Earl Warren: Number 42, John Lee, Petitioner, versus Paul J. Madigan. Mr. Davis, you may continue.
John F . Davis: Mr. Chief Justice, if the Court please. I shall turn my attention now to the issue with respect to the jurisdiction of courts-martial. All the soldiers who have been adjudged guilty by previous court-martials dishonorably discharged and imprisoned and who commit offenses while they are in the custody of the Army in the disciplinary barracks. Now, this issue is purely constitutional. No argument has been advanced that the Article of War, which is presently involved, number -- Article 2 (e) of the 1920 articles does not specifically and intentionally apply to this petitioner. There is no -- there is no doubt the Congress intended to give the military the power to exercise court-martial jurisdiction of this type of prisoner. The only question is whether or not it constitutionally could give the Army this power. Not only does the present article clearly attempt to give jurisdiction to the court-martials but this has been so for a good many years. The first provision providing for this type of jurisdiction was in 1863 when the first military prisons were established. It's present in the Uniform Code, the present Uniform Code which is in effect today with respect to all of the armed forces. The same type of jurisdiction is -- is given to courts-martial if it can be given. When the -- when the Army discontinued, and I don't know why, but when they discontinued their -- their prisons and began to send the men who are under the court-martials sentence back to the guardhouses back in 1898, the Secretary of War wrote a letter to Congress saying that this terminated the jurisdiction which the Army had previously had which was particularized with respect to army prisons and that he felt the Congress should enact legislation to give the Army general jurisdiction of discharged soldiers while they were still in custody whether in prisons or in guardhouses or anywhere else within the Army's jurisdiction. He said that it was difficult to maintain discipline unless the Army had authority to enlarge the sentences through court-martial of prisoners who were subject to their control, and it was then that the Congress enacted the Code of 1898 which provided that, and I quote, it's on page 30 of our brief, the first general provision in the court -- in the Articles of War dealing with this question of jurisdiction and it said, "Soldiers sentenced by court-martial to dishonorable discharged and confinement shall, until discharged from such confinement, remain subject to the Articles of War and other laws relating to the administration of military justice." And this law remained on the books in this form and go, I think it was 1916 when the Congress enacted the same provision in its present form which provide simply that it shall extend to -- the military jurisdiction shall extend to "all persons under sentence adjudged by courts-martial".
William J. Brennan, Jr.: Well, do you mean that might apply even if you're confined to a (Inaudible) because that's not the case here.
John F . Davis: That's not the case. This language doesn't -- I -- it would be a different case and this language would seem to include it but I'm not sure about what the legislative history behind it and what's happened second.
William J. Brennan, Jr.: Well, now, how -- how was it -- is it Lee now confined at Alcatraz?
John F . Davis: He is now confined in -- in Alcatraz. And under the present Articles of War, Uniform Code, he would not be subject to military jurisdiction because the present article say under -- under -- and I don't quote exactly but they feel with confinement by the military authorities themselves.
William J. Brennan, Jr.: There is no question that at the time of this offense -- Camp Cooke, is that what it was?
John F . Davis: The Camp Cooke.
William J. Brennan, Jr.: That was exclusively military.
John F . Davis: That's right. It was run by the military. It was --
William J. Brennan, Jr.: Well, the army only or --
John F . Davis: It was army only. It was a branch -- branch of the disciplinary barracks at Fort Lauderdale.
Earl Warren: But if he committed the same crime now, he would be tried in a District Court.
John F . Davis: That's right. He would not be subjected --
Earl Warren: Yes.
John F . Davis: -- to military discipline at that time.
Potter Stewart: Were there any other military activities going on at Camp Cooke at the time of this offense?
John F . Davis: I'm not fully familiar with the activities at that place. I -- as far as this man is concern, the -- there were disciplinary barracks there which were exclusively disciplinary barracks and whether there were other activities in the camp, I -- I don't know. But as far as this man was concerned, he was -- he was only subject to disciplinary barracks.
William J. Brennan, Jr.: Were the personnel charged with the administration and operation of -- of these disciplinary barracks? Were they all military personnel?
John F . Davis: They are all military personnel. That is right. By law, the -- the provisions with respect to the disciplinary barracks is set up in Article 10 of the -- of the Code in -- in Chapter 10 of the Code. And they provide that it shall be run by the Army. And the -- although it is a -- is a detention place, there is a good deal of the -- of the color of army life attached to it. The -- there is an attempt to rehabilitate prisoners and make them fit for the Army again with some military training. Actually, some of the prisoners are organized as infantry would be and they have their own non-commission officers in the prison. They call them upside-down and upside-down corporals and that kind of thing. I don't mean that they are non-commissioned officers but their -- their operations are run along that line.
Potter Stewart: Does the record show anything of -- as to whether this petitioner was in that kind of an activity?
John F . Davis: Well, there is attached -- there is a part of the record, the court-martial record of the thing, and it shows that this -- this particular petitioner was actually locked up in a cell because it would be difficult -- he was a danger, he was dangerous to other -- other prisoners. There had been many disciplinary problems with respect to him, and he was actually very closely confined.
Potter Stewart: So the record affirmatively shows that he -- he was not in any of this quasi-military activity that you've been --
John F . Davis: Well, I --
Potter Stewart: -- talking about.
John F . Davis: I -- I can't say that it -- I cannot say that it is (Voice Overlap) --
Potter Stewart: Certainly if you're locked up in a cell you can --
John F . Davis: -- at least that he was locked up --
Potter Stewart: Yes.
John F . Davis: -- considerably.
Speaker: Mr. Davis, I wasn't quite I understood your answer to the Chief Justice. You say that if he committed the crime now, he could not be tried by court-martial, that's by a virtue of the fact that he is confined in Alcatraz, a civilian prisoner and not because the statute has been changed in respect to military --
John F . Davis: Well --
Speaker: -- establishments, is it not?
John F . Davis: Well --
Speaker: Or --
John F . Davis: -- I -- I evaded the question about what would have happened if the statute hadn't been changed. This -- the -- the statute has been changed --
Speaker: Yes.
John F . Davis: -- then he is in Alcatraz so there's --
Speaker: Yes.
John F . Davis: -- no question at the present time that he would have to go to a civilian court. If the statute had not been changed, the language of the statute says all persons under sentence are judged by courts-martial and --
Speaker: Now, that -- that --
John F . Davis: -- it would appear to be broad enough perhaps to cover a civilian (Voice Overlap) --
Speaker: That isn't my question. If a soldier is confined to an exclusively military prison at the present time, he's still would be subject to court-martial jurisdiction?
John F . Davis: Oh, absolutely. Oh, yes.
Speaker: That's all I --
John F . Davis: That is -- that is also provided in the -- in the --
Speaker: Yes.
John F . Davis: -- Uniform Code.
Speaker: The present statute.
John F . Davis: That's right.
Earl Warren: Mr. Davis, may I pursue that just one step farther. Now, let's say in 1949 at the time the second offense happened, the one for which he is prosecuted here, he had been confined in the -- in Alcatraz.
John F . Davis: If he had been --
Earl Warren: If he had been confined in Alcatraz and had committed the same crime at the same time, would -- would the Army have had jurisdiction over him to try him or would have been essential for him to be tried in the District Court in San Francisco?
John F . Davis: I don't know the answer to that question, Mr. Chief Justice. I don't know of any authority on it. The law, the law would read all persons under sentence adjudged by court-martial would be subject to military discipline, would be separate -- subject to court-martial. And it would seem to include a man that was in a civilian prison. But whether it would receive a construction because of the law that went before that said clearly dealt with situations while they were under military control and that is clearly the intent of the statute whether there will be a limitation that into it, I do not know. There's no authority on it so far as I know.
William J. Brennan, Jr.: Do we know, Mr. Davis, whether in 1949, it was sometimes the practice to confine men like this to civilian prison?
John F . Davis: Oh, yes. There were specific provisions and regulations with respect to permitting them to be confined in -- in ordinary prisons when they were the type -- at that time, the statute provided that they could be confined in prisons, the -- the federal prison system or even state prison systems where federal prisoners could be confined there, when they were guilty of the type of crime and for a period of years which made it appropriate for them to be confined in -- in an ordinary prison. They tried to distinguish between people that were felons with criminals in the ordinary sense and people that they would -- could rehabilitate to make soldiers out of them.
Earl Warren: Well, is the statute any different now or -- or the same?
