Warren E. Burger: We’ll here arguments next in 1589, General Electric Company against Martha Gilbert. Mr. Kammholz, I think you may proceed whenever you are ready.
Theophil C. Kammholz: Mr. Chief Justice, may it please the court. The issue here on reargument as it was the issue last January, is whether the exclusion of pregnancy related disabilities from an employer’s Disability Income Protection Plan is violative of the effects proscription of Title VII of the Civil Rights Act. General Electric in its comprehensive insurance program has an Income Protection Plan in affect since prior to 1950 which provides benefits to employees who on account of sickness or accident nonoccupational incurred are absent from work. The benefits continue for a maximum of 26 weeks and commence on the eighth day in the event of sickness first day in the even of accident, the maximum the 60% of earnings with a saving of $150 per week. This plan incidentally dovetails with a long term disability plan for the catastrophic kind of accident or illness. The plan excludes pregnancy related disabilities and the reasons, the historical reasons therefore and which apply today can be summarized in this fashion. Sickness and accident involves the unforeseen, the unexpected. Pregnancy basically is a planned event, neither sickness nor accident. At General Electric, the return rate of employees absent because of sickness or illness is in the 90% plus percentile except for pregnancy where the return rate is about 40%. So, in essence to provide this kind of disability payment for pregnancy disability would be providing a kind of severance pay to women only. Additionally and the statistics are basically the same at General Electric as across the land under insurance plans, the cost of SNA coverage for females on the industrial theme where the exclusion of pregnancy related disability runs about a 170% of male cause or to put in another way, for everyone $100 expended for male SNA coverage a $170 is expended for female coverage. If as the undisputed actuarial testimony of the trial indicates. If this pregnancy exclusion were extended to six weeks coverage, the percentage total will run about 210% or $210 expended for every female on the average is contrasted with the male and if there were unlimited sealing on pregnancy disability coverage, the total would run between 300% and 330%. Again at trail the undisputed testimony indicated, that to strike down, the kind of elimination that we’re talking about here would add annually to the plans currently and affecting the country $1 billion and 353 million in cost.
Potter Stewart: But you have to understand the unlimited coverage for pregnancy disability to be.
Theophil C. Kammholz: No sealing as contrasted with any other sickness or illness. Under GE for example, 26 weeks of coverage.
Potter Stewart: Well, that’s not unlimited, that’s limited to 26 weeks.
Theophil C. Kammholz: Perhaps the characterization is inaccurate, but it would be in the same category as other benefits under the plan. Currently the coverage of SNA applies to perhaps 40% of the American industrial workforce according to the record and we are talking only about those plans because there is no requirement that General Electric or any other employer impose a plan with or without pregnancy disability. Now, of the 40% plan coverage the record again demonstrates that only 40% of those plans, 40% of the 40% provide some kind of maternity, pregnancy disability coverage and all goes to without exception the sealing on it is six weeks. Now, if the EOC is right in this situation, that six week sealing falls by the wayside, there can be no distinction as to total amount available and this is one of the difficult cost implications that give rise to deep concern. In the insurance industry practice with respect to individual insurance policies, SNA policies is a very simple one, it excludes pregnancy related disabilities. On the simple theory, that if such an individual plan were available to females, the insurance would be procured after marriage or when a pregnancy was planned and this would obliterate the underlying concept of what insurance in this area is all about, protect against the unforeseen, the unplanned, the unexpected.
Harry A. Blackmun: Mr. Kammholz, let me be sure about this? The insurance industry then excludes all pregnancy related disabilities, even those that are complication of normal pregnancy, is that what you are saying?
Theophil C. Kammholz: Under individual policies. Yes. With respect to group coverage this is not the case Your Honor, there are as I noted the 40% of the policies in effect provide some kind of pregnancy disability coverage; the general standard is six weeks.
Harry A. Blackmun: Is there any other medical condition that is generally eliminated?
Theophil C. Kammholz: Generally speaking, no. It is a practical matter and I don’t want to do come with record here with a cosmetic surgery for example, where there is no coverage under the GE policy with respect to the hospital, surgical aspect of it.
Harry A. Blackmun: There is no coverage under GE policy for cosmetic surgery.
Theophil C. Kammholz: For cosmetic surgery as far as hospital, medical expense is concerned, there’s coverage for the in and out of the hospital but with respect to cosmetic surgery this runs a day to two, the heavy cost is what the physicians charge, the surgeons charge in that regard. The decision for exclusion of this kind of coverage is as I noted, further buckers by the unique nature of pregnancy. Essentially it’s a voluntary thing as the record gain points out without dispute and this is an expert for union testified, it would be a strange commentary indeed if the survival of the human race depended upon sickness. Contraception in the society which New York Times recently characterized, is one having reached almost a 100% level of contracepted control of birth, is such that it’s the plan pregnancy that almost invariably applies. To equate then, the pregnancy related situation with sickness and accident generally would be a non-secretors and now we come to Geduldig v. Aiello, this courts decision in 1974 in the California insurance case where under the Fourteenth Amendment. The court held that pregnancy is unique and that there was invoked not a situation of dissimilar treatment, a person similarly situated but rather the dealing with a unique situation a sui generous situation pregnancy with respect to which there can be no discrimination these are the males. I should like to comeback to Geduldig in a moment, I would like to touch now on why we are here, whether the Congress in 1964 in the enactment of the Civil Rights Act contemplated, the obliteration of this kind of exclusion. Your Honor is recall, I am sure that the sex proscription surface for the first time in the House of Representatives. The day before the house adopted Title VII. Ironically the sex amendment came about as the result of the proposal by representative Howard Smith of Virginia who was an opponent of the Civil Rights Act and finally all of the male representatives who voted for the sex amendment ultimately voted against Title VII. The legislative history is very sparse indeed as a Fifth Circuit pointed out in Willingham and if I may, I think I can put him focus more precisely the point I am trying to make here by giving this quote, last year Willingham in a sex plus case a hair-length case the court said, “We find the legislative history regarding sex discrimination in conclusive at best” and may I say this appears at page 13 of our supplemental brief dated September 15, 1976. We find the legislative history regarding sex discrimination inconclusive with best and drop at one conclusion and that by way of negative inference, without more extensive consideration congress and all probability did not intend for its proscription of sexual discrimination to have significant and sweeping implications. We should not therefore extend the coverage of the act to situations of questionable application without some stronger congressional mandate. Upon the adoption of Title VII, the Equal Employment Opportunity Commission beginning in 1965 and continuing for six-and-one-half years articulated the precise view that we are espousing here this morning. The view that because pregnancy is different, the prescriptions of Title VII on the sex subject, we are not intended to reach pregnancy exclusions. Now, I submit to that contemporaneous interpretation by EEOC should be given great wait and the change which occurred in 1972 with 180 degree reversal in the agency abuse should be ignored to put it another way, we suggest that they were right in the first place.
Warren E. Burger: Mr. Kammholz.
Theophil C. Kammholz: Yes Your Honor.
Warren E. Burger: Would there by any impediment that you can suggest to having the collective bargaining agreement between the parties, General Electric and its bargaining agents provide for all these things explicitly another which are giving the respondents everything seeking in this litigation.
Theophil C. Kammholz: No indeed not, the parties could so bargain indeed is, I am sure you will here from my distinguished opponent. The union has asked for such a change during the course of bargaining over the years and the union of course has asked for many other things their demands have been innovative, to say the least. Now I think clearly this is a matter for collective bargaining, the parties elect to distribute a larger portion of the benefit dollar to this area, they could so do, but this would be on the basis of consideration as to what is appropriate in terms of dividing the benefit dollar. If I may return briefly now to Geduldig v. Aiello, Footnote 20 in that decision which articulates the sui generous nature of pregnancy and pregnancy related disabilities. This is been a subject of great deal of consideration and writing not only by the courts but in the Law Schools and very recently also Arthur Larson a former Under Secretary of Commerce and now against be Duke Professor of Law at Duke University has published book not available at the time but the original argument in which he expresses -- I think expresses very subsequently, the consideration that are involved here, as he puts it a Supreme Court adoption of the EEOC rule, would on the strength of a statute aimed and not at social or private insurance reform but at employment discrimination change all this, rearrange insurance priorities in categories and markedly order the allocation of the limited resources available for wage loss, hospital and medical benefits. A way from both the creators and the beneficiaries of those plans, very often the view is suggested that in smoke-filled rooms decisions are made which discriminate. The fact of the matter is in collective bargaining and in decision making on the part of management in an organized operations; what is the appropriate allocation of the benefit dollar indeed the, how does one divide the pie if you will in terms of the fringe benefits, wage increases, cost of living adjustment, etcetera. These decisions are arrived at in this sector as a result of careful consideration, no effort at discrimination but a desire to do what is best for the largest number and Professor Larson points out the ultimate decision here, the non-extension of pregnancy benefits to women really relates to the family unit. There is a father for every child, the head of the household perhaps and it is the allocation of that money to apply for the greatest benefits for all involved, it is the underlying decision and because the family unit is in the majority obviously any decision that can be characterized discriminatory.
John Paul Stevens: Mr. Kammholz, does the collective bargaining representative of the entire workforce have a position on how this money should be distributed?
Theophil C. Kammholz: No, this is hammered out on a case by case, contract by contract basis.
John Paul Stevens: Haven’t they have made a demand that these benefits be included?
Theophil C. Kammholz: In this incidence, in this case?
John Paul Stevens: Well is not that the position of a union?
Theophil C. Kammholz: Oh, sure this demand has been made over the years, along with many other demands as I noted the union is most likely --
John Paul Stevens: Aren't they the one who are most directly interested in the proper allocation throughout the workforce.
