Earl Warren: Number 81, Lee E.A.Parker, Petitioner, versus Clarence T. Gladden, Warden. Counsel are you ready? Mr. Schafer.
John H. Schafer: Mr. Chief Justice, may it please the Court. The question we have before you on this case is whether the Supreme Court of Oregon was correct in holding that it's Fourteenth Amendment obligation to afford a fair and impartial trial was not violated in affirming a conviction for second degree murder when three jurors were told by an officer of the state during the course of the trial that the defendant was in fact guilty.
William J. Brennan, Jr.: Is that the actual language? "Oh, that wicked fellow, he had killed him?"
John H. Schafer: You have to think Your Honor that it may have been sifted down a little bit.
William J. Brennan, Jr.: Oh, oh.
John H. Schafer: It just came through though. I don't know. I can't tell you. It does sound remarkable.
William J. Brennan, Jr.: It sounds from an 1890 --
John H. Schafer: I have to agree.
William J. Brennan, Jr.: Who done it then?
John H. Schafer: I have to agree. The facts in the case are not -- I believe in any dispute whatever. This petitioner was once tried for first degree murder. He was convicted of second degree murder. That conviction was set aside by the Oregon Supreme Court. A new trial was had in which the event occurred which brings the case to this Court. That new trial again resulted in a conviction for second degree murder. Petitioner was sentenced to life imprisonment. That conviction was subsequently affirmed by the Oregon Supreme Court. After that affirmance petitioner instituted pursuant to Oregon Statute a post-conviction hearing in which he alleged a number of things. And in which he proved that in the words of the trial court and -- or the hearing court I should say, I'm reading page 197 of the record. That the bailiff of the State of Oregon said to three jurors, two or three jurors in effect, “Oh, that wicked fellow. He is guilty”, and also said to them, “If you find him guilty and there's anything wrong, the Supreme Court will correct it”. Now in spite of that odd language, there was the finding made by the hearing court that those things were in fact said -- that they were in fact said to two or three jurors.
Hugo L. Black: Is this the bailiff who had him judicially charged?
John H. Schafer: I was coming to that Your Honor, it is. It is --
Hugo L. Black: In your own words.
John H. Schafer: It is that that bailiff had the jury in charge for an eight-day trial. The hearing court went on to find, I think, he didn't have to but he went on to find that these facts in fact had prejudice to the defendant. And consistently with that finding, he ordered that the conviction be set aside and a new trial be granted. The Oregon Supreme Court reversed that finding by the hearing court and affirmed the conviction and reversed the new trial ruling. At that appeal, the state's appeal on the -- on that hearing court's ruling, the federal question was explicitly raised. There's no contention made here that the petitioner did not raise the federal question in the Oregon Supreme Court. The Oregon Supreme Court decision cannot be read in my judgment in any way other than to say in effect that petitioner was afforded a Fourteenth Amendment trial in spite of the fact that an officer of the State of Oregon in effect went into the jury room and told two or three jurors the defendant was guilty. I don't see how the Supreme Court of Oregon decisions to be interpreted in any way and on that interpretation I submit that citations of authority of this Court's prior decisions is almost completely unnecessary. If citation is authority, I should like to call to Your Honors attention the case of Turner versus Louisiana which you decided two terms ago. And in Turner, you may recall that was an 8 to 1 decision with only Justice Clark dissenting. In Turner, two sheriffs who had custody of the jury also testified for the prosecution. And this Court held and on those facts and without more that that was the kind of situation which was so inherently prejudicial to the defendant that it was not consistent with the Fourteenth Amendment obligations on the states.
Potter Stewart: Oh, those two sheriffs were potential prosecution witnesses perhaps you said that, right?
John H. Schafer: I did say that Your Honor. Yes, I did say it.
Potter Stewart: Yes.
John H. Schafer: They were prosecution witnesses and they were in custody of this -- of the jury.
Potter Stewart: That's the -- that's a difference between that case and this one.
John H. Schafer: That's correct Your Honor. Let me say however, in response to Mr. Chief Justice Warren's question. In theory, you had only a three-day trial which those bailiffs or sheriffs were in custody. Here you have an eight-day trial and this bailiff was in constant and intimate contact with that jury for eight solid days. The bailiff then said to the jurors “this defendant is guilty”. Moreover, you have here flat proof of finding a fact made by the hearing court that prejudicial statements were made by the state officer and in turn you hadn't -- didn't have any evidence of that at all. And moreover I think I may fairly say that in this case the jurors deliberated for 26 hours and I think that can fairly be said to indicate some real questions about the ultimate question of guilt or innocence. Now, the state's arguments in support of this holding of the Oregon Supreme Court are I believe without any merit. The state first suggests that finality ought to be accorded to jury verdicts. But there isn't any rule in the State of Oregon which would enshrine jury verdicts to this extent. The State versus Gardner decision of the Oregon Supreme Court a few terms ago very recently in Oregon, lays down the general rule that's been applied in most jurisdictions that that evidence of this kind is admissible to impeach a jury verdict. That evidence of the reasoning process, the thought process of jurors that's not admissible. But evidence of overt acts which can be proved or disproved by other witnesses, that kind of evidence is admissible. That's the law of Oregon. Mr. Justice Brennan when he was on the New Jersey Supreme Court wrote a very detailed and considerate opinion in which basically he came to the same result to the State of New Jersey and that's the general rule and some of the rule of Oregon. And there isn't the kind of rule of finality which the state would now have you believe. And moreover mind you, in this case, the evidence of the bailiff statements did come from jurors. Three jurors testified to the effect these statements were made. But the state never suggested that that evidence because it came from jurors was inadmissible that these jurors were impeaching their verdict and they could not be heard to impeach their verdict. That's not the State Rule in Oregon. The hearing court didn't suggest that and the Oregon Supreme Court didn't suggest that. And moreover, I would say that I think it's quite clear that if this were this rule of Oregon and if this rule were applied to foreclose proof and judicial actions thereon and it may -- suggested by the State, they will be unconstitutionally applied. And you couldn't have a state --
William J. Brennan, Jr.: Oh, I'm (Voice Overlap) --
John H. Schafer: Excuse me, Your Honor.
William J. Brennan, Jr.: I just wondered Mr. Schafer, rereading Mr. Justice 08.15 opinion. Do I read this correctly as stating that the question for the Court's decision based on this finding on the post-conviction hearing is whether within the State's statute that that was conduct which deprived the petitioner a fair trial under the Constitutions of the State of Oregon or the Constitution of United States?
John H. Schafer: That's correct Your Honor.
William J. Brennan, Jr.: And then went on simply to hold that the -- and its judgment, this was not a denial of any federal constitutional right to a fair trial.
John H. Schafer: That's their decision Your Honor. And now this --
William J. Brennan, Jr.: And how do we get into admission of -- in some of the issue?
John H. Schafer: I would suggest myself to the arguments made by the State in its brief.
William J. Brennan, Jr.: I see.
John H. Schafer: The State in its brief in a way I'm not quite sure I can definitely state to the Court is suggesting two lines of argument and seems to combine the two into an ultimate conclusion. In other words, it's suggesting the argument of finality which I've just -- been suggesting myself to. And there is also just saying in effect which I want to come to in a second, but anyway there wasn't any prejudice. And then the State in his brief says, what the State -- the Court in Oregon did was to balance these two, and say, we ought to have finality and it really wasn't very much prejudice, so it's all okay. And I'm just taking the two points made by the State in his brief and analyzing separately. Now as they say, the finality argument I think this without a merit. And the State as I have said goes on to say, “Well, anyway there wasn't any prejudice. There wasn't any prejudice here to this defendant”. And there are three things wrong with that argument. The first is as I've said the hearing court found as in fact there was prejudice. And the second thing wrong with it is, there is a long line of decisions of this Court making it perfectly clear we submit that in circumstances such as this, it isn't necessary for a defendant to assume the burden of proving actual prejudice. This Court's decision starting with Tumey versus Ohio running through Turner and Louisiana including Irvin v. Dowd, Estes, Sheppard; all those cases established the proposition that where the circumstances are as here so inherently prejudicial. It isn't necessary in order to establish a constitutional right that the defendant assumed the burden of proving actual prejudice. And finally on this argument of prejudice, I would say simply that the State's argument proves too much. It would have us prove that Mr. Parker was prejudiced. Where the only way left to prove it would be to have a juror come in and say, ”Yes, I was in fact influenced by what that bailiff told me about his guilt”. Well, that's precisely the kind of testimony of course that almost everybody agrees. The rules of -- uniform rules of evidence and everybody else agrees. That kind of evidence is not admissible. So that for those reasons, I don't plan to talk any longer unless there are questions, for those reasons, we believe the State's arguments are without any merit. And --
Speaker: I would like to ask you a question.
John H. Schafer: Yes, Mr. Justice Harlan.
Speaker: This came to light after the trial?
John H. Schafer: That's correct.
Speaker: After the jury brought in its verdict and on affidavits from jurors that presumably was secured at the instance of the defendant, I suppose?
John H. Schafer: That's correct.
Speaker: Do we run into a State rule or that the juries are not allowed to impeach their verdicts?
John H. Schafer: Well, that's what the State tries to suggest Your Honor. But --
Speaker: That's a pretty general rule, is it not?