John F . Davis: Well, I think the practice isn't different, the statute is different. Now, the statute gives authority without direction so that they can be defined either in military disciplinary barracks, all federal prisons depending upon regulations by the -- by the armed forces. And I think the policy is the same but the statute isn't as explicit as it used to be.
Hugo L. Black: You have the statutes that were changed printed in your brief?
John F . Davis: On where they should be -- in --
Hugo L. Black: Yes.
John F . Davis: -- confined?
Hugo L. Black: Now.
John F . Davis: No, I don't have that.
Hugo L. Black: (Voice Overlap) to be in -- when they should -- can be tried by court-martial.
John F . Davis: Oh, when they can be -- yes, that appears, I think, at page 1 of our arguments. It's not page 1 of the brief, but page 1 of the argument.
Hugo L. Black: You don't have it two together as it was and is (Voice Overlap) --
John F . Davis: No, but -- but it's very easy. The -- the way it is -- the way it was, the way it's before this Court, it appears in page 2 of the brief which says “all persons under sentence adjudged by courts-martial”. That appears at page 2 down at the bottom. The way it is now in the Uniform Code of Military Justice appears at page 8 of our brief and it's now Section 2 (7) of the Uniform Code of Military Justice and it provides for jurisdiction of persons in custody of the armed forces serving a sentence imposed by a court-martial.
Hugo L. Black: Is there any history connected to that thing? What's the --
John F . Davis: Not that I know of. I think that's what the -- I think that's what the -- the previous section meant. And that because the 1898 statute, which I read to the Court a minute ago and which appears at page 30 of our brief, carries that same thought of the -- in the custody of the Army but precedes and succeeds this 1916 provision or 1920, the one that's before us now, all speak of custody of the -- of the Army. And in fact, whaty Secretary of War Alger asked for was why they were in custody of -- of the armies that the whole purpose of it is -- is about.
Hugo L. Black: What's the difference -- what -- what's explained to be the difference in power when the -- the -- in a state -- confined in a state prison, confined in a military prison?
John F . Davis: Well, the military just have ceded jurisdiction off with the custody of a man they no longer have the problems of -- of maintaining discipline. Then they've handed it --
Hugo L. Black: (Voice Overlap) Tied all together with the idea of discipline.
John F . Davis: That -- that was the basic reason for having the statute -- to having -- giving this jurisdiction as Secretary of -- of War Alger requested it, yes. And Alger controlled prisoners under their -- under their custody. They felt they needed to have the power of the court-martial.
Hugo L. Black: What reason did he give why the -- it can be better disciplinary action for court-martial and signed in the Court?
John F . Davis: Well, he didn't -- he didn't draw any comparison. The statement which he made and it was sent to the House Committee involved in this matter is printed in our brief at page 28. And he merely stated that he felt that it was necessary in order to prevent insubordination in order not to impair the effect of military imprisonment to give this power to the Army. And he drew no comparisons with the -- with civilians.
Hugo L. Black: That's the -- this is -- you quoted here practically everything that's relevant to you? Have you?
John F . Davis: Yes, I think so. I -- I've read --
Hugo L. Black: Well, I --
John F . Davis: -- the entire letter. It's a short letter but it's --
Hugo L. Black: That's the only thing that you -- that you --
John F . Davis: That's right, that's right. There is no comparison drawn. I mean, it -- he didn't draw any comparison here anymore than he would have as to the difference between military jurisdiction, court-martial jurisdiction and -- and civilian jurisdiction with respect to other members of the Army. I mean, he felt that the Army should be given disciplinary powers if it becomes necessary but -- but --
Hugo L. Black: But if -- but if it's based on the fact that discipline requires the -- that jurisdiction to be exercised, that's not a question then of how he felt about the general power, it's -- he --
John F . Davis: No, he was dealing --
Hugo L. Black: -- he based it on that side.
John F . Davis: -- he was dealing with this particular aspect of it. There is no question of it. Now --
Earl Warren: Well, do you -- Mr. Davis, do you think that the law could be -- respecting an individual, could be changed by the policy of the Department as to whether he should be retained in a -- in a military prison for 35 years in a case like this or whether he -- he should be sent to Alcatraz or -- or San Quentin Prison, the state prison in California. Do you believe that it should be left to -- to the Army to decide whether it should retain jurisdiction over a man all his life depending on whether they kept him in a military establishment or whether they send him to -- to prison of that kind?
John F . Davis: Well, I think that gets back to the question of whether it is reasonable for Congress to give the armed forces the discretion as to whether to keep the man in a disciplinary barrack or send him on to a federal prison. If they are going to give the Army that authority, as they did and as they still do, why, then, it would seem appropriate to give the -- the authorities who are going to maintain -- who are going to be responsible for maintaining the order in response to the powers to maintain it, and the Army doesn't need that power with respect to prisoners who are in the federal prison.
Earl Warren: May I ask what the policy was so far as sending him to civilian prisons?Was it to -- to send those who were less dangerous or those who were more dangerous to state penitentiary?
John F . Davis: I don't think it does so much with -- with -- it may be that it was more dangerous but it dealt more with the nature of their crime. If they were people who were -- I hesitate to use this kind of term, but were bad people who would corrupt other prisoners, who were delinquent in the sense that they were -- would be locked up in a civilian light and -- and kept from contaminating other people, the idea of one is -- if they were felons, real felons, they should be sent to federal prisons. This is spelled out in some detail in -- in the statute. I don't think I -- I don't think I cite that statute in the -- in my brief but it's readily available in the -- it appears in the Articles of War, and I can find it in a minute.
Earl Warren: The reason I asked the question, this man got a pretty severe sentence for -- for his crime. The first time was 35 years. Pretty bad crime that he committed, wasn't it or was it?
John F . Davis: That's right.
Earl Warren: So I'm wondering on -- on what basis they would -- they would keep him in --
John F . Davis: Reading -- reading --
Earl Warren: -- military prison or send him -- send him to a state prison?
John F . Davis: -- reading the record in this case, I wondered the same thing. I mean, it seems as though this -- if they did send people to -- to civilian prisons as though this was the type of case they might well have done. But they -- they found the judgment. He was court-martialed in -- the first time in Europe and -- and France, I believe. And they may have had a policy. There may have been so many, I don't know. But anyway, they -- they did decide to -- to -- at that time, they make a determination that can't be changed afterwards. They can't change the place of imprisonment after it is designated by the officer making the executing sentence.
Earl Warren: They can't transfer him back to a -- to a military prison?
John F . Davis: They couldn't at that time under the law as it read at that time. What they can do under the present regulations, I don't know. But as far as this man is concerned, a case before this Court, the executing authority stated prior to the imprisonment. And there was no authority thereafter that changed as imprisonment for putting in a federal prison. He had to stay in the military barrack. He could be shift from one -- shifted from one military barrack, detention barrack to another disciplinary barracks to another but he couldn't be sent to a federal prison after that.
Earl Warren: Well, when this man was sentenced done on this second charge then he was sentenced to Alcatraz, was he?
John F . Davis: That's -- well, no, he was -- he was actually sentenced to death by the -- by the court-martial and it was commuted by the President and at that time, he was sent to Alcatraz.
Earl Warren: By -- by the order of the --
John F . Davis: By the order of the execution of offense. Right. But that was on the second -- on the second --
Earl Warren: Yes, yes.
John F . Davis: -- offense.
William J. Brennan, Jr.: Mr. Davis, I'm not sure it's highly relevant but if there were no court-martial jurisdiction for this offense of murder and there had to be trial on the civil court, what would be the substantive offense of murder? Not the provision of Article 92, I take it, as to punishment and such but something else would have --
John F . Davis: Well -- well, I think he would be punished in federal courts as -- for under the assimilative crimes statute --
William J. Brennan, Jr.: (Voice Overlap) California.
John F . Davis: I -- I think that is so. There may be a -- I -- I couldn't answer your question because I don't know the answer to it but I am guessing that it would either be under the assimilative crimes statute or else, there would be, and I haven't looked at it, some specific federal regulation dealing with homicide on -- in this type of government establishment.
William J. Brennan, Jr.: This Assimilative Crimes Act in a State like Michigan made quite a difference, wouldn't it, whether it's tried by court-martial or by civil court? Where --
John F . Davis: Well, it would --
William J. Brennan, Jr.: -- Michigan has no death penalty.
John F . Davis: Well, that's right. In many States, I thought, they wouldn't have a death penalty. It'd make a great deal of difference in many ways whether he is tried in --in the court-martial of the civil -- civilian court, criminal courts.
