Earl Warren: Mr. Raphael, you may continue your argument.
Sidney O. Raphael: Thank you Your Honor. I'd like to pick up the thread of my argument shortly before we -- Your Honor declared a recess. Somewhere around April of 1957 after we had gone through 12 hectic bargaining sessions over a period of time, we found ourselves in the position of where we were vacillating between individual collective bargaining, industry wide collective bargaining. And frankly, I don't think anybody, you, neither the State Mediation Border or the Union or those people who were sitting in as a group in these negotiations in what thing we were bargaining. I think everybody recognized though that an industry-wide pattern would have been the more preferable method of evolving a collective bargaining agreement because it would've established uniform conditions. And that was --
Potter Stewart: This is a metal fabricating industry.
Sidney O. Raphael: This is metal fabricating Your Honor.
Potter Stewart: Localized in any area or is it all over the (Voice Overlap) --
Sidney O. Raphael: No, it's Pennsylvania, New York and New Jersey principally.
Potter Stewart: Primarily there.
Sidney O. Raphael: And our members have rather substantial plants in all of these three states. And what we were trying to achieve is a uniformity of conditions. And I think the Union went along with that, shall we say sub-consciously, although not voicing it in those words. Now, the reference has been made in the argument of the petition. It might have been availed inference that there was a sham bargaining. Again, I want to repeat that the risk of -- perhaps being redundant that we have real genuine, sincere bargaining and rather lengthy and hectic sessions that resolved many issues and resulted in a wage pattern which meant perhaps over a million dollars as far as our members will consign for a period of a three-year agreement. Now, when we got down to about the middle of May and the situation became very acute because a strike had been declared against one of the members of the association. And there was general chaos and disruption among the workers which we contended on the record was generated and inspired by the Union's representatives. When that situation eventuate, we at that time said to the Union, “Look, if we cannot agree amicably on what constitutes the format of a collective agreement, let us give this thing to the American Arbitration Association for them, for an arbitrator or a panel of arbitrators to be chosen who have the expertise in dealing with these problems and we are agreeable to be bound by their award.” Well, surprisingly, the Union refused to go along. And with the result that the -- there was a complete impasse at that time. The Union wrote us a letter, we wrote the Union a letter and for a period of two months, we heard nothing from the Union at all. So that following May the 17th, which is a local date, somewhere at the beginning of July and just about the time when the certification year was to expire, the employees were then the collective bargaining unit, sua sponte disowned the Union, notified us that they were no longer interested in having the union bargain for them collectively. But even before this impasse resulted in May of 1957, we had another curious situation which brought about an impasse and that was this. While we were engaged in this overall industry-wide bargaining the Union went and they used the divide and conquer procedure which they have a perfect right to do. It's -- all is fair in an economic war, we agree to that. And they went and obtained a collective agreement from the largest employer in the industry operating a plant in Pottsville, Pennsylvania. And in this agreement, a clause was written which stated, “No other employee shall be accorded times and conditions more favorable than those that are prescribed in this contract.” And that was sometime of the early part of January of 1957 so that when we met with the Union's representatives the next time, we were met head on with the statement by the Union that we would have to conform with the times and conditions of this atmosphere contract.
Earl Warren: Mr. Raphael, may I ask this -- this question, do we have to review all these facts to decide this case or do we just have to decide whether -- whether the -- the Board has a right to make such a -- an order without finding that the company intended to recruit bargaining?
Sidney O. Raphael: Well, I believe that and if we're to follow --
Earl Warren: (Voice Overlap) -- if we don't have to follow -- if we don't have to review all these facts, it seems to me, we ask the very narrow question of law, does we?
Sidney O. Raphael: Well, no. I would like to -- I would like to agree with you that it is a narrow question. I realized that I don't -- nobody would like to overburden the Court. But unfortunately, in the light of the decisions especially the Insurance Agents case, I think that the factual content of the case with respect to the good or bad faith bargaining becomes very crucial if we ought to sustain the corollary findings under 8 (a) (5) and 8 (a) (1).
Earl Warren: What did the -- what did the Court of Appeals do with the findings of the Board? Does it disagree with the factual findings of the -- of the Board?
Sidney O. Raphael: Well, they didn't disagree with the factual findings but they had reservations about them. But, it is my opinion that since the Court was determined by majority opinion to send the case back to the Board on a mandate, to educe additional evidence with respect to the good or the bad faith finding, I think that in effect eventually would resolve the issue. Because if we went back to the Board and we have to determine the good faith of the employer, additional evidence would have to be educed. And this additional evidence would in turn supplement the evidence already adduced and then the Board would have to say, “Well, we feel that the overall bargaining tactics of this employer were fair, that perhaps he did go often the left field a little bit here and there but it wasn't that serious and it didn't amount to that much that we have to make an overall finding of failure to bargain.”
Earl Warren: Well, if the court below is right though, we don't have to review all these facts, do we? If the court below is right from --
Sidney O. Raphael: If the court --
Earl Warren: -- on the law, then it would in fact goes back --
Sidney O. Raphael: If the fact -- if you agree with the threshold question, that's it.
Earl Warren: Yes, alright. Now if we don't -- if we don't agree with it, isn't it a just question of law then?
Sidney O. Raphael: No, I feel that you --
Earl Warren: If it -- if it needn't be subjective but only objective wouldn't that be the issue?
Sidney O. Raphael: Well, I -- I -- I think that the issue on the cases whether or not the case on the totality, we go back to the Universal Camera case. In other words, on the basis of the overall evidence on the case, we contend that there has not been substantial evidence to make an overall finding in this case.
Hugo L. Black: Although a finding of (Inaudible) --
Sidney O. Raphael: A finding --
Hugo L. Black: (Voice Overlap) --
Sidney O. Raphael: A finding --
Hugo L. Black: -- is a finding of what?
Sidney O. Raphael: A finding of failure to bargain in good faith.
Earl Warren: Well -- what --
Sidney O. Raphael: That would be 8 (a) (5).
Earl Warren: Well what -- what question that do you -- do you raise here on your -- how do you state the question?
Sidney O. Raphael: Well -- question number one Judge Warren, whether on the context of the continuing impasse and an ultimate breakdown of negotiations both caused by Union and employer violates Section 8 (a) (1) and (5) etcetera, by following its longest established standard practices known and discussed with the Union. That's a factual question.
Earl Warren: Yes, but the question presented in the petition, the one on which you granted cert is this, whether there is a violation to Section 8 (a) (5) and (1) of the National Labor Relations Board when prior to the discontinuance of collective bargaining negotiations in the existence of an -- of a possible -- any possible impasse, an employer without notice to or consultation with the employees' bargaining representative unilaterally places in effect new wage rates substantial in excess of those offering. The representatives changes the sick leave policy and grants numerous merit increases.
Sidney O. Raphael: We know that Judge but we say we didn't do those things.
Earl Warren: I beg your pardon?
Sidney O. Raphael: We say we didn't do those things and we say that the records sustain our position.
Earl Warren: Well, you object then to the findings of the Board and the -- and the findings of the --
Sidney O. Raphael: That's right.
Earl Warren: -- Court of Appeals, this --
Sidney O. Raphael: We don't object to the findings of the Court of Appeals if -- I say again if that -- if the threshold question is resolved, we don't have to come to the other question.
Earl Warren: Yes, but where does -- where does the Court of Appeals designate it with the findings -- the factual findings of the Board.
Sidney O. Raphael: Well, the Court of Appeals disagrees with the factual findings of the Board in the respect that they don't come to the conclusion on the basis of the good faith section of the amended act that we, on an overall basis, violated anything and they send back to the Board the determination of that question. So apparently, the Court did not come to any conclusion. It would appear that way to me. Now, I want to get down to the question of the matter of whether or not the determination on the issue of violation of 8 (a) (1) and 8 (a) (5) can be made on a basis of per se violations or must it be in the totality of all of the conduct of the employer. I'd like to point out and we have referred to this in our brief on pages 20 and 21 that only recently in an address by a member of the National Labor Relations Board, Gerald Brown, I think it was at Duke University, he agreed that the Board should now determine cases not on a per se basis but on the basis of the formula enunciated in the opinion of Mr. Justice Frankfurter in the Insurance Agents case. Now, this is a member of the National Labor Relations Board making a speech of very, very recent vintage. And I say that this contrary to the statements of the Solicitor, he does not speak for his client. His client has spoken completely at odds with him.