John H. Schafer: That's a very general rule and it's not the rule of Oregon because State versus Gardner which we've cited in our brief as I was saying a moment ago, State versus Gardner makes the pretty uniform distinction as to the kinds of proof that are admissible and those that are not, it's our saying. Proof from a juror as mental processes, he can't come into a Court and say, “Gee, I read and understand the Court's instructions and if I had I would have voted the other way”. That's pretty universally condemned. But it's universally held, I believe that a juror can come into a Court and say, “We were offered bribes", or "People said things to us", or any of those other facts, overt facts, overt acts, proof of overt acts which can be proved or disproved to testimonial process. Testimonial process, I should say. Those kinds of facts are admissible and that's the rule of the State of Oregon as I've stated in the State versus Gardner. And that's a rule that Mr. Justice Brennan as I said wrote a decision which nicely summarizes the history of this problem in the cases in -- when he was on the Jersey Court.
Byron R. White: What's your (Voice Overlap) --
John H. Schafer: And that's the standard rule.
Byron R. White: Is your claim that this conduct without any showing prejudice must be assumed to have affected the jurors?
John H. Schafer: I -- my -- our claim is Your Honor that where the circumstances are so likely to cause prejudice, that it's not necessary to prove actual prejudice.
Byron R. White: You don't claim for a moment that anybody -- anyone but the two jurors heard it or heard these alleged statements, do you?
John H. Schafer: The testimony of the hearing -- post-conviction hearing Mr. Justice White was a little confused and there were three --
Byron R. White: I know but three -- two or three?
John H. Schafer: There were two or three.
Byron R. White: Two or three but no more --
John H. Schafer: No more than that. No.
Byron R. White: And one of them was an alternate?
John H. Schafer: Yes. Well, two or three regulars probably heard it and one alternate.
Byron R. White: Only a minute -- I thought it was just the most of these two all -- two regulars and one alternate.
John H. Schafer: No, Mr. Justice White. The testimony was -- there was no finding made out of it but --
Byron R. White: Well anyway, the same people who heard it were the ones who gave -- who've impeached this verdict?
John H. Schafer: That's correct.
Byron R. White: And that there's no allegation what so -- they're the ones who were unhappy with the verdict in the first place?
John H. Schafer: Well, we don't know that. They --
Byron R. White: But there's no suggestion in their statements or affidavits that they themselves were affected.
John H. Schafer: No. No, there's was not.
Byron R. White: I mean their testimony, their affidavits were available, and there may have been some -- maybe some presumption or some inference like in Turner or something that when you got something like this you don't really go much further. And when the people who raised it and the only people who raised it, the only people who read it or heard it say, "This was a bad thing and don't go on and say, it was so bad that I was affected".
John H. Schafer: Well --
Byron R. White: If it -- the ordinary rule would've apply, let's assume one juror comes in and says, “Here's what the bailiff told me”. Then you asked the juror that, “Did it affect you?” He says, “I should stay not. I held out to the bitter end”. And what -- are you -- then are you supposed to reverse?
John H. Schafer: Well, two things if I might say that Mr. Justice White --
Byron R. White: Well, how about that question?
John H. Schafer: The first is your assumption of fact is not quite correct on the record but --
Byron R. White: I didn't say -- I asked you a hypothetical.
John H. Schafer: I'm sorry. I understood you were addressing yourself to the record. And the second thing as I would say that kind of evidence, yes I was affected, no I wasn't affected. That's inadmissible. I believe in every jurisdiction, if you -- inadmissible under the uniform rules of evidence and perhaps the reason is --
Byron R. White: So which way is -- so that you can apply the Turner Rule or so that you shouldn't apply it?
John H. Schafer: So that a juror may not be allowed to impeach his own verdict --
Byron R. White: Alright.
John H. Schafer: -- because a juror really is --
Byron R. White: Well then you don't apply the Turner Rule?
John H. Schafer: I'm afraid I'm not -- the Turner Rule to my mind means that you assume prejudice because these facts occurred. Now, I'm asking you here to apply the Turner Rule to assume prejudice because three jurors heard an officer of the State say, “This man was guilty”.
Byron R. White: And you apply the Turner Rule because the juror who brings it up shouldn't be allowed to say, what's the fact is?
John H. Schafer: That's right. That's right Your Honor. Because who want --
Byron R. White: Well, you -- assume he would?
John H. Schafer: Assume he was not?
Byron R. White: He was. You assume he was a juror.
John H. Schafer: I assume he was?
Byron R. White: He was prejudice, that's what your argument. We must assume that he was prejudice.
John H. Schafer: That he was present?
Byron R. White: Prejudiced.
John H. Schafer: Prejudiced.
Byron R. White: He was always available to say one way or another whether he was?
John H. Schafer: That's right. I don't think that we can hear him say whether he was prejudice or not. I think for one thing no juror can adequately say. Who -- what -- one of us can say, what influences us and what doesn't. And isn't a natural tendency to say, I'm not influenced by things I hear. I've got my own mouth -- mind and I can make it up myself.
Byron R. White: Now, these are -- are they -- you own unanimous verdicts in Oregon?
John H. Schafer: No, they're tended to. As I understand Oregon law --
Byron R. White: These particular two jurors who heard it voted against the conviction.
John H. Schafer: No, that was unanimous verdict, I'm sorry.
Byron R. White: What was unanimous?
John H. Schafer: I'm sorry, unanimous verdict. And I should -- what I wanted to say a minute ago Mr. Justice White was that one of these jurors wasn't able to say one way or the other, whether she had been prejudiced by what she heard. That's in the record.
William J. Brennan, Jr.: Mr. Schafer, may I ask you. I noticed that --
John H. Schafer: Page 1 -- excuse me. Excuse me.
William J. Brennan, Jr.: That the Court's opinion, I'm looking at 13A of the record cites Ausplund, A-U-S-P-L-U-N-D, an Oregon decision and in its discussion of it concludes with the decision of the Court in effect was that such evidence would not even be received for the reason that it would destroy the finality with the jury's verdict. This gets back to what Mr. Justice Harlan was asking you earlier. I think you answered Justice Harlan that this doesn't suggest that this turned on a state ground namely that a juror would not be allowed by this kind of evidence to impeach his verdict. Doesn't ask this -- the way the Court treats or response suggest that that if that may be the Oregon Rule?
John H. Schafer: If I read -- it -- let me say this. If it is the Oregon Rule that you cannot prove this kind of conduct for one reason or another then it seems to me that rule is unconstitutional, if it forecloses the kind of proof and the judicial action necessary to taking thereon as it indicated by this case? If the Oregon law is, that this petitioner cannot prove that a state officer went in and told three jurors that he was guilty during the course of the trial then --
William J. Brennan, Jr.: Well, I gather --
John H. Schafer: -- that rule is applied to be unconstitutional.
William J. Brennan, Jr.: I gather since Ausplund was another case of a juror, whom -- three jurors who made affidavits. This means that a juror's evidence to that effect would not be received in evidence. Not that you can't prove it otherwise, but you can't prove it out of the mouths of the jurors who sat on the jury.
John H. Schafer: Well Mr. Justice Brennan, no one -- as I said nobody in this case ever said that this juror's testimony wasn't admissible. It wasn't --
William J. Brennan, Jr.: I'm just wondering if this citation of Ausplund as they suggest that it wasn't. And that one ground of the reversal by the Supreme Court was that that kind of evidence could not be received.
John H. Schafer: Well, I didn't understand. I only have a fair reading of the decision indicates that and I must say that State versus Gardner which comes subsequent to the Ausplund case.
William J. Brennan, Jr.: Yes.
John H. Schafer: I think it is really on all fours from your decision Mr. Justice Brennan in the State versus (Inaudible) case.
William J. Brennan, Jr.: And you said the (Voice Overlap) -- yes.
John H. Schafer: And that indicates I think without any doubt whatever that the Oregon Rule is that this kind of evidence is admissible through jurors or otherwise. And however you read Ausplund; I think it -- if it says that it's overruled by Gardner. And I don't think that this Oregon Court in this case is saying, "We've got adequate state grounds on which to foreclose, on which -- upon which we can foreclose". And otherwise a valid constitutional claim.
William J. Brennan, Jr.: When you say, what follow supports you.
John H. Schafer: Thank you very much Your Honor.
Earl Warren: Mr. Blunt.