Hugo L. Black: That's -- I don't quite get the -- if this is the only reason they give, I'm -- I can't quite understand the premise on which he says that this was encouraged insubordination, if you're going to have to look at the reasonableness of it. What he says is to announce to the prisoner that no matter what he may do, he cannot have the term of it in confinement extended as a direct encouragement insubordination and must impair the effect of military imprisonment as an exemplary punishment but he could be punished and could be sentenced to death. Why? Why would that -- encouraged him to insubordination to be tried? On -- what is the basis for that?
John F . Davis: Oh, I -- I think what -- what Secretary Alger was saying is this, and he wasn't dealing of course specifically with capital -- capital crimes, he was dealing generally with problems of jurisdiction with respect to the behavior of military prisoners. And I think what he was -- meant that he is saying was if we have no authority to court-martial with these prisoners, all that we can do in order to maintain discipline is to make them uncomfortable, do solitary confinement, labor, things like that. There is no way that we can -- under our system, under our powers, there is no way that we can hold any larger cover with their heads so as to keep them in order. And he said we have had it in the military prisons because in the previous law that had been given, we have -- we no longer have it because they're sending them to the guardhouses. Now, in -- in order to maintain our discipline, we -- we need to continue this power. Now --
Hugo L. Black: (Voice Overlap) --
John F . Davis: -- it is quite true, it's quite true, Your Honor, that with respect to -- with respect to capital crimes, murder, things that would be crimes in the jurisdiction that they would be subject to civilian criminal trials and he doesn't address himself to whether or not that would be an appropriate way to deal with this situation. He -- he merely felt that the army needed this authority.
Hugo L. Black: But the minor things that you are speaking about, they -- they would have anyhow.
John F . Davis: For they would have -- they would have the ordinary jailers' jurisdiction to maintain order, yes.
Hugo L. Black: But a source?
John F . Davis: But they would have no power to extend the sentence.
Hugo L. Black: Well, they couldn't extend it --
John F . Davis: That's right.
Hugo L. Black: --but the courts would have power to extend it.
John F . Davis: Yes, but he felt it's --
Hugo L. Black: They will be (Inaudible) to be punished.
John F . Davis: -- he felt it's necessary for --
Hugo L. Black: What -- what he -- virtue would there be in a or deter would there be that you can imagine the man knowing that he is going -- if he's going to be sentenced for 10 years, that in one instance, he's going to be sentenced under military judgment, in another instance, by conviction for a jury.
John F . Davis: Well, I -- I don't know that there would be any great difference. The -- the Secretary of War Alger felt that the military having jurisdiction of soldiers, the military should have this jurisdiction of these people.
Hugo L. Black: No, there -- there's no doubt about that. He felt they should have --
John F . Davis: And whether that's -- I'm not sure that he --
Hugo L. Black: But his reason was this.
John F . Davis: I'm not sure that the question of constitutionality depends upon whether this is absolutely necessary. I mean they come to this question of constitutionality and -- and I want to discuss that.
Hugo L. Black: Well, I thought you're discussing it now (Voice Overlap) --
John F . Davis: Yes, I was but I didn't get to this -- but you have assumed in your -- in your question, I believe, that in order to uphold this power, it is necessary for this Court to find that there's no other way of handling this problem.
Hugo L. Black: I took your -- I took your words, reasonably related to the extension of the jurisdiction.
John F . Davis: Well, I --
Hugo L. Black: And if the reasonable -- if you have to depend on the idea that somehow, it's a greater punishment for a man to have a military judgment over him than a -- than a civil judgment, I don't quite get it.
John F . Davis: Well, I -- I wouldn't base my argument on that -- on that necessity, Mr. Justice Black. I -- I think that's -- I think this background is necessary to understand why they asked for it but I -- I think that the authority, the authority of Congress to pass this law is and under its laws to make rules for the Government in regulation of the land and naval forces, and that looked at fairly and squarely, this man is a -- is in the land and naval forces of the United States and therefore, this is the military authority to exercise this type of jurisdiction.
Hugo L. Black: Could they call him to fight?
John F . Davis: No, they could not call him to fight.
Hugo L. Black: Could they call on to participate in any way, in any military activity?
John F . Davis: Yes, they could. They could put in under the -- under the system there. They can have the military training in these -- in these camps. It's one of the -- one of the statutory purposes of the camp.
Hugo L. Black: Could he that as a prisoner or as a soldier?
John F . Davis: Well, he is -- he is not -- he'd do it as a prisoner or as -- he'd do it in this capacity which he is in, in this -- in this disciplinary barrack. I don't -- I don't want to make a conclusion one way or the other. That is my -- my argument is that he is a member of the armed forces. Now, this Court has had this very question, this precise question under this precise Article of War before it before in Kahn against Anderson after the First World War. And the facts in that case are almost precisely the same as -- as the facts in this case with respect to the question of jurisdiction. And in that case, the same arguments as to lack of -- of constitutional power will presented to this Court, and the Court found that this did fall within the powers of Congress with respect to the -- to the government of the land and naval forces. And that finding of the Court was buttressed by Court of Appeals' decisions which preceded it, dicta of the Supreme Court itself which preceded it and it has been followed thereafter in the Courts of Appeals. The only authority to the contrary so far as I know on this question of jurisdiction is Colonel Winthrop. Colonel Winthrop, in his -- in his book, definitely says that there is no jurisdiction in this type of case. Now, undoubtedly, undoubtedly, the reason that we have troubled with this case today is because of the decisions of this Court in the Toth case and in Reid against Covert. And I don't have to tell the Court that these -- on the facts, those cases are -- are clearly distinguishable from this.Our question is whether in theory, they cover it. The -- the Reid against Covert case, of course, dealt with the wife -- the wife of an officer -- of an -- of an officer who had never -- the wife had never been in the army services and the question was whether because she was -- along with the army services whether she was closely enough connected to be within the military power. And the Toth case on the other hand dealt with a -- with a soldier who had been retuned to civilian life. The -- the Army had -- not only discharged him but had released any authority over in McCulloch and they attempted to regain their authority. In the Toth case, as a matter of fact, there is a footnote which refers to the type of jurisdiction which is involved in this case. It refers to the case of Kahn against Anderson, which I mentioned a minute ago, and without, in any way, testing any question upon its authority, recognizes that that is a decision of -- of this Court. I think that it really advances our argument very little for the petitioner to rely on Colonel Winthrop's assertion that a dishonorable -- dishonorably discharged prisoner is a civilian and therefore not subject to jurisdiction. I think that this is really only a -- a way of stating a conclusion. There's no question that a dishonorable discharge terminates military benefits generally but whether it ends the power to impose discipline as such is the very question which is before this Court, and we could turn this argument around and say that since one of the -- one of the vital test of membership might well be whether a person is subject to discipline at the very fact that there is an imposition of discipline over these prisoners makes them members of the armed forces. The -- the Army as -- has, as a matter of fact, has coupled dishonorable discharges with the discipline of imprisonment for -- for many years. And this Court is specifically recognized that the coupling of a dishonorable discharge and an imprisonment is -- is not an inconsistent act and that the military forces have authority to do this. So that I think it is clear beyond any question that there is no intent. There is no intent on the part of the armed forces to sever the disciplinary relationship between the soldier and the armed forces when they sentenced him to dishonorable discharge and imprisonment for a period of years. They specifically wished to maintain the -- the disciplinary relationship over him.
Speaker: Where those two aspects of a sentence part of the same physical document?
John F . Davis: Well --
Speaker: Part of the judgment of the court-martial?
John F . Davis: Yes. Well, I won't be sure I answer your question correctly. The sentence has these two elements in it. There is a separate dishonorable -- then the man is in prison then a dishonorable discharge of a document which is called a dishonorable discharge, I haven't seen it but I -- I think this is so, a document is filled out in proper places and forwarded to his fine.
Speaker: The judgment of the court-martial included in it imprisonment and dishonorable discharge.
John F . Davis: That is right.
Speaker: And what you are suggesting, I take it, from your argument now is that the point of substance looking at this thing, the discharge should be reviewed just as if it had written into it, “Your discharge is honorably,” and at the same time served 20 years for --
John F . Davis: Yes.
Speaker: -- whatever it is, for this for this crime.
John F . Davis: Yes, and I'm suggesting that when these are coupled together in this way, it shows an intent that the dishonorable discharge shall not terminate the disciplinary powers terminate the relationship between the member of the armed forces and the armed forces by being executed, otherwise, the -- he would presumably be released from -- from prisons and said have no authority even to hold him in that prison.