Felix Frankfurter: And there's one member of the Board who speaks for his -- for the Board?
Sidney O. Raphael: Well --
Felix Frankfurter: -- one member would speak -- speak for the Board?
Sidney O. Raphael: He's -- he might and for --
Felix Frankfurter: I'm asking (Inaudible) --
Sidney O. Raphael: Well, he might -- he says that this is the policy the Board should pursue and he's a member of the Board, Judge Frankfurter and I think that this should carry considerable weight in -- in indicating the present day thinking as of this moment that they do know longer adhere to the old view before the amendment of the Act to the per se violation but they are rather now dealing on the basis of a totality of the record. Now, we have referred to his -- we have quoted some of these comments where he says on page 21 and we have highlighted that.
Felix Frankfurter: Where is the full text of the speech to be found in this?
Sidney O. Raphael: I think the Solicitor General has the full text. It seemed --
Felix Frankfurter: I just wanted the citation. I didn't want for you --
Sidney O. Raphael: Oh --
Felix Frankfurter: I'd be glad to have the facts in this.
Archibald Cox: What's the sect -- section? I don't think it's -- I don't think it's fully printed. We'll get other copies for the Court if it wishes. And I've just handed one with the marshal.
Sidney O. Raphael: I want to refer to some of the --
Felix Frankfurter: (Inaudible)
Sidney O. Raphael: I beg your --
Felix Frankfurter: Pardon me for interrupting. Was this -- or was this released by the Board or by the speaker or in fact some -- is that a case the other day which involved knowing what -- who speaks to whom?
Archibald Cox: Well, it was up without (Inaudible). I believe that this is put out by the Board's press relations office as they speak through a single member. Mechanically, it emanates from the Board's headquarters that each individual speaks for himself.
Felix Frankfurter: I can read it without being a part of the (Inaudible) the NLRB on the new frontier that -- that's not a technical term, is it?
Archibald Cox: I take it a joke. My association does not permeate the doctrine of the Court.
Sidney O. Raphael: May I proceed?
Earl Warren: You may continue Mr. Raphael.
Sidney O. Raphael: I would like to refer to some of the state -- some of the con -- cases as cited by the Solicitor in the argument. And he cites for instance the Borg-Warner case. I think Judge Frankfurter in his opinion in the Insurance Agents case on page 509 distinguished the Borg-Warner case in pointing out that in Borg-Warner --
William J. Brennan, Jr.: Mr. Raphael, is there any -- nothing about the Court opinion in the Insurance Agents that has a bearing on the problems here, is it only the concurring opinion on which it would consult?
Sidney O. Raphael: Oh no, I'm not -- I'm just referring to certain sections of it. But I know Your Honor wrote the opinion on the case on that.
William J. Brennan, Jr.: It's not important if I wrote it.
Sidney O. Raphael: I'm not saying this by way of --
Felix Frankfurter: Anything.
William J. Brennan, Jr.: Not suggesting you are but I'm just wondering if the court below as I understood it relied on Insurance Agents and that is the Court opinion.
Sidney O. Raphael: Yes. They did Your Honor.
William J. Brennan, Jr.: But you're relying on the concurring opinion.
Sidney O. Raphael: No, I'm not relying on the concurring opinion. I'm quoting from the concurring opinion.
Hugo L. Black: What's the object in it? I thought I agreed to the court opinion. I didn't know that --
Sidney O. Raphael: Well, I -- I think -- I think if I may say so, the concurring opinion went a little further in elucidating on what the affect of the amendment of Section 8 (d) was and its application to present day collective bargaining. And it's only in that posture that I want to refer. I'm not by -- I know that the decision itself. Your opinion Judge Brennan spoke about Section 8 (d) and that the amendment, the effect of it. But I think in the concurrent opinion, it was a little more elucidation on the subject and that was the only reason that I made reference.
Hugo L. Black: Do you mean, elucidated the court opinion?
Sidney O. Raphael: It elucidated the court opinion.
Felix Frankfurter: Isn't that a rule?
William J. Brennan, Jr.: That is new.
Felix Frankfurter: (Inaudible)
William J. Brennan, Jr.: Maybe the court opinion didn't use it because they don't think its -- if it was irrelevant.
Sidney O. Raphael: You don't want me to act as a judge, do you?
Felix Frankfurter: We've got a rule against referring to a concurring opinion, have we?
Sidney O. Raphael: Not that I know off Judge Frankfurter.
Felix Frankfurter: Only, you do refer to the dissenting opinion but concurring opinion have a lower status.
Sidney O. Raphael: I would like in connection with --
Felix Frankfurter: Its shorter (Inaudible)--
Sidney O. Raphael: The further argument of Mr. -- of Solicitor General point to the fact that --
William J. Brennan, Jr.: Well you know you're not alone Mr. Raphael. The Solicitor General thought that the concurring opinion was particularly helped pursuant to.
Sidney O. Raphael: Well, in other words, I'm in agreement with the Solicitor General.
William J. Brennan, Jr.: Apparently that was the question asked.
Sidney O. Raphael: I would like to point out to the Court that in the opinion of Judge Waterman and the Court of Appeals on page 707, he refers or rather he quotes from an article written by the Solicitor General entitled Duty to Bargain in Good Faith, 71 Harvard Law Review 1401, 1424 and --
William J. Brennan, Jr.: You'd like the speech of --
Sidney O. Raphael: Like General Brown.
William J. Brennan, Jr.: -- the members of the Board the same idea?
Sidney O. Raphael: Yes. Now, I -- I sincerely feel that in the light of the amendment, Section 8 (d) and specifically considering the fact that the Board refused to go along with the trail examiner on the good faith issue that I think it was perfectly proper and appropriate in order to have a complete record with complete findings of fact and conclusions of law which I think this record was devoid off in the light of Section 8 (d) for the Court to have issued its mandate in sending the case back to the Board for the adoption of further evidence. And in the phase of that, I think that Your Honors should affirm the order of the court below. I thank you very much for the time you've given me.
Earl Warren: Mr. Raphael. Mr. Solicitor General.
Archibald Cox: I don't think any extended reply is necessary Mr. Chief Justice. I would just say one word to make our position clear about some of the questions of fact that have been raised. Mr. Raphael's arguments on the facts are quite contrary to the findings of the trial examiner and of the Board. And the Court of Appeals assumed those finding to be correct and our position of course is that the case is to be decided here on the basis of those findings of what questions maybe open to Mr. Raphael when the case goes back as we think it should to the Court of Appeals. Or whether he then can argue that there was a lack of substantial evidence to support the findings and so forth is not a question presently here. We think there was substantial evidence and I see no reason to discuss it. So far as Mr. Brown's opinion goes -- speech goes, I think the Court will find nothing in there which is in anyway inconsistent with the argument made on behalf of the Board here or with the general philosophy that I have sought to express.
Potter Stewart: Are you contending for a per se rules necessary?
Archibald Cox: We're contending that unilateral action of the magnitude involved here during negotiations while the Union is seeking to bargain of the substantives and before an impasse has been reached, it is per se a violation of the duty to bargain and of Section 8 (a) (1).
Potter Stewart: In other words, your answer is yes.
Archibald Cox: The answer is yes. The qualification I put in was purposeful. It is a rankle which frankly has always troubled me. There are certainly some minor instances of unilateral action which it must be possible to take. Suppose the farmer -- as far as a worker punches a farmer in the nose and surely the employer can get him out of the plant even though negotiations were going forward. And I -- therefore didn't -- I wanted to limit myself to unilateral action of this magnitude prior to an impasse during the --
Potter Stewart: But your answer is --
Archibald Cox: -- negotiation.
Potter Stewart: -- yes. You are contending for a per se rule and then you just filed it as --
Archibald Cox: As applied to --
Potter Stewart: Define what the --
Archibald Cox: -- certain things --
Potter Stewart: -- rule ought to be.
Archibald Cox: As applied to certain things, yes.
Potter Stewart: Yes.