David H. Blunt: Mr. Chief Justice, may it please the Court. In listening to the counsel's statement of facts, I believe it'd be helpful with the Court to have -- give it a little more background as to the facts in this case. Mr. Parker was tried about eight years ago on the charge of first degree murder and the jury came back with a verdict of second degree. Now, this was appealed, reversed. Second trial was held in 1961. The trial began on Monday April 24th, 1961. It recessed for the weekend on Saturday and Sunday and it came back the following week. And the jury returned its verdict on May 3rd, 1961 which was a Wednesday. Now, the second trial was before a different judge, a different bailiff, and of course a different jury. Now, he was convicted the second time of second degree murder. He moved for a new trial on the basis of a failure of the prosecution who approved the venue in the county. The trial court denied the motion and sentenced Mr. Parker to life imprisonment in the Oregon State Penitentiary. He appealed again and the basis of the appeal was the failure of the trial court to bring in a new trial on the failure to approve venue again. And also a -- an objection to an opening statement of District Attorney alluding to a tape recording which are not later allowed in evidence. Now, this time the Oregon Supreme Court affirmed the conviction on October 8th, 1963. Now at that time, Mr. Parker and his wife, the petitioner in this case, petitioner Mr. Parker embarked upon a campaign to get another trial. Mr. Parker wrote letters to the jurors. He had his wife contact the jurors on the jury list and from the first juror call found the names of other jurors that were holdouts in this 26-hour deliberation. Now, Mr. Parker prepared a tape recording. He had his wife invite three of these jurors over to her home. In fact, she invited everybody over to her home but only three of them came to the home to listen to this tape recording. They had a discussion of the matter and went down to see an attorney that was hred by the petitioner's wife and talk it over with him. He prepared the affidavits and on that basis he submitted a post-conviction petition under the Oregon Post-Conviction Hearing Act in which they alleged a wide variety of misconduct on the part of the jurors, the other jurors. They said some of them were sleeping. He said, the jury room door was left open and the jurors could hear conversations in the hallway. They said that the remarks were made. Now, the post-conviction hearing had all the jurors testified including the bailiffs and the two alternate jurors. Now the -- and there're still a little confusion here as to whether three jurors heard these two remarks, there were two remarks, one was, “Oh, that wicked fellow, he is surely guilty”. The other one was, “If there's anything wrong with your decision the Supreme Court of Oregon will correct it”. Now as to the remark by the bailiff that the petitioner was guilty, this was made to the alternate juror, a woman, and was overheard by a regular juror from the record indicates that she was the longest holdout. The other remark was supposedly made to a man juror with all the men on the jury testified post-conviction, they didn't hear the other remark. This remark supposedly was overheard by another woman juror and the other woman juror who had been the principal holdout. Now the remarks were made during a walk that the jurors took on a Sunday. They were out getting some fresh air and the woman alternate juror expressed concern that the petitioner's case, Mr. Parker is being rerouted.
Speaker: (Inaudible) concern about?
David H. Blunt: That the petitioner was being rerouted that the -- there was a feeling, general feeling amongst the jurors that the -- they're finding him guilty and the State had not proved this case at least in her own mind beyond a reasonable doubt. Now, the post-conviction hearing court found as a matter of fact that the remarks have been made. We don't question this. This is a finding of fact. Supposedly, the most damaging remark is to the effect that the petitioner is guilty. Now, the post-conviction trial court found also that if these remarks have been brought to the attention of the trial judge he would on his own motion have allowed a new trial. They would have ordered a new trial. Petitioner would not have had even make a motion to this effect. This is the law of Oregon, there's no question of that. On -- if it's brought up timely or even on direct appeal why this would -- would grant the man relief. But this is something that happened two and a half years later. He -- Mr. Parker chose to wait until he lost his second appeal. Then he goes back and tried by this route to get a third trial. Now, the Post-Conviction Hearing Act in Oregon requires a higher standard than the case law regarding motions for new trial that requires a substantial denial of constitutional right. There are reasons for this. Counsel calls it finality perhaps that's the best word we can find this time. He states in his argument that in this Turner versus Louisiana is not a stronger case as Mr. Parker has here. Well, we take exception to this as Mr. Justice Potter pointed out the two bailiffs in that cases were also the principal prosecution witnesses. And they were with the jurors for over three days in that case and the -- this Court rightfully held that in a situation like that you don't have to show prejudices. No question to that.
Speaker: He talked about the (Inaudible)?
David H. Blunt: No, Your Honor. I'm speaking in terms into the litigation. That's correct Your Honor.
Abe Fortas: I'm a -- excuse me sir. But quite -- I don't understand something here. So I understand that the post-conviction trial court held that a -- that the petitioner was entitled to a new trial in regards that these statements had been made and that they were prejudicial. Is that right?
David H. Blunt: That's correct Your Honor. Yes.
Abe Fortas: Then the Supreme Court of Oregon reversed on the grounds that the trial court -- post-conviction trial court had not correctly applied the post-conviction standards.
David H. Blunt: That's correct Your Honor.
Abe Fortas: Now, what would be the basis for setting aside the verdict for granting a new trial if the same situation had been called to the attention of the trial judge before sentence?
David H. Blunt: Well, Your Honor, I don't think there'd be any questions but that it would have gotten a new trial and (Voice Overlap) --
Abe Fortas: On what basis?
David H. Blunt: Well, the general case law is that --
Abe Fortas: Yes. But what's the legal concept? It's a denial of the fair trial, isn't it? That is even (Voice Overlap) --
David H. Blunt: Well, we have a statute so Your Honor that forbids this type of convict expressly.
Abe Fortas: Yes. But I say he would've gotten a -- are you saying that it's purely statutory and not constitutional? Or isn't that --
David H. Blunt: I'm not quite sure Mr. Justice Fortas as to whether it would be purely constitutional or purely statutory or perhaps (Voice Overlap) --
Abe Fortas: Well, my point is that I turn to see the -- how -- to raising a question as to whether there is really a difference between the rule that would apply in the course of the trial before a sentence. On the one hand on the post-conviction rule, in your brief on page 3 you said that the Oregon statute and subsection (a) of the post-conviction statute allows relief to be granted when there's a substantial denial of constitutional rights. Is that right?
David H. Blunt: Yes, Your Honor. However, the -- it's my opinion Your Honor that a prejudice or substantial denial is a relative thing. Certainly, many things that affect interstate commerce without --
Abe Fortas: You mean a substantial denial of constitutional right to a fair trial means one thing post-conviction and another thing while the trial is still in process?
David H. Blunt: Yes, Your Honor. On collateral facts, where you hold a higher standard, yes sir.
Earl Warren: Well, how and when could this defendant have raised this question so as to make it meaningful?
David H. Blunt: Well, Your Honor, the -- a matter of fact the -- this one juror that was a holdout went to the trial judge after the trial was over and she was conscience stricken as I understand this happens frequently in this type of a trial after a juror go back and talk to the judge and say, “I don't know if I did the right thing or not in giving up -- giving in to the majority here”. She had at that time an opportunity to tell the judge of these remarks. If in fact she had been very much impressed by these things but she didn't do it. She didn't think about these things for two and a half years later at the insistence of the petitioner here and his wife.
Earl Warren: Well, but how -- I say at some point, if this is a violation of his constitutional rights to have a fair trial there must have been sometime at which the defendant could have raised that point before the courts, in order to make his right effective. Now, when and how could he have done that in this case?
David H. Blunt: Well, he could have moved for a new trial Your Honor any time up to the time the decision affirming his conviction has been rendered (Voice Overlap) --
Earl Warren: Yes, what if he didn't know about it how could he do it?
David H. Blunt: Well, Your Honor that does post a problem here then -- these were the -- this decision of the Oregon Supreme Court in the balancing of the two doctrines must be made. Counsel has it -- ruled it sort of a balance, he spoke off.
Earl Warren: Valid says what?
David H. Blunt: Well, the equities as giving finality to a verdict as against the constitutional right to a fair trial.
Earl Warren: Without regard to his right to raise it at all?
David H. Blunt: Well, Your Honor, I think what the state is saying here is that he can raise it up to a certain time.
Earl Warren: When is that time? That's what I want to know?
David H. Blunt: Well, I would say they would probably rely, Your Honor at the -- up to the time the decision affirming his conviction has been handed down.
Earl Warren: Does the statute say so?
David H. Blunt: No, Your Honor. It does not.
Earl Warren: Does your case law say so?
David H. Blunt: It is not clear on that exact point Your Honor.
Earl Warren: Is there any case in Oregon that says that he does have this right to do it up to that time?
David H. Blunt: I don't believe so Your Honor that if any case spells it out.
Earl Warren: When -- how -- how is it? Could you tell us -- he can do it?
David H. Blunt: This pure conjecture of my parts Your Honor --
Earl Warren: Well then, but certainly you wouldn't expect him to do that if he didn't know about it up to that time, would you?
David H. Blunt: No. No in fairness Your Honor, I can't say that.
Earl Warren: Is there anything in the findings of the trial court here that to the effect that he did know but didn't exercise his right speedily?
David H. Blunt: Not directly, Your Honor. Only through the record itself in this respect --
Earl Warren: So they talked about the findings of the Court.
David H. Blunt: No, Your Honor.
Earl Warren: So then we can't charge him with any latches, can we?
David H. Blunt: I don't believe so Your Honor as such. I believe all the points have been covered. Thank you.
Earl Warren: Thank you. Mr. Schafer did you have anything more?
John H. Schafer: I would just say in response to Your Honor, Chief Justice to the last question on page 204 of the record. There appears a statement by the Supreme Court of Oregon that it is assuming for the purposes of its decision that the petitioner did raise the issue of misconduct as soon as it could -- as soon as he could.


William H. Rehnquist: We'll hear argument now in No. 98-1701, the United States v. Gary Locke, and 19-8... 98-1706, International Association of Tanker Owners v. Locke. Mr. Benner.
