William H. Rehnquist: We'll hear argument next in No. 86-684, California versus Billy Greenwood and Dyanne Van Houten. Mr. Pear, you may proceed whenever you're ready.
Michael J. Pear: Mr. Chief Justice and may it please the Court: This case is here on certiorari to the California Court of Appeals, Fourth Appellate District. In February 1984, the Laguna Beach Police Department received some tips over the telephone that the occupants of a specific residence located in the City of Laguna Beach were involved in drug trafficking. Based on that information, on April 6, 1984 and again on May 4th, investigators of the Police Department contacted the regular municipal trash collector when the morning trash was collected at that residence. The investigators requested of the trash collector that he go down the street, pick up the trashbags that were in front of the residents' garage, were located in the public street in front of the garage, that that trash collector on each instance not mingle or mix the bags with other trash in his truck and that he bring those bags down the block to the investigator, which he did. The investigator in each of these two instances returned to the Police Department with those trashbags and examined the contents. On each occasion, items were found including drug residue and based on that, two separate search warrants were issued for that residence in Laguna Beach. The California Court of Appeals affirmed the Trial Court's dismissal of the drug possession for sale charges against the respondents that were based on drugs found in the house during the search warrants on the basis that the Fourth Amendment prohibits warrantless trash searches. The State respectfully asks this Court to reverse, in accordance with an inconformity with the rulings of ten Federal Circuit Courts of Appeals, the First, the Second, the Third, the Fourth, the Fifth, the Sixth, the Seventh, the Eighth, the Ninth on a case from California, and the Eleventh, all of which have held that warrantless trash searches of discarded garbage placed in an area accessible to the public for collection is not protected by the Fourth Amendment. Additionally, in the case before the Court, there is a factor that it was not the police who on site examined the trash but rather the trash collector at their request obtained the trash. It is our further position, the State's position in that circumstances that the trash collector is an agent of the police when he picks it up, but that the situation of trash voluntarily turned over to a third party, here the regulator trash collector, even where he's an agent or acting at the request of the police bestows no reasonable or legitimate expectation of privacy on the homeowner, it is rather a case of misplaced trust.
Sandra Day O'Connor: Mr. Pear, in response, your opponent raises now a due process argument based on the California law here and constitution giving the owner of the trash some protected liberty interest in the trash, and certainly the law in the State of California is different than that of a good many States. Now, do we need to address that due process question?
Michael J. Pear: I don't believe so, Your Honor. First, that issue has never been raised below, nor cast upon by the California Court, either the trial court or the Court of Appeals, nor was it raised in opposition to the Petition for Hearing in the California Supreme Court, which was denied. Additionally, California's exclusionary rule, which was adopted in 1955, is a rule of judicial creation, it's a judicial remedy rather than a constitutional right, and I would suggest to the Court that California's decision by Constitutional Amendment in 1982 to reduce what had become a very large increased broader protection under search and seizure to those confines of the Fourth Amendment does not rise to a Federal Constitutional issue. Additionally, the respondent particularly Greenwood argues that this Court in deciding what a legitimate expectation of privacy is must look to the individual State law, and the State suggests that that argument should be rejected. While clearly the State may require a higher or broader standard of protection than the Federal Constitution requires, the State in doing that would not be applying Fourth Amendment law, and I would submit that this Court would not be applying Fourth Amendment law if it took the State's interpretation of the Fourth Amendment and found itself bound by that in concluding what the Fourth Amendment is for the entire nation.
Sandra Day O'Connor: But that isn't the argument as I understood it. It's not the entire nation, but the argument as I understood it was that a State may define the reasonable expectations of privacy of its own citizens, and the California legislature says nobody should search garbage, or something like that. Would then could not one then make the argument that a California citizen, unlike the rest of the country, has an expectation of privacy in his garbage?
Michael J. Pear: No. I would respond to that, Your Honor, that the State would be free to do that but they would be interpreting their constitution in imposing a broader protection than the more--
John Paul Stevens: Say they didn't do it as a matter of constitutional. Let's say the legislature passed a statute says as a declaration of California policy, we think people ought to have a privacy interest in their garbage, and so we instruct our police officers not to search garbage. Could the people in California develop a legitimate expectation of privacy based on such a Statute.
