William H. Rehnquist: We'll hear argument next in No. 89-474, William V. Grady v. Thomas J. Corbin. Mrs. Steller, you may proceed.
Bridget R. Steller: Thank you, Mr. Chief Justice, and may it please the Court: This matter is here on a writ of certiorari issued to the New York State Court of Appeals. And the issue raised is whether, within the constraints of the double jeopardy clause of the Fifth Amendment, a motorist, who causes the death of another person as a result of an automobile collision, may be subject to a prosecution for homicide and/or assault, even though, at the scene of the collision and prior to the death of the motorist he or she... prior to the death of the other person that motorist is charged with driving while intoxicated and failure to keep right, and then subsequent to the death, enters pleas of guilty to those vehicle and traffic violations, and is sentenced. In this case, on October 3rd, 1987 there was an automobile... there were... collision... an automobile driven by the Respondent, Thomas Corbin, was being operated in a westbound direction on Route 55 in the town of LaGrange. It first collided with an eastbound vehicle and struck the rearview mirror... or struck the sideview mirror of that car. It proceeded into the eastbound lane and struck a second vehicle in which Brenda Dirago was the operator and her husband, Daniel Dirago, was the passenger. Respondent Corbin and both Mr. and Mrs. Dirago were taken to the hospital, where at approximately 8:00, Respondent Corbin was arrested for driving while intoxicated and failure to keep right. He was issued traffic tickets for those offenses. He then consented to having blood withdrawn, and blood was withdrawn for the purpose of chemical analysis at approximately 8:25 p.m.-- The defendant was not arraigned that night. He was hospitalized. The tickets which were issued to him, directed to... him to appear in the Town of LaGrange Court, a justice court, on October 29th, a Thursday night. However, the Court did not sit on Thursday nights, it sits on Tuesday night. So the Court sent a letter to the Respondent Corbin directing him to appear on an advanced return date, that date being October 27th. No notice was given to the district attorney of the advanced return date. On the night that the defendant appeared, it was not a night scheduled for the district attorney to be in that courtroom. The defendant appeared with counsel, and entered pleas of guilty to both... both the misdemeanor of driving while intoxicated and the violation of failure to keep right.
William H. Rehnquist: What is the jurisdiction of the justice court to which you refer, Mrs. Steller, so far as what kind of crimes can it hear pleas to?
Bridget R. Steller: Chief Justice Rehnquist, it would generally hear misdemeanors and violations. It would have preliminary jurisdiction over felonies, but its jurisdiction would be limited to holding a preliminary hearing, and setting bail on a non-Class A case, which would be a--
William H. Rehnquist: Binding over, in effect?
Bridget R. Steller: --Yes, Your Honor. I might also add that an assistant district attorney was called to the scene of the accident on the night of October 3rd. He was not there to assess what charges should be brought. There was one purpose for him being called, and that was to prepare a search warrant if one was necessary to obtain blood. When he arrived at the scene, the defendant had already been arrested and charged. He learned that the defendant had consented to having blood withdrawn, and he left. He had no further participation in the investigation that evening. And he did not help draw any charges.
John Paul Stevens: Does all... do these facts make any difference to your legal argument? I mean, supposing the state's attorney had been fully advised all the way along the line, you'd still have the same legal argument, wouldn't you?
Bridget R. Steller: Yes, Your Honor, because we rely on New York State Vehicle and Traffic Law Section 1800(d), and we have relied on it in the state courts.
John Paul Stevens: Your position is, even if he pleaded guilty or was convicted of this offense, you could go ahead and prosecute him for the greater offense.
Bridget R. Steller: That's right, Your Honor.
John Paul Stevens: So I don't know, why... what relevance, all these facts have.
Bridget R. Steller: Okay. I'm sorry, Your Honor, I'll--
John Paul Stevens: I'm just suggesting that I'm not sure I understand.
Bridget R. Steller: --It seems to me in this Court in Blockburger and in Vitale has set forth certain rules to be followed, that being that--
John Paul Stevens: This Court. [Laughter]
Bridget R. Steller: --Thank you, Your Honor. That being that a defendant may be charged with the greater... with a greater offense, or maybe charged with two offenses... where... and there can be subsequent prosecutions... where there are different elements involved in each. And in this case, we're here on an indictment which charged the defendant with manslaughter... or counts of the indictment pertaining to manslaughter, criminally negligent homicide and assault.
Anthony M. Kennedy: But I... I take it from the opinion of the state court that the prosecution is bound by its pleadings in its bill of particulars. And so, we can take this case as one in which the only way the prosecution can prove its case is to prove the same matters that were shown in the earlier proceeding on which there has now been a judgment.
Bridget R. Steller: Well, Your Honor--
Anthony M. Kennedy: Is... is that correct?
Bridget R. Steller: --That, plus additional factors are listed in the bill of particulars, Your Honor. He was charged with driving while intoxicated and failure to keep right.
Anthony M. Kennedy: Well, there are some additional factors but, really, the essential part of the prosecution's case is going to rely on the matters that were concluded by the traffic offense in the traffic court. Is that not correct?
Bridget R. Steller: In large part. However, the accident reconstructionist's report... which was not available until January of 1988... also indicated the speeds... the respective speeds of the vehicles and the positions of the vehicles at the time of impact. This was not--
Anthony M. Kennedy: Oh, well, of course--
Bridget R. Steller: --known on the night of the 23rd.
Anthony M. Kennedy: --there will be differences, but the state says the major part of the case is the same. That's what the state--
Bridget R. Steller: A large part--
Anthony M. Kennedy: --that's what your state court says.
Bridget R. Steller: --yes. A large part. The court of appeals' majority opinion indicates that we are bound by the bill of particulars until amended, and it has not been amended, Your Honor.
Anthony M. Kennedy: So... so don't we take the case as one in which in the second trial the proof is going to be of the same facts that were proven in the first trial?
Bridget R. Steller: Yes, Your Honor. Plus additional facts. But you must remember, there was no first trial here. The was a plea of guilty at arraignment. And the defendant pled guilty to common law driving while intoxicated. The blood test results weren't even back at the time. The blood test results were not received by the district attorney until October 30th.
Anthony M. Kennedy: Well, are you... are you suggesting the case would have different if there had been a trial and the prosecution had introduced all this evidence?
Bridget R. Steller: It might present it in a different light, Your Honor. I recognize that--
Anthony M. Kennedy: Well, what's the legal... what's the legal difference?
Bridget R. Steller: --In the sense that you would know exactly what evidence was... had been presented--
Anthony M. Kennedy: But we do know because your state court has told us.
Bridget R. Steller: --The state court has told us that we are bound by our bill of particulars, which does include elements which were involved in the crimes to which the defendant pled guilty.
Anthony M. Kennedy: So I think you have to tell us why that does not constitute a bar.
Bridget R. Steller: Because, Your Honor, this Court has never held that we must try all offenses that arise from one series of acts or one acts in one trial.
Sandra Day O'Connor: Well, what about Harris against Oklahoma? Does that have a bearing on this, do you think?
Bridget R. Steller: I don't think so, Justice O'Connor, because in Harris there is a footnote that in the state's brief, the state conceded that both felony murder and the underlying robbery were the same. And also, in this Court's opinion in Vitale, this Court recognized... or this Court commented about the... it's cited or it's quoted at page 18 of the petitioner's main brief, "For the purposes of the double jeopardy clause, we do not consider the crime generally described as felony murder as a separate offense distinct from its various elements. " "Rather, we treat a killing in the course of a robbery as itself a separate statutory offense and the robbery as a species of lesser included offense. " Here, I don't think you can ever say that driving while intoxicated is a lesser included offense of manslaughter, criminally negligent homicide or assault because the homicide charges involve a death, the assault charge involves physical injury. Driving while intoxicated involves operation of a motor vehicle that is not is not necessarily involved in a manslaughter or an assault prosecution.
Thurgood Marshall: xxx.
Bridget R. Steller: Not in every manslaughter case, Your Honor. And this is not a vehicular manslaughter charge. This is a more traditional manslaughter charge.
Thurgood Marshall: But you didn't have any trouble with Ashe against Swenson, did you?
Bridget R. Steller: No, Your Honor, I didn't.
Thurgood Marshall: You didn't even mention it in your brief. Would you mind mentioning it now?
Bridget R. Steller: Certainly, Your Honor. I think that in... in the reply brief I did mention it, Your Honor.
Thurgood Marshall: In your reply brief, you gave it one sentence.
Bridget R. Steller: Yes, Your Honor, I did.
Thurgood Marshall: But you didn't mention--
Bridget R. Steller: But I don't... I'm sorry, Your Honor.
Thurgood Marshall: --You didn't mention it in your main brief.
Bridget R. Steller: No, Your Honor, because I don't believe that we are... this Court has held that we would be collaterally estopped, or that res judicata would apply in this particular case. And I think that in this type of case we are governed by this Court's rulings in Blockburger and Vitale. Also, I think that this Court has recognized that there is a strong public interest in law enforcement and that the people should be given a full and fair opportunity to present their case. And I think that's something that arises with collateral estoppel and res judicata. That doesn't happen here. And I think the legislature of the State of New York has a right when they are enacting a statutory scheme to consider this Court's rulings, such as Blockburger, such as Gavieres, and decide that it is permissible to have vehicle and traffic offenses prosecuted separately because they are not generally lesser included offenses of assault and homicide.
William H. Rehnquist: And that's because each has an element that the other doesn't have?
Bridget R. Steller: On the traditional homicide and assault charges, yes, Chief Justice Rehnquist. And--
Antonin Scalia: Ms. Steller, if... if I may put in my candidate for things that aren't mentioned in the brief that maybe should have been, the earliest case I see cited by any side is, I think, 1871. These words were written about a hundred years before that. Is... is nobody have any interest at all at... at what... at the time the Constitution was adopted... being tried twice for the same offense was thought to apply to?