Felix Frankfurter: Alright.
Archibald Cox: Yes.
Felix Frankfurter: Mr. Solicitor.
Archibald Cox: Without any questions, absolutely.
Felix Frankfurter: Mr. Solicitor, unless I'm wrong, you -- the phrase per se didn't come in your main argument, is it? I don't mean --
Archibald Cox: I didn't use it.
Felix Frankfurter: That's what I mean.
Archibald Cox: I didn't use it.
Felix Frankfurter: Alright. I'm usually in leery of phrase so I want to know what per se is.
Archibald Cox: Well, I take it that it means that this Act --
Felix Frankfurter: I mean, I want (Voice Overlap) --
Archibald Cox: In and of themselves --
Felix Frankfurter: Would you state --
Archibald Cox: -- regardless of the employer's state of mind are a violation of Section 8 (a) (1).
Potter Stewart: It's a unilateral action of this kind and magnitude taken before an impasse and bargaining is reached is per se a failure to collectively bargain is a violation --
Archibald Cox: Is a failure to collectively bargain regardless of the employer's --
Potter Stewart: Right.
Archibald Cox: -- state of mind.
Potter Stewart: Yes, therefore a violation of 8 (a) (5) of the statute.
Archibald Cox: At Section 8 (a) (1).
Potter Stewart: And -- and also Section 8 (a) (1).
Archibald Cox: Yes.
Potter Stewart: That's the per se rule from which you're contending.
Felix Frankfurter: It's not a very -- not a very embracing rule of law because of this kind and -- what was the other adjective or the other qualification under these circumstances?
Potter Stewart: Well, any action by --
Archibald Cox: No, I didn't --
Potter Stewart: -- this employer.
Felix Frankfurter: But I just want to know what you deemed to be the rule of law which will guide a case coming up before the Board, the Tuesday following the Monday this case goes out in your favor?
Archibald Cox: I contend that for an employer to take unilateral action of substantial magnitude or something like that. I'm trying to exclude the discharging the thought.
Potter Stewart: The individual grievance of a --
Archibald Cox: Yes. That for employer to take unilateral action to change terms and conditions of employment.
Potter Stewart: Bargainable.
Archibald Cox: Bargainable terms and conditions of employment at a time when the employees have designated a bargaining representative and when the bargaining representative is seeking to bargain on those subjects and when no impasse has been reached is regardless of the employer's state of mind in violation of the statute.
Potter Stewart: And regardless of any other circumstances really?
Felix Frankfurter: Well --
Archibald Cox: No, I don't think I would go -- I don't think I would go that far.
Potter Stewart: What circumstances can you think of that would make it a violation?
Archibald Cox: Well, I would -- I would have to -- without being more precise, I would think the Union's conduct might be a relative circumstance. If the Union, while seeking to bargain was conducting in itself a way that made it practically negotiate -- practically impossible to carry on negotiations, I would think that would raise a different issue (Voice Overlap) before this Court on the findings of the Board. That's the -- that's the chief area in which I'm uncertain.
Felix Frankfurter: But we know that it (Voice Overlap)--
Archibald Cox: I just don't -- I don't think of any other Justice Stewart. I'm not trying to evade it --
Potter Stewart: I --
Archibald Cox: -- but I -- I just hesitate to state it more broadly than the case needs to -- be required.
Potter Stewart: Well, I was wondering if you were thinking of -- regardless of what was actually going on at the bargaining table, your -- your rule, your -- the rule you contend for as I understand it, you would apply whether or not and regardless of the fact that the employer's representatives were sitting down day after day after day after day at the bargaining (Voice Overlap) --
Archibald Cox: That's correct.
Potter Stewart: -- subjective in --
Archibald Cox: I would say for example, let's suppose that the employer's representative was sitting down day after day --
Potter Stewart: It's subject in --
Archibald Cox: -- bargaining in --
Potter Stewart: -- good faith --
Archibald Cox: complete good faith --
Potter Stewart: Yes.
Archibald Cox: -- with a union which has been certified to represent all the employees is the plant-wide union.
Potter Stewart: Yes.
Archibald Cox: And he's bargaining with that union in complete good faith. It goes out and bargains with the union representing the pattern makers, a small group at the same time. He's violated the statute, perfectly clear because he is obliged to concentrate on fixing terms and conditions in negotiations with the majority representative and each unit would include the pattern maker. Again, if he goes and bargains with individual employee, even though he sits down day after day. Now, I am saying following the opinion of the Court in the Insurance Agents case that unilateral action is like bargaining with the minority union or individual bargaining.
Felix Frankfurter: It leaves open considerable area of discretion or at least of -- of judgment determination -- determination by judgment whether an impasse has been reached.
Archibald Cox: That is true.
Felix Frankfurter: We know in the international field, we think an impasse has been reached and no, no, no, has been said and two weeks later, somewhat rather, yes, it said.
Archibald Cox: This -- I think the -- I think that is certainly true, and there's -- there's room for an area of judgment and discretion. I think the point here is clear that the Act after the -- an effort has been made to fix terms and conditions of employment by joint determination. And if that doesn't work, the employer has to have an opportunity to run his plant. And a variety of circumstances if he was one of five, who would always follow the same wage pattern and they were competing with each other for skilled machinists, the time when he can move unilaterally, by it become much quicker, might come much quicker than in a situation like this one. But here, we have an explicit finding that there was no impasse and indeed two of these instances of unilateral action came one very early in any negotiations, one during a recess at the request in the State Mediation Board. And so I think there's -- on the findings made by the trial examiner, the Board and accepted by the Court of Appeals, there is -- this is the case where there is no impasse.
Earl Warren: Mr. General, there was -- I'm a little confused just a few moments ago, I understood you say that when this case goes back to the Court of Appeals as you suggest that it does that there are certain things open to (Voice Overlap) --
Archibald Cox: Well I --
Earl Warren: And I heard -- understood you at the beginning to say that all you -- that you wanted both compliances. And it --
Archibald Cox: Well --
Earl Warren: It was just -- we sent back to the Court of Appeals for both compliance.
Archibald Cox: Well, I suppose this would be -- I've -- I had assumed, this is -- what we seek is finally an order enforcing the -- is a decree enforcing the order of the Board. I suppose this Court's mandate would be reversed and remanded for further proceedings in accordance with its opinion. Now, there may --
Felix Frankfurter: What questions were left open?
Archibald Cox: Well, I don't -- I'm not sure what questions were --
Felix Frankfurter: Did you seek for -- if you seek full enforcement and you do not even give to Judge Lumbard --
Archibald Cox: I don't deal to that.
Felix Frankfurter: Yes. So what is left open?
Archibald Cox: I was envisaging this possibility. I don't think it's a very real one but I don't see that we can argue that it's foreclosed. The argument is made here by the respondent that there was a -- so long a period of delay between the events in question and the issuance of this order that the order could bargain with the Union should not in any event have been enforced that conditions have changed too much. That's the contention which may -- I don't know, may have been presented to the Court of Appeals or may not have been passed upon by it and it would seem to me on the remand on that ground for challenging the decree of the order of the Board might still be available. And -- but I was really thinking to emphasize was that those other possible grounds of attacking the order as to which I really say nothing aren't before this Court. Indeed, that one would require a change in the order and this Court under its rules to jurisdiction wouldn't have power to deal with it. That was all I was --
Earl Warren: I see, I see.
Archibald Cox: -- seeking. If he has other grounds for attacking it that are not related to this question of unilateral action of Section 8 (a) (1) and (5), I suppose he still can present them there.
Potter Stewart: In other words, there may be grounds which the Court of Appeals did not reach.
Archibald Cox: It's possible, yes. That's -- that's really all --
Potter Stewart: -- (Voice Overlap) -- Court of Appeals eventually to --
Archibald Cox: Yes. Right. That is what --
Potter Stewart: -- (Voice Overlap) -- on the grounds.
Archibald Cox: -- all I intended to --
Earl Warren: Yes --
Archibald Cox: suggest --
Earl Warren: Yes.
Archibald Cox: -- Mr. Chief Justice.
Felix Frankfurter: Would you think it was desirable or undesirable to use the phrase per se except with such particularity of description of the circumstances of this case on which the order of the Board rested that there wouldn't be anything per se except to this particular case?