Michael J. Pear: --Under the State law, but I would submit that it would not be a legitimate expectation under the Fourth Amendment. In that event, the State would be instructing this Court what the Fourth Amendment prohibits or does not prohibit. In a situation which is not uncommon before this Court, where you have cases involving the same issue from two or three States at one time, you would end up, I would think, in the uncomfortable situation if you had a case from a State such as California.
John Paul Stevens: Well, we say some things are obscene in California and not in other States. We follow local community standards in some areas. Why isn't privacy sort of like what offends people, different views in different parts of the country.
Michael J. Pear: I would think that community standards have been determined by this Court to be an appropriate method of dealing with area obscenity, but counsel cites no cases, and I think it would be inappropriate to say you would have a community standard of Fourth Amendment rights, or a community standard of Miranda rights, Fifth Amendment rights.
John Paul Stevens: Well, I agree, but the question here is whether there's a reasonable expectation of privacy, and I'm just wondering if every American citizen must have the same expectation or is it possible that there could be different expectations in different parts of the country. That's, as you say, it's a new question. I've never thought of it.
Michael J. Pear: Well, taking this Court's analysis that a reasonable expectation of privacy involves a two part analysis, now the subjective expectation of citizens might vary from community to community, it might vary among the residents of a single household. But as to what constitutes what this Court has termed a legitimate expectation of privacy determined by either the concepts of property law or the general principles that society recognizes, I would submit that has to be a national standard.
John Paul Stevens: Most property concepts we turn to State law to define, and what could be more legitimate than a State Statute in terms of objective reasonableness of the standard?
Michael J. Pear: I don't think the issue is objective reasonableness in determining under Fourth Amendment what is a legitimate expectation of privacy. The person may subjectively entertain that belief, but I don't believe under the Fourth Amendment that belief is reasonable.
Sandra Day O'Connor: What if most States began to adopt a provision like California's? Would our view of what's reasonable then change under the Fourth Amendment?
Michael J. Pear: Your Honor, with regards to adopt what, a case? Because California's view is based on a 1971 4 to 3 case. It's not a statute that says your garbage is protected even though you've thrown it away.
Sandra Day O'Connor: Well, the case interprets the California constitution and laws, presumably.
Michael J. Pear: Certainly. But if many of the States had adopted such a view or adopted such a--
Sandra Day O'Connor: Would that then affect our view under the Fourth Amendment of what's reasonable as an expectation?
Michael J. Pear: --As the opinion by this Court in Rickus indicated, you don't just look to Fourth Amendment cases to decide what Fourth Amendment is. But I would concede that it would be suggested to the Court that society generally recognizes this type of expectation if most States entertained that view. Conversely, in the case at bar, most states and every Federal Circuit Court of Appeal that has considered the issue have concluded quite the opposite, that there is no reasonable expectation of privacy once you have relinquished possession, control, made that unequivocal by placing it in an area accessible to the public.
Sandra Day O'Connor: Should we apply the Katz analysis here, do you think, or should we look at it as a question of abandonment?
Michael J. Pear: I believe those are not mutually exclusive, Your Honor. Certainly, I think the Katz analysis is the analysis to apply. But in looking at that, the concept of abandonment isn't irrelevant. The fact that in a property sense, the items are thrown away is a significant factor in deciding whether there is a legitimate expectation of privacy. And I think the State contends that the Federal cases that we've cited to the Court, as well as the State cases, apply a Katz analysis, but in looking at the legitimacy of an expectation, look at what happens to that expectation with regards to something you've thrown away.
Sandra Day O'Connor: Do you think under the Fourth Amendment we still look at abandonment as a separate sort of test or approach?
Michael J. Pear: I think it is part of the test. I don't think abandonment in a property sense is the start and end of the analysis under Katz. But I think under Katz, the property concept is something you take into consideration. And I submit when you do that, you come to the conclusion that the Courts that have considered the issue have come to. That is that you have abandoned a reasonable expectation of privacy in that which you have abandoned. There's also a suggestion in both respondent's briefs that there is an element of harassment if the police are free without a warrant or without probable cause to conduct warrantless trash examinations. First, I think the record in the Court below does not sustain that claim. Before I get to those items of the transcript and record which I think negate any type of harassment, it's the State's position that where there's no expectation of privacy, thus an intrusion is not a Fourth Amendment implication, the fact that such an intrusion occurred more than once or twice or three times does not now collectively add up to a Fourth Amendment violation. If there is in some future case an establishment by an individual that he has been subject to some type of harassment but not a Fourth Amendment, he has an adequate civil remedy to prevent that. Further, I would suggest--
William H. Rehnquist: We'll resume there at 1:00 o'clock, Mr. Pear.