Theophil C. Kammholz: They have participated in these decisions because ultimately the panoply what is asked for is so broad and all encompassing, it is what is finally hammered out is what really counts and with respect to what is finally hammered out the union signature is on the line.
John Paul Stevens: That seems to me the argument you are making was that what you are doing is for the benefit of the workforce as a whole but…
Theophil C. Kammholz: Precisely.
John Paul Stevens: But the union takes the contrary position.
Theophil C. Kammholz: I might have add finally that under the Equal Pay Act and under Executive Order 11246, the rule of the EEOC here ascribes for is not recognized, equal contributions under benefit plans are surprise and may I note again that with respect to pregnancy disability, it is not only a matter of equal contributions but the amount that goes to females very substantially exceeds that which is available to males.
Warren E. Burger: If the collective bargaining agreement provided for larger contributions from women employees based on actuarial studies, would that violate any federal statute or EEO regulation that you know. In other words it supposed to the effort was to make the people who are benefited bare the cost.
Theophil C. Kammholz: I suspect the argument would surface very swift that either this was discriminatory, I should add that earlier this year and again not available at the time of the original argument. The New York State Department of the insurance issued an in depth report on insurance cost, we have logged it with a court, it is available here and it demonstrate several things. Number one, it supports clearly and precisely the position initially articulated that, female cost is much higher. This report finds. It notes also for example that because of the longer life of females on the average, pension cost, annuity cost is run about 25% higher for females and for males. Thank you very much.
Potter Stewart: Mr. Kammholz, you have not mentioned an innovating decisions since you last argued here, Washington against Davis.
Theophil C. Kammholz: Yes Your Honor.
Potter Stewart: I wanted what you have to say about that.
Theophil C. Kammholz: Washington v. Davis was a race case.
Potter Stewart: But the statute treats race satisfies the same.
Theophil C. Kammholz: But this court has never held sex as a suspect classification.
Potter Stewart: No, but I am talking about this as a statutory case has been.
Theophil C. Kammholz: Yes, we think that Footnote 20 clearly points out that there is no sex discrimination in our case. Therefore the reach of Washington v. Davis simply could not apply and again I know we suggest as I am sure is in the minds of Your Honors the proposition that sex is not inherently suspect.
Potter Stewart: But that really does not have much do with this statutory.
Theophil C. Kammholz: It does not if you agree with our initial concept, there is no discrimination involved. Thank you.
Harry A. Blackmun: Gentlemen before you sit down let me ask you to help me a little bit. Could a plan such as GEs exclude generally Sickle cell anemia?
Theophil C. Kammholz: I think Sickle cell anemia would be in a different category from what I know about the medical writings on this subject. This is a disease suffered only by blacks.
Harry A. Blackmun: Could it exclude such a disease as Pemphigus, which as I understand that is more observant among Jewish people and others.
Theophil C. Kammholz: I am not familiar with that one but I think the same answer would apply.
Harry A. Blackmun: Could it exclude circumcision?
Theophil C. Kammholz: Oh, I think it could.
Harry A. Blackmun: It put that in a same category as pregnancy.
Theophil C. Kammholz: I will give the short answer, yes.
John Paul Stevens: Mr. Kammholz, I did not hear the answer, could you telling, what was you answer with respect to Sickle cell anemia. You said it was a disease that can only be separate by blacks.
Theophil C. Kammholz: By blacks.
John Paul Stevens: But therefore it could be excluded or could it not…
Theophil C. Kammholz: Could not.
John Paul Stevens: Could not be excluded. But why do you have come to different conclusion on pregnancy which can only be separated by…
Theophil C. Kammholz: Because we are dealing on the one hand with race and on the other with sex.
John Paul Stevens: But does the statute draw different mean sex discrimination and race discrimination?
Theophil C. Kammholz: The court has, Your Honor...
John Paul Stevens: In Statutory cases sex to be a suspect classification. But those are constitutional cases, under the statute it is…
Theophil C. Kammholz: In the light of legislative history, Title VII I suggest the identical rules should apply.
Potter Stewart: So is it, one is an illness, the other is not.
Theophil C. Kammholz: Yes.
Potter Stewart: That is what you told us.
Theophil C. Kammholz: That is the underlying position that its childbirth pregnancy is a natural thing, medical testimony on the record indicated that in most instances, it contributes to the well being of the mother, its not a disease as Dr. Hilger pointed out because it would be said indeed, if we all survived on the basis of sickness, it is a sui generous unique, different onto itself kind of condition. Thank you.
Harry A. Blackmun: One last question, who has the burden of proof in your definition?
Theophil C. Kammholz: In my view we have -- there is no prima facie burden. We establish a rational relationship, we establish the sex aspect of it and there is no burden approve on us.
Warren E. Burger: Very well Mr. Kammholz. Ms. Weyand.
Ruth Weyand: Mr. Chief Justice, may it please the Court. I want to address myself first to the question which has been raised as to the relationship of collective bargaining to the issue of inclusion or exclusion. This Court, as a matter of law, has recognized in cases involving a collective bargaining agreements, which discriminate because of race as far way before the enactment of Title VII that in Steele v. Louisville & Nashville that union sometime do under in discriminatory contracts and if they violate their constitutional duty when they do so. More recently under Title VII, Title VII is directed at the fact that both of them regards to race and sex. Many unions have not and dealing with employers acted in a nondiscriminatory matter and the existence of a collective bargaining agreement is no excuse. Furthermore as the record here shows, since the time that fringe benefits became by law a bargaining subject with the Inman (ph) v. NLRB decision of the Seventh Circuit in 1948 with affirmed on another point here. Next bargaining session, the first one with the IUE between GE and the IUE was in 1950, the record here shows with that dispute at 1950, the union point it out, the General Motors paid six weeks which is usually enough to take care of it in fact with changing medical practices, many other women get back in less time, we have two first witness in our case. From Tyler, Texas was certified back in four weeks, GE would not take her back, Mary Williams went back in four weeks, another witness here six weeks and my estimation on cost is not the companies that now pay six weeks if they begin letting employees comeback when they are physically certified back, they are going to have a reduction in cost not the increase in cost. But the IUE went to the employer. 1950, 1955, 1960, 1963, 1966 repeatedly and asked if they bargain and included the six weeks benefit which is traditional, which is present in 40% of the industry in fact daily the companies actuary, I think is that a 60% of the industry pay six weeks benefits.
John Paul Stevens: Ms. Weyand, would you consider that a six week benefit would comply with the statute if all other illnesses had a benefited up to 26 weeks.
Ruth Weyand: No, I do not, we have cases, I have pending case against GE, I just want to say cost wise.
John Paul Stevens: They would not have solved their problems.
Ruth Weyand: They would not because, we think that the individual who has a complication, she really has a disease, no question illness, she needs the more and that it is discriminatory to limit this one area, the six weeks no question about it but I was just saying in terms of the union’s effort here over the years to get something for these women, and they union has wanted to spend, the union of course in the last rounds of negotiations is asked that it be treated the exactly the same you have record here that there be no limit whatsoever that it, not only go on for 26 weeks, but it go on under the permanent. We have the IUE is a plaintiff has suit against General Motors involving the six weeks time which I mention is in has file and had finding to that is discriminatory. But I just wanted to say if the union has tried to get this and there is an assumption that it seems to be employed in some peoples minds that the union asks for something like this, the company is going to willing to give it and that this demands was on the bargaining table during the long strike. There are certain things companies have principles about, GE had a principal about job posting for years and years, it has recently changed because of Title VII they brought a new plant had a job posting agreement, we had a 15 week strike when they took it out that plant. GE has a principle about not paying sickness and acts and benefits, now it pays for everything and I am afraid the record, the answer to the question may not have made it clear it pays for the time that a man is disable by cosmetic surgery. Mr. Kammholz was nearly making the point; they do not pay the medical expense so any. There is not a single thing that a man gets disabled by that GE does not cover fully, but GE and it appears in this record with the testimony and the testimony insurance, it is firmly other view that when you pay disability benefits for pregnancy, you are not paying for the period a woman is disabled, its figures are not based on the period it is disable, this court upset a statute that has a six weeks, the Turner versus Utah, it had a six weeks returns date as against. We all know the people are able to comeback earlier then that and the Cleveland versus LaFleur, you are agreed they can back in.
Potter Stewart: But that allow them government.