Bridget R. Steller: --I think--
Antonin Scalia: Have you done any historical research in it at all... what... what... you know what--
Bridget R. Steller: --I think, Your Honor, this Court's decisions which are cited in our briefs, refer to Blackstone's Commentaries. And I think that traditionally in England you would not be prosecuted for two offenses in the same indictment. And I think you'd seen that in this Court in Thigpen v. Roberts because in Mississippi there was a DWI prosecution and a homicide prosecution. And I believe, during the argument... oral argument it was discussed that traditionally in Mississippi you were not allowed to join offenses.
Antonin Scalia: Uh-huh.
Bridget R. Steller: --And that results from the common law traditions.
Antonin Scalia: And what does that prove?
Bridget R. Steller: Well, Your Honor, you asked me about a historical analysis--
Antonin Scalia: Right, right.
Bridget R. Steller: --and I believe--
Antonin Scalia: --well, now how does--
Bridget R. Steller: --that historically you would not have joined a minor offense with a more serious offense.
Antonin Scalia: --Uh-huh.
Bridget R. Steller: Obviously at common law we wouldn't have vehicle and traffic violations, but I think that anything of that nature would not have been joined.
Antonin Scalia: But how does... how does that establish that the only application of this provision of the Constitution is to offenses that have different elements as opposed to later prosecution on the basis of the same facts? I mean, I have no doubt that there is... is substantial historical support for the position that you take that you can't try a person for an offense that includes the same element of an offense already committed and nothing additional. But the issue before us is whether it includes something beyond that, whether it includes using the same evidence as a necessary part of the later prosecution.
Bridget R. Steller: I think that this Court has held previously that it is not... that it is perfectly permissible to use some of the same evidence. I think that that issue was addressed by the court in Vitale, where the Court indicated that it was permissible. In fact, part of Vitale's problem may have been the way it arose in this Court. Vitale came before the Court on a petition for certiorari. This Court granted the writ and remanded to the Supreme Court of Illinois for further proceedings to determine whether it was based on a Federal question... whether their decision was based on a Federal question. The Supreme Court of Illinois then indicated that it was... their decision was based on a federal issue. However--
Antonin Scalia: --But we said in Vitale, although the mere possibility that the state will seek to rely on all of the ingredients necessarily included blah, blah, blah, would not be sufficient to bar. It... it did suggest that if in fact it turned out that the evidence was the same, there might have been a problem.
Bridget R. Steller: Your Honor, I believe the majority opinion in dicta says a substantial double jeopardy claim. But substantial should not be equated with dispositive. Because if it was dispositive, then there would have been no need for a majority opinion. And in the briefs in Vitale which were filed with this Court, the state indicated what its evidence was going to be. Also, although the Supreme Court of Illinois had indicated in its opinion that the failing to slow... which was the motor vehicle violation... was a lesser included offense of manslaughter... which is the charge that Respondent Vitale was charged with following his vehicle and traffic trial, during oral argument, Respondent... in this Court... Respondent Vitale's counsel conceded that it was not the lesser included offense. But I think the issue there... and I think we addressed it in our... our brief, if I may refer to it... at page 17, the term "the" in your opinion, immediately preceding the reckless act, implies that you might have been concerned based on the Supreme Court of Illinois's opinion that the prior conviction for failing to slow would always be an element of involuntary manslaughter. Here that's not the case. We are... we clearly have separate offenses with separate elements.
John Paul Stevens: Ms. Steller, may I ask you two questions? One, do you know what happened in Vitale after we sent it back for the last time?
Bridget R. Steller: It was my understanding, Your Honor, that the court's... the Supreme Court of Illinois did not permit the prosecution.
John Paul Stevens: I... I just didn't know--
Bridget R. Steller: I think that was the decision, but their decision also was... in the case that was before you, the supreme court's decision was that the failure to slow was a lesser included offense of the homicide.
John Paul Stevens: --Right.
Bridget R. Steller: That is not the way this case reaches this Court.
John Paul Stevens: No, I understand. In this case, as I understand it, we have four different offenses. DWI... I can't remember them... reckless manslaughter, criminally negligent homicide, and third-degree reckless assault... each of which has an element that none of the others do. So under Blockburger... if I understand... let me be sure I have your position. If the state elected to, it could take them one at a time, prove him guilty of DWI, then try the second case for reckless assault, prove him guilty of that, and prove him guilty of the third one for reckless manslaughter and then go ahead with the fourth trial. So, under your position, if I understand you correctly, you're entitled to four separate trials. Is that right?
Bridget R. Steller: No, Your Honor, that's not quite my position. Because under state law I recognize that there is a joinder provision. I would concede that all of the homicide counts would have to be tried together.
John Paul Stevens: No, I'm not talking about state law. I mean as a... there would be no Federal constitutional objection as long as you get four separate offenses each of which has an element different from the others, even though they have certain common elements. Under your view of Blockburger, I think, just as you could try one or two, you could also try all four. You could have four trials here.
Bridget R. Steller: We would have to have... if I understand your question... there would be a potential for a failure to keep right trial, a driving while intoxicated trial, an assault trial and a homicide trial.
John Paul Stevens: Correct. Because each has an element that... a statutory element that the other... that none of the others has.
Bridget R. Steller: That's correct, Your Honor.
John Paul Stevens: Yeah.
Bridget R. Steller: However, I realize that New York has a compulsory joinder section which would have--
John Paul Stevens: Oh, I understand, and they've thrown out two of your seven counts for that reason... or three... or two or three, I can't remember.
Bridget R. Steller: --Yes, Your Honor, the driving while intoxicated counts which were included, and I believe either one or two of the vehicular manslaughter counts. We're not arguing about the vehicular manslaughter counts here.
Anthony M. Kennedy: But... but your answer is there would be no Federal constitutional impediment to the four trials?
Bridget R. Steller: No, Your Honor. Under Blockburger and under Vitale I do not think there would be a Federal constitutional bar.
Antonin Scalia: Even though the same evidence is introduced and... and the core of all of them is whether... really, whether, he was driving under intoxication. And he's acquitted in the first three... the first three juries find that there's... they just can't find beyond a reasonable doubt that he was, but you finally get a fourth jury who finds otherwise. That doesn't trouble you at all?
Bridget R. Steller: Well, Justice Scalia, I think there is an issue here, and that is what was the issue before the jury. And I think you've already decided that. In a case where a person was charged with committing six robberies and there was trial on four of them, and the defense being that only... that the defendant had not participated. I think this Court said that the people could not proceed with that... with that additional robbery prosecution because the jury had necessarily found that the defendant was not the robber. However, that's not the issue here. The issue here, in a... in a potential for four trials, would be, did the defendant... number one, was he intoxicated, number two, did he fail to keep right.
Antonin Scalia: Right.
Bridget R. Steller: But assuming... even if you assume that he was not intoxicated, I think that the prosecution could still go forward on the homicide theories because there are other elements here. There is an element of driving his vehicle into the opposite lane of traffic, and there's a substantial overlap of vehicles. And I think it would be up to the jury to consider the other elements of whether the defendant acted recklessly or did he act with criminal negligence, and then, was the death the result of his reckless conduct or his criminal negligence. Similarly with the assault count. It would be did he cause physical injury and was his conduct reckless? This is not a case where--
Antonin Scalia: Well, what... what you are now saying gives me cause to wonder whether your response to Justice Kennedy was correct earlier. I thought we had established that it... under the... under the indictment here it was clear that the state was going to use as a principal part of its case the... the intoxication.
Bridget R. Steller: --Your Honor, that would be some of the evidence introduced at this trial. However, the jury would be free to accept or reject it.
Antonin Scalia: You're saying it's not an essential part of its case?
Bridget R. Steller: No, I don't believe that it is.
Antonin Scalia: That it can win its case even... even if he's... even if the jury doesn't believe he was intoxicated?
Bridget R. Steller: The jury--
John Paul Stevens: But that's not what the court of appeals said. "Thus, unlike Illinois Vitale, there's no need in this case to await the trial to ascertain whether the prosecution will rely on the prior traffic offenses as the acts necessary to prove the homicide and assault charges. "
Bridget R. Steller: --Your Honor, the evidence--
John Paul Stevens: It seems to me that's--
Bridget R. Steller: --that goes to the--
John Paul Stevens: --somewhat inconsistent.
Bridget R. Steller: --evidence which would we... which the prosecution would intend to adduce at the trial.
John Paul Stevens: Well, they said as the--
Bridget R. Steller: However--
John Paul Stevens: --acts necessary to prove these charges. That's what the court of appeals has construed it.
Bridget R. Steller: --We would have to introduce evidence. The jury... it would be up to jury to credit the evidence. And that's part of the problem with analyzing double jeopardy after a second trial. Because you don't know what evidence the jury credited at the first trial in many cases, and you don't know what evidence they credited at the second trial.
John Paul Stevens: Well, I think you may well be right that if there was an acquittal that would bar farther... future prosecutions. But my hypothetical was four successive victories by the state. They take the easiest... lowest one first, get a... a victory, and then I think under your theory there would be no bar of res judicata or collateral estoppel. You'd just... you'd just add another element and get another... another conviction.
Bridget R. Steller: Well, that's just another--
John Paul Stevens: So I think you could get four separate convictions under your theory.
Bridget R. Steller: --Well, it's not just another element, Justice Stevens, because we would be deleting other elements.
John Paul Stevens: Well, not as I read the court of appeals' opinion. I mean, maybe I misread it, but I--
Bridget R. Steller: I'm sorry, Your Honor, but it seems to me that under the counts of this indictment, if you read the statutory language, as this Court has indicated should be done in its opinions in Blockburger--
John Paul Stevens: --Yes, but you have to read the bill of particulars too and the--
Bridget R. Steller: --Then you're--
John Paul Stevens: --construction that your state court puts on the bill of particulars. That's all part of the case.
Bridget R. Steller: --Then you are looking at the evidence adduced, and that's the problem, we believe, with the state court's opinion. We are asking you to reverse that opinion because we believe they have misconstrued your opinions concerning double jeopardy, that being that you do not look at the evidence which will be adduced, you look at the statutory elements and conduct a statutory analysis.
