Davis: I'm not sure. I mean --
Earl Warren: -- or five -- five, four or five sisters and brothers in a little five acre ranch in Chihuahua, the Government doesn't know that.
Oscar H. Davis: No, of course, not.
Earl Warren: Did the Government first recognize --
Oscar H. Davis: Well, when he --
Earl Warren: -- that he's lost his citizenship?
Oscar H. Davis: Well, these issues only arise in the form of proceedings and this issue arose because he left the country. He first came in as a citizen in April 1946.
Earl Warren: He's two years old when he left the country.
Oscar H. Davis: No, I'm talking about after he first came -- when he came back. He came back as a citizen in April 1946 and questioning for the draft. And he stayed in the country until almost a year later then he went back to Mexico. When he sought to return to the country in October 1950, it was then that he was questioned at the boarder, for the reasons for his remaining in Mexico during the war years and he is not registering with the consul in -- in Chihuahua and so forth. And it was then that he made the statements which I read initially to the Court this morning. And so, on that basis that it was determined by the immigration authorities at that time that he had lost his citizenship, and therefore, he was excludable.
William O. Douglas: He's been held there at the boarder since then?
Oscar H. Davis: No, he -- there were three exclusion hearings, Mr. Justice Douglas. At that time, in October 1947, when he was excluded, he went back to Chihuahua and stayed there for three years. In October 1950, he sought entry again and was excluded again in October 1950. Then, in May 1951, he crossed the boarder claiming to be American Citizen and he was -- he -- he entered the boarder. I forget where it was, El Paso or some place. And he -- he stayed in the United States as an American citizen for -- oh, I think until January 1952, and then he left to go across the boarder. And on his return on January 1952, he was again stopped. And they had the record of the preceding hearings and he had another hearing in January 1952 and he was excluded then. So, he went back to Mexico, but in May of -- of 1952, he again entered as a citizen, claiming to be a citizen and that he wasn't stopped. And he was picked up, he was -- a warrant of deportation was issued in August. So that he is -- and tried to enter the country three times and then stopped and entered the country as a citizen three times.
William O. Douglas: Has he been in detention?
Oscar H. Davis: He was in detention but he was in detention, I understand, prior to the Court's decision, but I believe that he has been out on bail or parole since the appeal was taken.
Stanley Reed: How long -- how long was he detained?
Oscar H. Davis: The record says he was detained for six months in the terminal and that's all that I know.
Hugo L. Black: Can I ask you one other question? Did I understand you to say yesterday that there has been an act of congress before this one where Congress had attempted to deprive people of citizenship born in this country by administrative proceedings?
Oscar H. Davis: Yes, not by administrative proceedings in the sense that the very expatriation provisions which are quoted, cited, and reported at the end of our brief. They are all involve in administrative proceedings, taken being naturalized abroad or taking an oath, or entering, and serving in a foreign army. Those all come -- come into being by virtue of the administrative determination ill-advised the state department or by the immigration service, that person has become expatriated and then he seeks a court review on the basis and there is a de novo court review and that is true here. This was a de novo proceeding and we cannot rest on any rule of substantiality in the administrative findings or anything like that.
Felix Frankfurter: Well, Mr. Davis, I got -- did I get the right impression? Do I -- do I refer correctly from your answer to the Chief Justice, his question the other day if I may say so, that unlike denaturalization prior to the Act of 1940, wherein denaturalization acts affirmatively to be a statute by court proceedings? Now, an act not at all formalized or authenticated for a statute but merely a conduct or absolute conduct in itself to get the denaturalization.
Oscar H. Davis: Expatriation, Mr. Justice.
Felix Frankfurter: I beg your pardon, expatriation. Well --
Oscar H. Davis: That has always been true, Mr. Justice. That has been true. That was true prior to the Expatriation Act of 1907. It was true on the Expatriation Act of 1907 and under the Act of 1940.
Felix Frankfurter: Well, this does seem necessarily mean denaturalization, doesn't it or not?
Oscar H. Davis: Loss of nationality.
Felix Frankfurter: Is that loss -- loss of citizenship.
Oscar H. Davis: Yes, loss of citizenship and loss of nationality.
Felix Frankfurter: All right, citizenship can be lost by an unjudicially established act of Congress whether the man doesn't know whether he has or hasn't loss his -- until he either wants to come into the country or apply for a passport, or applies for some kind of significant to do something, is that right?
Oscar H. Davis: That has been true for about a hundred years, Mr. Justice.
Felix Frankfurter: That's the more of a kind, is that it? That it is a surprising (Voice Overlap) --
Oscar H. Davis: Yes, it's been true in all of these cases that the -- there have been various active expatriation which didn't have to be formalized by any American (Voice Overlap) --
Felix Frankfurter: I understand that. The statute says to loose his nationality, but I cannot appreciate it unless you -- until you just said it that the habit shall lose his nationality means that the Government didn't have to go to a court of law and establish that fact but rather that he has to establish the contrary.
Oscar H. Davis: No.
Felix Frankfurter: It comes to me with great shock?