Ruth Weyand: Government, but you took judicial notice to the fact that many women are not physically disabled for six weeks and GE has never pretended here, there are doctor, the medical testimony, there doctor, Dr. Hellegers, Dr. Forest, no dispute, that most women, in fact the numerical majority come out the hospital in two or three days now and within two weeks their doctor, Dr. Wilbury (ph) said 11 days for, in terms of tired time or the time she went to labour until she was back on the job. Testimony of both their doctor -- now two weeks today is the majority of women are back at home doing their homework, taking care of the children which is harder work from job in the office. That the medical position has changed and I have cited the point but the reason there actuary when he figures this billion, he figures that every women under a 13 week plan is going to be out 13 weeks. Every women under 26 week plan is going to be out 23 weeks, every women under a 52 weeks is going to be out 30 weeks and he says why not because they are disable, they have a never made a pretenses because of disable because women malinger, they are there -- and you will find in the finding here, that court found they do not malinger but their actuary explain insurance position of why this is it not covered by insurance, is that women have a natural desire to take it easy. They may have heard to someone had a miscarriage and therefore they are going to want to sit at home and they have a natural desire after the child is born to stay home with it. Now if you knew these women, that have to have that paycheck, they do not want to sit home, they want a babysitter their who establishes the routine the day they come back and they want that check to pay it because it got it get back. There are 37 million women working in the United States today and it is the figures, Department of Labor as of April, the last figures came out in July of 1976 for the quarter ending April 1975, 21 million women either were single, divorced, widowed or had husband who made less than $7000. Also one out of ten babies is born to a women who is single, divorced or widow. One out of ten babies, this is a the largest poor group in this country are the women, the figures in here with imple justice. These women, this matter of Sheryl Stein (ph) here, when she did not have her check, had go on welfare, her light, or heat was turned up. One of the plaintiff you testify without dispute, she lived in a country area, she had to walk two miles with a two-year-old daughter, her husband had left her to get food because she got on welfare, she waited the birth of a child to unlighted, un-eated health and GE is a stereotype. Well they did not think anything what happened, the record showed she was a married women, in their view she has a husband who is going to take care of it. The testimony here on the amount of time that women are going to be off and why GE does not pay this is that women are going to malinger and abuse it. Their whole figure is on the cost, now if you take the six weeks which sister Mr. Belly says that the record that shows that he said that 60% of the women are covered for six weeks and another one under actuary figured how much it cost to cover the women in this country for six weeks. He said, he deducted the amount of a present cost based on it and he deducted cost $225 million to cover 60% of the women for six weeks which is what is covered. It will only cost $150 million for every company in United States to make up that other 40%. If 60% cost $225 million another 40% is only a $115 million and that is in six week. The figures GE based on and GEs positions at the bargaining table is that the women want to stay home and they are going to malinger and that has never tried to count out. He refused the figure, we asked for figures on how many his record are women returning, it refused the find them, it did not provide it, never provided any figure on its return rate, the number of weeks or days that women were out, it did and I think there was a slight statement, I am sure Mr. Kammholz did not mean to state, that there was a return rate of 40%, the return rate is 60% at GE on their figures on, there is no dispute in the record. GE and its objection seem derogatory why it did not want to provide me the figures I wanted on the expense pregnancy so on. You know 40% turnover rate for males and females, 40% turnover each year, now with that turnover rate, the fact that 40% of the women can come back is no different then the man may have come back from a injury or something, or sickness but he is not going to be late before there are anymore chance that he will weeks, months later than these but GE and many companies have this position and they get a position that women are going to maligner. Now it may be this is because and they have no evidence on it, they (Inaudible) their actuary why when explains in the whole insurance business, they do not covered them in individual policies based on the affected women are going to want to stay home before and after they are going to maligner, this is an abuse. Is they are not subject to the same controls but occurred in case of a man and man would not stay out when he is sick or injured because he wants a merit increase, he wants a promotion, he is going to get back as fast as he should, but this does not work with women. This is straight sex stereotyping right down the line, the straight stereotyping is that we were not concerned about Sheryl Stein because the record shows she was married, it is a stereotype that is contrary to the fact United States has being existent life today and it goes much further than merely pregnancy because this attitude shakes the practices of the companies. The payment of sickness enacts that benefits the American industry does not serve as benefit welfare system entirely, GE did not put it in with that in mind, put it in because this whole sickness actually says we get productivity, people are not going to worry about what is going to happen to them in the future. This is part of compensation, it says and it uses this as a control lever on when a person goes out and when they comeback, 60% of their wages a man, a women who have their budget geared and these are not high pay, they are the figures of the time here, we got the figures here on the hourly rate it was 6000 a year for a women, 7000 or 8000 for a man on the average. Now, a lot of them get less than even females marry to GE males, you have trouble raising your family and making a budget on these kind of figures today. They work just a last minute until the drop the men that even have a sang, because they got it, they do not want a 60%, they want a 100% and they get back as soon as they can and supervisor does not want to put them out if they can find anything else for them to do. The Chairman of our GE Board broke an arm and I was asking about, do they put people on light work Oh, yes I was tool and die maker they did not say send me home on sickness and they had me answering a phone, they find late light work from, they have not found light work for women, they send them home without any pay, there is not to disincentive to the management to send a person home if they have to pay sickness and accidents benefits. They want to send women home as soon as they begin to show. The court below I must say, it is said the Title VII intended that employment relations be sexblind as well as colorblind and while there has been remarks about how sex got into the Title VII, here in 1972 when Congress, for the first time, provided enforcement powers it said that sex discrimination is of the same concern as race discrimination and the courts have agreed that there is no difference between the two. I have a promise to say so I will divide my time with the Assistant Attorney General. I do want to ask leave to file a supplemental brief because Friday, I was served with the Reply Brief which very, very seriously mistakes the record in a number of respects and I do not have time at the oral argument to answre them I will go of course limited to just put incorrect to the record and with the permission of the Court I would like to ask leave.
Warren E. Burger: You may respond to the Reply Brief.
Ruth Weyand: Thank you.
Harry A. Blackmun: Ms. Weyand, let me ask you a question. You are asking to file another brief; you have already filed two, haven’t you? 250 pages total, do you expect that we can absorb the energy that you like us to?
Ruth Weyand: I am very much regret that but that’s going to be limited to answering inaccurate facts which was stated in the reply brief which I do think this court should be put straight on several inaccuracy. I regret the length of the brief--
Harry A. Blackmun: Are you going to file another 100 pages?
Ruth Weyand: Oh no, it will be 5 to 10 pages, I can assure you. It is just going to answer, but straight and accurate facts I don’t again to re brief another.
Harry A. Blackmun: Let me ask you another question then. Our rule as the brief says a concise statement of the case yet you have 61 pages of fax.
Ruth Weyand: I regret that you have not found the brief helpful. The problem is that if I may make a little bit of an excuse that this is the first case which this court has dealt with anything like this aspect of Title VII. It was a case of first impression in the lower courts. After we develop the law you can focus. Now, the points which I have not dealt with here that are very important but because it is new, we have not focused. We have four Courts of Appeals now gone our way and 18 district judges but each one of them emphasized what’s that completely different. Now, the courts below, here the finding of the EEOC was that there is an impact, the EEOC finding set out in the back of the petition for certiorari; there is an impact on this class because of the nine in coverage. The Court of Appeals here emphasized all women as a class; lose compensation because they would have to buy their own as a class. They did not focus on an individual woman who was pregnant. They said all women were denied compensation, and two or three of the other courts posted (Inaudible) on all women denied compensation. That at first looks at the irrelevance of the difference between the disabilities they pay for and the ones they don’t. Uniformly, the courts have held that cost is completely irrelevant and we think it is here. I am sorry.
Warren E. Burger: Very well Ms. Weyand. Mr. Attorney General.
J. Stanley Pottinger: Mr. Chief Justice and may it --
Byron R. White: Mr. Pottinger, do you interpret our rule to permit in a case like this that government would argue amicus without an order of the court.
J. Stanley Pottinger: Your Honor, I have not addressed the rules specifically. It was my understanding that we were permitted to argue amicus and by letter to the clerk and the court we are grated that permission.
Byron R. White: I am just wondering if -- is that the government’s interpretation of the rule?
J. Stanley Pottinger: Certainly it is, if not by direction by indirection, yes sir. Mr. Chief Justice may it please the court. What we have presented today is the following fact situation against which Title VII must be measured. We have a disability plan by General Electric which seeks to cover virtually all disabilities for men and women except one. A great deal has been said about the voluntariness of pregnancy. Let us examine for a moment however the coverage of voluntary as well as involuntary disabilities for men virtually every disability including voluntary disabilities as they affect men are covered by this plan that includes everything from cosmetic surgery as noted to suicide to felonies or the results of felonies to voluntary sports activities to falling of ladders.
Byron R. White: Of course, now that’s covered for women too.
J. Stanley Pottinger: Yes it is. There is no distinction in other words as to voluntariness or involuntariness in this plan with the exception and therefore I think to say that the plan is misdirected toward voluntariness of pregnancy is purely misleading. The purpose of Title VII however is to provide equal opportunity in the job market by excluding in various forms of discrimination including sex and we believe that given the legislative history and interpretations of the court, clearly two different theories would sustain a prima facie case of sex discrimination in this case. First, the exclusion in this particular case is not neutral on its face. It does single out a condition which is so inextricably sex-linked to women that it is tantamount to a policy of excluding women from this otherwise total coverage.
Potter Stewart: How Can you say that in light of the Geduldig case? I never knew how to pronounce the respondent Aiello?
J. Stanley Pottinger: I have been calling Geduldig v Aiello. I am not sure that’s right either. We are on Footnote 20, Your Honor.
Warren E. Burger: Not alone Footnote 20; the whole judgment and the opinion.
J. Stanley Pottinger: Because that was based on a Fourteenth Amendment theory not on a statutory theory, we think that that’s persuasive distinction and that this court itself is recognized in Washington v. Davis.
Warren E. Burger: What actuarial elements of important factor in that holding?
J. Stanley Pottinger: Yes, definitely. I would like to address that same issue in this case if I may. The actuarial issue in Aiello however was set in the context of estate social welfare program where the court found that it was rational.
Byron R. White: That case held that the pregnancy exclusion was not on sex discriminations. Now that’s what this statute forbids, it is sex discrimination. Aiello said it that was not one, now what’s it--
J. Stanley Pottinger: I believe that Aiello said that under those circumstances it was rational to conclude that it was not sex discrimination. Yet under Title VII, this court also found in a very similar situation that it is rational under Griggs. The Griggs case made it clear that if there is an impact, the consequences, predictable consequences of a policy of exclusion, if it falls on a protected class, here women, does cost (Voice Overlap)
William H. Rehnquist: Well Griggs was talking about testing; it was not talking about this type of thing.