John Paul Stevens: But... but you're saying that when you do that, you can do it even if it's precisely the same evidence in each case. That's your legal position. I... I mean, it certainly... it's... it's a permissible argument.
Bridget R. Steller: That's true. And this Court has said, even if there is a substantial overlap in proof it doesn't--
John Paul Stevens: Even if it's an entire overlap. That's the point. You can be completely overlapped, and you still... you still win under your legal theory.
Bridget R. Steller: --As a general rule, yes, Judge. But here, this case that comes before you is not limited to the identical evidence. There are other elements here. Obviously, the speed at which the defendant was traveling would not be relevant on his failure to keep right charge. So there are different elements as you analyze the statutory elements, and some evidence, which is indicated in the bill of particulars, would not be included, just as the defendant's blood alcohol level would not be relevant at a failure to keep right trial.
Antonin Scalia: But... but we have to evaluate your legal theory on the basis of what results it could produce, not just the results it might happen to produce in this case. And you acknowledge that... that your legal theory can produce the result that Justice Stevens described.
Bridget R. Steller: That's correct, Your Honor. I would suggest to you that in the... you have indicated that society has an interest in law enforcement, and in enacting 1800(d) of the Vehicle and Traffic Law, the New York State legislature had a right to consider how the vehicle and traffic laws were to be enforced and how they would affect society. Now, vehicle and traffic laws can give rise to a variety of minor offenses. Not all of them require intervention of a prosecutor. In fact, the vast majority of New York cases would not require the intervention of a prosecutor. In most cases, the district attorney would not even receive notice of a vehicle and traffic offense. But if the prosecution for a homicide was barred by a prosecution for a vehicle and traffic offense, society would be at a loss because of that, and the defendant would basically be getting a windfall. And I don't believe that that was ever the intention of the double jeopardy clause. Mr. Chief Justice, I'd like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Mrs. Steller.
Bridget R. Steller: Thank you.
William H. Rehnquist: Mr. Farrell, we'll hear now from you.
Richard T. Farrell: Mr. Chief Justice, and may it please the Court: This is a case of bad draftsmanship. The Fifth Amendment was poorly drafted. It doesn't tell us what the term offense means. As a matter of fact, it even spells it differently than the modern spelling. We find ourselves in this case, once again, after lessons of Blockburger and Vitale; the nonlesson, if you will, of Thigpen v. Roberts; the recessed lesson of Fugate v. New Mexico, addressing before this Court, the question of what the term "same offense" means. If Blockburger is the sole test, I'll sit down. Because I'm through. I lose. Corbin goes to trial. Because the Court of Appeals of the State of New York acknowledged that if the Blockburger test, analytical approach... call it what you will... is the way that one determines what the Fifth Amendment proscribes, then as to the... I keep on losing track of the numbers of these things... three of the counts of the indictment survive a Blockburger-based analysis. In this case if Blockburger is the law, if Blockburger is all that the Fifth Amendment requires, then this case goes back to New York State Court of Appeals on remand and the court of appeals will do that voodoo that they do so well on remand from this court and decide the question on state constitutional law grounds, and they may come to the same result, they may not. The good Lord only knows. I sure don't. But insofar as the historical exegesis that one of Your Honors asked for, there are two things. Deeply rooted in the double jeopardy clause is the ancient... it must be an ancient maxim because it's in Latin "Nemo debet bis vexari pro eadem causa. " And if it's in Latin, then it's got to be old.
William H. Rehnquist: Well, it may be Latin and old, but how do we know it's deeply rooted in the double jeopardy clause?
Richard T. Farrell: Well, Your Honor, I'm going to have to take the word of the historical exegesis done on several occasions by this Court and by some of the law review writers that track the idea of a proscription against double jeopardy, as we call it now, back to at least Demosthenes' times, about the three centuries before the common era. And flowing from that and taking the well-known classical rootings of many of our Founding Fathers that they... we can assume that they were familiar with these deep historic roots, one could probably, even if you wanted to push it further, run the whole idea back into Scripture. When Daniel was released from the lions' den, the lions were not given a second chance at Daniel. Thomas Corbin went into the lions' den, and now the lions say we want to get another chance at him. These lions of the District Attorney's office in Dutchess County, taking an... a fatal accident that occurred on October 3rd of 1987... one of these lions, on October 14th, 1987 sent off to the defendant, Thomas Corbin, the document that appears on page 5 of the joint appendix, a document that was issued out the Office of the District Attorney in Dutchess County, signed on behalf of Mr. Grady, the Dutchess County District Attorney, by one of his assistant DAs, a Mark Glick, "please take notice that pursuant to Section 3030 of the Criminal Procedure Law that people indicate their readiness for trial in the above-captioned case. " The above-captioned case, on October 14, 1987 was the People against Thomas Corbin for driving while intoxicated as a so-called common law count under the VTL, and the People against Thomas Corbin for failing to keep right under another provision of the VTL. These are the two tickets he was issued. Having delivered themselves of this statement of readiness--
Antonin Scalia: Mr. Corbin had killed somebody, hadn't he?
Richard T. Farrell: --Yes, sir, he had killed somebody and a member of the DA's--
William H. Rehnquist: Just... just... just a minute Mr. Steller. When a Justice answers... Mr. Farrell, when a Justice asks you a question, you... you don't say, yes, sir.
Richard T. Farrell: --I beg your pardon.
William H. Rehnquist: And I... I suggest you adjust your entire demeanor to that of a court.
Richard T. Farrell: Yes, Your Honor. Thank you for your correction. Your Honor, the district attorney's office was aware, through the agent that was on the scene of the accident, that this accident had caused a death. It knew through its agent on the scene at the time... at the time... that there had been a fatality. Their office proceeded in one direction, and that was to prepare the case for presentation to a grand jury. But incident to that... incident to that... they indicated quite early on, within two weeks after the fatality, that they were prepared to prosecute on the tickets. Defense counsel appeared before the LaGrange Town Court on a date set by the court, set by the court, and entered a plea of guilty to driving while intoxicated. The town justice, not wanting to enter or make any sentence on that date, adjourned the case to a night when the district attorney's office was scheduled to have one of its representatives present. One of its representatives, Assistant District Attorney Sauter, showed up on the night set by the court for sentencing, unarmed with any information about case except what she could find in the court file, and in the court file all that was there were these two tickets. Justice Caplicki imposed sentence, a $350 fine, suspension of license, driving school. And six weeks later... six weeks later... the district attorney's office, or more precisely, the grand jury in Dutchess County, returned the indictment that gave rise to the initiation of the proceedings in this case, where the counts in the indictment were challenged both on state law grounds and under the double jeopardy clause of the state and Federal constitutions. The county court judge rejected the motion on the ground that somehow the defendant was guilty of procuring his own conviction, repelled division the second departments, Appellate Supreme Court of the State of New York, and proceeding in the nature of prohibition, dismissed, without any comment, and the case went to the New York State Court of Appeals. And then the New York State Court of Appeals, writing for a four-judge majority, Mr. Justice Titone held that although certain... the first... the manslaughter vehicular homicide or the vehicular assault charges in the indictment survived, a Blockburger-based analysis taking hold of the language in this Court's opinion in the Vitale case, the majority's observation that if the same evidence were to be used to support the prosecution on the homicide charges, there would be a substantial constitutional question. And seizing upon also, the language in the... excuse me... dissenting opinion, that to quibble with the characterization of the substantiality of the constitutional question, would rather simply be dispositive of the constitutional question held that Blockburger notwithstanding the prosecution in this case is barred under the double jeopardy clause as read by the court of appeals through its perception of the view of this Court as barring further prosecution. And it is on that holding that we come to this Court. It seems that of the protections of the Fifth Amendment this particular aspect... as I have mentioned... perhaps over-enthusiastically, and I apologize for that... this problem... this specific problem emerges in Vitale and has progressed through Thigpen where the Fifth Circuit in the Thigpen case in the decision below mounted the sort of analysis that we suggest ought be followed, that was followed by the New York State Court of Appeals, that was followed even more recently in a case we cite somewhat frequently in the brief, Connecticut decision of State v. Lonergan, to first parse the statutes themselves as written, the two statutes that are said to create the double jeopardy problem. If the two statutes do not survive a Blockburger-based analysis there, the double jeopardy inquiry ends, and the double jeopardy clause precludes prosecution... a second prosecution. The prosecutor, and I suspect, any prosecutor... certainly if I were a prosecutor... would look to have the inquiry end right there. And if that's where the inquiry ends, then that's where the inquiry ends. But it seems, from Vitale, and maybe perhaps by precursor language in the Brown case a few years before Vitale, that Blockburger is not the answer. Blockburger is an answer, an answer. The answer as to what the simple language, the simple, but as events since the adoption of the amendment indicates, complex problems presented by the double jeopardy clause lies in looking beyond the definitions, looking to the underlying idea, as this Court has said back in 1957 in the oft-quoted language of Green v. the United States, looking to the deeply ingrained idea that the state with all its power should not be allowed to make repeated attempts to convict an individual. Even earlier... I take that back... at approximately the same time that that statement was made by this Court in its opinion in Green v. the United States and a case decided a few years earlier, Brock v. North Carolina, writing at a time before the incorporation through the Fourteenth Amendment of the Fifth Amendment into the jurisprudence of the states, Mr. Justice Frankfurter in his concurring opinion said that in a due process analysis... in a due process analysis... fairness indicates that a prosecutor who has been incompetent or casual or even ineffective shouldn't be given an opportunity to see if he or she cannot do better a second time. It is the second time aspect that raises the question of whether there isn't even a third level beyond which the prosecution must pass before the prosecution is allowed the proceed to try the defendant again on a second charge where the factual matrix that gives rise to the second charge is sensibly indistinguishable from the first prosecution.