Earl Warren: What?
Hugo L. Black: I noticed you recognize in your correction of your sentence that there is probably a difference between determination of all relationship as to the man who has been in the Army and a termination of his relationship as a member of the Army.
John F . Davis: Well, the reason I think I phrased made -- changed my phraseology is --
Hugo L. Black: I thought it was wise.
John F . Davis: -- that there is not question that a dishonorable discharge ends a great many of the aspects of a man's military career. The very purpose of a dishonorable discharge is to make this man no longer subject to getting pay, pension rights, the honorable status of a member of going to defend, going to fight for the -- for the people. I mean --
Hugo L. Black: Or any other service.
John F . Davis: Except there is -- I suggest to Your Honor that there is no intention to release this man from the custody from the jurisdiction of the Army.
Hugo L. Black: Well, that's -- it's -- supposing that's true, that seems to be the only thing the Court said in the Kahn case. I can find no reason except that.
John F . Davis: There is a little more.
Hugo L. Black: And was there a discharge there?
John F . Davis: Well, the Court said it made no difference.
Hugo L. Black: I understand that, but was there any?
John F . Davis: I don't know.
Hugo L. Black: I think not.
John F . Davis: I don't know whether there was (Voice Overlap) --
Hugo L. Black: And I understand that --
John F . Davis: -- it was -- the Court didn't determine.
Hugo L. Black: -- that -- that the Court just brightly admit from the fact that they had -- they charged, that he was a military prisoner to the statement and that settled it and which was frequently the case in the -- some of the opinions. And that is settled, its being a military prisoner, they had jurisdiction.
John F . Davis: Well, whether or not a man is still a member or in the armed forces, it's -- it's sometimes not easy to determine. This is one aspect of the case which we have before us. But there are -- there are many situations where the man can't be sent to -- to fight overseas, can't be ought to do this, can't be ought to do that. I think one of the prime examples, one of the things that strikes me is the question with respect to prisoners of war who are also subject under the law to -- to army court-martial. Now, prisoners of war, of course, guilty of no crime whatsoever, I mean, they kept in, enemy soldiers who have been captured.And under -- in the national convention, they are entitled to many rights and -- and privileges as prisoners of war but they are also subject to military court-martial.
Hugo L. Black: (Inaudible)
John F . Davis: They -- yes, of course, they'd --
Hugo L. Black: So he had not been part of the army (Inaudible)
John F . Davis: But they -- but -- but these are not punished under the war power, Your Honor. These are power -- these -- these people are subject to the -- the military disciplines under the power to -- to govern the -- the land and naval forces of the United States. And --
Hugo L. Black: But that's (Inaudible)
John F . Davis: I -- I don't mean to (Inaudible) war angled through thoroughly but I (Inaudible) prisoner of war in this country (Inaudible) with respect to the Constitution. He has a -- he has a -- if -- if he is in the -- just as any alien in this country is, he is entitled to the protection of the Constitution. And in order to have authority to try these men by court-martial with the -- with the methods, the procedures which are followed there and are not applicable to civilian, I think it is necessary to find that pro tanto and to a certain extent, a prisoner of war too is part of our -- of our own land and naval forces.
Hugo L. Black: (Inaudible) that says a prisoner of war who has never been here taking in fight, fighting against this country who haven't come here and never has been a part of the armed forces, they can try him, I understand, but a soldier who has been a part of the armed forces but they put out and who has been in this country all his life can be tried by them too on that ground.
John F . Davis: You mean like in the Toth situation?
Hugo L. Black: Like a man -- this -- this man here who's been discharged and not a part of it merely because they decide to keep him in prison for a crime that he has committed when he was under their jurisdiction.
John F . Davis: I think -- I must -- I must say that -- I think we mustn't assume that he is no longer a part. I think that is our question whether he is so -- he is so -- he is now so intimately connected so closely associated to the aspects of military life impinged on him so thoroughly that he is still in the armed forces. In my argument is based on the fact that he is still in the armed forces while is in the --
Hugo L. Black: Is any statute that's ever been passed in the country and draft law or anywhere else that says that a -- and that's I presumed settled the status as a folio, I'm not talking about now as a prisoner, that indicates that the Army can take a man in and keep him there beyond the term of service of other people who get in as a soldier and after he's been discharged?
John F . Davis: After he has been discharged?
Hugo L. Black: Yes, after he's been discharged.
John F . Davis: Well, I --
Hugo L. Black: Can he put -- can the Army project the term of his service over his objection or even with his objection?
John F . Davis: You mean aside from the -- this particular issue which is before us, which is precisely --
Hugo L. Black: This issue -- this issue to me is quite a difference because it's the power over prisoner. So which kind of trial a prisoner will have who is no longer a soldier?
John F . Davis: Well, I -- I think there is no question that the terms of service frequently changed with respect to officers as far as I know with respect to enlisted men in time of war as I -- and that one subject to military discipline if it's necessary for the protection of the -- the country. And this, I haven't checked again but I would -- my recollection is that during World War II, the question of when one would be released was in the hands of the armed forces rather than a matter of contract between the individual and the -- certainly with respect to officers applies.
Hugo L. Black: As officers who volunteered their services and went in and the statute provided they should be there for some term or some fixed -- something fixed by the statute.
John F . Davis: That's --
Hugo L. Black: What I'm asking is if there's any of the statute that ever been passed that indicates that the Army can keep an enlisted man.
John F . Davis: Oh, I would have to check whether there was any (Inaudible) of -- of enlistment during the war. I don't know whether an enlisted man -- how -- how that applies (Inaudible)
Earl Warren: Mr. Davis, was there a uniform policy at the time this man was -- was sentenced concerning the issuance of dishonorable discharge? And if so, was that policy consistent with what they did here? Did they -- did they always issue the -- the dishonorable discharge transmitted to the -- to the defendant and then put it in his files?
John F . Davis: That was the customary way to handle this type of situation there. But to give you a little full answer, I want to say that in certain cases, there was a suspension of the execution of the discharge in order to determine whether or not the soldier could be rehabilitated and returned to the armed forces.
Earl Warren: Was that in the judgment against him or was that in the -- in the --
John F . Davis: That's in the execution, I believe. I think that was not in the -- I think that wasn't in the -- I'm sure it wasn't in the sentence. That was in the execution of the sentence that they would suspend it and -- and try to get the man back into the service. Actually what --
Earl Warren: Were -- and were not stated in the -- is that stated in the execution or -- or was it --
John F . Davis: Yes, the execution in -- in the -- the officer who would execute the sentence was -- withhold this development and tell -- who would determine whether or not the man could be rehabilitated.
Earl Warren: As a matter of discretion within?
John F . Davis: As a matter of discretion under regulations, I presume.
Earl Warren: Then we take this particular case if the officer who executed this judgment against this defendant was to hold this thing in his hands throughout the 35 years if the man was serving his percent that he could determine. He could determine if and when or at all this man was to -- to get his -- his dishonorable discharge and -- and be detached from the service or whether he should have remained in.
John F . Davis: Well, in this -- in this type of case where the long term of imprisonment, the provision would -- would rather be that the discharged would be executed and then if the term of imprisonment for a good behavior because the man proved that he was going to be a good soldier, if the term of imprisonment was -- was reduced as the armed forces had -- had the right to do, by then, he would be reenlisted and the reenlistment would take effect for the unexpired portion of this prior enlistment. There'd be a -- actual reenlistment in that so --
Earl Warren: Well, now --
John F . Davis: And that's provided, I may say, in the statute itself. I mean, that's -- that's what the law contemplated.
Earl Warren: As to the withholding or the immediate issuance of his discharge --
John F . Davis: Oh --
Earl Warren: -- that's in the statute?
John F . Davis: No, this -- this procedure for reenlisting a man, a -- a prisoner who has -- who has proved that he has rehabilitated.
Earl Warren: Yes, but is anything said in that statute or in any of the regulations concerning the time that his dishonorable discharge shall be issued and served upon?
John F . Davis: Not that I know of.
Earl Warren: That becomes a matter of policy with the executing officers.
John F . Davis: Yes, I'm sure there were directions with respect to it, but I don't -- I don't know.
Earl Warren: Directions coming from where?