J. Stanley Pottinger: No, I believe that it was talking more broadly, was it not about--
William H. Rehnquist: The holding of Griggs dealt with testing.
J. Stanley Pottinger: The holding did but (Voice Overlap) and with race Griggs has been cited however as president both for sex cases in as in your question and more broadly it has been properly cited as president for any device or selection activity or exclusion activity not just from hiring but device or employment device or standard or criteria, which excludes or has an adverse impact on a protected class. I think it goes beyond hiring.
William H. Rehnquist: When you properly cited then you mean that it’s proper to cite a case for something other than its holding?
J. Stanley Pottinger: I think that this holding does apply beyond the issue of hiring; it is what I am saying.
William H. Rehnquist: But it is not a holding then.
J. Stanley Pottinger: Well, I understand that the facts make the holding applicable in that case to hiring but the principle stated by the court in Griggs clearly goes to the issue of what constituted discrimination in hiring.
Byron R. White: There is nothing about impact or effect in the statute, is it there?
J. Stanley Pottinger: There is not.
Byron R. White: The only place that appears is a gloss that’s put on the statute or the way the statute is construed by the EEOC and by this court in Griggs.
J. Stanley Pottinger: Well, that’s correct and a progeny of Griggs however, I would not characterize it as only a gloss; it seems to me that both EEOC practice, administrative guidelines and the deference that we pay to those and this courts decision in Griggs are also--
Byron R. White: Is the EEOC authorized to issue regulation?
J. Stanley Pottinger: Yes it is.
Byron R. White: And not just guidelines?
J. Stanley Pottinger: Pardon me, guidelines in this particular case. However, the court has held that deference should be paid to the guidelines and we think that that is sensible. Either under a theory which would state that there is an inextricable relationship between race and the exclusionary factor or sex in the exclusionary factor, for instance, sickle cell anemia or under the impact theory of Griggs. In either case, prima facie case has been made out. Now, I notice the counselor concedes before you today that if sickle cell anemia were before the court that could not be excluded, I would submit that there is no logical or rational distinction under Title VII not under Aiello, not under the Fourteenth Amendment but under Title VII between an exclusion of sickle cell anemia, which we admit could not lawfully take place and the exclusion of sex related practices or disabilities such as pregnancy, I fail to see the distinction. Therefore, we are faced with only two defenses or rather arguments in defense. One is Aiello which we have just – I have attempted the deal with here. The other is the business necessity or cost factor and if I may I would like to point out that in this particular case, cost cannot be a controlling factor in this decision. First of all, in the courts below General Electric refused to present a business necessity defense either in the District Court or in the Court of Appeals. It presented cost factors not for purposes of showing that the cost would be too high and indeed the admission that 40% of those industries that do provide these benefits have not gone broke, have not shut down their plans. It seems to me to give the light to the theory that it ever could be too high. So the business necessity defense is not even presented to the court. However, it comes in the back door right now it seems to me by arguing in this fashion by raising the horrors of cost. Yet clearly we do not need to find at this program in order to be sustained, must provide a cost that would literally shut down the plant. That is not an issue; it’s a red herring here. As for the notion that the six weeks coverage would have to be extended clearly what we are talking about and what counsel for –- appellate is talking about is a coverage that arises from sickness or involuntary disability arising after in normal pregnancy. No one is suggesting, and not is the counsel for General Electric suggesting that there would be up to 26 weeks of benefits for a normal pregnancy. Yet under the General Electric plan even an involuntary illness, an unpredictable illness that is pregnancy related would not be covered at all much less would have been covered on a basis that is similar to that which men have under the disability program. They are excluding both the voluntary, if you will, aspects of pregnancy and the normal aspects and the involuntary or abnormal aspects of pregnancy alike. Yet it presents no cost figures whatsoever on how often abnormalities will arise and how much they would cost, instead it refers to industry wide figures that we would submit or in opposite to the problems faced by GE or indeed by the 40% of companies that have done this successfully. There are ways, in fact, dealing with the cost issue. The courts have held that cost itself is not a defense to discrimination where a case is made out and we agree with that and we also agree that the cost factors could be raised only in the event that a business necessity defense could be raised and again that is not either been tendered before this court this morning or in either of the courts below despite ample opportunity to do so. What we are faced with is a situation where General Electric has provided, has such provide an umbrella of coverage and yet it has plucked out one single activity from that umbrella and placed it in the rain. What we are talking about here is an activity which is not or rather a disability which is not been shown to be more expansive, for instance, than one that males face and indeed the record will indicate that in the insurance area as opposed to disability coverage, men in GE costs to the company much more than women. The insurance program cost them more if we were to find that respiratory diseases or heart disease or other specific diseases were actuarially defined and the company wanted to take those into account to keep the integrity of cost factors at a minimum, that would be another issue but that is not what they propose to do in this case. We believe that once the company undertakes as General Electric has to create a broad umbrella of coverage.
John Paul Stevens: Mr. Attorney General, when you said men cost more, did you mean in the life insurance program as oppose to medical?
J. Stanley Pottinger: That is correct. However, I think that counsel’s use of the 170% figure is itself a bid of a red herring. The male coverage figures that he presents are not related directly to the cost factors that would arise in GE on a comparative basis with pregnancy that was normally judged as opposed to this 26 or open ended judgment.
John Paul Stevens: But your basic position is that the cost really doesn’t make any difference anyway?
J. Stanley Pottinger: No, I think the cost could make a difference but clearly in this case, it does not make a difference and has not --
John Paul Stevens: When would cost make a difference?
J. Stanley Pottinger: I would use the (Inaudible) Test that states that in a business necessity way, if the safety or efficiency of the company were at stake--
John Paul Stevens: But it was a matter of bankrupting the company and if a business necessity defenses interposed.
J. Stanley Pottinger: And if it was interposed which it was not interposed in this case even though—
John Paul Stevens: What’s the statutory basis for business necessity defense?
J. Stanley Pottinger: As I believe it is 703 (g) or (j) I believe. The statute allows for what amounts to a business necessity result or rather argument but may I simply say that with regard to the cost factor, the business necessity defense itself makes clear that only if it’s necessary to -- only if the one cost interposed is necessary and would result in disabling of the company, would this factor arise. Here, there are other ways in which the company could cover normal and even abnormal pregnancies without the necessity for eliminating this entire program. It could, for instance, reduce the amount of payments, elsewhere it could, for instance, eliminate coverage that runs across sex line such as respiratory diseases arising from smoking in men and women alike. It could reduce the amount of payment in terms of the time it pays. It could take any number of innovative approaches to cover--
Potter Stewart: How (Voice Overlap) you think those alternative proposals are in the face of the realities of collective bargaining? If there’s going to be any reduction in the benefits?
J. Stanley Pottinger: Well, I think that in light of as long as this court sits, and as long as this court is able to recognize, it will. If it does recognize that this form of discrimination, can it go forward, I think they are realistic. I think in the absence of the rule--
Potter Stewart: It can’t. I am talking about the realities of collective bargaining -- Do you think union is going to agree to reduction in the benefits that you already have?
J. Stanley Pottinger: It seems to me that if – yes, I think so, If the company can show that the absence of such a reduction is to close down the plant or otherwise disable the company, I would say that that’s a possibility that’s reasonable and what’s I’m saying further is that is, in fact, in law the only basis upon which the company can go either to court or to the union in the collective bargaining system and say we must make a change in order to accommodate pregnancy disability programs. In the absence of showing that high standard of need, it seems to me that the chances are not great but on the other hand they need not be great because the company will not be faced with the disabling cost factor.
Warren E. Burger: Thank you.
J. Stanley Pottinger: Thank you.
Warren E. Burger: Mr. Attorney General, Mr. Kammholz.
Theophil C. Kammholz: Several very quick comments and I should like to address the observations of counsel regarding what happens with collective bargaining people. Members of the Court in the real world out there, you do not take it away and the reference is inappropriate. Secondly, as we note in the supplemental brief dated September 15, 1976, the position of Deputy Solicitor General Lawrence Wallace, when he appeared before you in oral argument in Fitzpatrick v. Bitzer seems rather clearly to embrace the view of Aiello, which we have articulated here this morning. He says the – well, I’m not going to bore you with reading what we quote but on pages 8 to 9 of this supplemental brief we note what the solicitor’s office says there and I suggest it’s quite different from what we heard here this morning. Finally, a very brief reference, Mr. Justice Blackmun to sickle cell anemia, this is an area that we have not covered in any of our briefs and I should like to note again that pregnancy is the only physical condition which is unique to one sex and as I understand the sickle cell situation it’s in an opposite because most blacks are immune to it. Finally it’s sickness as I understand it and not a unique condition like pregnancy. Thank you very much.
Harry A. Blackmun: The conditions that are more seen more frequently on one sex than another...
Theophil C. Kammholz: Yes
Harry A. Blackmun: It sum to 80 or 90% to 10%, 20% ratio.
Theophil C. Kammholz: Thank you.
Warren E. Burger: Thank you. The case is submitted.


Warren E. Burger: We will hear arguments next in Pembaur against Cincinnati. Mr. Manley, I think you may proceed whenever you are ready.