Archibald Cox: I don't think the Board reported to adopt its narrow rule as that.
Felix Frankfurter: No, I'm not suggesting it did. I'm just -- if may use any vulgarism, leery of any per se in this model.
Archibald Cox: Well, I -- I think the rule -- I think the rule per -- the expression per se is --
Felix Frankfurter: That's what I was talking about.
Archibald Cox: -- an unfortunate expression.
Felix Frankfurter: That's what I'm talking about.
Archibald Cox: I do think that my case requires -- made to convince the Court that there was a violation of the statute here regardless of the employer's state of mind.
Felix Frankfurter: That -- I understand that. That's a very different thing.
Archibald Cox: Yes.
Hugo L. Black: Do I understand that you're abandoning your request at the end of your brief, that this be remanded with directions to have a decree enforcing the Board's order. You used -- you have a footnote there about the little instant that you mentioned about times (Voice Overlap) indicating that that's not officially important to -- inquiring any difference as to this one.
Archibald Cox: I would suppose that our request if there are any other points that were raised did not pass on below, it would seem to me as I stand here Mr. Justice Black, had been phrased a little too broadly. I may get trouble with my assistance when I go back to the office. But as I stand here and think of it, it would seem to me that if he had raised some other points in the court below that weren't passed on, that he's still entitled to preserve them.
Hugo L. Black: Well, I don't want to delay this but I do -- this all occurred and there was reference to that. What you're really arguing is that a finding of bad faith is not indispensable to the findings which the conclusion which Board reached, didn't it?
Archibald Cox: That's correct.
Hugo L. Black: Well, if that's it and suppose it would be affirmed, it's not -- it's not indispensable. As I understand it, he's arguing is under the Universal Camera doctrine, taken as a whole, looking at the whole record, the Board has already -- the Court has already decided that it will not enforce the order under the -- the Universal Camera rule.
Archibald Cox: Well, I don't think that the Universal Camera doctrine --
Hugo L. Black: That's what I want (Voice Overlap) --
Archibald Cox: -- means that the Court of Appeals is entitled to look at the Board order and then say, “Well, taking everything into account but we decide not to enforce it.” I take it that the expression relates to the findings of fact and to the question whether there is evidence to support the findings of fact and this would include particular findings. And that the effort was to compress what was believed to -- by the Congress and some experts to be the prior practice in picking and choosing bits of evidence to support finding in contrast with an effort to determine whether the evidence is substantial, viewed in the light of its context to other element. But I don't think this goes simply to a general power to enforce or not enforce a Board order depending on your judgment of the record.
Hugo L. Black: I didn't -- I didn't make my problems clear as I thought you'd raise it as this. As I understand your argument is in effect with reference to 8 (b) (5) that this is the equivalent of a finding of the Board that they refused the bargaining. That's the equivalent of it, isn't that right?
Archibald Cox: Yes of it's --
Hugo L. Black: And they refused to bargain --
Archibald Cox: I would say it was a ruling of law that they had refused --
Hugo L. Black: Ruling of law?
Archibald Cox: -- to bargain.
Hugo L. Black: Ruling of law?
Archibald Cox: Yes. Based upon the finding that they took these three unilateral act.
Felix Frankfurter: And the ruling was -- if I may intervene?
Hugo L. Black: Yes, go ahead.
Felix Frankfurter: And the ruling was set aside -- and the ruling was disaffirmed by the Court of Appeals through the introduction from your point of view of a near relevant criteria namely good faith.
Archibald Cox: Yes. They --
Felix Frankfurter: So that --
Archibald Cox: -- set up. They misinterpreted --
Felix Frankfurter: What the Court of Appeals --
Archibald Cox: -- the statute.
Felix Frankfurter: What the Court of Appeals did was refuse to enforce it by requiring an element which as a matter of law you contend is not what he requires.
Archibald Cox: That's correct.
Hugo L. Black: Well, have they passed on it then without that element? Have they reached that conclusion without that element?
Archibald Cox: I think as I read the opinions, they did not consider perhaps because they were not asked whether the Board's findings were supported by substantial evidence. They accepted them. I don't want by saying that this question is theoretically available to cast any doubt on them, but I am convinced through my study of the record that there is substantial evidence, more than substantial evidence.
William J. Brennan, Jr.: Well, Mr. Solicitor, you're not -- I gather you don't believe that whatever limitation on the Universal Camera there maybe on this Court's review --
Archibald Cox: Hasn't anything to do with this.
William J. Brennan, Jr.: -- had anything whatever to do with this.
Archibald Cox: Nothing to do with this. No.
William J. Brennan, Jr.: That's what I thought.
Archibald Cox: No. Not at all.
William J. Brennan, Jr.: Yes.
Felix Frankfurter: But before you sit down, may I -- and fully understand the colloquy between you and Mr. Justice Black. If the question of the sufficiency of evidence on Universal Camera doctrine fully unrelated to any proper or improper principle or doctrine of law to which -- which was -- by which the facts are to be judged. If that issue was opened before the Court of Appeals, and I think it was. I don't know much about it. If it was opened before the Court of Appeals and in fact the Court of Appeals had no occasion to go on it because they refused to enforce on this illicit view about good faith, then I should suppose in view of what you said you think that that's still open before them to press before the Court of Appeals taking out as improper elements, is that right?
Archibald Cox: I don't see why not.
Felix Frankfurter: Alright.
Hugo L. Black: That was the question that --
Felix Frankfurter: But aren't we (Voice Overlap) --
Archibald Cox: To -- let me just to be sure that I am clear because I'm a little worried. Maybe I didn't understand you. Let us suppose that the respondent were in a position to claim that the work was an impasse in December, 1956 and that there was no evidence to support the Board's finding that it occurred in May. I take it that when the case goes back to the Court of Appeals that he can again oppress that attack on the Board's finding that the impasse was in May, and that that question isn't properly here at all. That's what I'm trying to say.
Felix Frankfurter: Or any of -- or any other issue on which the Board must face a judgment with due regard to the entire record as a matter of evidence stripped of any irrelevant or inadmissible doctrine of law.
Archibald Cox: Yes.
Felix Frankfurter: Well, that makes a -- presuming that you should prevail on that -- on the main issue which you've argued, effects what this Court is to do in sending the case back.
Archibald Cox: Well, I would -- I would suppose that the proper mandate was reversed and remanded for further proceedings not inconsistent with his opinion.
Felix Frankfurter: Making clear what --
Archibald Cox: -- which would make it clear what the rule of law is and that the court below weigh down an erroneous rule of law and leaving the petitioner any other contentions either based on the inadequacy of the evidence or other rules of law. I don't think of any --
Felix Frankfurter: It isn't (Voice Overlap) --
Archibald Cox: -- but if he think of one why --
Felix Frankfurter: And it isn't for us to say what issues were or were not opened to the Court of Appeals which for -- from its point of view has had no occasion to canvass.
Archibald Cox: It would seem they weren't open to May, right.
Felix Frankfurter: Alright.
Archibald Cox: Thank you.


Warren E. Burger: -- this morning in number 71-1304, Bradley against the United States. Mr. Homans you may proceed whenever you’re ready.
William P. Homans, Jr.: Mr. Chief Justice and may it please the Court. This is a petition for writ of certiorari to a final order of the Court of Appeals for the First Circuit which order appears on page 20 of the record appendix herein in response to a motion for an order vacating sentences and for remand and for motion for state of mandate which appear respectively on pages 16, 17, and 18 of the record appendix. The motions filed by the petitioners in this case filed an order by the Court of Appeals affirming a judgment -- or judgment of conviction against the four petitioners on the merits following a prosecution for violation of 26 U.S. Code Section 4705 (a) now repealed, and 26 U.S. Code 7237 (b).
Warren E. Burger: Mr. Homans, I think you can help a little bit. Is there anything in this record that affirmatively indicates that the District Judge did not consider probation? Can you help me on that?