John F . Davis: From the army -- from the barrack officers (Inaudible) of the Secretary of the Army. I may say that in one side of these cases is -- as -- as I analyze the basis, it's very different from the Reid case, Reid against Covert case or Toth in that here, we have, I believe, no attempt by Congress to expand -- expand the area of its jurisdiction. It's -- it's rather a matter of carrying through jurisdiction which is specifically and -- and concededly granted to it with -- with respect to armed members of the armed forces to carry this thing -- to carry that very jurisdiction through until determination of their imprisonment. Now, I think when I was talking about whether Congress intended to -- I'm turning now to the point I was discussing last night about Article 92 which limits the military jurisdiction of a murder to -- so that it excludes “in time of peace”, and I think I neglected to mention one thing which I think is -- is rather important and that is that when Congress amended the Articles of War in 1948, it specifically recognized that with respect to the Articles of War, the war was still in progress, and it did this in connection with Article 53 providing for applications for new trials. And there was a thought that maybe during hostilities, many court-martials have been hurriedly conducted and that it was appropriate to give soldiers who had gone through those court-martials a chance to have them looked at in more calm -- in a -- in a more calm atmosphere. And so in Article 53, they gave soldiers opportunity to petition for new trials under Article 53, and they limited the time there. And they limited it to -- within one year after the termination of the war sometime in the future. They recognize the war was still in existence and they were giving this right in the future until one year after determination of the war. And again in 1950, when the Uniform Code of Military Justice was -- was adopted, again, Congress, in dealing with applications for new trials, specifically recognized that with respect to the Articles of War, peace had not been achieved.
Earl Warren: Mr. Hannon.
Robert Edward Hannon: Mr. Chief Justice, members of the Court, may it please the Court. First, I'll deal with the question of time of peace and time of war.I think in this regard, we're based, of course, with the Kahn decision. However, I'd like to call the Court's attention to Justice Black's dissent in the Ludecke case. That is found in our brief on page 30.
Hugo L. Black: Well, unfortunately, that doesn't question the law.
Robert Edward Hannon: Well, I think -- I think the idea expressed --
Hugo L. Black: (Inaudible)
Robert Edward Hannon: [Laughs] Well, I think, Justice Black, in -- in regards to this particular issue, that is the crux of it, and I think that is the law that has been since that time adopted. It says that in interpreting any statue as to when we have time of peace and when we have time of war, you can't just blandly say that such and such a date will always terminate a war. I think that you have to look to the -- the intent behind the statute. The reason for the statute that Congress had in mind as it just is said in such cases we are called upon -- in such cases, we are called on to interpret the statute as best as we can so as to carry out the purpose of Congress in connection with particular right the statute was intended to protect. I think that decision -- that idea has also been followed by the -- the Court of Military Appeals and the --
William J. Brennan, Jr.: Well, Mr. Hannon, I don't understand (Inaudible)
Robert Edward Hannon: Well, I think the Kahn case disagrees with that. The Kahn case says that it means peace in the complete sense officially declared and then the Kahn case goes on to say or imply that nothing but a peace treaty can terminate war. And I think that various things can terminate local war for various statutes. I don't think you can't point in advance that anyone thing and say, “Well, in all cases, a peace treaty must necessarily terminates the war.”
William J. Brennan, Jr.: I -- I didn't understand. I -- Mr. Davis' argument may --
Robert Edward Hannon: Well, my --
William J. Brennan, Jr.: (Voice Overlap) but I thought what he was suggesting was that for the purpose of this statute, Congress had in mind that in any event, the story is not -- the war had not ended, not necessarily that it was the date of -- as of official termination.
Robert Edward Hannon: Well, I think that if we can assume that well, I --
William J. Brennan, Jr.: I don't want --
Robert Edward Hannon: [Laughs]
William J. Brennan, Jr.: I don't assume --
Robert Edward Hannon: (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) that's why I understood, Mr. Davis.
Robert Edward Hannon: Well, in this -- I think in any event, that that is now the law or appears to be the law that you must look at the particular purpose Congress had in mind in enacting the statute or the right that they sought to protect. Well, under this 92nd Article of War, we can look at it and has -- well, what did -- what right was Congress trying to protect by saying that the military could not try a person for murder in time of peace but right where they're trying to protect. Well, they were obviously saying if it's a murder case, a very important capital offense turn him over to the civilians to try where he'll have his constitutional rights. I think that's the obvious purpose that Congress had in this statute. So that boils down to the question -- well, of course, conversely, by stating that, the Congress had in mind that there would be certain times when it wouldn't be expedient to turn murder cases over to the civilian courts where the constitutional guarantees prevail. Certain times, when it wouldn't work, those certain times are mentioned in the Article, number one, if it's outside the continental United States. Well, if it's outside the continental United States, your alternatives there are either try him by court-martial or turn him over to the foreign jurisdiction. Now, the other occasion is in time of war. We won't turn a murder case over to civilians. Well, obviously in time of war, they mean, I think, like this Court is held, when the courts are closed, the idea of the Milligan case and the Hawaiian cases, it's -- when the courts are closed, there is no civilian court where the man could be tried for murder so therefore, try him by court-martial. Now, taking one step further from that, what was the condition in California in 1949 that precluded him from having his constitutional guarantees by a trial in civilian court? It would -- could it be said that Congress, in setting up this statute, contemplated that a situation like 1949 would be time of war or would you say that Congress in enacting Article of War 92 thought that it was a technical state of war that would control? I don't think so. I think that Congress was dealing with actualities when they talked the time of peace and time of war. And the actualities in California in 1949 certainly were a time of peace. That has been the decision of the Court of Military Appeals in the Shell and Bussmann cases. The lower court -- the Bussmann case which is a recent Court of Military Appeals' decision says that in Korea, we arrived at a time of war in purposes of the Articles of the Code when they stop shooting, when the armies -- this was signed. The lower court attempts to distinguish this by saying, “Well, in Korea, there was no declaration of war. Therefore, there does not have to be a treaty to terminate this war.” But -- and the answer for that, “For one thing, you could say there was no treaty after World War II for six years. What's to say, there won't be a treaty after Korea within six years.” And secondarily, I don't think from reading the Bussmann case, you can get such a narrow meaning from it. I'm quoting from page 37 of the brief where the Court of Military Appeals says, “And that Congress, when it used the phrase ‘in time of war' in the Military Code intended that phrase to apply to that state regardless of whether or not it was initiated or continued or -- with or without formal declaration.” I think the Court of Military Appeals is squarely held that incidentally, there is a further case from the Court of Military Appeals which just came down and it's not cited in our brief, it's United States versus Carr, and it's 23 CMR 273. In that case, the Court of Military --
Potter Stewart: Can you give us the citation again?
Robert Edward Hannon: Yes, Your Honor. It's 23 CMR 273.
Potter Stewart: Thank you.
Robert Edward Hannon: That case, the Court of Military Appeals says, “In those cases, this Court concluded that upon the cessation of hostilities in Korea on July 27, 1953, pursuant to the armistice a state of war no longer exists for purposes of military law. Thus, it is crystal clear that the inception of the accused absence occurred in time of peace.” The accused went on unauthorized absence on August 3rd, 1953 less than a month after the armistice. They said that he went on unauthorized absence in time of peace. Quickly carrying over to the second portion of the argument, that is as to the constitutionality of Article 2 (e). Here, we are speaking of 2 (e) under the 1920 Code.We are not speaking under the present Uniform Code of Military Justice but the 2 (e) under the existing code. Number one, it should be pointed out that the first enactment of that 2 (e) in 1898, the bill was entitled an amendment to the Summary Court Act. A summary court is a court that can give up to three months jurisdiction. Obviously, what they intended was to give to the military prison warden jurisdiction similar to what a -- any prison warden has. Now, I think that this --
Earl Warren: Did the article remain that way?
Robert Edward Hannon: No, Your honor, I don't think that it was subsequently went into the Code. And in the code, it's just another article under the jurisdictional aspects of it. But initially, it was and these letters back and forth that counsel quoted were under that heading, amendment to the Summary Court Act. I think that the argument boils at to two parts.Number one, and this was the same problem I had problems with yesterday, on reflection, I think it because to the constitutionality, it boils it to two parts. I'm running over, Your Honor. It's --
Earl Warren: No, no, you have three to four minutes more until the red light comes in.