Antonin Scalia: Of course, to agree with Frankfurter and Brock we don't have to adopt the rule that you're proposing. It's enough to... to support that, that you... if... if you're acquitted the first time, you can't then bring the same evidence that the jury has rejected the first time around back. Frankfurther says to see if the prosecutor cannot do better a second time.
Richard T. Farrell: Well--
Antonin Scalia: The prosecutor is not trying to do better here. He won the first time; he's trying to win again the second time.
Richard T. Farrell: --Mr. Justice Scalia, doing better does not necessarily mean trying to win again. But doing better can also, and as it does mean very often the civil context of res judicata cases, trying to get a better result, to enhance the outcome of the first case. Trying to do better in the kind of callous calculus of the criminal law, a... oh, good heavens... a conviction for a, let's say, second-degree crime could be considered not doing as well from the prosecutor's point of view as getting a conviction for the higher, the first degree, of that. And I think the language bears the fair construction that an attempt to do better is not only to try to convict the defendant who has once been acquitted, but to perhaps try to do better by convicting a defendant who's been once acquitted on a charge that arises out of the same operable set of facts, by convicting him over yet a higher degree of crime.
William H. Rehnquist: Mr. Farrell, what if the death here had occurred several months after the... after the accident so that at the time your client was prosecuted for the misdemeanor charges in the justice court there had been no death?
Richard T. Farrell: It's... it's quite clear, Your Honor, in the cases both of the state and in this Court, that if the prosecutor does not have available all of the information needed to mount the particular prosecution under attack, then the double jeopardy clause allows a prosecution as... as I understand your hypothetical, the so-called later-death cases.
William H. Rehnquist: Now, how... how... how does that fit in under your version of the... the same-evidence test?
Richard T. Farrell: The same-evidence test, as we would envision it being applied in this case, would be to take a look at the situation as the prosecutor knows it at the time that first guilt-imposing proceeding is ready to go to adjudication. And if we were to take that in this case, and look at what the prosecution knew... knew... when the defendant went before the court, the prosecution knew that it had evidence of intoxication. It knew that it had evidence of death. It knew that it had at least a pretty good reason to consider presenting this case to the grand jury. Because we are told by the prosecutor, Your... Mr. Chief Justice... that while these matters were percolating through the justice's court, the district attorney's office wasn't completely asleep in this case. They had retained an accident reconstructionist. They were having analyses done on the blood. They had impounded the cars that were involved in the accident.
William H. Rehnquist: Under your theory, I take it, if the state were to have come several months later on evidence of intoxication which it didn't have at first, then there would be an exception for that too just like there would be for a later death?
Richard T. Farrell: It would be difficult to imagine how that could happen, but I think that--
William H. Rehnquist: Well, just take it as a hypothetical. I mean, there seemed to have been enough slip-ups in this case so we can envision one more. [Laughter]
Richard T. Farrell: --Okay. Including mine, Your Honor, which I apologize again.
Antonin Scalia: They lost the blood sample and they find it.
Richard T. Farrell: That one, Your Honor, I think I would have to say they had the information at the time. They had it. They had it, or they had it or they had it readily available. In the after-occurring death cases, the prosecution may have... and certainly no prosecutor's going to be sitting around saying, gee, I hope this victim dies so I can prosecute this guy for manslaughter. That's... that's horrible. But if this is what eventuates, if the prosecution moves ahead and moves ahead speedily and moves ahead intelligently and gets the conviction for what is... move it up from driving while intoxicated, let's move it up to a high-level felony assault... and then the victim dies, it's quite clear under the law of practically every state that I can confess to even some nodding acquaintance with... it's quite clear within the context of the cases decided by this Court that in the situation where the death of the victim whose injuries were the subject of an original criminal prosecution, the death occurs after... after conviction of the assault-level charges, there's no problem. There's no double jeopardy consequences, if for no other reason, there is no possibility of ever being put in jeopardy for that particular crime at the time of the original proceedings. That crime had one regrettable element that could not have been... could not have been asserted in the original proceeding. In this unhappy case, all the information that was needed was there or readily obtainable and sitting there ticking away in the criminal procedure law of the State of New York is CPL 170.20. CPL 170.20 gives the district attorney's office, so positioned as the District Attorney's Office in Dutchess County found itself with this case, the absolute right to go into a court like the LaGrange Town Court, move for an adjournment on the ground that there is an intention to submit the case for indictment. And the statute quite clearly says that the judge, Justice Caplicki, in this case, must grant... must grant--
William H. Rehnquist: Well, let me ask you another question. Supposing you're in a jurisdiction where the state was not obligated to or didn't in fact submit a bill of particulars. How would you handle your same evidence test on a double jeopardy argument if... if the state indicts on the... on the greater offense?
Richard T. Farrell: --If we were to replicate this case in Illinois... in Illinois, where apparently this is not necessary because that is how Illinois v. Vitale got here... if we were to replicate this case, like your hypothetical case, Mr. Chief Justice, who are in Illinois, I would suggest that the approach taken in Vitale might have to be re-examined and to look at... and look for... look for... for this Court to look for in the proceedings in the lower courts the motion to dismiss, let us say, the second indictment, any hearings that are held on that second indictment... to look for the defense... the defense... to establish beyond at least any reasonable question... not beyond a reasonable doubt... but to establish clearly that the prosecution can move ahead only on the same evidence.
William H. Rehnquist: Now, how would the defense go about establishing that? Would they call the prosecutor to the witness stand?
Richard T. Farrell: I suggest, Your Honor, if we take it in this case I think we could probably call the investigating officers, we could call forth the blood--
William H. Rehnquist: Well, they... they could certainly give you testimony as to what happened, but I would think there would be no guarantee that the state would necessarily use all the testimony of the investigating officers.
Richard T. Farrell: --No, Your Honor. But in a very simple, straightforward... on terms of the factual context... situation like the one presenting us in this case... I think the simple... I think that the defendant could probably meet my rather favorable standard in the course of the defense by demonstrating the reasonableness... the reasonableness... of the assertion that there is no rational conclusion to be reached except that the same evidence that the same evidence that has already convicted me will be part, parcel, if not all of the essential meat and potatoes of the prosecution's case against me on this second go-round. I'm quite mystified that the Illinois Criminal Procedure Law is equivalent... doesn't permit the kind of liberal disclosure in advance of trial that is permitted under, as I understand, in the Federal rules of criminal procedure. It certainly is required or permitted under Article 240 of the Criminal Procedure Law in New York. There might be a little preliminary digging that might have to be done by the defendant to make out the same evidence argument, but I don't think it is that terribly difficult a problem for... it would not be a terribly difficult burden to impose upon defendants to bear the... if not the onus probandi, at least the burden of persuasion that the same evidence will be used in the second prosecution. And then... and then... and then we have set the stage for the preliminary attack on the second trial which this Court has since Abne has indicated that it is the only successful or satisfactory way of resolving the problem confronting a defendant under the double jeopardy clause. And that is it's all very well and good to say that it was a double jeopardy clause, but if you want to establish the double jeopardy argument the defendant has to undergo the travail, run the gauntlet, if you will, to borrow off the language of this Court, of the second trial to make out his or her double jeopardy argument, the double jeopardy clause becomes a rather unhelpful piece of the Bill of Rights as to--
Anthony M. Kennedy: Well, it seems to me that's the consequence of your test. That we're not... unless you adopt the transaction test... but if... if you adopt something short of that, as you propose, you're not going to know about double jeopardy unless, one, you wait for the second trial to actually proceed, or, two, you have some sort of mandatory bill of particulars.
Richard T. Farrell: --Well, Mr.... Mr. Justice--
Anthony M. Kennedy: And I'm... I'm not talking necessarily about this case because we seem to know in this case what's going to happen.
Richard T. Farrell: --Yes, Mr. Justice Kennedy, if we were to be willing to rest on a Blockburger first, same... evidence test second, then the problem of the same transaction would not be solvable. But the thrust of our brief is that there are at least three identifiable in the jurisprudence of this Court... three identifiable tests... screens, if you will... filters, through which the prosecution must pass.
William H. Rehnquist: What is the third? What is the third... was the third one the same-transaction test?
Richard T. Farrell: The third one is the same transaction test, Mr. Chief Justice.
William H. Rehnquist: That's never been adopted by the Court, has it? It's been rejected several times.
Richard T. Farrell: No, sir, and it has been pointed out that the Court's declination to adopt that test has been characterized in one of this Court's writings as a steadfast refusal to adopt it. But I would like to take the time that's available to me in the argument to suggest that perhaps the steadfastness of that refusal might warrant some reexamination in this case adding a couple of... a couple of additional observations to what has probably been said better, and said, perhaps, more often, and perhaps more articulately than I can say it. But there is, underlying this whole double jeopardy problem a consideration of the fairness to the defendant, who is facing the somewhat awesome power of the court. And it would seem if one were to take general approach of a state statute like CPL Article 40 which says if you've got the material, put it all in one indictment and prosecute. Like the suggestions made in the model penal code that are cited in our brief in opposition to the petition of certiorari, like the cites in the American Bar Association... I think Project for Minimum Standards of Criminal Justice... that where there is, as we also say in the brief in the civil case, the reasonable expectation... the reasonable expectation that... by the bench and by the bar that these claims would all be asserted in a single vehicle, then that reasonable expectation is part of the reasonableness that is inherent in the term fairness. And the fairness that is inherent in the system is translated in this context into a... an adoption of principles of res judicata, collateral estoppel, borrowed quite clearly and liberally from the civil side into this specific problem presented by cases like this.
Thurgood Marshall: Mr. Farrell, before you sit down, what case do you rely on?
Richard T. Farrell: Ashe v. Swenson.
Thurgood Marshall: Thank you.
Richard T. Farrell: Mr. Chief Justice, I apologize, again, for my enthusiasm, my excesses. Thank you very much.
William H. Rehnquist: Very well, Mr. Farrell. Mrs. Steller, you have five minutes remaining.