Robert E. Manley: Mr. Chief Justice, and may it please the Court, to a certain extent this case can be characterized as the opposite of the Tuttle case which this Court decided several months ago. Here we do not have low level policemen going off on a frolic of their own to violate constitutional rights. We have the opposite. We have patrolmen and deputy sheriffs who have grave reservations about the propriety of their chopping down a door in order to search a private doctor's office without a search warrant, armed only with an order to attach the bodies of people who may or may not be inside and who are not the owners of the premises. Because of these grave reservations, they summoned for instructions from their superiors. Ultimately, their superiors referred the problem on up to the county prosecutor, who is an elected official, and who is--
William H. Rehnquist: Would you classify him as a superior, Mr. Manley?
Robert E. Manley: --Well, he is the policymaker in terms of legal matters for the county, because the statute under which--
William H. Rehnquist: Can he instruct the chief of police what to do?
Robert E. Manley: --He can instruct county agencies what to do. The statute expressly gives him authority to instruct county agencies what to do.
William H. Rehnquist: But this is the city of Cincinnati.
Robert E. Manley: Well, the matter before this Court only involves the county of Hamilton.
William H. Rehnquist: The county, Hamilton County.
Robert E. Manley: The Hamilton County deputy sheriffs. The Sixth Circuit reversed the trial court with respect to the city of Cincinnati, so the only issue is whether or not Hamilton County has exposure for this unconstitutional invasion.
William H. Rehnquist: So if the prosecuting... if the county attorney, if that is the term in Hamilton County, wants a particular item seized by the police, he can tell the chief of police, go out and seize that item, I think it is legal to do so?
Robert E. Manley: Well, in this particular--
William H. Rehnquist: Can you answer the question more generally?
Robert E. Manley: --Well, I don't know that he can do that to the chief of the Cincinnati police department. I think he can do it to the deputy... the sheriff's department under the--
Byron R. White: You mean he has line authority over him?
Robert E. Manley: --No, the sheriff is elected, and his line authority, but we have a peculiar statute in Ohio.
Byron R. White: I know. I suppose the prosecutor is certainly authorized to give them legal advice, but is he authorized to order the sheriff to go out and search a house?
Robert E. Manley: Well, as a matter of fact, the statute expressly gives them the authority to give instructions. It is Ohio Revised Code Section 309.08 and 9, and it gives him--
Sandra Day O'Connor: Where is that in... are you referring to something before us?
Robert E. Manley: --It is cited in our reply brief at Page 2.
Byron R. White: Is it quoted?
Robert E. Manley: I am not certain whether it is quoted.
Speaker: All right. Page 2.
Robert E. Manley: It is also in the respondent's brief in Footnote 1 at Page 8 where it is set forth, the language is set forth. So that we are in a situation where the county prosecutor has been found by the Court of Appeals to be a policymaker, and under the procedure of referring questions... the sheriff has a policy to refer questions of this sort to the prosecutor. It is referred to him, and he says go in and get them. He gives them instructions to go in and get them. The deputies, when they get these instructions, tell Dr. Pembaur, Doctor, please open the door, because if you don't, we are going to have to break it down, because the prosecuting attorney told us to go in and get them. There was no doubt in the minds of the sheriffs or deputy sheriffs as shown on the record in this case that they were operating under instructions from the county prosecutor, who is a policymaker for Hamilton County in areas of his authority, and who is obligated under Ohio law to give instructions to county departments, including the sheriff's department, and he gave instructions. The instructions were followed, and as a consequence the door was chopped down, and the search was conducted without a search warrant.
Sandra Day O'Connor: Does the record tell us that the search was conducted by county sheriffs or city police?
Robert E. Manley: Well, it was a joint exercise. The sheriffs arrived. Later city police arrived. The sheriffs attempted to break the door down without success. This lasted for two hours. The sheriffs sat around for two hours waiting to act until they got the instructions from the county prosecutor. They put their shoulders to the door. It didn't budge, so the police took an ax and sledgehammer and broke it down. Then the sheriffs went in and conducted the search. I forget whether the policemen went in or not, but I believe they did. But the sheriffs were responsible for conducting the search. The police were there under a city policy to assist the sheriffs. And in this situation, as I read Tuttle, a policy is the selection of alternative courses of action, and in this particular situation the prosecutor was apprised of the situation. He knew he could have... had plenty of time to get a search warrant, because there was a two-hour interval between the arrival of the sheriffs and the time of the breakdown, during which time the doctor served the sheriffs tea from the window. It was not a--
William H. Rehnquist: Mr. Manley, let me go back just a moment to the thing we were questioning you about earlier. Did you say that the Court of Appeals found as a matter of Ohio law that the county attorney had line authority over the sheriff?
Robert E. Manley: --No, I did not say that. The Court of Appeals did not address that particular question. The Court of Appeals did say the county prosecutor is a policymaking official in this area of activity, and did say that the constitutional rights of the doctor were in fact violated, but found that there was no policy in this particular case because of the failure to implement the county prosecutor's position more than once. And here, I believe the Sixth Circuit has confused two lines of cases.
Lewis F. Powell, Jr.: May I ask you a question before you proceed? The telephone call was received by the assistant county prosecutor. If there had been a policy, why would he have gone to the prosecutor himself?
Robert E. Manley: Well--
Lewis F. Powell, Jr.: He certainly would have known if there had been a policy.
Robert E. Manley: --I believe, there again, as I read Monell and Owen, we have a county policy when the person who has the authority acts, and if he has the authority to take an action on behalf of the county, that thereby becomes policy.
Lewis F. Powell, Jr.: Just once? A single action--
Robert E. Manley: A single action.
Lewis F. Powell, Jr.: --A single action made on the spur of the moment in response to a telephone call relayed to him by one of his assistants?
Robert E. Manley: That is exactly what happened in Owen. That is exactly what happened in Fact Concerts.
Lewis F. Powell, Jr.: That is not my reading or recollection of Owen.
Robert E. Manley: It was a single action. That was the only time they ever fired a city manager without due process.
Lewis F. Powell, Jr.: What does the word "policy" mean?
Robert E. Manley: Well, I believe that it is defined in Tuttle as the selection from alternative courses of action, and here the county prosecutor had the option of getting a search warrant... the county courthouse was five minutes away... telling the deputy sheriffs to secure the area and wait for them to leave at the close of the business day if they were there, or having the deputy sheriffs go out to the homes of the individuals, which is where the capiases were addressed. You know, the record shows that the capias for Dr. Maulden was issued 20 days before the break in. They had 20 days in which to--
William H. Rehnquist: What policy do you think the county attorney adopted here?
Robert E. Manley: --The county attorney adopted... did two things. First of all, he articulated what both he and the sheriff believed to be the long-standing policy of the county. Namely, you can break down a door to make an arrest, and that is based upon an Ohio statute which says you can break down a door to make an arrest. It is based upon a Sixth Circuit decision I believe McKinney, which is cited in our brief. But that Sixth Circuit decision refers to an arrest where there has been a warrant issued for arrest for a crime. This is a capias, a body attachment, an order that a notary public can issue in the state of Ohio without any kind of prior judicial review, and of course this Court in Steagald has clearly indicated what the county thought the policy was was--
William H. Rehnquist: You say he articulated a longstanding county policy. Does that suggest it had not been articulated before?
Robert E. Manley: --Well, it had never been written down.
William H. Rehnquist: Why wouldn't it be a custom, then, if not a policy?
Robert E. Manley: The record shows that the sheriff and the deputy sheriffs testified that they had served capiases on third party--
Byron R. White: Well, at the time it was quite constitutional to run searches this way, wasn't it?
Robert E. Manley: --On a capias? I don't think so.
Byron R. White: No, but I mean a search of a third party was not unconstitutional at that time.
Robert E. Manley: With a search warrant, but not without a search warrant. There is no case that I can find that says that you can use a capias--
Byron R. White: What did Steagald hold?
Robert E. Manley: --Steagald held that you cannot use an arrest warrant as a substitute, but we are not talking about an arrest warrant. We are talking about a capias, which is a different kind of breed of cat under Ohio law. It is not... in the McKinney case the Sixth Circuit held that you have extraordinary circumstances because there has been a judicial determination that there is probable cause that a crime has been committed. You don't have any of that with respect to a capias. Any witness who doesn't appear is subject to being picked up as in... after the manner of a forthwith subpoena, and that kind of an order can be even issued, as I say, by a notary public, without any kind of prior judicial determination that there is probable cause that there has been a crime committed, so that is an entirely different thing, and I know of no case that says you can use a capias as a substitute for a search warrant.
William H. Rehnquist: But in this case the Sixth Circuit held that its McKinney case, which I gather was based on a search warrant and not a capias, exonerated Waylan.
Robert E. Manley: That is correct, but you see, there, Mr. Justice Rehnquist, Waylan is subject to a good faith immunity defense, whereas Owen is... under Owen the county is not. So that Waylan can be honestly mistaken, and be free of any liability, but the county does not have a good faith immunity defense, and so that... but the McKinney case involved an arrest warrant, not a search warrant, but not a capias. There is no case that we have found where a capias has been used as a substitute for a search warrant.
Thurgood Marshall: Mr. Manley, they had to have some equipment to break in the door. I assume they had equipment to break in the door.
Robert E. Manley: Well, they... having failed with their shoulders, a policeman went to a nearby firehouse and acquired an ax and a sledgehammer, again demonstrating--
Thurgood Marshall: Was that before he called the prosecutor?
Robert E. Manley: --After he called the prosecutor, and so there would have been enough time at that period to have gotten a search warrant.
William H. Rehnquist: Mr. Manley, let me read you two sentences from the Court of Appeals opinion on 5A of the petition for writ of certiorari. You are probably familiar with the opinion. It is talking about Waylan's actions, and it says, "Waylan's actions therefore did not violate any clearly established constitutional right. " "In fact, his instructions to the officers accorded with the law as it stood in 1977. " Now, that sounds as though the Court of Appeals didn't agree with your distinction between capiases and search warrants.