C. Jonathan Benner: Mr. Chief Justice, and may it please the Court: From the first day of our existence as a Nation, we've relied on the merchant ships of the United States and foreign nations to bear the vast preponderance of our interstate and our foreign commerce. There have been some amicus submissions on this side of the argument that give you some sense not only of the historic scope of that reliance, but also the present scope and the complexity of the routes that these vessels travel. Each of these vessels is a complex collection of systems and subsystems, both structural and mechanical, but also each depends on the knowledge and skill and judgment of mariners not only from the United States, but from around the world. Each of these vessels is subject to an intricate Federal system of permits, inspections, certifications by personnel of the United States Coast Guard acting pursuant to authority vested in them by the United States Congress. The Founders were very familiar with this industry. They knew it very well. They knew its complexities. They knew its central importance to the commerce of the United States and the economic health of its... of the Nation. And they knew its links to international law. They understood that each vessel carried with it a physical projection of the sovereignty of another Nation and they knew that the citizens aboard that vessel often were from other nations and that along with the possibility of prosperity that came with these maritime transactions, there also was the possibility of conflict with other nations in how we dealt with those vessels when they called at our ports. The United States and Intertanko here seek reversal of a decision from the Ninth Circuit Court of Appeals which I believe for the first time in the history of the United States countenanced an intrusion by a State government, in this case the State of Washington, into areas that are exclusively regulated by the Federal Government. And to define this field at the start, we are relying on the enumeration of subject matters in 46 U.S.C. 3703(a), the design, construction, alteration, repair, maintenance, equipping, personnel qualifications, and manning of the vessels. This is the realm that we believe has strong Federal connotations that must be protected in this case. By inserting itself into these subject matters, our concern is that the State of Washington necessarily displaces Federal judgments governing these vessels and compromises the constitutionally essential supremacy of Federal law in this particular area. The practical--
Sandra Day O'Connor: May I... may I ask you, Mr. Benner, if you take the position that all 13 of the provisions before us here are preempted by Federal law itself or that some of them are preempted by Coast Guard regulation?
C. Jonathan Benner: --We take the position that all of them, Justice O'Connor, are preempted by Federal law itself in the subject matters described in 46 U.S.C., section 3703.
Sandra Day O'Connor: Some sort of field preemption.
C. Jonathan Benner: Yes. We... we do contend... and I'll be very clear about that.
Sandra Day O'Connor: Yes.
C. Jonathan Benner: There is a condition of field preemption that surrounds that component of the United States Code.
Sandra Day O'Connor: So, your first position would be that field preemption applies and we don't have to look further.
C. Jonathan Benner: That is correct. Now, like people in our profession have a tendency to do, we have also pointed to express--
Sandra Day O'Connor: A fall-back provision. [Laughter]
C. Jonathan Benner: --We... we have also pointed to... to instances in which the United States Coast Guard has spoken expressly preemptively in its regulations and that those express preemptive statements are entitled to deference.
Sandra Day O'Connor: And there you rely on Coast Guard regulations that contain language expressly preempting State law?
C. Jonathan Benner: Yes, that is correct. The Coast Guard has said on several occasions, in issuing regulations pursuant to title 46 and also to title 33, that it is the Coast Guard's intent to oust differential State action in those areas.
Sandra Day O'Connor: But if the Coast Guard were silent on some of these points, you still think there is Federal--
C. Jonathan Benner: Indeed, Justice O'Connor, that is--
John Paul Stevens: --Do you think your position is entirely consistent with our decision in Ray? Your first position. I know your second is.
C. Jonathan Benner: --Yes. I... I believe it is, Justice Stevens. The... Ray we rely on heavily, but I... I certainly acknowledge that in Ray the issues you were looking at in that decision were design and construction elements. We are saying here--
John Paul Stevens: Well, but also the Court held that some of the regulations were valid in that--
C. Jonathan Benner: --The... the two that were held valid by the Court in Ray that... that maybe illustrate our point are, one, a tug escort provision, which was not held valid under what we are calling title II, as a shorthand reference, to PWSA, the 3703(a) subject matters, but was held valid under title I of PWSA which was a discretionary element of the law and remains a discretionary element of the law. We read the Court's decision in Ray to say the States do have an ability to act in these discretionary areas... and the tug escort provision was deemed to be one... if the Federal Government has not acted. Now, a salient point in the fact pattern that we present to you here is that in every single element of the challenged State regulations, there is a corresponding Federal regulation. We do not believe--
John Paul Stevens: --Oh, I understand that, but that's your second... that's your fall-back argument. Your first argument is the statute itself, 3703, takes care of everything.
C. Jonathan Benner: --That is our argument because we believe that every one of these regulations falls within the understood meaning of design, construction, alteration, repair, maintenance, particularly in this case personnel qualifications and manning and operations.
William H. Rehnquist: Why should manning and operations... I mean, why shouldn't the State have something to say about that?
C. Jonathan Benner: I think to understand why it's important to the Federal system, Your Honor, that... that all of these things work together, you have to understand the system... the vessel as a system. The section 3703(a) describes a number of elements of the operation of the vessel, all of which link together. What we're concerned about is that if the States can selectively adjust elements of that system, they are not in a position to judge what the impact of that adjustment is.
Sandra Day O'Connor: Well, what do you concede is left open to States in this area? What about conditions peculiar to local waters?
C. Jonathan Benner: The language, Justice O'Connor, that you find in... in much of the maritime preemption case law that this Court has generated about local conditions seems to be related to such matters as fishing, conservation, that kind of thing, or is... is recited before, in the case of Ray, finding that the tug escort provision was a title I discretionary PWSA matter. We believe that the significance of local conditions--
Ruth Bader Ginsburg: Well, how do we know that the... the provisions of Washington law you are contesting necessarily fall under title II and not under title I? It seems that some title I subjects involve operations.
C. Jonathan Benner: --Yes. I... I do acknowledge, Justice Ginsburg, that in title I you have vessel operating requirements as... as part of the statutory description of the field there; whereas, in title II you have operations. We... as a first level answer to your question, we contend it doesn't make any difference to our preemption analysis. We're contending that even title I is heavily preemptive, and if you look at Ray, it's very clear that the Court found that the congressional decision to permit State action with regard to structures included an implicit decision to ban the States from regulating with regard to vessel standards. The thing that saved the tug escort requirement in Ray and which is not applicable here was the absence of a Federal presence in that particular element. The Court said, it may be that the United States will come to regulate that, and when that happens, that will have preemptive effect. But it hadn't happened at the time of the Ray decision. So, our answer is--
Antonin Scalia: I must say I don't understand. It seems to me where you have field preemption, I... I thought that by definition field preemption meant, if you're relying on the statute--
C. Jonathan Benner: --Yes.
Antonin Scalia: --which is what you're doing, it means, whether or not the Government acts, we've occupied the field. And if... if we decide there should be no regulation of this, there shall be no regulation. Period. That... and... but you're... you're... you have some kind of a hybrid where... where you claim field preemption but then explain the exception in Ray by saying, well, there was no... you know, there had been no specific rule promulgated there.
C. Jonathan Benner: Justice Scalia, we make a distinction between title II of the Ports and Waterways Safety Act and title I of that act. In other words, the one that is mandatory is title II, and in that case, we're claiming field preemption.
Antonin Scalia: But Justice Ginsburg's question drew your attention to the fact that you could place these matters under title I.--
C. Jonathan Benner: I... I don't believe you can place all of them under title I. The... the ambiguity about the distinction between title I and title II is the use of the word operating requirements in title I and the word operations in title II. We contend that all of these provisions fall within title II because they're either operations, personnel qualifications, or manning requirements that... and... and we accept your... your proposition that, because we are arguing field preemption, the States are completely barred from entering that area. The confusion... my time is expired.
William H. Rehnquist: --Thank you, Mr. Benner. Mr. Frederick, we'll hear from you.
David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court: I'd like to start with the international ramifications of the decision by the court of appeals in this case because under title II of the PWSA, the Secretary is obliged to give reciprocal rights to foreign flag vessels that... that comply with international agreements to which the United States has acceded. And that international reciprocity is tied into the title II fields that Mr. Benner earlier described that are particularly applicable in this case, that those fields, personnel qualifications, manning, operations, and equipment. And the same reasons that this Court held in Ray it applied for design and construction are equally applicable for those fields as well. The Secretary issues a license as--
Sandra Day O'Connor: Well, could we talk about whether it's field preemption or conflict preemption or something else? And how do you read Ray? There were exceptions in Ray. So, it's hard to look at it as a field preemption case.
David C. Frederick: --That's--
Sandra Day O'Connor: Where are we?
David C. Frederick: --Well, Justice O'Connor, we're in both. And let me try to distinguish for you.
Sandra Day O'Connor: Well--
David C. Frederick: Some of the... some of the issues here involve the fields, and they relate to the vessel as a system, what the qualifications are of the personnel aboard, what manning requirements are... are imposed, what kinds of equipment has to be tested at particular times and operational. Those are clearly in the fields. There are international agreements that set standards the Secretary is obliged to give reciprocal rights to. Now, there are other rules, and I would identify three for the Court that arguably... arguably... could be within the local peculiarities of the waterways, and those concern the advance notice of entry, the position plotting, and restricted visibility watchkeeping requirements. I would point out to the Court that the State of Washington here has not attempted to justify in its rationale for these rules that they are related at all to the peculiarities of Washington waters. They apply to the many thousands of miles of Washington waters that are in Puget Sound and out... the underlying... outlying coast.
John Paul Stevens: --Well, may I ask... you say visibility and piloting. Was it piloting that you said was involved?
David C. Frederick: Watchkeeping.
John Paul Stevens: Watchkeeping. Does that mean in the heavy... when the visibility is way down, as it often is in that area, is their three officer on the deck something that would be arguably not subject to field preemption?
David C. Frederick: That's... that... it's not subject to field preemption within the statutory fields of title II. Our position is, consistent with Ray, that title I gives the Coast Guard regulatory field preemption so that if--
John Paul Stevens: Well, you say that that would be bad only if it's covered by a Coast Guard regulation.