Robert Edward Hannon: Right. I think first of all, we can determine was he in the armed forces or was he a member of the armed forces? Now, if -- on that particular argument, if he -- the -- he has no contract, he wears no uniform, he receives no pay, he performs no services, he can't be sent to war, he has none of the incidence of a member in the status or a person of the status of a member of the military. The Army itself, as I pointed out yesterday, has said he is not a soldier, and Winthrop said he is not a soldier. But there is some indication or perhaps there is a third class, a class that is not entirely in the service yet. He is subject to jurisdiction. I think then that even if there is such a class, if the Court is not prepared to say that you're either in or out, if there is a third class, this man wouldn't fall on that third class because that third class apparently is predicated on the idea that his control over him is absolutely essential to the maintenance of military discipline. Now, what is the -- what is the absolute necessity for having court-martial jurisdiction for a capital offense over a man confined in California in 1949? The need isn't there. This third class, if it exists, is a class that is based on need apparently. That's the only reason for it in any event. And if there is no -- in this case, there is no need nor in the case of a dishonorably discharged prisoner confined in the United States. There is no need to set up a third class which is part military and part civil. But I think, in my opinion, there is no such third class that the person is either in the status of a member of the armed services or he is in the status of a civilian.
Hugo L. Black: You have to take on that part and say that there is no third class?
Robert Edward Hannon: No, Your Honor, I don't think he --
Hugo L. Black: (Voice Overlap) what's called the CB and not a --not a soldier though or somebody who just doesn't work under the Army?
Robert Edward Hannon: Well, I think a CB would be -- he is enlisted. He has a contract with the --
Hugo L. Black: Well, suppose he is not in the -- suppose there's no paper enlisted, but he take (Inaudible)8 he goes to the Army and he is part of it. Suppose they decide not to have him enlisted and not use those papers.
Robert Edward Hannon: In my opinion, Your Honor, he is a civilian.
Hugo L. Black: Civilian?
Robert Edward Hannon: However, it isn't essential --
John F . Davis: Well --
Robert Edward Hannon: -- for our case to go that far.
Hugo L. Black: -- is that -- is that a part of your case here?
Robert Edward Hannon: No, Your Honor, we don't have to go that far. We could say that there is a third class that is -- that is not in that -- this man is not in that third class. I thank you, Your Honor.


Warren E. Burger: Mr. Horowitz, I think you may proceed whenever you are ready.
Alan I. Horowitz: Thank you Mr. Chief Justice, and may it please the Court: This case is here on direct appeal under 28 U.S.C. 1252 from the United States District Court for the District of North Dakota. Under review is the District Court's decision holding unconstitutional the investigative provisions of the Fair Labor Standards Act, specifically the Court's holding that the Fourth Amendment prohibits the use of an administrative subpoena for the inspection of documents and rather requires that a search warrant be obtained before any documents may be examined. Because some of the briefs here have generated some confusion about the issue presented I think it would be useful to summarize briefly the background of this litigation. On January 6, 1982 Al Godes, the Wage Hour compliance officer, telephoned Appellee, a restaurant-motel, located in Steele, North Dakota to schedule an inspection for the following day and to ask that certain wage and payroll records be made available for inspection at that time. When Appellee's manager informed Godes that the time was not convenient he rescheduled the inspection for the following week. In the interim Appellee's counsel wrote to Mr. Godes stating that Appellee would not consider the request for an inspection until it was informed of either the nature of the complaint that triggered the investigation or the scope of the investigation. The government responded with a letter outlining the general scope of a fair labor standards investigation and declining to give the reason for this particular investigation. In this letter the government rescheduled the inspection for two weeks hence. The letter also requested Appellee to inform the government whether it would decline to permit the inspection so that an administrative subpoena could be obtained in that event. Appellee responded that permission would be refused under the authority of Marshall v. Barlow's and thereafter Appellee was served with a subpoena duces tecum requiring production of specified payroll records at the Department of Labor's Wage Hour Offices in Bismarck, North Dakota. Appellee's counsel informed the Department of Labor that it would not comply with the subpoena on the ground that it was invalid under Barlow's, and to date it has not produced the subpoena documents.
Sandra Day O'Connor: Mr. Horowitz, do the Appellees suggest that maybe this was really an attempt by the government to get unauthorized entry into the premises? Would you comment on that?
Alan I. Horowitz: I just do not think there is any support for that in the record. All we know is that they phoned and... The government phoned and said that it wanted to conduct an inspection the next day. Appellee obviously did not feel compelled to comply with this. It simply first stated that it wasn't convenient and then later declined to permit the government to enter. In the brief--
Sandra Day O'Connor: The question is not really before us here, of course, but do you think the statutory authority under the Act to enter and inspect the premises is possibly invalid under Barlow's?
Alan I. Horowitz: --Well, it has never come up because the general practice of the Labor Department is not to conduct these entries without consent so they did not try to do it here. They have never tried to do it. If they did--
Sandra Day O'Connor: Do you think it is possibly invalid?
Alan I. Horowitz: --If they did I think unlike this case Barlow's would be quite relevant and there would be a serious question under Barlow's, but the question would be whether Barlow's was distinguishable or not. It might be difficult to distinguish. Barlow's itself was careful to confine itself to the OSHA context so arguably it might be distinguishable, but it would certainly be a close case.
Speaker: Well, did the subpoena here actually request entry?
Alan I. Horowitz: No. The subpoena specifically said that it was returnable off the premises, that the documents were to be produced at the Labor Department's office in Bismarck, North Dakota. I should say also in response to Justice O'Connor's original question the Appellee has said and the briefs in this Court have characterized the Department of Labor's initial phone call as sort of a demand for entry and tried to paint the picture that we were trying to force our way in. That's something that's come up in the course of litigation. I think if you look at the more contemporaneous discussion of what was going on the letter that I just referred to that Appellee sent to the government that is reproduced at page 13 of the Joint Appendix Mr. Peterson stated "I represent Lone Steer Cafe. " "Before we consider your request to conduct an inspection we would like the following information. " So I think at least at the time everyone understood that this was just a request to enter the premises. It was only later that this has been characterized more as a demand.
John Paul Stevens: May I ask was the subpoena ever served?
Alan I. Horowitz: Yes, the subpoena was served.
John Paul Stevens: Did you ever file a motion for contempt for failing--
Alan I. Horowitz: We filed as I was about to say we filed a petition with the District Court to compel Appellees to comply with this subpoena.
John Paul Stevens: --The judge's order does not rule on that though does it?
Alan I. Horowitz: Well, the cases were consolidated so the order does rule on it. It is a little cryptic.
John Paul Stevens: But he does not mention it?
Alan I. Horowitz: He does not mention it, no.
John Paul Stevens: All he denies... Really all he says you have no right to enter the premises.
Alan I. Horowitz: Well, that is what the order says. In the course of the court's opinion he states that the Appellee's contention is that they are not required to turn over these documents in response to this subpoena so the court seems to have understood that what this case was about was a subpoena, but then when it gets to drafting the order it just says that government can't enter on the premises. At that point the government filed a motion to amend the judgment pointing out to the court that all we wanted was for the documents to be turned over at our offices. The court did not really address that very well either so perhaps the District Court did not exactly focus on what was going on here, but I think it is made clear enough in all the papers that have been filed. When Appellee declined to permit the inspection originally the government responded with a letter that outlined the general scope of the investigation of a fair labor standards general investigation but declined to give the reason for this particular investigation, and as I said we requested that Appellee inform the government whether it would consent... decline to permit the inspection so the subpoena could be obtained. When Appellee declined to permit the inspection a Department of Labor officer went to the premises on February the 2nd and served him with the subpoena. The Appellee brought this law suit seeking declaratory and injunctive relief on the grounds that the Fair Labor Standards Act was unconstitutional and quoting from the complaint "insofar as it purports to authorize a warrantless inspection of records by way of administrative subpoena after entry to inspect has been denied. " This action was consolidated with the government's action as discussed earlier petitioning the District Court to compel Appellee to comply with the subpoena, and the District Court found for the Appellee without really explaining why. The court's opinion relied exclusively on Marshall v. Barlow's and accepted the Appellee's contention that the subpoena was invalid under Barlow's.
Speaker: I did not find that the court referred to Oklahoma Press at all.
Alan I. Horowitz: No. The court--
Speaker: Was this pressed upon the court by the United States Attorney?
Alan I. Horowitz: --It certainly was featured quite heavily in the government's motion for summary judgment, the Oklahoma Press case, but it was not really discussed by the Appellee and the court did not see fit to discuss it either.
Speaker: Judge Van Sickle had Oklahoma Press.
Alan I. Horowitz: Yes, he did. As we've stated in our briefs we view this as a straightforward case governed by principles that have been well settled by this Court.
John Paul Stevens: Mr. Horowitz, maybe I've already asked it but I just want to be sure. Not only in his judgment but also in his opinion all he mentions is the right to enter. He did not write another opinion that somehow did not get in the papers did he because the strangest thing to me about this case is the judge's total failure to mention anything about complying with the subpoena.