Robert E. Manley: They didn't discuss that distinction. They just assumed--
Byron R. White: But they said... they announced that it was not--
Robert E. Manley: --That's right.
Byron R. White: --not forbidden by clearly established law.
Robert E. Manley: They announced that McKinney would justify this.
Byron R. White: Let's assume that was the correct view of federal constitutional law.
Robert E. Manley: All right.
Byron R. White: Then where do you go?
Robert E. Manley: Well, assuming that were the correct view of federal constitutional law, with which, of course, I don't agree, then that still makes the Sixth Circuit incorrect in its determination of the case for the following reason.
Byron R. White: Well, if that were the case, at the time this search was made, at the time they knocked the door down, it was quite constitutional to do so on that assumption.
Robert E. Manley: But that does not excuse the county from liability.
Byron R. White: Well, you argue that because of Owen, I take it.
Robert E. Manley: Of Owen.
Byron R. White: Yes, but Owen wasn't a Fourth Amendment case.
Robert E. Manley: That's correct.
Byron R. White: It's a due process case. And I didn't... let's assume that as a result of this search there was a criminal case brought against the doctor. Let's assume that.
Robert E. Manley: Well, there was.
Byron R. White: Or against the owner of the office. Was there? Do you think the evidence that was seized would have been admissible?
Robert E. Manley: Well, as a matter of fact, in this particular search, nothing was seized, nothing was found.
Byron R. White: Well, assume there had been, and it was relevant to the case. Do you think it would have been admissible?
Robert E. Manley: That didn't happen in this case.
Byron R. White: Well, I know, but if it had happened, it seems to be it would be admissible even in spite of Steagald, because the Fourth Amendment cases like this are not retroactive.
Robert E. Manley: In this particular situation, I don't believe that there is anything revolutionary about the concept that you should not break down a door without a search warrant. Certainly in Steagald the Court made it clear that... this Court made it clear that it was not pioneering.
Byron R. White: Don't you agree that new decisions in Fourth Amendment law are not retroactive? At least for purposes of the exclusionary rule?
Robert E. Manley: For purposes of the exclusionary rule, but this is not... that is in conflict with the policy enunciated in the... by Congress in the Act of 1871. It defeats the deterrent purpose of the statute, which is to discourage people from using the color of law from violating constitutional rights.
Byron R. White: I know, but it doesn't deter much if the municipal authorities thought they were acting in accordance with clearly established law at that time.
Robert E. Manley: Well, in other circuits the law was to the contrary. We cited those in our briefs. The Sixth Circuit was by far a minority viewpoint.
Byron R. White: Now you are attacking the Sixth Circuit's view. Do you think that is essential for you to win?
Robert E. Manley: I do not think it is essential for us to win, because the purpose of the statute, of 1871 statute is to deter this kind of behavior on the part of people--
Byron R. White: The purpose of the exclusionary rule is to deter, too. And yet Fourth Amendment decisions we have held are nonretroactive.
Robert E. Manley: --I believe the compensatory aspects of 1983 are retroactive. I believe they are retroactive. And Owen is a situation where it was retroactive, and Owen goes on to explain in great detail why it should be retroactive, and it refers by... incorporates or quotes the case from Boston.
Byron R. White: I would think your policy argument... if you accept... the best argument for your policy argument for a county policy is to accept the Sixth Circuit's statement that it was not contrary to law at the time, because you would think that the county officers would be carrying out procedures that the constitution permitted.
Robert E. Manley: Well, as a matter of fact--
Byron R. White: And that is exactly what they testified to.
Robert E. Manley: --That is exactly what the sheriff testified to, that he was of the opinion that this was permissible--
Byron R. White: But if it were contrary to clearly established law at the time, I think you would have a tough time establishing a policy from a single act.
Robert E. Manley: --Well, at that particular time it was the sheriff's belief and the county prosecutor's belief that this was a lawful course of action.
Speaker: Right.
Robert E. Manley: There is no question about that. And the prosecutor was articulating what both he and the sheriff believed to have been the longstanding policy as incorporated in the statutes of Ohio and as reflected in the McKinney case.
Byron R. White: You say they were just mistaken.
Robert E. Manley: I believe they were mistaken.
Byron R. White: At least you say that.
Robert E. Manley: They were mistaken. That is correct. And so that we have a situation where we have a policymaker doing one of two things, either, A, articulating a longstanding practice or policy, what was believed to be the lawful course of action in his official capacity as the county prosecutor, or taking an act which constitutes policy. In either event, he is shaping policy for the county, and that policy directly resulted in breaking down the door and the illegal search without a search warrant, and under these circumstances, we respectfully submit that the Sixth Circuit should be reversed, and that the county should be held accountable for the implementation of this policy in breaking down the door and searching the premises without a search warrant.
Warren E. Burger: Do you distinguish policy from practice?
Robert E. Manley: Well, that is why I started to say the Sixth Circuit, I think, got off on the wrong track, but if you are trying to prove policy by means of a longstanding practice or custom, I think you have to show more than one time, repeated occurrences, and maybe even as in Rizzo 20 cases is not enough. But on the other hand, a policy doesn't have to be proven by circumstantial evidence. A policy can be proven by the statements or the writings or the actions of a policymaker.
Warren E. Burger: A single act.
Robert E. Manley: A single act by a policymaker in my opinion.
Warren E. Burger: If the single act were a resolution of the governing body instructing an officer, that would be one thing, but there is nothing like that here, is there?
Robert E. Manley: There is nothing like that here, but for this particular area of activity, the governing body has... county commissioners would have no power to pass such a resolution. The only people that have the power to set policy in this area are either the county prosecutor or the county sheriff, and they work together as a team.
Warren E. Burger: Well, leave off the governing body. A memorandum, interoffice memorandum saying this is what you shall do hereafter.
Robert E. Manley: Or a policy manual. But there is a state statute that says you may break down a door to effect an arrest, and then you get into an ambiguity, does that apply to capiases or not, so that certainly they were following, and they relied upon this state statute throughout the multiple appellate processes in various courts, so to that extent the statute was articulating a policy that applied in the county and was implemented by the county prosecutor.
Lewis F. Powell, Jr.: Mr. Waylan, assume that the assistant prosecutor couldn't find the county prosecutor, and obviously you had exigent circumstances here. Would the assistant prosecutor have had the authority to do what he did after he had talked to the prosecutor?
Robert E. Manley: Happily, we don't have that situation, and I don't know what the assistant prosecutor would have done. I knew that if I had been assistant prosecutor, I think I would have said, wait 15 minutes and I will come up with a search warrant, and I don't know whether the county prosecutor has a policy of leaving an assistant in charge if he is absent. Some organizations do. So I really don't know what facts in the record would make it possible to answer that question.
Lewis F. Powell, Jr.: So there was no policy that would have guided the assistant prosecutor.
Robert E. Manley: Well, that is not correct. The assistant prosecutor could have looked at the Ohio statute, and if he had, he would have said, based upon the Ohio statute, break down the door. He could have discussed it with the county sheriff, who would have said, well, it is our policy to use force to effect an arrest, failing to make a distinction between a capias and an arrest warrant, so that if he had done that, it would not have fallen under the single act policy formation. It would have fallen under the articulation of a longstanding policy as reflected in the Ohio Revised Code, and as reflected in the custom of the sheriff's department. So that far he could have gone, but I just... what I am having difficulty with is whether or not, if those other things were not present, would he be able by a single act to be able to create a new policy, and I honestly don't know the answer to that question.
Warren E. Burger: Mr. Friedmann.
Roger E. Friedmann: Mr. Chief Justice, and may it please the Court, on behalf of the respondent Hamilton County, Ohio, we would urge this Court to affirm the decision of the Sixth Circuit Court of Appeals, which found that the petitioner had suffered no constitutional deprivation because of a policy of Hamilton County, Ohio. Before proceeding into the argument, I think it would be well to clarify several points that were raised on the petitioner's argument, especially with regard to some of the facts. The record before the Court does indicate that Deputy Webb testified that there had been other instances where the third party premises had been searched in effectuating an arrest warrant. However, the record also reflects that Webb testified that he had never had to use force before because he had never been denied entry before. When he had the arrest warrant for someone, the person who owned the premises let him in the door. Also, in response to a question from Justice Marshall, petitioner indicated that the police had talked to the prosecutor before they went to get the fire ax. That in fact is not correct. The police department, the Cincinnati police department never did talk to the prosecuting attorney in Hamilton County, Ohio. It was a deputy sheriff who contacted his supervisor, who in turn connected the deputy sheriff to the prosecutor's office, and the deputy sheriff first talked to an assistant prosecuting attorney who went in and talked to the prosecuting attorney, and the message was relayed back to the deputy sheriff. One other matter, and this is a minor matter, but or Page 3 in Footnote 4 of the petitioner's reply brief he indicates that the respondents have changed their argument from the Court of Appeals in that in the Court of Appeals we were not arguing that it was not a policy of Hamilton County which caused the deprivation. I believe that the statement that is in the footnote in the petitioner's reply brief is actually taken out of context to the entire paragraph in our brief before the Court of Appeals, and we have not changed our position in this matter. Petitioner would have this Court--
Byron R. White: Do you agree that the prosecutor has line authority over the sheriff?
Roger E. Friedmann: --I certainly do not, Your Honor.
Byron R. White: Footnote 8 of the petitioner's brief that counsel referred to, it says the prosecutor is also the legal advisor for all county officers. Is that the extent of his authority, do you think?