David C. Frederick: --That's correct. And the Court made very clear with the tug escort requirement in that case that if the Coast Guard had issued a tug escort requirement, that that would occupy the field as to tug escorts and would not preempt a... and would not be preemptive of a State rule if there was no Coast Guard regulation.
Antonin Scalia: I don't understand how you... how you get into the definition of the field the matter of local conditions. I mean, it seems to me if a manning requirement is... is demanded by local conditions, it is a manning requirement nonetheless. It seems to me you're trying to slip in under the... under the field definition, a totally extraneous matter, and that is whether local conditions, in fact, do justify some exceptions to the field preemption.
David C. Frederick: That's why I stressed arguably, Justice Scalia. In our view, most of these rules apply to the vessel as a system. They're not local traffic type rules.
Antonin Scalia: That's a more honest... that's... that's a more honest explanation. Right?
David C. Frederick: No. And... and, you know, some of them in our view would be deemed manning requirements, but that in any event because... if they are justified as local traffic rules, they are preempted because of contrary Coast Guard determinations to issue a rule as to those kinds of conditions.
Ruth Bader Ginsburg: Mr. Frederick, the lower courts didn't get into any of... any of this, and so far, no one has mentioned the basis of their decision which was section 1018. So... so--
David C. Frederick: I would be happy to address the error of the court of appeals' reasoning. In our view, section 1018 of the Oil Pollution Act has no applicability to this case whatsoever. The plain language of that statute, which respondents do not contest our argument... it begins with the phrase, nothing in this act... i.e., nothing in OPA... shall affect the right of the States to impose additional requirements. Nothing in section 1018 affects the ability... the preemptive force of Federal law under the Ports and Waterways Safety Act, the PTSA--
David H. Souter: --Well, Mr. Frederick, if we agree with you on that point and if we also agree that in fact the court gave a rather restricted reading of Ray, simply assuming that its principles went no further than the design and construction, shouldn't we simply at that point vacate and send this thing back rather than in the first instance, as if we were a court of... of first instance, parse our way through every regulation?
David C. Frederick: --Justice Souter, that would be an eminently reasonable holding of this Court. We have offered illustrations in our submissions so that the concreteness of the dispute is apparent to the Court, and in our view some of these rules are sufficiently clearly preempted that the Court could hold them so. We've offered those illustrations for the benefit of the Court. We have not attempted to be exhaustive because of the page limits.
David H. Souter: But am... am I right that if... that your position is that if we agree with you on 1018 and we agree with you on the restricted reading given to Ray, that those two points are sufficient to require vacation and... and remand?
David C. Frederick: Yes, and we would urge the Court to reaffirm the title II/title I preemptive dichotomy that the Court explained in Ray and to show that those issues and subjects in 46 U.S.C. 3703(a) are entitled to the same field preemptive consequences because they basically allow for the same reasons. If I could just point out that vessels move from place to place and nation to nation, and there's no difference in the design and construction of a vessel as there are in the kinds of personnel qualifications that would be at issue for a vessel that would move in such places.
Antonin Scalia: Mr. Frederick, before you get too far away from section 1018, doesn't... doesn't section 1018 support the respondent at least to this extent? It doesn't make much sense to say... to be sure, it only deals with the preemptive effect of... of that legislation, but it doesn't make much sense to say the State's authority to regulate... it doesn't make much sense to say this legislation shall not preempt the State's authority to regulate when there was already no extant State authority to regulate because of a prior statute. Doesn't it, in effect, acknowledge that under the prior legislation, there... there was State authority to regulate?
David C. Frederick: No, Justice Scalia, for several reasons. First, the Oil Pollution Act addresses pollution not only from vessels but from land-based sources. So, when Congress was attempting to save from preemptive effect preexisting authority, there is clearly State police power with respect to land-based oil pollution. There's no indication at all in the legislative history of... of the Oil Pollution Act, and in particular section 1018 where the conference committee that added that section said expressly that it had no intent to undo Ray v. Atlantic Richfield, which clearly upheld the preemptive scope of the Ports and Waterways Safety Act. Moreover, there are things that are clearly saved by 1018, the response that a State can make to oil pollution, additional liability requirements that a State might impose, penalties for polluters, requirements and certificates of financial responsibility. That doesn't mean that it brings the State on board the vessel to regulate the subjects that have been historically within the realm of Federal regulation.
Anthony M. Kennedy: How would you characterize then the principal error of the Ninth Circuit with reference to the savings clause? Was it in its conclusion that the savings clause, because it's in a later act, shows that field preemption is now in doubt or has been narrowed?
David C. Frederick: Well, I think there are a couple of errors. The principal one is, as you say, that... that somehow in a later act Congress intended, silently without saying so in a seven-word phrase, to eviscerate literally thousands of pages of Federal statutory and regulatory and international treaty law. There's no indication that... that Congress would have intended to do that. It also read a savings clause so broadly as to eviscerate specific directives contained in Federal law in these other vessel regulation statutes. And we point out the cases from this Court indicating that a savings clause should never be read so broadly as to eviscerate the specific directives given in... in the Federal law. And finally, it just missed it on the plain text of the provision which says, this act means this act. So--
William H. Rehnquist: Mr. Frederick, there's a difference between-- --Mr. Frederick, doesn't the... at least common sense and perhaps some of our earlier cases suggest that when you're talking about field preemption, you would not... you would hesitate to apply it in an area where there are very strong local interests. You know, supposing you say that in a heavy fog in Puget Sound, coming into the Seattle harbor, you have to have a tug. I... I for one would be quite loathe to read some rather general Federal statute as having preempted something like that.
David C. Frederick: --Congress specifically took local concerns into consideration in enacting the PWSA title I where it directed the Coast Guard to take into account the views of State and local officials in promulgating local traffic rules. And then after Ray, it amended title II to require the Coast Guard to take into account the views of States in issuing the systems-based regulations. So, there is a role for the States to play.
William H. Rehnquist: But a very subordinate one, obviously.
David C. Frederick: Well, the Congress made very clear it wanted there to be one decision maker, and there are important international ramifications to that. Because of the international treaties to which we've--
William H. Rehnquist: Well, what would be the international ramifications of saying that... of the State of Washington saying that in a heavy fog coming into Seattle harbor, you had to have a tug?
David C. Frederick: --The international ramifications are as follows, Mr. Chief Justice. Under applicable treaties, manning requirements and certain conditions are specified, and the discretion is left to the master to determine how best to get to port. Congress made the decision that because the... of the Coast Guard's expertise and its role in the international maritime field, the Coast Guard could make the decision as to those particular conditions. We would concede, Mr. Chief Justice, if there is no rule where the Coast Guard has specifically looked at this, the State has room to regulate, and in that regard, we may differ somewhat from Intertanko's position. But that's far... a far cry from the encroachment of these State rules onto the vessel that apply extraterritorial, like the drug testing provision which requires drug tests, random drug tests, on vessels that may never come to Washington for many years but require tests to be submitted and sent to the State of Washington--
John Paul Stevens: May I ask, to what extent do the Coast Guard regulations are... to what extent are they uniform or harbor-specific?
David C. Frederick: --It varies widely, Justice Stevens. We've got five volumes of the Code of Federal Regulations here, two of which--
John Paul Stevens: But they might have a... just to take an... they might have a regulation that would apply specifically to Puget Sound and nowhere else--
David C. Frederick: --That's correct.
John Paul Stevens: --to cover the specific--
David C. Frederick: That's correct, or even to a part of Puget Sound. And we've acknowledged in our reply brief that a tug escort requirement imposed by these BAP rules for a tug escort in and out of Port Angeles is the kind of local operating rule where the Coast Guard has not issued a regulation, and in our view that is not preempted by a Coast Guard regulation promulgated under title I.--
Ruth Bader Ginsburg: --Mr. Frederick, there's another difference between you and Mr. Benner. I hope you clarify that. You say 1018 just says no spill-over effect on the preexisting law, but he goes beyond that and would like us to say that it doesn't have a savings effect even within OPA except for title I. And your brief is silent on that. Do you have a position?
David C. Frederick: --Justice Ginsburg, we didn't brief the question because we don't regard it as necessary for the Court to decide. The textual indicator of this act is sufficiently clear to dispose of the question. I've indicated those areas that we think are clearly saved. In title IV, Congress gave certain directives to the Coast Guard to promulgate certain kinds of rules. Our view is that the savings clause doesn't affect the preemptive effect of title IV because the Coast Guard had preexisting preemptive authority under prior statutes, and title IV is simply telling the Coast Guard we want you to exercise that preexisting authority. There is an area in the middle between those aspects of direct vessel regulation and those aspects of financial liability requirements that I outlined before the response to liability where it is a difficult question. And because of the... the concern with not creating unintended consequences for creating our position, we have not taken a position in the abstract about what the phrase, additional requirements with respect to an oil discharge or substantial threat of oil discharge, are. Now, I would also like to add that since Ray a number of important developments have occurred that reaffirm the preemptive force of Ray. In the Court's decision in that case on pages 166 to 68, the Court emphasized that Congress had made international uniformity a key issue. And since Ray was decided, Congress has enacted the PTSA. It has promulgated into positive law title 46 which contains field preemptive elements that we have been talking about, and in the international realm, the SOLAS Convention, the Safety of Life at Sea Convention, has been ratified by the United States. The standards for training certification of watchkeeping have been implemented and enforced by the United States. The MARPOL Convention, which directly relates to pollution by vessels from oil tankers, has been ratified in the United States. And the International Safety Management Code has also been... has also been implemented into United States domestic law. This international regime is a constantly evolving process in which the United States is the leader, and every year a refinement to that process has been made. It would greatly upset uniformity if each State, each... each of the 23 coastal States, were able to pick and choose which Federal requirements they wanted to adopt, which ones they wanted to go beyond.