William P. Homans, Jr.: Yes, Your Honor. The only thing that would appear in this record may it please the Court, is in the petition for certiorari. I believe it appears on page -- in any event as I come to it, Your Honor.[Voice Overlap]
Warren E. Burger: Well, there’s nothing at Judge Rozanski’s order that would indicate the judgment and commitment doesn’t indicate --
William P. Homans, Jr.: No, Your Honor, not one way or the other.
Warren E. Burger: And ordinarily, a District Judge would not give any indication one way or the other, would he?
William P. Homans, Jr.: Even though, Your Honor, in the form of judgment in which is prescribed. There’s no indication one way or another and off the record, Your Honor and I can’t go off the record. We did file motions after the affirmance on the merits is distinguished from the so-called appendage to the appeal which is an issue here. We did found motions in the District Court upon which the District Court took no action and I believe reference to those appears in the docket on page 2, February 8, motion for order vacating sentences and for remand of appellant filed motions for mandate filed in Court of Appeals. That is the only indication, may it please the Court, that such a motion was filed in the District Court prior to what being filed in the Court of Appeals. In any event, Mr. Chief Justice and members of the Court, this was a prosecution under the prior drug law which was repealed by Public Law in 91-513 effective May 1, 1971. The indictment, which appears on pages 2 through 5 inclusive of the appendix, charged a conspiracy in several of the counts between four -- between March 4, 1971 and March 12, 1971 as well as charging under 4705 of former Title 26, several -- all of the defendants the substantive offense of giving away selling or the distribution of cocaine. The indictment may it please the Court, also charge in counts, which are not material here, three of the four petitioners was carrying a firearm during the commission of felony. The important aspect to this case so far as the indictment is concern is that the indictment alleged that the offense took place between March 4 and March 10, 1971, which was before May 1, 1971 the effective date of repeal as a result of 91-513 Public Law. 91-513 of the prior drug law, which contain among other statutes 26 U.S. Code Section 7237 (d), which appears again on pages three of the petitioner’s brief and provides as Your Honors are aware that upon conviction of offenses the penalty and I emphasize penalty for which is provided in sub-section (b) of this Section that the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, Section 4202 of Title 18. The statutes otherwise providing for parole shall not apply. I would emphasize in connection of later portions of the argument the language in (d) of 7237, which says, upon conviction of any offense, the penalty for which is provided in sub-section (b) referring that in sub-section (b) of 7237, that provides, whoever conspires to commit an offense described in 4705 (a) shall be imprisoned not less than five or more than 20 years. And in addition, may be fined not more than $20,000. Thus, may it please the Court, in accordance at least for the language of 7237 (d), the penalty appears in Section (b). Again and I'm hesitant to read statutes except that the wording of the very statutes involved in it here is important to the decision in this case. There were two saving statutes involved, may it please the Court in this case. The first statute is the general saving statute, 1 United States Code Section 109, which I will read again with some -- which I’ll read with some emphasis. The repeal of any statute shall not have the effect to release or extinguish any penalty, and I emphasize the word “penalty”, forfeiture, or liability incurred under such statute, and I emphasize the word “incurred” under such statute, unless, the repealing Act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution which I emphasize, for the enforcement of such penalty, forfeiture or liability. That is the general saving statute, which has been in the statute book since late in the 19th century unchanged. The specific statute, which appeared in Public Law 91-513 provides and again, I use some emphasis prosecutions. I emphasized the word prosecutions for any of violation of law and I'm reading from page 4 of our brief occurring prior to the effective date of Section 1101 shall not be affected by the repeals or amendment made by such section or abated by reason thereof. May it please the Court and Mr. Chief Justice? We suggest here that Section 1103 (a), the specific saving statute which I have just concluded reading controls this case and under the doctrines of conflicts set forth in Hertz against Woodman and in Great Northern Railway against United States, both of which is cited in both briefs and in our brief on pages 9 through 13 of the petitioner’s brief. We suggest that the conflict in wording between Section 1103 (a), the specific statute and Section 109, the general statute. It is sufficient so that 1103 (a) is the only saving statute which is involved in this case. Later on, if time permits we shall argue that even if the Court disagrees and 109 applies that the same results should still follow, but for the moment, I address myself Mr. Chief Justice and members of the Court to the effect of the specific saving statute. Your Honor and Mr. Chief Justice and the Court will note that 1103 (a), the specific statute refers only to the word “prosecutions.” It does not use the word -- words penalty, forfeiture, or liability, and the contention of the petitioners resolves itself, we suggest based upon the meaning of the word prosecution. The Government urges that not withstanding the wording of the 7237 (d) that both probation, the discretion of the Court to order a suspension of sentence and finally a parole under 18 U.S. Code 4202 is part of the prosecution as the word is used in Section 1103 (a). We disagree and there are reasons both from a policy point of view, as well as from a conceptual point of view, which we submit in support of our argument. The cases of Affronti and Murray and finally Ellen Vogan appearing on pages -- which was cited on pages 14 of our brief and as cited as well in the United States’ brief. All show that the -- a court does have authority following the imposition of sentence and prior to the execution of the sentence to grant probation and to suspend sentence. Thus, although it did not take place in this case and it does not take place in most cases as the Solicitor General correctly points out. In some case -- have the District Court here for example, sentenced these defendants to five years not suspended sentence assuming that he had the power to do so and there after before incarceration and while the case was not on appeal for example of the Court of Appeals. If there have been some reasons for delay in execution of the sentence before execution of the sentence, he had then suspended sentence and granted probation. He would have been within the authority which appears very plainly and Affronti and Murray and in a Second Circuit case Ellen Vogan where that actually took place. The Government’s brief correctly points out that as Ellen Vogan says, normally, the imposition of probation and the suspension of sentence should normally take place at the time of sentence, but the Court has authority, nevertheless to suspend and to grant probation during that interval, if there is interval between imposition of sentence and suspend -- and excuse me execution. Thus, a sentence being in 99% of the cases is permanent indicates which is also cited on page 14 of our case. The judgment sentence has concluded, we suggest the prosecution as of the date, as of the time that it’s imposed. Sentence, of course, as we suggest looks to the past or and the judgment looks to the past. It looks to the determination of guilt. It looks to the considerations, which the trial judge takes into account in determining the term of imprisonment or the amount of the fine. It looks to the prior criminal record if any of the defendant or for that matter to whatever good works he has done in his life. Whereas probation looks to the future -- probation as an act of grace looks to the opportunity which the defendant may have to rehabilitate himself while instead of being incarcerated through the grace of the court and through the act of grace which is the suspension of sentence and probation. He finds himself to use the colloquial phrase on the street rather than incarcerated. So that these are two separate concepts and the difference, may it please the Court, between probation and suspended sentences and act of grace on the one hand and the imposition of a term of years on the other hand as policy matters is consistent with what we’ve urged and that the Affronti and Murray and Ellen Vogan cases shall namely that there is a difference conceptually between the sentence and the discretion of the Court or its exercise in impose in granting probations and in suspending sentence.
Byron R. White: And what about the parole?
William P. Homans, Jr.: With respect to parole --
Byron R. White: On existing cases that were filed at the time the act was passed, sentences were being served under the old law, prisoner wouldn’t be subject to parole, is he under the new law?
William P. Homans, Jr.: This case, may it please the Court, I'm not trying to hedge, it does not reach that because of course we resentence after the repeal of the --
Byron R. White: I know but your argument is that probation is a part of either prosecution or sentence.
William P. Homans, Jr.: Yes, sir. As to parole, we suggest the question is even clearer under the language of this Court in Morrissey against Brewer which appears -- is cited on page 18 of our brief 408 U.S. 471 at page 480. The Court said, parole arises after the end of the criminal prosecution including imposition of sentence. Therefore, even more clearly than is the case in probation in the --
Warren E. Burger: Well, when we said that counsel, where we saying any more than day -- night follows day that was merely an observation about the chronological events?
William P. Homans, Jr.: Yes, Your Honor.
Warren E. Burger: But in each case, are probation and parole a sentence as pronounced, does it not?
William P. Homans, Jr.: The sentence has been pronounced.
Warren E. Burger: Yes, each under a sentence and the -- perhaps physically a difference is that the release begins immediately on probation and it’s deferred in the parole?