Bridget R. Steller: Thank you Mr. Chief Justice, and may it please the Court: Mr. Farrell has discussed the issue with fairness to the defendant. In this case the defendant was on noticed by virtue of Section 1800(d) that he could be prosecuted for the assault and homicide in spite of his guilty pleas to the vehicle and traffic offenses. And this is a scheme which must be viewed as also fair to society. In fact, here, prior to sentencing, the defendant knew that the prosecution intended to present this case to a grand jury. This is the defense counsel, who may well have been the only person in the room who knew about it, but he knew about it. The judge and the prosecutor who was present did not. Mr. Farrell has also indicated that this case should be governed by New York State Criminal Procedure Law Section 170.20 which provides that the district attorney may stop any justice court proceeding. That is a general provision of the criminal procedure law of New York. The vehicle and traffic provision is a much more specific one. The criminal procedure law presumes that the district attorney will know about a case. The vehicle law recognizes that vehicle and traffic is slightly differently, and that because--
Byron R. White: Well, this hasn't got a whole lot to do with our double jeopardy question, does it?
Bridget R. Steller: --I think it does, Your Honor.
Byron R. White: Does it really?
Bridget R. Steller: I think that this Court in deciding this case has to craft a rule which will be fairly simple and can be applied in all 50 states. And I think that there are many cases, not just in New York, but also in... I... I think Connecticut is specific to this... that it's possible in a vehicle and traffic charge for the district attorney to have no notice and to have somebody plead guilty by mail. Similarly, I believe, New Jersey can do this. But here, if you look at it, the district attorney had no notice that this case was on the calendar in LaGrange on October 27th. That is the day the plea was entered. And without notice of the date of the appearance that the defendant was supposed to be in court, there would have been no requirement that the district attorney present--
Thurgood Marshall: Well, isn't all of this, the people of New York?
Bridget R. Steller: --If you are to presume--
Thurgood Marshall: You only have one state.
Bridget R. Steller: --That's right, Your Honor.
Thurgood Marshall: And... you... the state speaks with one voice.
Bridget R. Steller: That's right, Your Honor, but the district attorney is charged with--
Thurgood Marshall: xxx all prosecutions?
Bridget R. Steller: --That's right, Your Honor, and the district attorney--
Thurgood Marshall: So what is your problem? If he... if he makes a mistake?
Bridget R. Steller: --It's not just a mistake, Your Honor. Even in the absence of a mistake--
Thurgood Marshall: If he doesn't know what's going on?
Bridget R. Steller: --Even in the absence of a mistake, Your Honor--
Thurgood Marshall: If he doesn't know what's going on, who gets blamed? Do you... you don't think that the defendant is obliged to tell the prosecutor, prosecute me?
Bridget R. Steller: --No, I'm not saying that, Your Honor.
Thurgood Marshall: You don't put that on him, do you?
Bridget R. Steller: I'm not saying that, Your Honor. But what I am saying is that the district attorney is entitled to a fair opportunity. And if he has no notice of the date on which the appearance is scheduled, or on the date that the plea is entered, he can't stop it.
Thurgood Marshall: He did get notice.
Bridget R. Steller: No, Your Honor, he didn't.
Thurgood Marshall: He didn't for six months?
Bridget R. Steller: Your Honor, he had no notice on the night the plea was entered that the case was even on the calendar.
Thurgood Marshall: Well, wasn't it in the newspapers?
Bridget R. Steller: Judge, I don't think you can presume--
Thurgood Marshall: Wasn't it in the newspapers?
Bridget R. Steller: --Yes, Your Honor, but as a practical--
Thurgood Marshall: Well, did... didn't that tell him what was going on?
Bridget R. Steller: --I don't think that this Court... I don't believe that this Court can presume on this record that anyone in Dutchess County read the newspaper on the morning of October 4th. And I believe, specifically--
Thurgood Marshall: Well, then did it... do you have news--
Bridget R. Steller: --There is a--
Thurgood Marshall: --Just to speak for myself, do you have newspapers in Dutchess County?
Bridget R. Steller: --We do, Your Honor, but I--
Thurgood Marshall: Well, if you have them, I assume somebody read them.
Bridget R. Steller: --Your Honor, on the morning of October 4th... this is referred to in the district attorney's answer in the county court to the defendant's motion to dismiss the indictment. There was a blizzard. There's a state of emergency here. And I don't think you can presume that anybody in Dutchess County read the newspaper, just as I don't think that anyone on this Court can presume that somebody in Charleston read the newspaper the morning after Hugo struck.
Thurgood Marshall: There was a storm yesterday, and I read the newspaper.
Bridget R. Steller: Your Honor, I don't... this is October 4th in the Mid-Hudson Valley. The leaves are on the trees. It's not just a snow storm. It was a blizzard. And if you think about the effect of a blizzard when you have leaves on the trees--
Thurgood Marshall: I am unwilling to write any constitutional law based on a blizzard. [Laughter]
Bridget R. Steller: --That's correct, Your Honor. On the other hand, there's no constitutional law that you can presume that somebody read the newspaper.
William H. Rehnquist: Thank you, Mrs. Steller. The case is submitted. The honorable court is now adjourned until Monday next at ten o'clock.


Warren E. Burger: We will hear arguments next in 1303, Bishop against Wood. Mr. Smith, you may proceed whenever you are ready.
Norman B. Smith: Mr. Chief Justice and may it please the Court. I am Norman Smith from Greensboro, North Carolina, the counsel for petitioner in this case. Petitioner is a former member of the Marion North Carolina Municipal Police Force. He was dismissed on March 31, 1972 after nearly three years of uninterrupted service as an officer. He had achieved permanent employee status after successfully completing a six-month probationary period. Certain aspects of the Marion personnel ordinance relate to discharge procedure, which I will discuss in a moment, and certain reasons were given to Mr. Bishop for his discharge, which I shall also discuss presently. This suit was instituted in the United States District Court for the Western District of North Carolina alleging wrongful discharge without notice and hearing. Cross motions for summary judgment were filed. The District Court granted the respondent’s motion. The matter was brought to the United States Court of Appeals for the Fourth Circuit where a 2:1 carrying panel decision was in the respondent’s favor and it was reheard en banc and affirmed by an equally divided Court. This petition was granted and, now, the case is here. The case, we think, is very critical and that it involves applications of principles announced by this Court in Board of Regents versus Roth and Perry v. Sindermann, as further explicated in Arnett versus Kennedy. First of all, we contend that the petitioner had property rights grounded in statute which gave rise to procedural--
William H. Rehnquist: Mr. Smith, let me call your attention on page 19 of your petition for certiorari, a part of Judge Jones’ opinion in the District Court where he says in about the third paragraph on that page that the page, that one little sentence paragraph. “It further appears that the plaintiff held his position at the will and pleasure of the city.” I read that as an interpretation of local ordinance and the state law that was affirmed by the Court of Appeals. How do you get around that in view of the language in Roth and Perry that these kinds of things arise as a matter of state law and are regulated by state law?
Norman B. Smith: I do not think this case has said that a United States District Judge is a Court of last resort as far as determining what state law is and--
William H. Rehnquist: But, here, you have got the District Judge in North Carolina who is presumably a North Carolina practitioner before he took the bench. You have got a panel of the Fourth Circuit which deals with North Carolina who are all much more regulated than we do. Are you asking us to second guess those two Courts on what Carolina law is?
Norman B. Smith: The record is before the Court and we submit there is nothing intuitive about North Carolina law that it is written and whatever it applies is here and we think the Oral Court is manifestly wrong on the record of this case.
William H. Rehnquist: But do you do want us to reach a contrary result on the question of North Carolina law as to that reached by Judge Jones?
Norman B. Smith: Absolutely, we think there is nothing in the record that supports his conclusion that petitioner held his position at the will and pleasure of the city. The Court of Appeals wrote no opinion on the matter. The only opinion written by the Court of Appeals was Judge Winter’s, in my judgment, compelling a dissenting opinion. Four out of the seven judges in active service would have favored my position. Now, the statute in question--
John Paul Stevens: Before you leave that point, the respondent’s brief cites a couple of North Carolina cases at page 11 of their brief.
Norman B. Smith: Yes, sir.
John Paul Stevens: In which they say they stand for the proposition that the contract is terminable at will. You did not discuss those cases in your reply brief. I wonder if you plan to discuss today.
Norman B. Smith: If Your Honor will please, our view those of cases as having to do with private employment and employment in the absence of one; a personnel ordinance, such as we have here, or anything analogous to it in the way of contract and, two, in the absence of a fixed probationary period with a maturation into a permanent employment classification and, thus, I feel the cases just deal with a common law of employment in the absence of agreement and ordinance to the contrary and are not controlled.
John Paul Stevens: On the basis the statute is giving your plan some kind of--
Norman B. Smith: Primarily, yes, sir. The statute and practices of the city.
Warren E. Burger: Mr. Smith, is it customary for the Fourth Circuit in the 4:4 affirmance by an equally divided court for some of the judges to write as the dissenting opinion of--
Norman B. Smith: If Your Honor please, the dissenting opinion was produced by Judge Winter when there was a hearing panel of three. No opinion came out of the 4:4 decision. We assume that Senior Judge Bryan was consistent.
Warren E. Burger: When the en banc hearing was granted that washed out everything that had gone before in the panel, did it not?
Norman B. Smith: I presume so. Nonetheless, I think Judge Winter’s opinion is very persuasive simply because of Judge Winter’s reasoning and I think that it should be regarded by the Court as being correct. The ordinance in question, it is very brief and I thought I would read it. A permanent employee whose work is not satisfactory over a period of time shall be notified in what way his work is deficient and what he must do if the work is to be satisfactory. If a permanent employee fails to perform up to the standard of the classification held or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the city manager. To us, it is very clear that this ordinance establishes four causes for dismissal. One: work not up to standard, two: negligence, three: inefficiency, four: unfitness for duty. And, next, we think it is very clear that this ordinance establishes certain prerequisites to dismiss procedural prerequisites. One, that there must be a notification of the deficiency and, two, a continuance of the performance in a deficient manner and, three, a statement of explanation.