Roger E. Friedmann: I believe it is, Your Honor. The statute clearly provides... I think it is Section 309.09 of the Ohio Revised Code... that the prosecutor by statute has the duty to render advice to other county officers when they request such legal advice. That is his duty as the prosecuting attorney with regard to those other county officers.
Byron R. White: It may be he doesn't have line authority, but that doesn't necessarily mean that he couldn't and didn't set policy.
Roger E. Friedmann: Your Honor, I believe that there probably are situations where the prosecuting attorney may set policy for certain items or certain areas. I don't believe, through, that this is a situation where the prosecuting attorney--
Byron R. White: I suppose you defend the Court of Appeals statement that the prosecutor's advice was consistent with the existing constitutional law at that time.
Roger E. Friedmann: --I would agree with that, Your Honor.
Byron R. White: If that is the case, do you have a very... I suppose the county or the state could have a policy of monitoring searches more closely than the Constitution requires, but surely no rule of law forbade this particular invasion of these premises at that time.
Roger E. Friedmann: As the prosecutor understood the law at that time, Your Honor, that is correct.
Byron R. White: And you defend that view.
Roger E. Friedmann: I would defend that view for his decision--
Byron R. White: And now you wouldn't defend it today because of Steagald.
Roger E. Friedmann: --If the question were to arise today and I were the prosecuting attorney, I would say Steagald says I must get a search warrant.
Byron R. White: Do you argue or if not, why not, do you argue that Steagald should not be applied retroactively?
Roger E. Friedmann: I think that in those exclusionary cases and the search cases in criminal proceedings the Fourth Amendment decisions generally are not applied retroactively.
Byron R. White: And so if there had been an evidentiary problem and the question of the application of the exclusionary rule, the rule wouldn't have applied.
Roger E. Friedmann: I think that's correct, Your Honor.
Byron R. White: But you... do you concede or do you not concede that Steagald is retroactive in this case for these purposes?
Roger E. Friedmann: In the sense that it provides a basis of potential constitutional remedy under 42 USC 1983.
Byron R. White: Well, Steagald, if you assume it was a completely new rule of law, would not be retroactive for the deterrent purposes of the exclusionary rule, would it?
Roger E. Friedmann: Under the criminal proceedings, I think that is correct, Your Honor.
Byron R. White: You think that for 1983 purposes the county should nevertheless be liable even though at the time it was acting completely consistent with constitutional law?
Roger E. Friedmann: Your Honor, I don't know that I would concede liability on the part of the county in that position.
William H. Rehnquist: If there is no constitutional wrong, then you don't have to worry about policy or anything else, because the action depends on the existence of a constitutional violation here.
Roger E. Friedmann: That is correct, Your Honor. The District Court found that there was a constitutional deprivation, I think, in light of the Steagald decision.
Speaker: Yes, and you didn't challenge that anywhere, did you?
Roger E. Friedmann: Truthfully, no, we did not, Your Honor.
Speaker: And you haven't yet.
Roger E. Friedmann: That's correct.
Speaker: I hope you would like to.
Roger E. Friedmann: If we could. Your Honor, in this action, the petitioner would have the Court impose a liability upon the county because of the actions it believes have been taken by the prosecuting attorney. The petitioner had this Court impose liability because, and only because, the prosecuting attorney gave legal advice to one of the deputy sheriffs, and as we have already said, which advice was proper at the time. After this Court's decision in Oklahoma City versus Tuttle, I think if the county is going to be liable, the petitioner must show that there was an existing unconstitutional policy which caused a constitutional deprivation, and I don't believe that the petitioner has done that in this action.
John Paul Stevens: May I ask you, on that score, supposing just before these phone calls took place, the sheriff and the prosecutor talked to one another and said, what will we do in this case, and instead of just saying, go ahead and break in, they had said, well, I think in cases like this we should break in, and then they went ahead and broke in, would it be a different case?
Roger E. Friedmann: I don't think that it would be at that time, Your Honor.
John Paul Stevens: Supposing they said, we should adopt a policy for cases like this, we should break in, and we should do it today. Would that be a different case?
Roger E. Friedmann: I think at the time they could have adopted a policy, and I am speaking about--
Speaker: Just the two of them together now.
Roger E. Friedmann: --I am speaking about the sheriff, though, adopting a policy.
John Paul Stevens: The sheriff and the prosecutor talk it over together.
Roger E. Friedmann: It is not the obligation of the prosecutor to adopt that policy, because the prosecutor is not going to be the person faced with the responsibility or the duty or the authority to effectuate that capias or arrest warrant. That is not the prosecutor's function. His function is to give advice to the county sheriff.
John Paul Stevens: Well, say his advice is, I think in cases like this you should break in, and he says, I agree, in cases like this we will break in. Would there be liability?
Roger E. Friedmann: On the part of the county?
John Paul Stevens: Yes.
Roger E. Friedmann: I think when we are talking about the time frame that this occurred, in 1977--
John Paul Stevens: Correct.
Roger E. Friedmann: --if the prosecutor had said, my advice based upon what the Sixth Circuit Court of Appeals has said in the United States versus McKinney, if you have to use force to effectuate an arrest warrant on the third person... premises of some third person to effectuate that arrest warrant--
John Paul Stevens: This is not an arrest warrant, a capias.
Roger E. Friedmann: --Well, Your Honor, the courts have treated this capias here as the equivalent of an arrest warrant. The capias itself is an order from two judges of the Court of Common Pleas saying to the sheriff, go out and arrest these individuals and bring them before the Court. The word "arrest" is used in that capias.
John Paul Stevens: Well, answer my question if you would. Supposing they said exactly what I gave to you, that the sheriff says to the prosecutor, what do you think we should do, and he says, I think in cases like this you should break in, the sheriff says, I agree, that is what I will tell the officers to do. Would that then be a policy that would be actionable?
Roger E. Friedmann: I think it would have been a policy of the sheriff, but I don't think it would have been actionable at that time.
John Paul Stevens: Would the county be responsible? What do you mean, at that time? I would suppose Justice Stevens would ask you the same question. Suppose it was done today, after Steagald. The sheriff goes to the prosecutor and says, what should we do, and the prosecutor says, well, let's forget that Steagald case, let's just... this is a policy we are going to go ahead with. What about that?
Roger E. Friedmann: Your Honor, I think in that situation if the sheriff makes the policy decision to force that door without a search warrant knowing of the Steagald decision, I think that there could possibly be a policy of the county--
Byron R. White: So it is a policy. So it is no less a policy in this case.
Roger E. Friedmann: --But that's not the facts that occurred in this case.
John Paul Stevens: The only difference is, they didn't say, what will we do in cases like that? They said, what will we do in this case? That is the only difference.
Roger E. Friedmann: But I think it is a big difference.
John Paul Stevens: One is a policy, and one is not.
Roger E. Friedmann: I think it is a big difference. This is the only evidence of that one incident where force ever had to have been used, where a search ever took place that was not permitted, and there is no evidence in the record to support otherwise.
John Paul Stevens: Is it fair to say the issue in this case is whether a policymaking official can make policy?
Roger E. Friedmann: I am not sure how to answer that, Your Honor.
Harry A. Blackmun: I take it from your answer that if this were the third occurrence, it might be a different situation.
Roger E. Friedmann: If it were the third occurrence today, Your Honor, or the third occurrence back in 1977?
Harry A. Blackmun: Answer them both.
Roger E. Friedmann: I think if it occurred today in light of Steagald, I think there clearly would have been a constitutional deprivation. If it had been the third occurrence back in 1977, I am not sure that that would have been a policy. It may have been a practice. It may have been a custom in the county that would have been supported by some evidence, and there may have been some basis to impose liability on the county in that situation, but those aren't the facts that came about in this case.
Harry A. Blackmun: Well, then, the fact it is a first occurrence really isn't very relevant.
Roger E. Friedmann: I think it is very relevant, Your Honor. If liability is to be imposed upon a custom or practice, if it is the first incident that is supported by any evidence, the only way that anyone in any authority is going to know of a customer practice is by repeated incidents of some type of activity, not by one incident, but the question that is before us is whether or not it is a policy, and I don't believe that it is a policy on the part of Hamilton County.
Byron R. White: The sheriff says to the prosecutor, should we break in, is it lawful for me to break in, the prosecutor says, of course it is, that is what the law is.
Roger E. Friedmann: Are you speaking of the present time, Your Honor, or again going back to 1977?
Byron R. White: I don't think it makes any difference in view of the fact that you have never challenged the applicability of Steagald to these facts.
Roger E. Friedmann: I think in light of Steagald, though, and knowing what Steagald says, I think the sheriff has some responsibility in that area also to know what the decisions of this Court, the Sixth Circuit, and the courts of Ohio have been as they relate to his execution of arrest warrants or search warrants, and I don't believe that he in his position would be acting as a reasonable man in not knowing the decision in the Steagald case. As we said before, I don't believe that the prosecuting attorney was a policymaker in this particular case with regard to the search of the petitioner's premises. The capias was issued by two separate judges of the Court of Common Pleas.
Harry A. Blackmun: Could it have been issued, as your opponent says, by a notary public?
Roger E. Friedmann: I believe that there is provision in Ohio law for that situation, but that is not what occurred in this case. The two employees of the petitioner had been subpoenaed to appear before the grand jury. They failed to appear pursuant to the subpoenas that were served upon them. And the foreman of the grand jury went before two separate judges of the Court of Common Pleas advising the court that these witnesses were necessary and that the grand jury desired them to be present, and on that basis of that, two separate judges issued the capias for their arrest, to be brought before the court.