William P. Homans, Jr.: Yes sir, there are those similarities and of course by saying that the parole is -- the parole issue was strong here and the probation issue, we certainly don’t concede the probation issue. But I would suggest Mr. Chief Justice that with respect to parole -- the determination for example of when parole shall be granted except in the exception provided by 4208 (a) is an Executive Order at least for federal purposes and an executive rather than a judicial party. The Board of Parole that the matter except again in the case of the exception 4208 (a), the matter is not a judicial matter, it’s not in the control of the court, but it’s in control of the Executive body and this is consistent with the purpose of parole to see how the man does during the time he’s been incarcerated and taken into consideration his background. And thereafter, give him the opportunity to remain in a form of custody and what the court called a variation in Morrissey against Brewer upon imprisonment. But again, on the street under supervision of his parole officer until the time of his original term has finished. So that in that sense, may it please the Court, it’s like probation and that he has a form of supervision by an executive – by an employee of the executive, the parole officer. But that the determination is made completely separately from the original determination made by the Court as to the term of years or the fine in a few cases where they all find the term of years which the prisoner, which the defendant will serve. So that again, may it please the Court, we would suggest that the concepts are entirely different whether you call parole of form of an act of grace or whatever terminology when puts on it. Nevertheless, there are completely different considerations going into whether a man is paroled. Then the sentence imposed upon him whether that sentence is to be suspended or served. Now, coming back to that for the moment --
Warren E. Burger: Rather than being an act of grace, wouldn’t it be more accurate to say that it’s a matter of sound judicial discretion?
William P. Homans, Jr.: With all respect may it please the Court, parole except --
Warren E. Burger: No, I'm changing probation now -- probation.
William P. Homans, Jr.: Probation? Oh! yes -- yes sir, there’s no question. But that the exercise of discretion to grant probation and to suspend sentence certainly it is in the exercise of some judicial discretion, but it comes, may it please the Court, after the court has already determined this man shall serve so many years if -- that this man shall serve so many years that the court then comes to the question of whether it shall exercise its discretion to grant probation coupled with a suspended sentence, or suspended suspension of a sentence which is already been ordered. And as the Nagelburg indicates – case indicates on page which we cited on page 16. If the unhappy in the other happy event the probation is eventually revoke and the sentence is ordered to be served at some future time during the period of the service of the probation term, then to quote the court, the original term although suspended “informs the judge who revokes probation of what the trial judge thought in appropriate prison term would be.” In that case, which is helpful for our purposes in that case one judge had imposed the original sentence and suspended it. A second judge revoked the probation and ordered service of the sentence and the concept by the -- that the Court of Appeal’s voice in that case was that that what was to be done by the second judge so far as imprisonment was concerned was already decided by the first judge indicating again the separation between the two concepts.
William H. Rehnquist: Mr. Homans?
William P. Homans, Jr.: Yes, may it please.
William H. Rehnquist: If you put it in terms of more or less lay understanding rather than strictly legal concepts, wouldn’t it be fair to say that when one says a person is going to be -- can be sentenced to a life imprisonment without possibility of parole that the reference to without possibility of parole is really a modification or an adjective describing the form of sentence?
William P. Homans, Jr.: Perhaps, to a lay person not understanding the difference in concepts without possibility of parole, Your Honor would normally as I understand have resulted from authority of a statute such as in this case 7237 (d) for the Court to make that order. And again, may it please the Court? Similarly to the power of the Federal Court and given by 4208 (a) to use statutory authority either to order that parole to be granted as the case in 4208 (a) at an earlier time, whereas in the case, Your Honor poses to say that under again under statutory authority that no parole shall ever be given. Again, may it please the Court, the judiciary or the particular judges involved in that decision, but the decision now, I would suggest is not part of the -- is not part of the sentence for the purposes we’re dealing with sentence here, may it please the Court. I agree Your Honor, and there is perhaps a logical inconsistency between the case Your Honor poses and the position we take here which is also present as I say in the case of 4208 (a). But we would suggest that in the bases of the language of this Court in the Berman case, in the Roberts case, and the many other cases, which have dealt with the differences between either probation or parole on the one hand and the power of the Court to sentence to a term of years and the fine or a fine on the other that so far as the word “prosecution” is concerned in Section 1103 (a). The specific saving statute that the prosecution has ended -- the prosecution has ended, may it please the Court with the imposition of sentence regardless of what takes place afterwards in terms either of the exercise of probation or suspension of discretion -- the suspension of sentence discretion or even later the grant or refusal parole by a Parole Board. I apologize for a lot rather long, we did answer to it.
Thurgood Marshall: Do you recognize the difference that probation is judicial and parole as executive?
William P. Homans, Jr.: At least in the federal jurisdiction, Your Honor and certainly in old jurisdiction it’s an administrative decision although in some state jurisdictions --
Thurgood Marshall: I am comfortable this is federal.
William P. Homans, Jr.: Yes, Your Honor. Certainly here --
Thurgood Marshall: Parole is strictly executive.
William P. Homans, Jr.: Strictly executive, yes Your Honor.
Thurgood Marshall: And do you also say, the probation is strictly judicial?
William P. Homans, Jr.: A judicial exercise of discretion, yes, Your Honor.
Thurgood Marshall: Well, why is that not a part of the sentence?
William P. Homans, Jr.: The reason, may it please, it’s not part of the sentence is because the judge has already at the time that he makes the decision conceptually. At the time he makes the decision to suspend sentence and to grant probation has made the decision that this man shall serve two or three or four years and the man is liable to serve that time whether he is given probation or a suspended sentence or not. He is liable --
Thurgood Marshall: Which mean it’s a sentence.
William P. Homans, Jr.: It means that it’s a sentence.
Thurgood Marshall: And the probation is a part of the sentence.
William P. Homans, Jr.: I would not say so, Your Honor for the purposes of the statute here which --
Thurgood Marshall: Well, suppose that judge gives in five years in another type of case it’s not the dealt case.
William P. Homans, Jr.: Yes, sir.
Thurgood Marshall: And within the statutory period the court amends it, “I made a mistake, I may cut it to three.” That’s a sentence. The second one is, the sentence, isn’t it?
William P. Homans, Jr.: The second one is reduction, as I understand it under Rule 35, which is quite different.
Thurgood Marshall: Is it a sentence?
William P. Homans, Jr.: Yes sir, that goes into the sentencing process -- the reduction of sentence.
Thurgood Marshall: Well, isn’t anything the judge does after conviction within the sentencing part?
William P. Homans, Jr.: No, sir. I would --
Thurgood Marshall: Why not?
William P. Homans, Jr.: It may be part of the “sentencing process” using the words in the rather broad sentence, but I would suggest that what is the issue here is the meaning of the word prosecution and that --
Thurgood Marshall: Well, do you agree that the prosecution includes sentencing?
William P. Homans, Jr.: It includes --
Thurgood Marshall: Do you agree on that?
William P. Homans, Jr.: It includes sentence, yes, Your Honor.
Thurgood Marshall: Well, isn’t that the end of your case?
William P. Homans, Jr.: I --
Thurgood Marshall: I thought you said a minute ago the probation was a part of the sentencing?
William P. Homans, Jr.: No, sir. I said, may it please the Court, that it is part of the -- in using the language rather loosely, normally part of the sentencing process, but as we’ve indicated, may it please the Court, in -- by the citation of Affronti and Murray and Ellen Vogan which appear on pages 14 of the -- page 14 of the brief. The sentencing -- sentence may take place and be followed after an interval of time under Section 3651, which is the probation statute. It may be followed after an interval of time even though the sentence was not originally suspended and probation not originally granted. Sentence may be followed after 10 days or a month or whatever interval of time before execution occurs. And certainly from that point of view, may it please the Court, the sentence has taken place at the time that the man was told “you were sentence to five years in jail period” without any further words of the court as to whether the sentence is suspended or probation given then to give the aggress of the hypothesis Your Honor your post. If the judge after, for example of month prior to the time that the sentence is executed, thinks to himself of what perhaps the sentence should’ve been suspended at the end of that 30 days providing execution of the sentence has not started. He has the power and the authority to exercise his discretion to suspend and grant probation for a period of years.
Warren E. Burger: Suppose, this record showed that at the time of sentencing there have been arguments urging probation with all the usual reasons that puts you advanced --
William P. Homans, Jr.: Yes, Your Honor.