Oscar H. Davis: Well, the difference is this. That as we were discussing yesterday, if he is a native born citizen, and he comes to this country and files a declaratory Judgment Act and he proves he is native-born, then as I said, the burden shifts to the Government to prove that he committed an act of expatriation. We would argue that if he did commit the act of expatriation and he then defends on the ground that he did it under duress as his claim here on the parental duress that the burden shifts back to him to prove that he did it until parental duress.
Felix Frankfurter: I understand that, but I'm -- I'm merely -- I must say from the merit that the impracticality, the power to it that by something that a man gathered or doesn't include without his knowing what its significance is ipso facto terminate its citizenship. And all that is impart of thereby rather than that Government is using that as the basis for establishing the fact of these lawful citizenship.
Oscar H. Davis: I would say, Mr. Justice, that they --
Felix Frankfurter: But when you say it's 100 years old, it means that all you can say, I tell you, correct me if I'm wrong. All you can say is that for a hundred-year statute that said, he shall lose his nationality but they haven't said that the Government doesn't have to go to court of law and establish it.
Oscar H. Davis: Well, and that -- that has not been the practice and this Court has -- has -- in Mackenzie against Hare in 1915, the Court has held that Mrs.Mackenzie had lost her American citizenship some two years previously by marrying a British citizen residing in California. And there was no -- the -- the way the case arose is that she wanted to vote in the San Francisco Municipal Election and they wouldn't give her a ballot on the ground that she wasn't a citizen. She lost her American nationality and she brought the suite. And this Court --
Felix Frankfurter: Has this question been -- has this question been consciously, purposefully avowed (Inaudible) that somehow rather I come at and that he's never had to issue a determination, he would lost his citizenship.
Oscar H. Davis: I don't think it's been consciously litigated, Mr. Justice. I think it has been assumed on almost old side but this has been the result. It's been underlying. It is under -- underlying all the decisions of this Court in the field of loss of nationality or expatriation. And all of the decisions of the lower court as far as I'm aware that the -- the voluntary commission of the act leads to the loss of nationality. You can get a review of whether you committed the act and whether you committed it voluntarily.
William O. Douglas: (Inaudible)
Oscar H. Davis: -- by a court proceeding.
William O. Douglas: (Inaudible) -- the shocking thing for me is that (Inaudible)
Oscar H. Davis: Mr. Justice, this man had -- before he was detained at the terminal hour, he had already been administratively determined to be -- administratively determined twice or three times to not to be a citizen or have lost his citizenship. He did not seek review of those decisions in -- in the courts. And so, the administrators followed the decisions, the three decisions which had previously been made, and he wasn't there eyes and I think properly so as far as they were concerned since he had not sought review which he -- which was available to him and which he later did seek in this proceeding.
Felix Frankfurter: When did he -- I'm sorry.
Oscar H. Davis: Well, he -- since they were -- he was in his eye -- he was, in their eyes, an alien now, no longer an American citizen. They treated him as they treat other deportable aliens. That is he had entered Mexico without -- without the proper credentials. And not only that, he entered Mexico without the proper credentials. And not only that, there is another statute which bars aliens who have -- who stayed abroad in order to avoid resident alien or aliens who has stayed abroad to avoid service in the -- in the United States Army from coming into the country.
Stanley Reed: Whenever any person seeks to cross the American waters to a foreign country, did they have to establish their citizenship?
Oscar H. Davis: I believe, Mr. Justice, that -- that is correct. Sometimes, the -- the inspectors just take your word for it or look at your birth certificate and that's how he crossed three times, saying, “I'm an American citizen.” He had his birth certificate. He showed it to them. But of course, someone who is not an American citizen and claims to come in on --
Stanley Reed: Theoretically, no one may cross the border without permission unless they're an American citizen or just visit some --
Oscar H. Davis: I think --
Stanley Reed: -- establish their -- their --
Oscar H. Davis: -- they have to cross the border if -- they have to -- to cross the border, they have to be American citizen or to fall within one of the categories of -- of admissible immigrants.
Earl Warren: Do they have to establish their American citizenship?
Oscar H. Davis: Establish in the sense that -- that it is customary for the inspectors to inquire.
Stanley Reed: Unless he -- unless he happens to be an American born --
Oscar H. Davis: That's right.
Stanley Reed: -- to fly abroad and -- and turn to come in to the United States, would I have to establish my American citizenship?
Oscar H. Davis: I don't think you have to go to Court to do it but you -- they would -- they would question you. They will look at your passport or -- or sometimes --
Stanley Reed: I have to have a passport or some evidence that --
Oscar H. Davis: Sometimes, they accept your word for it.
Felix Frankfurter: I may have to go to Court.
Oscar H. Davis: You may have to go to Court and there have been -- there have been people who have done that, who have had to go to Court in order to prove that they -- if for instance, they didn't have a birth certificate and they claim they were born in the United States, they might have to go to Court to prove that they were born in there or if they've lost their naturalization certificate and -- and they don't have it available.