John Paul Stevens: Now, that, you in fact read into the language that you read to us. Would the part of the ordinance, the last sentence of it, that you did not read to us rather cast in some question what you read between the lines because it explicitly says what a discharged employee shall be entitled to. Would that not indicate he is not entitled to anything else? Any discharge employee shall be given a written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice.
Norman B. Smith: That is correct, sir. We think that is an additional procedure that has to be undergone and I will undertake to discuss in a moment. I could now, if the Court wished. Why we feel that the very minimal procedures set forth in Section 6 are not binding in the determination of the substantive rights that are created by that Section. I feel that, at least the six justices of this Court in the Arnett case would so hold. Now, the respondent concedes at page 10 in their brief that the ordinance is mandatory as to notification. This concession is very important. They say it is mandatory as to notification of a deficiency in performance.
Potter Stewart: In any event or only if requested by the--
Norman B. Smith: No, I am not talking about the police discharge notice. I think, I am interpreting the respondent’s brief correctly. On page 10, first sentence, “although the ordinance is mandatory with respect to notifying employees of areas of deficient performance, it is merely permissive as to their dismissal for failure to perform.” So, the mandatory provision conceded by the respondents is that requiring the pre-discharge notice. In other words, the notice that must be followed by an opportunity to reform and demand one’s conduct. The District Court assumed, on 15 of the certiorari petition opinion, that the ordinance had been fully complied with. Of course, we think that assumption is manifestly incorrect for reasons which we will state in a moment. But once it is established by the concession made by the respondents and by the assumption of the District Court that it is necessary to comply with certain procedures before terminating a public employee’s employment then we think the property rights are confirmed. The property rights that bring due process considerations into play are confirmed. We have an alternative argument which I will rely upon the briefs and will not take the Court’s time. The fact alone that this employee was classified as a permanent employee after six months probationary service, that, alone we feel gave him a property right to which the Fourteenth Amendment --
Warren E. Burger: (Inaudible)
Norman B. Smith: Yes, Your Honor. Thank you, sir.
Warren E. Burger: You may continue, Mr. Smith.
Norman B. Smith: Thank you, Your Honor. May it please the Court. I would like now to turn to the Fourteenth Amendment liberty interest that we feel are identified in this case in which we think provide an equally alternative basis for procedural due process requirements. At the time of the discharge, the chief and the city manager refused to discuss their reasons with petitioner as to why he was being let go. Later, upon request and in accordance with the ordinance that we have cited, a written statement of reasons was furnished stating that petitioner’s work had been unsatisfactory and that he had refused to attend certain schools. Of course, the petitioner takes exception to these and says that these statements are false.
William H. Rehnquist: Was this furnished to petitioner in private, more or less, just by a letter or was it publicly announced?
Norman B. Smith: It was furnished privately in a letter, if Your Honor please. The ordinance says that one may ask for written reasons and the petitioner did so and they were furnished.
Potter Stewart: And at the petitioner’s request?
Norman B. Smith: Yes, Your Honor, and later on when--
Potter Stewart: Be it public record?
Norman B. Smith: Well, under North Carolina law, I am inclined to think they would. We have a very broad public records statute which is not mentioned in the brief but it has only very narrow exceptions and, without going back and reading it, my inclination would be to say that, yes, this would be a matter of public record.
William J. Brennan, Jr.: Is the record available to some new employer if he sought employment after his discharge here?
Norman B. Smith: Yes, sir, certainly.
William J. Brennan, Jr.: There is no prohibition against showing it?
Norman B. Smith: None whatever.
William J. Brennan, Jr.: No requirement that it be shown?
Norman B. Smith: No requirement that it be shown except pursuant to our public records law and I am inclined to think it would be available. The public records law is very explicit and quite simple and quite short, and I am just sorry I do not have the citation in my mind. It is relevant but it, some way or another, did not get into the briefs.
William J. Brennan, Jr.: Mr. Smith, while I have you interrupted.
Norman B. Smith: Yes, sir.
William J. Brennan, Jr.: I gather you make this argument as a reason for reversal apart from the finding of the District Judge that he was not a permanent employee even if he were only a temporary employee.
Norman B. Smith: Precisely, even if he were only probationary or temporary or did not have any property interest, clearly, if his liberty interest was of a constitutional magnitude, he would be entitled to procedural due process.
William J. Brennan, Jr.: Because of the nature of the reasons given at his request why--
Norman B. Smith: Well the initial reasons, no, Your Honor. The initial reasons are not, I think, of the kind that would require that unsatisfactory work, refusal to attend schools. At least, I do not argue that they are sufficient. Perhaps some would, but later when this action was brought in District Court, the Chief of Police under oath, by affidavit, gave his real reasons for discharging petitioner. These were much more serious and did implicate the liberty interest of the petitioner.
William H. Rehnquist: So it was only at that stage, you say, that the liberty interest was implicated?
Norman B. Smith: It was only then that it became disclosed to us, but we must assume that the Chief of Police was telling the truth under oath when he filed his affidavit and we must further assume that he has extra judicial statement not under oath was false, or else he would have been committing perjury.
William H. Rehnquist: Then that leaves you in this position. There was nothing implicated of liberty interest at the time of the discharge or even in response to petitioner’s request for a letter. It was only when you sued them that this came out as a legal defense in their eyes. Do you think that is in the same posture as if they had simply announced it without any lawsuit?
Norman B. Smith: I think whenever one reasonably suspects that his liberty interest have been violated, he can go to Court and ask the person who fired him, under oath, to say what the reasons were.
William H. Rehnquist: But if your liberty interest has not been violated at the time you file a lawsuit and the violation occurs only as a result of another party’s pleading to the lawsuit that you brought against him, do you think that is on the same pleading as if they publicly announced it at the time of discharge?
Norman B. Smith: Well in response to that, Your Honor, it is well known that a lot of times employers will not be candid with employees to their face and say the reasons but it must be assumed, I think, that for prospective employers and others who inquired about petitioner’s conduct I think it must be assumed that the chief would have given these real reasons.
William H. Rehnquist: But is there any evidence that he did, in fact, give them to anybody else before the lawsuit?
Norman B. Smith: No, sir, there is none.
Warren E. Burger: You are confusing me a little now, Mr. Smith. What about that private letter? Do you claim that placed some kind of a stigma on him?
Norman B. Smith: I think it could be argued there that it did, but in canter, I am not satisfied that it did. It said unsatisfactory work and refusal to attend schools. I am hesitant to say that that rises to a liberty interest. Of course, I would not argue with a majority of this Court if they would have not thought otherwise because that would be a very favorable result, but I am unable to argue that in good conscience.
John Paul Stevens: Mr. Smith, what in the affidavit do you contend affected his liberty interest?
Norman B. Smith: Well, there were four things: disobedience of orders, insubordination, causing low morale, and engaging in conduct unsuited to an officer. These are on pages 32-34 of the appendix. And these of course, I think, clearly rise to the level of liberty interest. You are saying that a person is deliberately disobedient. He is insubordinate. He is causing low morality and engaging whatever it is in conduct unsuitable to an officer has a certain moral tinge to it, I think. Now, I think it would be terribly unjust to allow the earlier and now admittedly false reasons to control. I think the true reasons ought to control and I think it ought to be assumed that prospective employers and others who inquired were given the true reasons--
William H. Rehnquist: But there is no evidence in the record that any prospective employer did inquire, is there?
Norman B. Smith: No, there is no evidence. Of course, this case comes up on cross motions for summary judgment and, presumably, if we go to trial this is one of the issues that would be explored. Clearly, it is a relevant and an important issue.
William H. Rehnquist: Did you have an opportunity to do any discovery?
Norman B. Smith: We engaged in very limited discovery and, I must say, that is one line of discovery I did not pursue.
William H. Rehnquist: Are you not supposed to think about it at the time it is in the District Court rather than the time it is up here?
Norman B. Smith: Yes, sir, I concede that neither I or any other lawyer can think of everything in order to be thought of at the trial level and I feel that there are ample reasons for remanding this case for a determination on the merits and that this is one of the things that would come out in the end.
Byron R. White: Arnett v. Kennedy have cited to the Court of Appeals in connection with the en banc request?
Norman B. Smith: The Arnett case I believe, Your Honor, had not been decided at the time en banc consideration was granted. It had just been decided when we argued the case en banc. It was not cited, as I recall, in either of the briefs. I do recall--
Byron R. White: You do not recall the oral argument?
Norman B. Smith: I do recall Judge Russell asking some questions about the Arnett case and I do recall that I was not, at that time, very able to deal with his questions because the case was very new.
William H. Rehnquist: Well, it was reheard en banc, was it not?
Norman B. Smith: That is right, Your Honor. Yes, sir.
Byron R. White: It was actually argued.
Norman B. Smith: Yes, sir, it was.
Byron R. White: It was actually argued and you think Arnett was or was not cited?
Norman B. Smith: Arnett was cited in oral argument. The record would not show that but the recordings of the oral argument in the Fourth Circuit would. It was discussed in oral argument.
Byron R. White: It cited Arnett even on the petition for certiorari.
Norman B. Smith: My memory is in, but if Your Honor says so, I assume it is great. Of course, we did rely on Arnett in our brief. I do feel that this clearly comes under Roth and Sindermann, and that is the reason we are here. I think that those cases should control the outcome of this case. Now, as to whether a mere --
Byron R. White: Could be viewed the same that under state law, even if you could only be fired for a cause, that nevertheless by failing to provide any procedure other than notice and reason that that define the procedural entitlement of the employee.
Norman B. Smith: Yes, sir.
Byron R. White: And that under state law, that is all he is entitled to.