Alan I. Horowitz: Well, it is certainly strange. At the beginning of the court's opinion or at least at the beginning of discussing the issues at the bottom of page 6A in framing the issue the court says in the last paragraph there on page 6A "Lone Steer asserts that the statutory scheme is constitutionally impermissible and that the records described in the administrative subpoena issued in this case need not be produced except in response to a warrant. " So the court certainly took cognizance there of the fact that there had been a subpoena issued, and that's what was involved. But then the court just goes on to discuss Barlow's and then kind of falls back onto this discussion of entry onto the premises.
Speaker: You thought it was so strange that you suggested summary reversal.
Alan I. Horowitz: We did suggest summary reversal, but the court did not see fit to act on that suggestion. The case is here today because of the direct appeal provisions of Section 1252 in light of the District Court's finding of unconstitutionality. It is not because this case presents an unsettled constitutional question. I would like if I might briefly to emphasize just a few points in this connection. At the outset let me emphasize again that the only issue presented in this case is the constitutionality of the subpoena duces tecum served upon Appellee, that is, requiring the production of documents off premises without resort to a search warrant. Perhaps because the validity of such subpoena is so clearly established by this Court's precedent Appellee and the amicae supporting it have sought to cloud this issue by suggesting that this case involves an attempted nonconsensual entry onto private premises. This is simply not so. There is no question here of an entry onto private premises without consent as there was in Barlow's. The government never made any attempt to enter and the Department of Labor's general policy is not to make such entries. From the time the subpoena was served almost every document in the record perhaps with the exception of the District Court's opinion confirms that this litigation has focused on the validity of the subpoena. Only one week after the subpoena was served Appellee wrote the government, sent a copy of this letter to the District Court stating that it would not comply with the subpoena because it was invalid under Barlow's. Appellee's complaint, the government's petition to enforce this subpoena, the District Court's own description of the issue presented in its opinion and the motions for summary judgment all focus on the issue of the validity of the subpoena. On this issue Appellee's contention is foreclosed by a long line of precedent of this Court. In Oklahoma Press this Court unequivocally held that an administrative subpoena, indeed in that case a subpoena issued under the very statute involved here, the Fair Labor Standards Act, a subpoena is not governed by the requirements of the warrant clause. That is, neither a warrant nor probable cause is required for the issuance of a subpoena. The Court explained that a subpoena does not involve any actual search of private matters. It is a search only in a theoretical sense, what the Court termed a constructive search. The Court concluded, therefore, that a subpoena is reasonable within the meaning of the Fourth Amendment if the request is authorized by law, is not indefinite or unduly burdensome and seeks documents that are relevant to the investigation. This rule has been reaffirmed by this Court in Morton Salt and several other subsequent cases and has been routinely and uniformly applied to administrative subpoenas for the last 40 years. Neither Appellee or the District Court discusses Oklahoma Press and its progeny. No defect in the reasoning of the Court in those cases nor any reason for concluding that those cases were wrongly decided has been suggested. The sole basis for the decision below and for Appellee's argument is the assumption that this long line of cases has been wiped off the books overruled sub silentio by Barlow's. There is absolutely no basis for this assumption. Barlow's has nothing to do with this case or with Oklahoma Press. Barlow's involved an actual search, an entry onto a manufacturer's private business premises and a search of those premises for evidence of safety and health violations. This is the precise sort of investigative tool with which the Court in Oklahoma Press contrasted a subpoena and drew a distinction. Barlow's did not suggest any erosion of the traditional distinction between subpoenas and actual searches. Indeed Barlow's relied heavily on See v. City of Seattle an earlier case where the Court had established a warrant requirement for fire inspections, inspections that required an entry onto private premises. In the course of that decision, however, the Court expressly reaffirmed the distinction drawn in Oklahoma Press between subpoenas and actual searches and reaffirmed the standards set forth there under which such subpoenas are to be judged. Barlow's and following See did not interfere with these standards. Morever, the problems with OSHA inspections primarily concerned the Court in Barlow's. That is, the unbridled expression of officers in the field to conduct inspections and the unlimited nature of the search involved do not exist with subpoenas. The subpoena is not open ended. It specifically identifies the documents sought. The subpoena is not left to the unbridled discretion of the officer in the field. It may be issued only by the Wage Hour administrator and enforced only by resort to adversary court proceedings. In short, nothing in Barlow's casts any doubt on the continued validity of Oklahoma Press or on the validity of the subpoena returnable off premises that was issued in this case. Thus, to repeat we believe that well settled Supreme Court precedent clearly controls the disposition of this case and requires reversal of the judgment below. Unless there are any questions, I will reserve the remainder of my time.
Sandra Day O'Connor: I have one, Mr. Horowitz. Again, I do not think it is really raised here but do you think there are any limits in addition to those spelled out in Oklahoma Press on the government's subpoena power? Could a person whose records are being subpoenaed, for example, seek a protective order from the court on the grounds that he'd been singled out or was being harassed and, therefore, the subpoena wouldn't issue? Are there any limits?
Alan I. Horowitz: I am not sure whether the Fourth Amendment would give any protection or not against sort of being singled out. It might be that the due process clause or something could have some sort of selective prosecution kind, but I think it would be a difficult standard to meet certainly.
Warren E. Burger: Mr. Peterson.
Richard G. Peterson: Mr. Chief Justice, and may it please the Court: First of all, this is not a simple subpoena case. Such characterization is misleading and erroneous. It is somewhat glib, and it is made by government appellate attorneys from afar. Those who have been directly involved with this case including the District Court judge were intimately aware of the facts. The issues basically involved entry, and if you look at the facts and the facts were stipulated there were at the outset unilateral scheduling of an inspection appointment date.
William H. Rehnquist: Mr. Peterson.
Richard G. Peterson: Yes.
William H. Rehnquist: Where do we find the stipulation? In the briefs or the appendix?
Richard G. Peterson: I believe it is in the--
William H. Rehnquist: Is it in the appendix somewhere?
Richard G. Peterson: --Yes, it is in the appendix, Justice Rehnquist.
Speaker: Page 11.
Richard G. Peterson: Right. The Labor Department basically was informing Lone Steer that it was about to enter and inspect the premises, question employees and generally conduct its normal investigation.
Thurgood Marshall: Did they enter?
Richard G. Peterson: Yes, they did ultimately. The issue became--
Thurgood Marshall: When did they enter?
Richard G. Peterson: --They entered I believe it was February 2nd of 1981.
Thurgood Marshall: What is that in relation to this case?
Richard G. Peterson: Excuse me?
Thurgood Marshall: Was that when the hearing was had?
Richard G. Peterson: They entered following the institution of a law suit by Lone Steer to get a declaratory judgment on Section 11.
Thurgood Marshall: Well, does that apply to this case?
Richard G. Peterson: Yes, it does, Your Honor.
Thurgood Marshall: Is it in the record?
Richard G. Peterson: Yes, it is, Your Honor. The Labor Department, a compliance officer, Mr. Godes from Bismarck together with some high ranking Labor Department official flown in from Denver entered the Lone Steer to attempt to conduct the investigation on the premises showing, attempting to show that Section 11--
Thurgood Marshall: Well, did they enter? You now said they attempted to enter.
Richard G. Peterson: --Well, they entered and attempted to conduct the investigation.
Thurgood Marshall: Isn't there a difference between entering and attempting to enter?
Richard G. Peterson: They entered the Lone Steer Cafe in Steele, North Dakota and sought to conduct an investigation there.
Thurgood Marshall: A cafe? They entered it?
Richard G. Peterson: They did enter it.
Thurgood Marshall: And they were excluded.
Richard G. Peterson: They were turned away, right.
Thurgood Marshall: They were turned away.
Richard G. Peterson: Right.
William H. Rehnquist: Mr. Peterson, you used the word "enter" as if to give almost a feeling of breaking down the door. Your paragraph 10 of the stipulation says that at approximately 10:30 a.m. Godes and Hill entered the Lone Steer establishment to attempt to conduct an investigation. They asked for Ms. White and were told she was not available but expected shortly. They were offered some coffee and waited in the lobby area. After 20 to 30 minutes when Ms. White had not appeared Mr. Godes served an administrative subpoena on employee Karen Arnold. Do you mean by the use of the word "entered" kind of entered against the will of the parties?