Warren E. Burger: -- and the judge said, I have and this is all on the record and in the record when the case comes on review, I have considered the arguments and the reasons advanced for a probation and I conclude that this is not a proper case for granting probation because of the past history of this defendant, where would you be then?
William P. Homans, Jr.: If that had taken place, may it please the Court, I think it is unlikely that we would be here although --
Warren E. Burger: Now, that all of those events have preceded the sentence, have they not?
William P. Homans, Jr.: Yes, Your Honor.
Warren E. Burger: Enlighten me on how that then is not part of the sentencing process?
William P. Homans, Jr.: Had -- as I say, Mr. Chief Justice using the words sentencing process as imposing all of the matters which the trial judge is considering either at the time he imposes the sentence of the years or during that time including the interval following that. That is part of the sentencing process but as the words is used. The sentence is the judgment in the Berman case which we cite. The prosecution, may it please the Court, has terminated with the judgment of the court imposing a sentence of years and what takes place after that so far as probation, suspended sentence or parole, we would suggest does not part of the “prosecution.”
Warren E. Burger: But in my hypothesis, the events had taken place before the sentence and the judgment.
William P. Homans, Jr.: The attorneys who’ve made the arguments, may it please the Court, and obviously the judge has considered them. But from the point of view of the statute this has been interpreted. This is the difficulty if I can interrupt myself for a moment with this -- not the difficulty as many cases of turn on statutory language, but we suggest very strongly that whatever may be the practical effect and what every different ways judges and lawyers may deal with the questions involved here, that from the point of view of the way the statutes read in particularly the wording the statute in so far as one statute refers the prosecutions and another statute refers to penalty forfeiture liability that this is a question of -- in this case as to how the statutes are to be interpreted I would ask the Court, thank you.[Voice Overlap] I would ask the Court to consider the arguments in the brief with respect to the applicability of 1 United States Code Section 109, I’ve not made that argument this morning.
Warren E. Burger: Very well. Mr. Lacovara.
Lacovara: Mr. Chief Justice and may it please the Court. I must confess to be somewhat perplexed by the arguments that have been advanced including some of the arguments that have been made in lower court decisions on the question that was before the Court this morning. As the Government sees the case, it does not involve for the Court’s decision the question, what is the nature of the probation decision or the probation process does not involve the question of the exercise Executive discretion to grant parole? What the Court has before it in our view, is a relatively straightforward question of legislative of intent. This is a case involving two saving statutes and the question is not what is the nature of probation or not what is the nature of parole. But rather when Congress has said that by reason of engaging in certain illegal conduct, a person is absolutely ineligible for probation and cannot even be considered for parole that legislative direction is part of punishment when engaging in that prohibited conduct if the answer to those -- to that question is yes, if that absolutely legislative bar to the exercise of judicial discretion or of Executive Clemency is considered a penalty or punishment, then we submit that the answer to the ultimate question before the Court this morning is clear, that the saving statutes both saving statute in Title 1 and the specific clause that Congress included in the 1970 Act operate to preserve these bands on probation and parole. Therefore, I will not --
Warren E. Burger: Well, does this case involve parole?
Lacovara: That while the issues that could be raise Mr. Chief Justice is whether the parole question is right. The four petitioners in this case have just been sentence, they’re still on bail, I understand and although the probation decision is -- or the inability to qualify for probation is clearly raise. There is a question about the rightness of the parole decision. The Government acquiesced in the petition for certiorari primarily because of the importance of the parole decision and I would submit that the issue is a live one because the way the system actually operates, the Board of Parole is now considering as eligible for parole. Only defendants who have been sentenced in the Seventh and the Ninth Circuits or narcotics offenses because the Courts of Appeals in the Seventh and Ninth Circuits upheld that people sentence after of May 1, 1971 are to be considered eligible. Since the Court of Appeals for the First Circuit, as well as other Circuit Courts have had held that parole eligibility is not eliminated. The Parole Board will not be considering any people sentenced in those Circuits for a parole. The petitioners filed a motion before the First Circuit to remand their case to the District Judge for him to exercise probation discretion and also the to certify whether they should be eligible for parole if the District Judge has the power to determine that they are eligible for a parole, the Parole Board -- and certifies is on his judgment, the Parole Board will respect that judgment. The First --
Warren E. Burger: Do have any way of knowing that the District Judge did not consider and reject probation? Do we know one way or the other?
Lacovara: The sentencing hearing is not before the court, that transcript is not available. We have suggested in our brief that there is a real possibility that the petitioners in this case may have been given probation if Rozanski had the power to do that. And we point simply to the fact that he did sentenced them to the minimum sentence that was mandatory under the pre-1970 law and also for the three of the petitioners also violated the Gun Control Act and Judge Rozanski placed the three petitioners who were convicted on those offenses on probation and therefore, we’ve suggested that since the record isn’t clear that he has made a conscious decision on probation if Judge Rozanski has the power that petitioners press for, then we think that the remedy that they sought in the Court of Appeals remand for the purposes of allowing him to consider probation or parole would be inappropriate remedy. The question, as we see it is basically whether the ineligibility for probation and parole which was unquestionably contained in the Internal Revenue Code Section 7237 (d) until it’s repeal in May of 1971 constituted a part of the penalty for engaging in sales of narcotics, the offense of which these petitioners have been convicted. Now, the interpretation of the saving clauses that are before the Court will be the ultimate question, but we think in order to apply the language of the saving clause is it’s important to begin by determining what is the nature of the no probation, no parole decision that Congress has made for narcotics traffickers. In our brief, we’ve said out in some detail the legislative history surrounding the introduction of the no parole, no probation directive in the statute and we think that it underscores quite vividly that Congress was adding an additional penalty in the sense that Mr. Justice Rehnquist before said a life sentence without parole is a modified penalty that is more severe than a simple life sentence. At least if we submit as exactly what Congress has shown it was doing when it added the no probation, no parole provisions and applied them to specific kinds of illegal conduct violative of the narcotics laws. The no probation and no suspension of sentence provisions first came in to the narcotics laws in the 1951 Boggs Act which then applied only to smuggling of heroine to the United States and the ban on judicial -- judicial grant of probation or the suspension of the sentence applied in 1951 only to second or subsequent offenders. In 1956, however, in the Narcotic Control Act of that year which is generally recognized to have been a very severe and harsh statute. Congress after hearing considerable amount of testimony about the narcotics statute tighten the screws and what Congress did was to apply the no Probation and no Parole -- apply the No Probation Provision not only to second offenders involved in narcotics smuggling, but applied the ban on probation even to first offenders and applied that prohibition not just to smugglers, but to any one who dispensed narcotics in violation of the Federal Law. In addition in 1956, Congress added the ban on parole making an offender convicted of these narcotics violations absolutely ineligible for parole. Congress denied District Judges the discretion to place people on probation and it denied the Parole Board the discretion to release them before the expiration of their sentence. Now, we’ve quoted some of the relevant excerpts from the legislative history surrounding the 1956 legislation at pages 12 through 14 of our brief. And the very language that was used by the witnesses and by the congressional committees recommending this legislation shows that Congress intended these prohibitions to be an inherent and intrinsic part of the penalties for engaging in narcotics trafficking. Thus, not only is there a mandatory minimum sentence of five years for trafficking in narcotics which all Courts of Appeals and petitioners agree has been saved by the saving statutes for pre-repeal violations even if they’re not sentenced until after the repeal of the 1956 Act. But the no probation, no parole directive by Congress was similarly intended to be part of the penalty that was to attach automatically upon conviction of these offenses just as the mandatory minimum sentence. Now in 1970, when Congress passed the Comprehensive Drug Abuse and Control Act, and repealed the various scattered provisions of the narcotics laws, it eliminated the absolute ineligibility for probation or parole that existed under the 1956 legislation. But it did so, in a somewhat qualified way and for reasons which are important in answering the question before the Court. The decision to eliminate the absolute ineligibility for probation and parole that was contained in Section 7237 (d) was not, we submit an exercise of legislative clemency. It was not an effort to get soft on the narcotics problems. What Congress was doing in reorganizing the entire drug control structure was to make a somewhat more refined classification. Even under the 1970 legislation, Congress has provided a category of narcotics offenders who will not be eligible for probation and who will not be eligible for parole. In fact, over the opposition of certain witnesses, Congress even expanded that absolute probation. As I mentioned, the 1956 statutes have applied only to trafficking in narcotics. Section 848 now of Title 21 which punishes engaging in a continuing criminal enterprise in the drug field applies to engaging in any kind of drug trafficking including trafficking in LSD, amphetamines, and barbiturates. In that statute, Congress has raised the mandatory minimum penalty from five years to 10 years has increased the outer limit from 20 years as under the statute which petitioners violated to life imprisonment added in additional special parole term increased the fine that could be imposed and provided for forfeiture. The reason I'm going in to these statutes which concededly are not directly applicable to petitioners because they didn’t become effective until two months after they committed their violations, is that it shows what Congress was trying to do in 1970. It was not trying to do what petitioners’ argument would have the effect of doing and that is to wipeout to remit in part some of the very severe penalties that attached to people who violated the pre-1970 laws. What Congress was doing was redirecting its focus and refining the categories of people who would be punished in a severe way.