Norman B. Smith: Well, do you think that stands under Arnett. According to Your Honor’s opinion, six members of the Arnett Court and I suppose five members of this Court would hold that once the property or liberty interest is defined by state law that the procedural requirements are constitutionally defined and are not defined by state law. That is my reading of the opinions in Arnett, and we feel quite strongly that this is so that while state law, of course, creates certain rights, it is the Fourteenth Amendment, Due Process Clause that determines how these rights will be adjudicated and how they will be determined in the administrative process. So, we say that the full range of rights from Goldberg versus Kelly and other cases, in other words, a trial type hearing is what is required once the liberty and property interest of constitutional magnitude are identified. The respondents have shown no pressing circumstances such as those present in a prison disciplinary situation or a public high school disciplinary situation that would require any truncating of the due process requirements or any shrinkage of it. We think that there is ample time and proper place when an employee is to be deprived of a job to which he has a Fourteenth Amendment entitlement. We think there is time and place for a due process hearing to be held. Clearly, this was not done in the present case. Now, even if one were to look at the plurality opinion in Arnett and take the position that whatever source of the property interest at stake, that should also be the source for the procedural requirements even if one were to take that view, a view which I submit cannot be taken, still the respondents are deficient and were in violation of petitioner’s rights. In the first place, he was never notified of any deficiency in his work, at least on summary judgment that must be taken because that was petitioner’s evidence, although it was in dispute. Secondly, the written statement did not contain the true reasons for discharge. They contained false reasons. So, we feel that the very procedures outlined by the ordinance were not adhered to and clearly--
Warren E. Burger: Are you saying they are false or they were just not a complete statement of the reason?
Norman B. Smith: Well, it would be--
Warren E. Burger: False?
Norman B. Smith: It would be charitable to say that they were not complete, if one asked for a list of all reasons that he is terminated and he is told that he is terminated because of unsatisfactory work and refusal to attend schools, and later on he finds out that he has been terminated for all these things that implicate his morals and his--
Potter Stewart: Well, are all those detailed things no more than specific ingredients of the generic reason of unsatisfactory work?
Norman B. Smith: I do not think so, Your Honor. I think one can be terminated for unsatisfactory work and get along and it probably does not give rise to a liberty interest, but if the unsatisfactory work consists of deliberate refusals to obey, or insubordination, hostility, all of these sorts of things--
William J. Brennan, Jr.: There is a stigma that unsatisfactory work is not.
Norman B. Smith: Precisely.
Warren E. Burger: My question is would they not be subsumed under the generic reason of unsatisfactory work?
Norman B. Smith: Well, I--
Warren E. Burger: I am suggesting only that perhaps the responses were not mutually inconsistent but one was just a little particular, so to speak, and the other was a more generic reason.
Norman B. Smith: Well, it is conceivable. I view them as being a change of approach and I view them as the Police Chief coming out with the real reasons and reasons which are basically inconsistent with those first disclosed, but they could be regarded as--
Warren E. Burger: Are these set of reasons false?
Norman B. Smith: I think so, if Your Honor please. I think such a material difference makes it clearly incomplete and, in my view, false. I do not think the falsity of the first set is necessary. I think the incompleteness suffices, if those reasons which were not disclosed are liberty-implicating reasons or reasons which carry stigma and tend to degrade the petitioner’s good name, reputation, and honor.
William H. Rehnquist: Well, under your theory, supposing you have a Sindermann type case, where the plaintiff sues claiming a guarantee of some sort of tenure plus a deprivation of First Amendment rights. He was fired for reason impermissible under First Amendment, and no reason is ever furnished at all for his discharge. He is simply discharged and nothing more is said. And then at the hearing on the motion for summary judgment of the case, in order to rebut the First Amendment argument made by the plaintiff, the respondent employer sets forth the real reasons that he discharged you which had not been made known to anybody up to now. Do you think that at point, the employee has an additional claim based on a deprivation of a liberty interest because some of the respondents followed the law?
Norman B. Smith: Yes, sir. I think if the real reasons are stigmatizing that that brings the right to a hearing into play, I do not think that the employer should be allowed to benefit or to be shielded as a result of either his falsehood or his inaccuracy of his first description. I think that is manifesting unfairly.
William H. Rehnquist: It never would have come out unless the employee had brought a lawsuit.
Norman B. Smith: I certainly believe that, Your Honor and I think whenever and however it comes out, if it comes out in such a way as to come within the test set up in Perry and Roth, I think he needs to be accorded his rights.
Potter Stewart: I rather thought that Perry and Roth, it was Perry specifically, that held that if government, the state or federal, terminated an employee upon the purported ground of some stigmatizing reasons such as you are being fired because you embezzled money, that the termination upon that purported and publicized ground is what made it a colorful liberty interests and that what entitled that employee to a hearing to show that although he might have been terminated he did not embezzle the money but here, as my brother Rehnquist suggests, you do not have that situation to describe. You do not have a termination of employment upon any purported stigmatizing ground according to your own submission.
Norman B. Smith: But you have an employer who is covering up and--
Potter Stewart: And at that point that you brought your lawsuit.
Norman B. Smith: When you have employer who is covering up and concealing the truth and you think he is and you bring him into Court and you get him to tell the truth, I think you ought to be able to benefit by whatever the truth is.
Potter Stewart: If that is the truth, then that is the end of it. The only purpose of the hearing is to show that it is not true.
Norman B. Smith: I am talking about the true state of the employer’s mind, the true reasons the employer had, and of course, the due process hearing would determine whether they are in fact true, and we most emphatically deny that any of these charges are true as is set forth in the record.
William H. Rehnquist: What motive does an employee have, he was given no reason for his discharge, to sue his employer in order to induce his employer to libel, really which is what you are saying that he is doing?
Norman B. Smith: If he feels he is being terminated because of his liberty interest, I submit that that is a perfectly valid reason for him to go to Court.
Potter Stewart: He has been by definition under Sindermann if that was not the reason given.
Norman B. Smith: Well, he thinks that is, although that is the reason, it is not but why should he not be permitted to go into Court and have the parties tell the truth about the situation. I feel that it would be just unjust to hold that. One should not be bound by what he says is the truth in Court. I see my time is almost run out and I will save whatever remaining time I have for rebuttal if I may. Thank you.
Warren E. Burger: Mr. Burgin.
Charles E. Burgin: Mr. Chief Justice and may it please the Court. I begin my presentation to this Court with an assumption. I am here in behalf of the City of Marion and its two officials who were sued in their representative capacities under the Civil Rights Act and under the amount in controversy statute 28USC1331. The first assumption that I make is about the reply brief filed by the petitioner. The petitioner has now conceded that the city cannot be reached under 42USC1983 and this case. The second concession that the petitioners made in this reply brief is that the state of the record, at this point, is not sufficient for a proper determination of whether or not jurisdiction exists under 28USC1331 and, unless the Court has some questions with regard to those two matters, and I shall attempt to confine my discussion of the case to other portions of the case. May it please the Court, Mr. Bishop, the petitioner in this case was hired as a policeman by the City of Marion in June of 1969. At the time he was hired, there was no personnel ordinance. This personnel ordinance that we are now talking about was adapted on April 4, 1970, some-10 months later. The petitioner was discharged after having been employed for two years and ten months. He was discharged on March 31, 1972. He, then after, brought suit against the city and he brought suit against the two officials in their representative capacities. Now, we made the point about that in our brief and we have, from the very start of these proceedings. Before I get into that, I have the permission of my brother, Counsel here to advise the Court of two more facts. The Chief of Police, one of the respondents of this case, Mr. Wood was disabled by a stroke and is no longer employed by the City of Marion. He seized working on November 17, 1972. The other respondent, the City Manager, left the City of Marion on November 30, 1972 and has taken a position as City Manager with another city in North Carolina.
Potter Stewart: You represent these two individuals, I take it. You are their attorney nevertheless.
Charles E. Burgin: Yes, Your Honor. Yes, sir. We have contended in part one of their brief that because this suit has been directed against the municipality and against two of its officers and their representative capacities, that the Federal District Court had no jurisdiction under 42USC1983 by its jurisdictional counterpart 28USC1343. We have contended throughout and we do still contend that this suit is not only informed but is in substance against the city, and that these officials who are named, the City Manager and the Chief of Police, are named only in a nominal capacities as representatives.
William H. Rehnquist: What do you mean nominal capacity as representatives?
Charles E. Burgin: That they were the agents of the city, Your Honor, they carried out the provisions of the ordinance. They are named to get to the city.
William H. Rehnquist: Well, but if you take Monroe against Pape, a case like that where they held you could not recover against the City of Chicago, this Court held. You could, I take it, recover against the individual policeman in that case. I would think in your case, although you could recover against the city, you could recover against the named individuals if they were city officials. Monetary damages are sought, as I understand the complaint.
Charles E. Burgin: Your Honor, we take issue with that point. We think that monetary damages are not sought. The Chief of Police, Your Honor, with the--
Thurgood Marshall: I would assume this suit, whoever filed it.
Charles E. Burgin: Well, the--
Thurgood Marshall: Who filed the affidavit?
Charles E. Burgin: The Chief of Police and the City Manager.
Thurgood Marshall: Do you say they are not responsible for that?
Charles E. Burgin: They are responsible for the affidavits, yes, sir.
Thurgood Marshall: They are responsible for firing him.
Charles E. Burgin: They are responsible for firing him only in the sense that they were acting in a representative capacity as only the city could have. They carried out the provisions of the ordinance which was their duty to do so.
Thurgood Marshall: To fire him?
Charles E. Burgin: Yes, sir.
Thurgood Marshall: Are you saying he can call his representative capacity when you are suing them for damages for firing him and I understand the petitioner’s position to be that what he said in that letter might be liable?
Charles E. Burgin: Well--
Thurgood Marshall: The city would not be responsible to be directly --
Charles E. Burgin: For the lie?
Thurgood Marshall: Yes.
Charles E. Burgin: No, sir, if there was in fact a liable -
Thurgood Marshall: But if there was, who would be liable?
Charles E. Burgin: Well, the--
Thurgood Marshall: They will be liable, would they not be?