Anthony M. Kennedy: Have we ever said that the ratification of an international convention is sufficient to show field preemption?
David C. Frederick: I don't... I don't know of a case on that subject, Justice Kennedy, and I'm not sure that it's relevant for this purpose because Congress, in each instance of those acts... and we've provided the citations in our brief... has not only ratified, but it has directed the Coast Guard to engage in that enforcement. So, the Court would not need to rely on just the ratification of an international treaty for field preemption. And each of those subjects of those international treaties is a subject in title II of the PWSA which--
Anthony M. Kennedy: Are you saying that then... that these new treaties and laws that you refer to show express preemption?
David C. Frederick: --No. We... express preemption would be where there was, you know, an express statement that the law was intended to be preempted.
Anthony M. Kennedy: How... on... on what aspect of preemption then do these international agreements and obligations bear?
David C. Frederick: In two ways. They cover the subjects in title II that are field preemptive and the Secretary is obliged under the statute to honor reciprocal rights. They also are given licenses, and the... the uninterrupted flow of this Court's cases since Gibbons v. Ogden is that a State may not supplement or augment a duly authorized Federal license. 47 U.S.C. 370... 46 U.S.C. 3703 says these treaties require certificates.
Anthony M. Kennedy: Well, if they just give effect to a title II field preemption that's already there, then it doesn't add anything to the... to the case.
David C. Frederick: Well, it adds in the sense that there are specific provisions here that make very clear the occupation of the field and Congress' intent to do so. If I could reserve the balance of my time, Mr. Chief Justice.
William H. Rehnquist: Very well, Mr. Frederick. Mr. Collins, we'll hear from you.
William B. Collins: Mr. Chief Justice, and may it please the Court: This case concerns Washington's authority to prevent oil spills from tankers traveling on Puget Sound and in the Columbia River. Congress has not expressly preempted the State's authority to regulate companies that operate oil tankers in Washington, nor do we believe has Congress impliedly expressed a broad intent to preempt State authority in this field. Washington's prevention rules complement Coast Guard rules and the international regime, and there is no conflict. I want to just spend a moment talking about the State's regulatory regime because, contrary I think to the position of the United States and Intertanko, it is a complementary system, not a conflict system. First of all, we regulate by requiring the owners and operators of tankers to file a prevention plan, and that plan must meet certain requirements. Those requirements were developed in... in consultation with both the Coast Guard and the tanker industry, and they involve a lot... many of the rules involve simply operations on local waters, that is, the twisting, narrow waters of Puget Sound.
Sandra Day O'Connor: Mr. Collins, do you take the position that the OPA and... what is it... section 1018--
William B. Collins: Yes, Your Honor.
Sandra Day O'Connor: --amended the PWSA in some way?
William B. Collins: No, we don't, Your Honor.
Sandra Day O'Connor: How... how is it possible then that that section has any effect on any preemption affected by PWSA or the other... or PTSA?
William B. Collins: Justice O'Connor, our position is that the outcome of this case would be the same even if section 1018 had not been enacted, but we--
Sandra Day O'Connor: Do you defend the treatment given by the Ninth Circuit to the OPA section?
William B. Collins: --Well, I think the Ninth Circuit correctly observed that the... section 1018 we believe is an exclamation point indicating Congress' intent not to preempt State regulation in this area. I mean, in the briefs of the United States and Intertanko, they talk about the fact that since the Constitution was adopted, there have been regulations in this area. And sometimes State regulations in this area have been struck down. Other times State regulations in this area have been upheld. Congress is well aware of that fact, and yet Congress has never, in the PTSA or any of the statutes that follow it, expressly preempted the State from regulating in this area. And as this Court is well aware, Congress certainly knows how to express that intent.
Sandra Day O'Connor: It's very hard to understand how the Ninth Circuit ruling comports with what we said in Ray. Do you think Ray is still good law?
William B. Collins: Oh, yes, Ray is good law and we rely on Ray heavily. But the difference between the parties I think on Ray is that essentially the Government and Intertanko view Ray or view title... title II, what is in 46 U.S.C. 3703(a), as a labeling exercise. That is to say, if they can call a requirement manning or personnel, then they say that it's preempted. But we believe that Ray was not a labeling exercise. The Court in Ray was very careful to do what you have to do in a field preemption case. It took... looked at the purpose and character of the Federal rule; that is, the purpose and character of the design and construction requirement and concluded that in that area there was no room for State regulation because after--
Sandra Day O'Connor: Well, I... I thought there was language in the Ray opinion that title II has twin goals of providing for vessel safety and protecting the marine environment.
William B. Collins: --Well, that's correct, Your Honor.
Sandra Day O'Connor: And... and there certainly is language in those statutes dealing with the manning of vessels and vessel safety.
William B. Collins: Yes. But in analyzing... in other words, in Ray the Court didn't simply say everything listed in title II is subject to field preemption. Rather, it looked carefully at the area of design and construction and decided there was no room for the States.
Sandra Day O'Connor: Well, it... it appeared, at least to me, to look to those areas where Congress required the Coast Guard to make regulations.
William B. Collins: Well, Your Honor--
Sandra Day O'Connor: And as to that, I don't see what room is left. I mean, Congress spoke pretty clearly there.
William B. Collins: --Well, Your Honor, I... I think... I think that that is not the correct reading of Ray because the Court was very... I mean, for example, operations is listed in title II, but the Court was very careful in Ray to distinguish design and construction from other kinds of requirements. So, even though there was a specific statute about pilotage, the Court went out of its way to point out that pilotage was not a design and construction requirement. It looked at the tug escort requirement and said tug escort is not a design and construction requirement. So, the Court didn't--
Ruth Bader Ginsburg: But they also invalidated, didn't they, the requirement that tankers carry State licensed pilots? And that requirement has nothing to do with design and construction.
William B. Collins: --For the coast-wise trade. That's correct, Justice Ginsburg. But--
Ruth Bader Ginsburg: So... so, Ray was not limited to design and construction. In quoting the statute, in quoting 3703(a), at least three times the... Justice White's opinion puts together operations, as well as design and construction.
William B. Collins: --Your Honor, I believe that in Ray the... the pilotage requirement for the coast-wise trade was struck down because of a specific pilotage statute enacted by Congress and... and that's in fact why the requirement for a pilot for the registered vessels was... was upheld because of a specific statute. But in spite of that specific statute, the Court went out of its way to contrast a pilotage requirement from a design and construction requirement. So, we believe, when you're looking at field preemption in title II, it is not simply a labeling exercise, but you have to take a look at what is the Federal purpose. Now--
Stephen G. Breyer: Is... is it right that you've now given up on the Ninth Circuit? [Laughter] I took their reasoning as being a... a new act, the oil spill act, has a savings clause applicable to the oil spill act, and therefore all these other acts which don't have the savings clause are treated just as if they did.
William B. Collins: --Yes, that's right, Your Honor.
Stephen G. Breyer: All right. That's what they said. And I couldn't think of any justification for that whatsoever, and I take it you can't either. [Laughter]
William B. Collins: I take your point, Your Honor. [Laughter]
Stephen G. Breyer: Okay. Now, if we're back to Ray... if we're back to Ray, then... then, as I read Ray... I'm quite interested... now, we're keeping the oil spill act out of this. We're back to Ray. I thought that Ray simply looked at title II and said it all depends in these areas whether the Secretary issues a regulation or not, but if he does issue a regulation, that's the end of that. Now, I thought that they got that from a provision of the statute that said the Secretary shall prescribe regulations for the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of tank vessels. And if I'm right so far... and I'm looking to you to say I'm not... then I can't understand what the difference could possibly be between design regulations, which are right there in the statute, followed by manning regulations, which are four words over, followed by these other subjects, and when I look at the titles of your regulations, I see work hours, languages, training, engineering, watch practices, operating procedures. In other words, they all fit right within those words. So, it seems like Ray, Q.E.D. That's the end of it. We'll send it back so you get a chance to argue, but... but nonetheless, it doesn't look good for you. Now, I'm-- [Laughter] Okay, at least as it responds to those. So now, what... what are your... what are your responses to that?
William B. Collins: Well, my response to that is that that wasn't the analysis in Ray, Justice Breyer. The... the Court did not say... I will... I will agree that the Court in Ray did make a reference to the mandatory nature, did point out that title II used the word shall. But it didn't say, okay, how are we going to analyze this? This statute says, the Secretary shall adopt regulations, the list that you gave me. End of case. We don't need to say anything more because that shall means that there is field preemption of everything that follows that word. That's not what the Court did in Ray. It went to take a look at the nature of the design and construction requirement and indicated that State interference... State design and construction requirements would interfere with that Federal purpose. I mean, you can't redesign your oil tanker.
Stephen G. Breyer: A little ambiguity. Neither of us means the word shall is their field preemption; rather, the word shall prescribe regulations is there and preemption if, and only if, the Secretary decides to issue a regulation. So, we're both at that point. Right?