Harry A. Blackmun: Mr. Lacovara just a matter of curiosity, I know often legislation is made effective in the future, but why -- why so long here or some seven months I think it was almost?
Lacovara: Well, as I mentioned Mr. Justice. This was a reform or revision of the entire narcotics structure it affected statutes that were scattered throughout the United States Code and it also provided for extensive administrate changes, it enforcement responsibilities were being transferred a whole new administrative system of classifying different dangerous drugs into various schedules was being setup. So, Congress provided that long lead time of six months in order to make sure that all of the actors in the system would have an adequate amount of time to familiarize themselves with the changes that were being made and to bring the operation machinery into lines so that it would be effective -- effective and a practical as well as illegal sentence on May 1, 1971.
Harry A. Blackmun: Is this kind of statute is rather hard on the individual concerned when May 1 comes down and forms the barriers --
Lacovara: Well, no the -- I think that turns it around up until May 1, 1971 the provisions of the old law were enforced. Those were the provisions that the petitioners violated and it’s unquestioned that those provisions were the ones and we contend still are the ones that providing minimum sentence of five years in jail and forbade the imposition -- the suspension of sentence for the granted probation or consideration for parole. So, we’re not talking about retroactively applying the --
Harry A. Blackmun: Well, precisely that’s my point that Congress has made its determination on October, made it effective and that’s May, and this individual and others are caught in that interim period, but that’s neither here today.
Lacovara: Well, I think it is here or there because that is the dilemma that the lower courts have been wrestling with. There is clearly and anomaly at the very least in having to draw a line and saying that someone who committed a violation two months before the effective date is not going to be allowed consideration for probation. It’s not going to be eligible for parole, but somebody who commits this violation after May 1 will be eligible for these considerations unless he is engaged in the continuing criminal enterprise. But this is really an example of Congress having to draw a line somewhere. It could’ve draw in a line in an earlier stage, but we submit that legislate of history shows that it didn’t.
William H. Rehnquist: The Ninth Circuit view doesn’t avoid the necessity of line drawing, does it?
Lacovara: No, sir. That’s as we underscore in our brief there is just as much challenge in the line that they’ve draw. In a Parole Board case -- the Noriega case which we’ve cited on the page 31 of our brief, footnote 18. The Ninth Circuit has -- excuse me that’s not, Noriega is page 23 and 24. The Ninth Circuit has drawn the line at the date of sentencing irrespective of the date the violation took place. The Ninth Circuit says, if your sentence after May 1, 1971, you’re eligible for probation or parole, but if as might’ve happen in this case, petitioners were tried more promptly and were sentenced immediately. The Ninth Circuit would say, even though the new law has come into effect nevertheless, these petitioners are not eligible for probation or for parole. What we say is that, the Ninth Circuit has substituted its judgment on where the line should’ve been draw or might’ve been draw for what we think is the legislative judgment and choosing among options that are otherwise reasonable is emphatically a legislative judgment. But in this kind of setting, we think it’s a particularly reasonable judgment. A policy underlying the ex post facto clause for example is one that makes the consequences of conduct turned not on the time -- the conduct is adjudicated or sentenced, but on the time the conduct was committed and this we say exactly what Congress has done. If you committed your violation under the old law, the old law applies. If you committed a violation of the new law, the new statute applies. The saving statutes are reflective of that national policy. The basic saving statute in Title 1 dates from 1871 and it provides what we think is fundamental national policy on the interpretation of the effectiveness of statutes. It provides in very broad terms of the repeal of any statute shall not have the effect to release or extinguish any penalty forfeiture or liability incurred under such statutes. So, here we come back to the date upon which the penalty was incurred which would be the date of violation unless the repealing act expressly so provides will clearly express the 1970 Act has not expressly provided for the extinguishment of what we think is part of the penalty for these violations. From a contrary, the statute is to be treated as still remaining enforce for preserving a progress, civil action or prosecution to enforce that penalty. Now, there’s been considerable amount of discussion in the briefs about what those words penalty or liability or forfeiture mean. In the first case that this Court had to consider that question in Ritzinger case 1888. The Court applied the statute to a criminal case which had -- by the way the statute there had been repealed before the indictment was returned. And the repealing statute itself just as in our case had its own saving clause which was much narrow than the general saving clause. It applied only by its terms to saving prosecutions that had already been commenced at the time of the repeal. This Court nevertheless said that the general saving statute applies in addition that that narrower focus in the specific saving clause is not to be construed as an expressed probation -- provision to the contrary. And that the words “penalty, forfeiture, or liability” and this is quoted on page 26 of our brief were intended by Congress to be synonymous with the term “punishment” and were used by Congress to include all forms of punishment for crime. That’s why we submit today that the general saving statute 1 United States Code 109 operates to save the applicability of the No Probation, No Parole Provisions of Section 7237 (d). These we believe and we’ve argue this in our brief were part of the penalty that Congress created for this violations and as part of the penalty or the punishment they are save by the general saving statute. The specific saving clause also points in the same direction as in Ritzinger and the great Northern Railway case which also involved were limited specific saving clause which this Court said did not cut back on the general saving clause and allowed a subsequently return criminal indictment to be prosecuted. The specific saving clause here reiterates the same national policy although language is different, we think the trust is the same and Congress in the specific saving clause says, the prosecutions for any violation of law occurring prior to the date. Mr. Justice Blackmun here again, is the congressional focus on the date of the violation although that is not the only focus that Congress might have provided for. But these prosecutions shall not be affected by the repeals or abated by reason thereof. Now, it doesn’t take much extravagant argument to show that the punishment from offense is part of the prosecution for it. Prosecution is not just an academic exercise and certainly as I believe petitioners have conceded and the lower courts have certainly held the sentence prescribed for a violation is part of the prosecution for that violation within the meaning of this kind of saving clause. And if our interpretation of the legislative history is correct that the No Probation, No Parole Provisions are part of the penalty that operate automatically -- attached automatically upon conviction, then those probations are part of the sentence or part of the prosecution for the offenses that took place and are preserved. I think one illustration of the point that I'm trying to make that the ban on probation and parole is part of the penalty, part of the punishment that Congress has fixed for violation of the statute is that the Courts of Appeals are now virtually unanimous in holding that a guilty plea entered to one of these narcotics offenses is involuntary because without sufficient knowledge, unless the defendant who pleaded guilty not only knew about the minimum sentence -- the mandatory minimum sentence, but also knew that upon conviction, he would be ineligible for probation and would be ineligible for parole. And the rational the Courts of Appeals have followed in reaching that result is that unlike certain other collateral consequences of criminal conviction, the ineligibility for probation and parole are attached to the very violations itself in the same sense that the prison sentence is a consequence of the plead. For all these reasons, we submit that the Court of Appeals for the First Circuit has reached the proper result in holding that violations of the pre May 1, 1971 drug laws are to be punished as if those laws are still in effect and for all legal purposes under the saving statutes they are to be considered enforced.
Warren E. Burger: Very well, thank you Mr. Lacovara. Thank you Mr. Homans. The case is submitted.