Richard G. Peterson: No, Your Honor, and I certainly did not seek to give the Court that impression. If I could give you a short scenario of what exactly happened--
Warren E. Burger: Well, is it something different from the stipulation in paragraph 10?
Richard G. Peterson: --Only from a... No, it is not, Your Honor. It is basically in the stipulated facts. We had two instances where Lone Steer's attorney told the Labor Department that they did not have authority or consent to conduct its investigation on the premises of Lone Steer.
Warren E. Burger: Are you suggesting they had no authority to enter to serve the subpoena?
Richard G. Peterson: No, Your Honor, definitely not.
Warren E. Burger: You are not arguing that?
Richard G. Peterson: No. We're saying--
Warren E. Burger: That is a public place. Anyone could enter it, could they not?
Richard G. Peterson: --Yes, it is, Your Honor.
Warren E. Burger: How else would they serve the subpoena except to enter it?
Richard G. Peterson: Your Honor, in the first instance what they sought to do was to conduct the investigation.
Warren E. Burger: We are not concerned about what they thought to do. What did they do?
Richard G. Peterson: They informed us by way of a letter that they were going to attempt to conduct the investigation and if they were prohibited... That was the word used... if they were prohibited from conducting the investigation they were going to leave an administrative subpoena.
John Paul Stevens: Mr. Peterson, the stipulation goes on and says they did properly serve the subpoena.
Richard G. Peterson: Yes, Your Honor.
John Paul Stevens: The subpoena commands the production of a person to testify and to bring with him certain records to the Federal Building in Bismarck.
Richard G. Peterson: Yes, Your Honor.
John Paul Stevens: Why did you not do that?
Richard G. Peterson: Your Honor, at that point prior to that the issue was under Section 11 whether or not the inspection powers of the Labor Department were limited by the Fourth Amendment as interpreted by Barlow's, and the issue before the Court as the Court perceived it and as we perceived it we wanted a declaratory judgment as to whether or not the Labor Department did have the right to conduct the investigation without the consent of the owner.
John Paul Stevens: Do you understand the District Court to have ruled that you did not have to comply with the subpoena.
Richard G. Peterson: Yes, Your Honor.
John Paul Stevens: What reason did he give for that ruling?
Richard G. Peterson: He did not really give a reason for that ruling other than to say that the inspection power under Section 11 of the Fair Labor Standards Act was clearly in his mind at least subject to the warrant clause under the Fourth Amendment as interpreted in Barlow's.
John Paul Stevens: He talked only of entries onto the premises.
Richard G. Peterson: Yes, Your Honor.
John Paul Stevens: The subpoena asks for production elsewhere. Is there any reason why you should not comply with a subpoena to produce elsewhere?
Richard G. Peterson: The subpoena as we understand the subpoena is an enforcement device as a part of Section 11's conferring of inspection powers to enter and inspect the premises.
Thurgood Marshall: Had they not first tried to get in would you be making the same argument?
Richard G. Peterson: I believe, Your Honor, that either Section 11 is subject to the warrant clause or it isn't. I believe that it is subject to Section 11, and the Labor Department did not or left undisturbed the judgment with respect to entry. The judgement with respect to entry right now stands that Section 11 is subject to the warrant clause.
Thurgood Marshall: Well, let me give you a hypothetical. The same type of subpoena is issued to another corporation which has only been in business a week. Would you be arguing the same thing?
Richard G. Peterson: I would argue--
Thurgood Marshall: I said only been a week because I do not want anything in the past to have anything to do with it.
Richard G. Peterson: --I would argue there, Your Honor, that a subpoena is subject to Barlow principles. A subpoena can be enforced under Barlow principles, and it would be subject to the--
Thurgood Marshall: So they have no subpoena power.
Richard G. Peterson: --Yes, they have subpoena power which I believe was limited by Barlow's--
Thurgood Marshall: How would they exercise the subpoena power?
Richard G. Peterson: --I think what this Court has to do consistent with Barlow's is to look at the entire investigatory scheme and see that a subpoena is being used and enforced in Federal District Court, and the test there would be whether or not the subpoena and an enforcement would be the functional equivalent of a warrant.
Thurgood Marshall: And every subpoena would have to have court approval?
Richard G. Peterson: Ultimately in an enforcement action. It could have in this case.
Thurgood Marshall: Why does this type of subpoena need court action, others do not?
Richard G. Peterson: Because of the particular way the statute is postured in terms of entry.
Thurgood Marshall: When it involves this particular statute?
Richard G. Peterson: Yes, Your Honor.
Sandra Day O'Connor: Mr. Peterson, does not Oklahoma Press clearly say that subject to the requirements spelled out there administrative subpoenas can issue without the concerns expressed in Barlow's?
Richard G. Peterson: Your Honor, I believe that--
Sandra Day O'Connor: Barlow's did not overrule Oklahoma Press.
Richard G. Peterson: --No, I do not believe so, Your Honor. I believe that Oklahoma Press Publishing was perhaps altered to a certain extent and perhaps certain grey areas were filled in in that a subpoena could issue but the test of reasonableness would involve Barlow substantive principles, for example, the issue of probable cause limiting properly the scope of the investigation to the purpose of the investigation.
Sandra Day O'Connor: Well, you have to read a lot into Barlow's to think that do you not?
Richard G. Peterson: No, Your Honor.
Speaker: To what extent did Barlow's deal with papers and records?
Richard G. Peterson: To the extent that the Labor Department there sought certain I believe it was health accident reports and so forth that are required by the OSHA law. An inspection was sought of those documents.
Speaker: Did Barlow's even cite Oklahoma Press?
Richard G. Peterson: No, it did not, Your Honor. However, in footnote 22 you pointed out that delineating the scope of a search with some care is particularly important where documents are involved. At a certain point you indicated it is the secretary's position which we reject that an inspection of documents of this scope may be effective without a warrant.
Speaker: Well, you can get relief with respect to the scope of the subpoena under Oklahoma Press, under Walling.
Richard G. Peterson: We believe, Your Honor, that because of the entry provisions of this particular statute, Section 11, which there is no question in my mind, there is no question in the District Court's mind and apparently there is no question in the Labor Department's mind, is subject to the warrant clause on Barlow's. It is very difficult for me to then say Section 11 is subject to the warrant clause; however, the subpoena is not which is the enforcement device. I believe that essentially the cases are the same, Barlow's and Lone Steer. The only difference occurred when entry was denied and an enforcement mechanism under a particular statute was utilized. In the Barlow's case it involved a compulsory process to enter, and as I read Barlow's the Labor Department did not contend that that compulsory process was the equivalent of a warrant. You did indicate that it could be viewed as such in one of your footnotes. The same is true in this particular case. We have to look at the enforcement mechanism of Section 11, and in this case it is the subpoena, a subpoena that is issued by the Labor Department itself without regard to probable cause and without properly limiting the scope of the investigation to the purpose or the probable cause involved. Again, I would have to iterate and reiterate that the case involved a declaratory judgment at a particular time. On February 1, 1981 there was a dispute as to whether or not the Labor Department had a right to come in and conduct an investigation over the objection of an owner. When Lone Steer objected twice through its attorney that you cannot come in without a warrant or its functional equivalent, the Labor Department then cited in its letter its inspection powers under Section 11 to enter and conduct an inspection. At that point there was a dispute as far as the District Court was concerned as to whether or not the Labor Department did in fact have a right to enter and inspect. Following the initiation of that law suit the Labor Department despite all these protestations through the legal counsel and through the court system the Labor Department still sought to conduct that inspection on the premises of Lone Steer. It is--
Speaker: So what you say is basically you are entitled to a declaratory judgment that would say the Labor Department does not have the authority to enter and inspect notwithstanding--
Richard G. Peterson: --Without the consent of--
Speaker: --Without the consent of the owner notwithstanding that we might resolve the subpoena question in favor of the government. You see them as two distinct issues I take it.
Richard G. Peterson: --Yes, they are two distinct issues, but if Section 11 is subject to the warrant clause under a Barlow's test type of analysis it seems clear to me that you have to also apply that analysis to the enforcement mechanism of that right under Section 11. In fact the Labor Department is saying that it is seeking to inspect the documents under the subpoena under Section 11. They are citing Section 11 and Section 9. I seriously question whether or not the Labor Department can conduct its investigation without utilizing the authority of Section 11 which is a right to enter provision. Thank you, Mr. Chief Justice.
Warren E. Burger: Thank you. Do you have anything further, Mr. Horowitz?
Alan I. Horowitz: I have nothing further unless there are any questions.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.