William B. Collins: Well, I'm not--
Stephen G. Breyer: And you... now you're going to say even if the Secretary does issue a regulation, still there is not necessarily preemption.
William B. Collins: --Not necessarily field preemption, Your Honor. We would agree that if the Secretary issues a regulation... I mean, you've got to take a look to see whether there's a conflict. We... under the Supremacy Clause, it's clear that we can't be in conflict with a regulation issued by the Coast Guard. I mean, the easy example--
John Paul Stevens: Now, you... you also disavow that part of the Ninth Circuit's opinion. They argued that the regulations did not preempt. The Ninth Circuit said--
William B. Collins: --Well, I think--
John Paul Stevens: --because there's no... no preemptive authority for the regulations, if I... if I read the opinion correctly.
William B. Collins: --Justice Stevens, are you speaking of the... the express... their... their discussion about the Coast Guard's statements of express preemption?
John Paul Stevens: Yes.
William B. Collins: Yes. Well, I don't think the Ninth Circuit is--
John Paul Stevens: They didn't analyze any of the regulations--
William B. Collins: --No.
John Paul Stevens: --because they said the Coast Guard had no authority to issue regulations that would preempt State law.
William B. Collins: See, I think that... I think that that is a characterization of the Ninth Circuit's opinion that is not quite accurate. At least what I would say--
John Paul Stevens: It fully explains why they didn't pay any attention to what the regulations said. They didn't even look at them--
William B. Collins: --The--
John Paul Stevens: --having concluded that the Coast Guard was acting outside its delegated authority, insofar as it tried to preempt.
William B. Collins: --It--
John Paul Stevens: That's what I... I thought the opinion was quite clear.
William B. Collins: --It seems to me, Your Honor, that what the Ninth... in the action below, as Mr. Benner said, their fall-back argument was that some regulations were expressly preempted by the Coast Guard. And the only thing that they pointed to was that the Coast Guard had said we expressly intend to preempt. I mean, that was the limit of their analysis. They didn't look to see whether there was a conflict or whether there was any other problem. I believe that the Ninth Circuit held that just because the Coast Guard declares preemption doesn't mean there is preemption. Obviously, that's an important indicator. If the court... if the Coast Guard says, we think our regulations preempt, then, I mean, that certainly is an important decision about... an important factor in discussing preemption. But we have... think you have to go out and still take a look at the regulations themselves.
Ruth Bader Ginsburg: But that's what the Ninth Circuit didn't do. And in defense of that court, can you tell us whether the Ninth Circuit got this idea of the sweeping savings provision of 1018... did they get that idea... did they make it up, or wasn't it argued to them by the State of Washington?
William B. Collins: This case is in a-- [Laughter] I... I don't think they quite got it from us, Justice Ginsburg. But this... this case is in... in a somewhat peculiar posture because of the way that it was tried. When the case was first filed, Intertanko brought the action. They invited the United States to come in at the district court level. The United States declined to do so for reasons that I don't know. And Intertanko's theory before the Ninth Circuit and... and the district court, as before this Court, is field preemption, sort of the home run ball. So, they did not go through and try to argue specific conflict preemption. They didn't try to talk about places where the Washington rule and the international rule were, you know, in conflict. They didn't build a record on that point. Later at the Ninth Circuit, the United States entered the case and, frankly, in their briefs have a lot of what they say are illustrative examples of potential conflicts that might exist. But that's not in the record in this case, and that wasn't raised below. So, Justice Souter, you had talked about what should happen to this case if things go south for the State of Washington and whether it should be remanded to... to sort that out. But I think that would be inappropriate in this case. I mean, I think the parties here had their day in court. They didn't build a record and--
David H. Souter: Well, but part of... part of my... my point was... was institutional. I mean, we do not sit as a court of first instance. And a great deal of what we're arguing about now was... was never addressed because of what seems to be these threshold... perhaps threshold errors on the part of the court of appeals.
William B. Collins: --So, from our point of view, Your Honor, what we think should happen in this case is the Court should rule that there is no broad field preemption of all of the items that are listed in title II of the Ports and Waterways Safety Act and essentially affirm the result at the Ninth Circuit. Later, if Intertanko--
Stephen G. Breyer: I... I mean, you're saying that you should hold them to some kind of waiver. If your colleagues here in the State Attorneys General's office and they had forgotten to rave... to raise an... no exhaustion point in a... in a habeas case, they would be up here arguing interests of comity of the State of Washington and the big exception to waiver. Now, does Canada and Belgium and 280 sovereign nations not have some kind of... of right to assert their comity in light of their sovereignty in respect to these technical matters like waiver?
William B. Collins: --Well, Justice Breyer, I don't think of it so much as... as an issue of waiver.
Stephen G. Breyer: Well, you were just saying they hadn't put in the evidence--
William B. Collins: Well--
Stephen G. Breyer: --and they didn't... they didn't take in the international significance of this. There are... there are hundreds of thousands of cases in the courts and they... they didn't apparently take in the significance of it till it got to the appellate level.
William B. Collins: --But it... it's... what I would direct you to, I guess, is this Court's decision in Askew where one of the questions in Askew was whether the State of Florida could require certain kinds of equipment on the vessel for purposes of response, and the Court said we're not going to engage in speculation at this point about how this conflict might work out. And later if a case comes to us that presents that conflict or comes to the courts that presents that conflict, then that's when it should be resolved. And we think that's the kind of thing that should happen in this case.
John Paul Stevens: I'm not sure that's quite consistent with the record because at page 30a of the Ninth Circuit opinion, they... they refer to the fact that Intertanko did call attention to several regulations as being expressly preempted by Coast Guard regulations, identified some in the text and some in the footnote. So, I don't think you can tell us that the specific conflicts with Coast Guard regulation wasn't brought to the attention of the lower court.
William B. Collins: Well, it was brought to the attention of the lower court, Justice Stevens, with Mr. Benner's fall-back argument. That is to say--
John Paul Stevens: Certainly, but that fall-back argument is before us.
William B. Collins: --Yes. No, that's right.
John Paul Stevens: And they responded to the argument not by disagreeing on the conflict, but by saying, as I understand it, the preemption by regulations does not occur if the agency is acting beyond the scope of its delegated powers. And that was, as I understood their reasoning... and I... I'm still not clear whether you agree with that position or don't.
William B. Collins: Well, I think I got... I think I was taken off track when I was responding to your question, so let me try to get back to it. The only thing that was argued below I believe on those points was the simple declaration by the Coast Guard that the State should be excluded. And I think the Ninth Circuit said--
John Paul Stevens: By virtue of the Coast Guard regulation.
William B. Collins: --By virtue of the declaration.
John Paul Stevens: Well.
William B. Collins: But... well... but I think there's a difference, Your Honor. The question is... I do not believe that the Ninth Circuit said that Coast Guard regulations could not preempt State authority, and indeed, if you read it that way, we would disagree with it. It's clear that Coast Guard regulations would preempt the State if there's a... if there's a conflict. But to simply declare... simply declare that the State is preempted, the Ninth Circuit indicated... and we believe is correct... is beyond Coast Guard authority. We do not believe Congress delegated to the Coast Guard the authority to declare field preemption, if you will.
William H. Rehnquist: Congress could do that.
William B. Collins: Congress could do that.
William H. Rehnquist: And you're saying that Congress didn't delegate that function to the Coast Guard.
William B. Collins: Right, for field preemption.
William H. Rehnquist: Yes.
William B. Collins: And so... and that's of some concern to us because if that's the rule, then the Coast Guard can eliminate State participation by simply adopting a rule saying we intend that no State shall adopt any rules or regulations pertaining to oil tankers. And we believe that just that declaration is beyond the Coast Guard authority.
William H. Rehnquist: Congress could delegate that to the Coast Guard if it chose.
William B. Collins: I think Congress could do that if it... Congress could itself say we intend to exclude the States from this field, and they could--
William H. Rehnquist: What if Congress said in the... in the delegation of the Coast Guard, we authorize the Coast Guard to determine whether or not the States should be excluded from this field?
William B. Collins: --I think that would be kind of an express statement that would give the Coast Guard the kind of authority that we do not believe that it has been given.
Antonin Scalia: But otherwise you say we should look at title I and... and ask whether the Coast Guard implicitly meant to preclude the States?
William B. Collins: No. I think what you have to do under... frankly, under both title I and title II is look to see whether there's a conflict; that is, look at the purpose and object of the congressional enactment and the Coast Guard regulation and look to see if State law is preventing the achieving of that objective, either through physical impossibility... and of course, in this case, there's no contention of physical impossibility... or through preventing the Coast Guard from achieving some important objective. And that kind of a case was not... was not the case that was made below.
Anthony M. Kennedy: Is... is uniformity of maritime regulation an important objective?