Charles E. Burgin: Absolutely, in his individual capacity.
Thurgood Marshall: But he is not even in this case.
Charles E. Burgin: He is not in this case in his individual capacity. Your Honor, to get back to your question, Justice Rehnquist, damages against these individuals as individuals, we contend, are not requested.
William H. Rehnquist: Well, Mr. Burgin, in Judge Jones’ opinion on page 12 of the petition for writ of certiorari, the first paragraph of his opinion says, referring to the petitioner, he seeks an order requiring the defendant to reemploy him and a monetary award of damages consisting of his wages from March 31 ’72 to the date of judgment.
Charles E. Burgin: Yes, Your Honor.
William H. Rehnquist: Will you not regard that as a prayer for damages?
Charles E. Burgin: No, Your Honor. I regard that as a prayer for back wages. I think that the petitioner regards it thusly also because in his brief, and we have put this in our brief and the petitioner’s brief. On page 6 of petitioner’s brief, he states that he is seeking reinstatement and back pay.
William H. Rehnquist: What is the difference between back pay or back wages and damages in a case like this?
Charles E. Burgin: Well in our mind, there is a great deal of difference. Back pay can only come from the city.
William H. Rehnquist: Well, that may be true but Judge Jones opinion talks about damages, as I take it, if one of the individual defendants in this case wrongfully and unconstitutionally fired the petitioner he might be liable for damages even though he, not being the city, could not pay “wages.”
Charles E. Burgin: That is correct.
Potter Stewart: Damages would be measured by the loss of pay.
Charles E. Burgin: That is right but we say, if Your Honor please, that that is not what they are asking for. That the word “damages” is not controlling, that the word “back pay” is. They do not say damages in form of back pay. They say damages consisting of the back pay.
Potter Stewart: In any event, I hope you are going to save sufficient time to argue the merits.
Charles E. Burgin: Yes, Your Honor. I will get to the merits at this time. I simply point out one case in support of our position which we think is that the principles enunciated in the case are in support of the principles which I have just stated and that was a case decided by this Court in 1949, Larson versus Domestic Foreign Commerce Corporation in 337US682, in which it was stated that the actions of an officer if not in conflict with the terms of his valid statutory authority or the actions of the sovereign. With regard to part three of our brief, the question of whether or not this policeman had a property interest, we start with the premise of the Federal District Court which we think is a correct premise that the respondents complied with this ordinance and applicable state law in discharging Mr. Bishop. We say that the course that--
Byron R. White: Would it apply to the state law in response to a request to give the reasons for discharge, the city said they did not have any?
Charles E. Burgin: Yes, sir, I think it would.
Byron R. White: So that you could be fired at will without a cause at all.
Charles E. Burgin: Yes, sir.
Byron R. White: Under the Fourteenth Amendment?
Charles E. Burgin: Yes, sir.
Byron R. White: Then that is the end of the case.
Charles E. Burgin: I think so. Yes, sir.
Byron R. White: The District Court cannot apply it, employees maybe fired at will?
Charles E. Burgin: I think yes, sir. I think there is no question in my mind that that was the meaning and the intent by the words used by the District Judge.
Byron R. White: What if, in response to the request that says that you required for inefficiency.
Charles E. Burgin: Inefficiency? I think, if Your Honor please, that that is something that does not rise to the level of a protected constitutional property interest and it is something that should be handled purely and simply by the supervisor.
Byron R. White: What if the answer was you were fired because you are habitually negligent?
Charles E. Burgin: I still say that that has no more implication than inefficiency. If Your Honor please, I know you alluded to that weird thing in the Arnett case. I think this is a case somewhat like that. I think the principles would apply here. I think you also alluded in the Arnett case to an 1856 case Ex parte Secombe in which employment was conditioned upon maintaining proper respect for Courts and Court officials. And, we say that this man was discharged unsatisfactory work. Satisfactory work would be on a par with satisfactory respect that was to be paid to someone. Mr. Bishop has maintained throughout this proceeding, as I understand, his contentions that he had a property interest in his job because, number one: he was a permanent employee, number two: that during the entire term of his employment no other policeman on a 17-man police force had been discharged, and number three: because he reasonably believed that he would not be discharged. Now that, I understand from the pleadings in the case and from the briefs that they have filed, is his position. We say that North Carolina law disposes of his strongest argument in that respect, his strongest argument being the fact that he was a permanent employee. Our law in the State of North Carolina holds that permanent employment without more means nothing more than an indefinite general hiring power which may be terminable at the will of either party or irrespective quality of performance. We say that Mr. Bishop had no more than a subjective expectancy that he would continue to be employed and that that is not protected by a procedural due process of the Fourteenth Amendment. With regard to the liberty interest, we have maintained that the statute was followed and the District Court Judge, on page 15 of the petitioner for writ of certiorari, states there is no contention that the provisions of this article were not complied with by the defendant.
Potter Stewart: What is the answer to the claim of deprivation of liberty? Let us say the statute provided that an employee could be discharged only on the basis of gross dishonesty or immorality and let us assume that that employee was terminated on the basis that he had embezzled some money and that would be, therefore, grossly dishonest. That would be unscrupulous accord with the statute but it still might deprive him of a liberty interest that would entitle him to a hearing to see whether or not he had been. In other words, following the statute does not really fully respond to a claim of deprivation of liberty without due process of law, does it?
Charles E. Burgin: I concur in that statement completely but I do say that we had, in discharging him, implicated his liberty in no way.
Potter Stewart: Different point?
Charles E. Burgin: Yes, sir. I think that the time to determine whether or not a liberty interest is implicated is at the time of his discharge. Well, I do not think that the reasons for discharge implicated his liberty in any manner, and I point out to the Court this fact. When Mr. Bishop was discharged and at his request, he was given a letter setting forth those reasons. Now, he had that letter in his possession and if he wanted to show it to a prospective future employer he very well could. And the public record statute, I believe Mr. Jones’ statute is 33, would give any prospective future employer the right to see that.
William J. Brennan, Jr.: Getting back to Mr. Justice Stewart’s question, if in the judicial proceeding rather than as the Police Chief testified, really, we discharged him because of embezzlement, you would still say that there had been no invasion of liberty interest.
Charles E. Burgin: Absolutely, yes, Your Honor. I would say there had been no invasion of his liberty.
William J. Brennan, Jr.: But because they did not tell him the truth when they discharged him for unsatisfactory work.
Charles E. Burgin: Well, Your Honor, respectfully I think that that may be an assumption.
William J. Brennan, Jr.: I am putting you a question, a hypothetical.
Charles E. Burgin: Excuse me.
William J. Brennan, Jr.: They gave him the letter they gave him.
Charles E. Burgin: Yes, sir.
William J. Brennan, Jr.: But the fact the Chief testified on the judicial proceeding that that was not the reason, the real reason was he was an embezzler?
Charles E. Burgin: I do not think, if Your Honor please, number one: because it is a judicial proceeding, number two: because it would have been brought by the petitioner that the liberty interest would be implicated in that case. I think the liberty interests are implicated and I cannot recall but I believe there is some language in the Roth case or Sindermann case or maybe the Arnett case that at least implies that the time of discharge is what is important. If, at that time, his liberty interest were implicated that is one thing. In this case, they were not.
William J. Brennan, Jr.: There are a lot of rumors around town that he had embezzled funds then the Police Chief takes hold of the situation. Then the Police Chief discharges him with a letter which simply says he is discharged for unsatisfactory work.
Charles E. Burgin: There would be no difference in that hypothesis, Your Honor, than the one you posed earlier, in my mind.
Warren E. Burger: After the new ordinance was passed, his termination occurred, was it 10 months?
Charles E. Burgin: About two years, a little over two years. The ordinance was adapted in April of ’70. He was terminated in end of March ’72.
Warren E. Burger: Do you say that his rights, his situation, is different from that of a person employed on the same job after the ordinance was passed or are they in the same boat?
Charles E. Burgin: No, Your Honor, I would say that I have not contend that below this Court, I would not contend that Mr. Bishop is not a permanent employee and that the situation would be the same with regard to the hypothesis that you put to me, if the two individuals had passed the six-month period. Unless the Court has some further questions of me, that would conclude my presentation.
Warren E. Burger: Very well. Mr. Smith.
Norman B. Smith: If Your Honor please, I did save some time but I have no particular comment I wish to make. I think I have covered the points in the opening argument unless there are any remaining questions. We thank the Court.
Byron R. White: Under the ordinance, the city need not have any cause for discharge at all.
Norman B. Smith: I just think he is plain wrong. I think you can look at the ordinance and see that you have to fall into one of four categories before you can be discharged.
Byron R. White: The Judge said that the employee may be discharged at will?
Norman B. Smith: The Judge is just wrong. He is not reading the statue or not reading it correctly, but it just seems to me that any way--
Byron R. White: He did not say that he could be discharged without cause. He said he could be fired at will and could mean there was only notice without a hearing.
Norman B. Smith: I presume that with “at will” and “without cause” is the same thing. It would be wrong to think that one had to have cause to discharge someone and then say you can do it at will anyway. That would negate the force of the cause.
Byron R. White: Without notice.
Norman B. Smith: I suppose that is a possible construction but none of this ordinance. Anyway you turn this ordinance it says that there must be one of--
Byron R. White: If the Judge said that, why are we here?
Norman B. Smith: Your Honor, I respectfully contend he is wrong and that Judge Winter is right that this Court ought to reverse. Work not up to standard, negligence, inefficiency or unfitness have to exist.
Byron R. White: I assume, on your reading of the (Inaudible), I take it that you would say that if we agreed with him that you will lose?
Norman B. Smith: I think if you agreed with everything he said in that opinion, I would lose but--
Byron R. White: On the liberty.
Norman B. Smith: He said that the liberty interests were not implicated. He covered the whole thing. He just did not do it right.
Warren E. Burger: Thank you, Gentlemen. The case is submitted.