Felix Frankfurter: This -- that's Chin Yow way back in 208.
Oscar H. Davis: That's right.
Earl Warren: Mr. Wirin.
A. L. Wirin: May it please the Court. First, to an answer a question asked by the Chief Justice and by other Justices as to whether there are other similar cases. I can just say this. There are about a dozen similar cases now pending in the District Court at Los Angeles, and when Judge Harrison was talking about the problem, he was referring to the problem which he and the other judges of that Court will face by about these dozen cases. There are --
Felix Frankfurter: They are part of that Court, some of them.
A. L. Wirin: Meaning by that merely that this is not an isolated case.
Felix Frankfurter: I know,
A. L. Wirin: --There are similar cases. -- meaning, when you say similar, meaning by that --
A. L. Wirin: Meaning by that, persons who had remained --
Felix Frankfurter: Try to keep him from coming into the United States.
A. L. Wirin: Yes, meaning, persons who have remained in Mexico during the war and with the respect to whom the immigration service was claiming that they have lost their citizenship under Section 401 (j). Now, one other matter with respect to a question put by Mr. Justice Harlan to Mr. Davis. I think Mr. Davis gave the impression to this Court. I'm sure he didn't intend it. That the first time that this petitioner deny the admissions -- denied that he made admissions was at the court trial. The fact of the matter is that before the immigration service in 1952, before he had a lawyer, before he had a trial, before the immigration service, he said to the immigration service when confronted with the translation of his former statements that he had not made them and that he -- that the -- that the immigration officers had confused him and that it was not voluntary. Now, the word “voluntary” appears of course in the English translation since they were -- since they were -- this translation was by immigration inspectors. But in any event, a rejection of his admissions, a claim that the admissions were not made and at the transcript of the statements were not correct, was made by him before the immigration service. Yes, sir?
Felix Frankfurter: Was -- was this a stenographic -- does this purports to be a stenographic minute or --
A. L. Wirin: It did.
Felix Frankfurter: (Inaudible)
A. L. Wirin: No, no, of the English -- well, no. It was -- there was a stenographic record in English which was read to him --
Felix Frankfurter: Not of the -- not of the --
A. L. Wirin: -- not of the Spanish. That was read to him by an interpreter and he was asked what he had to say about his former statements and he said, “They are incorrect,” that they were not -- they are not voluntary.
Speaker: Does that appear at --
A. L. Wirin: I was confused.
Speaker: Does that appear in the investigation of the --
A. L. Wirin: That appears in the 1952 hearing at page 12.
Felix Frankfurter: Did we say corrects were not made?
A. L. Wirin: He -- he --
Felix Frankfurter: Are you using those synonymously?
A. L. Wirin: I'm using not synonymously. He said both.
Felix Frankfurter: All right.
A. L. Wirin: He denied and he made them. He said in some respect that it is incorrect and he said it wasn't (Inaudible) He said the record shows that he said it wasn't voluntary. Again, I say that wasn't his word. We don't know what word he used in Spanish. That is the word which appears -- which was interpreted by the -- by the immigration inspector interpreter as to what he said about it. The Chief Justice asked two questions that I think should be answered. One question was, to Mr. Davis, and my answer is different from the one given by Mr. Davis, whether the statute had -- was penal in its purpose. I think the answer may be found in that Senator Russell, who introduced a Bill in the Senate said that this statute was penal in its purpose and that appeals on page 7 of our brief.
Felix Frankfurter: That -- that doesn't help me very much on the constitutional question whether denaturalization was leading to a subject to the provision of the Bill of Rights in reference to promote prosecution.
A. L. Wirin: Well, among them --
Felix Frankfurter: Do you know any punishment in colloquial terms that it also varies to be a constitutional term?
A. L. Wirin: All I'm making that statement for is -- is to which, upon the Court, which perhaps I need, the importance of -- of applying the rule of the -- of the necessity of clear and unequivocal conduct.
Felix Frankfurter: (Inaudible)
A. L. Wirin: Now, that the Chief Justice asked another question which I'd like to answer him is this, whether the 1865 statute which dealt with disease was the statute which provided for the loss of the United States Citizenship. There was some suggestion by Mr. Davis that that was the -- either the effect of or was the language of that statute. That statute, Your Honors, will find in the Government's brief, the text of it, at page 58. It provides that the rights of citizenship shall be deemed forfeit rather than a provision as broad and as soothing as what is involved here, namely, that citizenship per se is lost. It -- as a matter of fact, the statute is in the footnote of page 58 provides that the right to hold office shall be lost. In other words, that statute was intended to apply to the laws of some of the important attributes of citizenship rather than citizenship itself. And finally, what I am urging to point, Your Honors, with respect to the record in this case and the nature of proof proffered by the Government for the Government concede the burden of proof was upon it is that when properly and fairly upraised. This evidence is not sufficient to change the color of legal litmus paper and to permit the forfeiture of rights of citizenship. The phrase changed color of legal litmus papers of course not mine. It is that of Mr. Justice Holmes but it replied here.