William B. Collins: Well, I think that uniformity is a... is... is an important factor in places where uniformity is needed. Let me give you... let me give you an example about the certificates that... that counsel for the Government talked about. In the international regime with certificates, there are three kinds of certificates. One is for the design and construction, so a flag state will certify that the design of the ship is proper. There's also a certificate for manning, which is the complement of the crew, which is you need one master, one chief mate, a certain number of officers, a certain number of other crew, and that for a tanker of a certain size, there's a certificate that says this is the... the crew that is required. And then there are third certificates which are essentially licenses for the mariners, the crew of those. Uniformity would probably dictate that a State could not say... if the Coast Guard says the crew of the tanker should be 60, I think it would... a State would be preempted from saying, no, the crew of a tanker has to be 70. For like design and construction, it's hard to change the composition of the crew, that is, the number of the crew, when they go from San Francisco to Seattle or come from France to Seattle. But that's very different... and we don't do that. But that's very different from saying, once you have your certified ship and your certified crew and the crew have the proper licenses, that when they come to Washington, they need a tug escort. They need a third officer on the bridge during restricted visibility. Those things do not interfere with the necessary uniformity that probably is required.
Sandra Day O'Connor: How about the drug testing requirement?
William B. Collins: Well, Your Honor, the drug testing requirement is one where there is no international standard. The treaties are silent on the drug testing issue, and it's a place where the... Intertanko has relied on the express statement of the Coast Guard to force the State out of that area. But one of the reasons we think you have to go beyond the express statements is it's unclear to us exactly why foreign flag--
Sandra Day O'Connor: I would think that would relate directly to manning the vessels in an area where Congress has told the Coast Guard to regulate and the Coast Guard has said what it--
William B. Collins: --I would disagree, Your Honor, that that is a manning requirement. I mean, we're not saying that... what we're... we have... Washington has... the drug... the drug and alcohol has two parts. The first is a local part. We have zero tolerance for drug and alcohol in Washington, so you can't... obviously, you can't use illegal drugs anywhere, and you can't drink in Washington waters. The Coast Guard regulation is more flexible. It allows--
William H. Rehnquist: --Not on land, I take it.
William B. Collins: --No. No, I don't think so, Your Honor. [Laughter] The other part is a testing requirement.
John Paul Stevens: But if the... if the Coast Guard regulation is not a manning requirement, where did they get the authority to regulate it?
William B. Collins: Well, on the drug and alcohol one--
John Paul Stevens: Yes.
William B. Collins: --they actually got that from the Oil Pollution Act of 1990 because there's a specific provision in OPA '90... and I think it's... let's see.
John Paul Stevens: You're saying that... that the authority to issue manning regulations would not have authorized them to give... to issue the drug and alcohol regulation, except for the... unless that later statute had been passed. That's not persuasive--
William B. Collins: No. I'm not sure that that's accurate, Your Honor. But... but part of the reason that they did it is because Congress told them to in OPA '90. But the difference is the Coast Guard... the big difference is the Coast Guard tests U.S. flag... requires testing of U.S. flag vessels. It doesn't require testing of foreign flag vessels. But we don't see that there's any relationship between that and protecting the environment, running a ship, safety--
Stephen G. Breyer: --What about... what about the requirement that says, as they describe it, all licensed deck officers... I guess that means every one... must speak English and speak a language understood by all the crew, which could be 14 different languages. It may be rather hard to find somebody who... I don't think any of us could satisfy that requirement, but we're not applying to be a deck officer. But... but-- [Laughter] --the... I mean, what about that one? I mean, that sounds a little hard to meet.
William B. Collins: --Well, Your--
Stephen G. Breyer: And it also sounds like a manning requirement and it also doesn't, you know--
William B. Collins: --Well, Your Honor, in that situation, we think the Government is simply mistaken. Again, this may be the problem with not having had them at the district court. We have the same requirement for language that the international standard is. So, a deck officer doesn't have to be able to speak 14 languages, but there has to be some common language that the deck officer and the crew speak so when the deck officer gives an order, the crew can carry it out. If the--
William H. Rehnquist: --Was that based on that thing that happened down in New Orleans where... where--
William B. Collins: --Oh, where they ran into the shopping center?
William H. Rehnquist: --Yes.
William B. Collins: Well-- [Laughter] That... our... I think our regulation was in place before that occurred, but that's the... that's the kind of concern. And in our... in the briefs, we've talked about difficulties in Washington with people not being able to speak English.
Anthony M. Kennedy: Getting back to this distinction in drug regulations where it applies to vessels from... I guess American flag vessels and not others, if it's a local regulation, what... what authority does the State have to make a distinction for its regulations depending on the origins of... of the ship? It seems to me that's inherently an interstate determination.
William B. Collins: Oh, no, Your Honor. It's the United States that makes the distinction. The United States requires testing of U.S. flag vessels and does not require testing of foreign flag vessels. The Washington rule requires testing of both United States flag vessels and foreign flag vessels. And part of the reason is because we can't think of any safety reason why... you know, do foreign flag crews hold their liquor better?
Stephen G. Breyer: Just as long as it's foreign flag. I want to just be a little... does... is Washington saying everybody on a foreign flag vessel has to speak English?
William B. Collins: No.
Stephen G. Breyer: Or everybody has to speak French?
William B. Collins: No.
Stephen G. Breyer: What are they saying?
William B. Collins: The requirement is the officers have to be able to speak English enough to be able to communicate. There's sort of a--
Stephen G. Breyer: Yes, but I mean, they have, you know, thousands of people. They have deck hands. Some come from France. Some come from Belgium. Some come from... I don't know... 48,000 different countries, and maybe not everybody speaks English down there. Maybe there's somebody who doesn't. So, do they flunk if they don't?
William B. Collins: --The deck officers have to be able to speak English, and they also have to be able to speak a common language understood by the crew. And that's the same requirement that the international requirement imposes. And I want to talk just for a second about the... the international requirements.
Ruth Bader Ginsburg: Before you do that, you mentioned and you placed considerable reliance on Askew. And as I understand that case, it involved only what is now an undisputed matter, that is, that the States can impose additional liability for an oil spill. I... I didn't understand the holding to be dealing with anything pre-incident.
William B. Collins: Your Honor, I think my reference to Askew was a... was to argue that this Court shouldn't just send this back to determine conflict preemption because the conflicts that the Government raises are speculative and weren't raised below, and those are better left for another day. I mean, I don't... Askew I think confirms that States can regulate in the maritime area, but I mean, it's not directly... I mean, we're talking about different kinds of requirements. So, you're correct about that. The... the Government has... has talked about these certificates that I talked about a little bit earlier as a license and has said that States cannot impose any kind of licensing... once something is licensed, then that's the end of it and States can't regulate. And I submit that that is simply not correct. If a State, as I said earlier, if a foreign flag tanker has a license, it can still be subject to nondiscriminatory environmental regulations imposed by the State. And this Court itself in the Florida Lime case indicated that the fact that there was a license didn't mean that you couldn't have other kinds of State regulations. Certainly in the Ogden v. Gibbons case, referred to by counsel, there the State of New York was trying to create a monopoly and exclude commerce. Quite a different system here, where what we're trying to do is preserve the ability of the State to regulate in... in a couple of areas. First of all, things that are local to Washington waters that relate directly to the unique areas of Puget Sound, and secondly, we have requirements that mirror international standards. We think this is awfully important because it's a second set of eyes on the... on the ground... at sea. We conduct annual safety inspections to see if tankers are complying with their prevention plans. In Washington we work very cooperatively with the Coast Guard people there. We give them information, they give us information. The whole system of cooperative federalism working together we think will make the waters safer, and ultimately we think that's what Congress intended. It didn't intend for the Coast Guard to be exclusive except in areas where it needed to be exclusive, the kinds of certificates that I talked about earlier. Therefore, we would ask this Court to affirm the result by the Ninth Circuit and continue to give Washington the authority to regulate and preserve the quality of our waters.
William H. Rehnquist: Thank you, Mr. Collins. Mr. Frederick, you have 2 minutes remaining.
David C. Frederick: I'd like to make a... a couple of points. First, I direct the Court's attention to three footnotes in our reply brief which I think will help the Court in its opinion in this case. Those are footnotes 4, 12, and 14. Footnote 4 sets out those BAP rules that are directly in fields that we think are preempted under the field preemptive theory of title II. Footnote 12 sets out the BAP rules where there is a subject covered by a license and that includes things like language proficiency which is clearly a personnel qualification and the like. And note 14 is the only one where there arguably might be a reason to remand for purposes of developing a record. I would note that at the district court both sides made consensual motions for summary judgment and viewed this as something that could be decided on the record. As to those subjects in the field, that clearly could be the case here as well. The treaties that I emphasized in my opening presentation reinforce the preemption that Congress specified in title II, and those treaties make very clear the reciprocal rights that must be afforded. What Washington here is... is purporting to be able to do is to imprison and impose civil fines against vessels and their operators for people who don't comply with State rules. That's directly contrary to a long line of this Court's decisions that say that States can't supplement Federal licenses or federally recognized licenses. Now, with respect to language proficiency, counsel is simply incorrect, and I would direct the Court's attention to page 36 of our opening brief where we make very clear that the purpose behind the international STCW requirement is to ensure that the vessel as a system can work appropriately so that those officers on the navigation watch can communicate with the people who will be carrying out the orders. English may, in fact, be the problem in some circumstances and not the solution and that is a reflection of the way the international maritime commerce works. Finally, I would just point out that the flag state controls, and with respect to drug testing and alcohol, there is a Coast Guard regulation that makes clear... it's at 33 C.F.R. 95.020... that no vessel, foreign or otherwise, may operate in U.S. waters by personnel who have an alcohol level above.04. Now, that is indeed different from a zero tolerance level, but that is a determination made by the Coast Guard.
William H. Rehnquist: Thank you, Mr. Frederick. The case is submitted.