Harry A. Blackmun: When you say two separate, you mean one for each of the witnesses?
Roger E. Friedmann: That's correct, Your Honor.
Harry A. Blackmun: You don't go to one judge, and then you go down the hall to another one.
Roger E. Friedmann: As a matter of fact, Your Honor, it was before two separate judges. In Hamilton County there is a system whereby every month the presiding judge changes, and the presiding criminal judge is the judge who decides whether or not, if questions arise with regard to the grand jury, what is going to happen, and as it was, this occurred in two different months of the year, of the calendar year, and that is why there were two separate judges who had issued the capiases. As we stated before, the prosecutor is not the policymaker in this area because he was required to give legal advice to the sheriff, not directions to the deputy sheriff. He had no authority to control the activities of the deputy sheriff, and it is even clearer that the prosecuting attorney could not control the activities of the Cincinnati city police department. I believe that the rendering of legal advice--
Speaker: Did you represent the city?
Roger E. Friedmann: --I did not, Your Honor. I represented Hamilton County.
Byron R. White: Did the city have its own representation?
Roger E. Friedmann: It did, Your Honor.
Byron R. White: And it did not object to it being held liable?
Roger E. Friedmann: I think it objected vehemently.
Byron R. White: I know, but they didn't come here.
Roger E. Friedmann: Your Honor, as I understand the proceedings, the Court of Appeals reversed and remanded back to the District Court for further proceedings with regard to the city of Cincinnati. Why the city of Cincinnati decided not to seek a petition for writ of certiorari on its liability, I can't answer for the city.
Byron R. White: They accepted... their liability was finally determined in the Court of Appeals.
Roger E. Friedmann: The Court of Appeals determined--
Byron R. White: The fact of liability.
Roger E. Friedmann: --The Court of Appeals determined that there may be a policy of the city which was responsible for the constitutional deprivation.
Byron R. White: I see.
Roger E. Friedmann: And remanded the case to the District Court for that purpose.
Harry A. Blackmun: The title of the case here is a little peculiar, isn't it, with the city of Cincinnati as the lead name on the down side?
Roger E. Friedmann: Yes, Your Honor, and that is, I think, simply because that is the way that it was always characterized in all documents that have been filed since the initial complaint.
Harry A. Blackmun: Is the city a party here?
Roger E. Friedmann: They are not, Your Honor, not before this Court.
Harry A. Blackmun: Well, under our rules they might be classified as a respondent.
Roger E. Friedmann: I think they may be, Your Honor. I think, though, that that is best left to the city to decide whether or not they want to be a respondent in this action. Again, the rendering of legal advice by the prosecuting attorney which the deputy sheriffs were not required to be filed and which was in accord with the law at that time should not be elevated to the position of an unconstitutional official policy for which Hamilton County--
John Paul Stevens: Mr. Friedmann, can I ask you about the statute that you quote in Footnote 1 on Page 8 of your brief, "The duties of a prosecuting attorney. " and then they refer to the fact that other members, the commissioners and so forth, "may require written opinions or instructions from him. " What significance do you attach to the word "instructions"?
Roger E. Friedmann: --I would view instructions as legal advice on how to handle certain matters that may come before those particular county officials.
John Paul Stevens: Would the manner in which one serves a capias be something with respect to which he could give instructions?
Roger E. Friedmann: I think that could be a matter for which the sheriff could seek legal advice, and that in fact is what the sheriff's department did in this action.
John Paul Stevens: But under the statute, could the sheriff have said, what are my instructions, do I or do I not use an ax to break down the door?
Roger E. Friedmann: Your Honor, I don't view instructions in that manner.
Speaker: I see.
Roger E. Friedmann: As directory instructions. I think it would be considered in the same light as any other legal advice, that that is all it is, legal advice.
John Paul Stevens: A recommendation.
Roger E. Friedmann: If I as a lawyer give advice to my client, that client is certainly free to disregard that advice, and I think clearly the sheriff is in that same position here. He is not required to follow the advice of the county prosecuting attorney, nor certainly are his deputies. I think the practical result of adopting the position of the petitioner in this case would be that the prosecuting attorneys or district attorneys or whatever in local government units will be somewhat concerned and reticent to give legal advice to their clients if the ultimate result is that the entity can be responsible and liable if there is some constitutional deprivation.
John Paul Stevens: May I ask you one other question, because you called attention to Footnote 4 on the reply brief, and you indicated that your brief had been... portions had been taken out of context, and they indicate, they quote from your brief saying there is a distinction. They seem to suggest that you drew a distinction between a policy of the county itself on the one hand and a policy of either the sheriff or the prosecutor on the other. Do you maintain that there is a difference, that the county prosecutor or the county sheriff could have a policy for which the county would not be responsible?
Roger E. Friedmann: Your Honor, I believe that the county prosecutor could have a policy perhaps with regard to the operation of his office for which the county itself does not recognize him as the final repository of authority. In that situation he could have a policy that is not necessarily the policy of Hamilton County. Conversely, he could have a policy if he has the ultimate responsibility in that area where that is the policy of the county.
John Paul Stevens: Supposing that the sheriff or the prosecutor or both collectively had a policy regarding service of capiases such as this. Would you question that as being county policy but were their policy?
Roger E. Friedmann: If the prosecutor had it?
John Paul Stevens: Say if the... or say if the sheriff, after consulting with the prosecutor, concluded that it would be his policy to do exactly what they did here, if that were true, would that be county policy in your view?
Roger E. Friedmann: The ultimate decision with regard to the execution of an arrest warrant that is directed to the sheriff, I believe, the ultimate responsibility lies with the sheriff to effectuate that warrant, and in that regard, unless there is a specific state statute that requires him to do something else, I think he would be the ultimate policymaker in that regard.
Speaker: Thank you.
Roger E. Friedmann: Your Honor, I think in cases such as this in which 42 USC 1963 is involved the Court should be seeking to achieve responsible governmental units where officers act sensibly and reasonably and conform their conduct to existing law while also protecting the rights of individuals. In the present case we have a situation where all persons involved in the local governmental process acted sensibly and reasonably, with one exception, and I think that is the petitioner.
Speaker: And were entitled to qualified immunity?
Roger E. Friedmann: The governmental entity?
Byron R. White: No, the individuals.
Roger E. Friedmann: I clearly believe that the individuals were entitled to qualified immunity and the courts have so found below.
Byron R. White: The prosecutor would probably do absolute immunity.
Roger E. Friedmann: I would make the argument that the prosecutor is entitled to absolute immunity, being in that position, but definitely qualified immunity would be available. Again, everyone here acted sensibly and reasonably. Subpoenas were lawfully issued for employees to appear before the grand jury. Only on the failure of those witnesses to appear pursuant to the subpoena did the foreman of the grand jury go to the court to seek the capiases. Two separate courts issued the capiases, and the deputy sheriffs went to serve those capiases. The deputy sheriffs attempted service during normal business hours at the known business location of the employees who were named in the capias. When thwarted, they sought legal advice, and the prosecuting attorney gave that legal advice based upon the law of the time as he knew it to exist within the Sixth Circuit. Petitioner, however, barricaded the door. It was only after the Cincinnati police arrived that the door was chopped down. He was convicted for obstructing official business. That conviction was upheld, and this Court denied a petition for writ of certiorari. I think any responsible government official, even though he has immunity in this situation, is not going to be satisfied if he knows that some advice, legal advice that he has given might subject the governmental unit to liability. For all the foregoing reasons, I think that the petitioner has failed to establish an unconstitutional policy on the part of Hamilton County which caused a constitutional deprivation for the petitioner, and I believe that the decision of the Court of Appeals for the Sixth Circuit should be affirmed. Thank you.
Warren E. Burger: Do you have anything further, Mr. Manley?
Robert E. Manley: Mr. Chief Justice, and may it please the Court, I have a few matters. Initially, Mr. Justice Stevens raised a question of a dialogue between the sheriff and the prosecutor. I do not know whether or not that dialogue took place. I uncovered no evidence of it. But the functional equivalent of it took place in that after the event, the sheriff caused a complete investigation to be made, and the record in this case shows that the sheriff approved the advice that his people got from the county prosecutor, and indicated that what his people did was completely consistent with the policies of his office at that time, so that while we don't have the conversation that Mr. Justice Stevens suggested, we have the functional equivalent.
Speaker: Did the Court of Appeals take not of that or not?
Robert E. Manley: I don't recall if they did.
Byron R. White: They didn't, you say?
Robert E. Manley: I do not recall if they did. I believe that the Act of 1871 was passed in light of the common law at that time, as this Court has suggested in Owen and certainly the Thayer case, which is cited in our reply brief, and Footnote 1 in Owen makes it abundantly clear that where you have governmental liability, the mere fact that the law is unclear at the time that the policy is made or implemented should not protect or shift the cost to the--
Byron R. White: What if the law were clear but the other way?
Robert E. Manley: --Well, if the law were clear but the other way... well, the law--
Byron R. White: Suppose under the existing law it was clear as a bell and everybody would agree that under that law this particular search was constitutional?
Robert E. Manley: --Well, then we are in a situation where, as happened here, this Court then announces that what people may have thought... what the police thought the law was was not the law, and the same principle enunciated in Thayer and Owen should apply in that situation for the same reason, that the burden should not be dumped on the innocent citizen, it should be shared by all the taxpayers who perpetrate the wrong. For these reasons, if the Court please, we respectfully request the Sixth Circuit be reversed.
Warren E. Burger: Thank you, gentlemen. The case is submitted.