Michael J. Pear: --Thank you.
William H. Rehnquist: Mr. Pear, you may proceed.
Michael J. Pear: Mr. Chief Justice, and may it please the Court: Furthermore, in answer to the fear that the respondents express that trash searches without a warrant would result or could result in harassment, I submit to the Court that the nature of trash examination itself provides inherent in it a limitation. The undesirability of the chore itself limits the number of times or circumstances under which police will make such an examination.
Byron R. White: Not if they want the evidence badly enough. It's probably considered bad duty, isn't it?
Michael J. Pear: It's certainly not a volunteered-for duty, I'd assure you. Also, with regard to the suggestion that the record shows that there were months of monitoring of the trash, I think that's based on a misreading of a portion of the Clerk's transcript referred to by respondents at page 112 and page 113. The question which confused the investigator was whether you had occasion to do this over this period of time, and I submit read in conjunction with two other areas of her testimony, it is clear that she understood the word, occasion, as could you have or did you have the opportunity, as opposed to did she in fact make such examinations. On page 84 of the Clerk's transcript, Investigator Strassner testified, it was only one or two weeks before April 6th that she learned when trash was collected. Additionally, at page 122 of the Clerk's transcript, she indicates the total number of times of surveillance at the residence before the April 6th date was three to four times, and the Affidavit that is part of the Joint Appendix starting at page 37 shows that at least two of those surveillances were late at night, early morning, when it was surveillance for the purpose of--
Thurgood Marshall: Would it have made any difference whether it was one or 26 times?
Michael J. Pear: --I don't think so, Your Honor, as to the issue of Fourth Amendment. Finally, with regard to the questions that have been asked this morning regarding looking at State law, I would invite the Court's attention to Oregon v. Haas at page 720, the material covered by footnote 4. If there are no further questions, I've concluded.
William H. Rehnquist: Thank you, Mr. Pear. We'll hear now from you, Mr. Garey.
Michael Ian Garey: Mr. Chief Justice, and may it please the Court: Preceding somewhat backwards from how I'd intended to proceed, I think I would like first if I may to answer Justice O'Connor's question about the appropriateness of arguing the due process claim in this Court. There are several different aspects of this which I think dictate that the issue should be addressed on its merits by this Court, not the least of which are the circumstances that were existing at the time this matter was argued in the Municipal Court, in the Superior Court and in the Court of Appeals. In California for a period of over fifteen years, stare decisis had dictated that searches essentially identical to the one in this case were unlawful. Much of our discussion, virtually all of our discussion revolved around concepts of stare decisis and so there was no need at those Court levels, and I repeatedly stressed that at those Court levels, there is no need to get into a detailed analysis of the State law issue. However, that is not the same thing as to say that the State law issue was waived. Indeed, the State law issue was raised in the Municipal Court, although tersely.
William H. Rehnquist: What do you conceive to be the State law issue, Mr. Garey?
Michael Ian Garey: All right. The State law issue, and I'll perhaps get into this a little deeper on the merits in a moment, but the State law issue itself is Article I, Section 13 of the California Constitution provides for protection against unreasonable searches and seizures. Article I, Section 1 provides for a right of privacy which is described as inalienable.
William H. Rehnquist: And then the search and seizure provision of the California Constitution was interpreted in the State Supreme Court Krivda opinion, was it not?
Michael Ian Garey: That is correct. And that's exactly what I mean by the State law issue.
William H. Rehnquist: But we have determined, have we not, that the decision rested at least partially on Federal grounds?
Michael Ian Garey: Oh, yes. Yes. The argument centered, and I think this is abundantly clear from the transcript, the argument in the Municipal Court centered around the fact that Krivda in its second opinion on remand had decided that the original decision was based on both State and Federal grounds. And I repeatedly emphasized that at the Municipal Court level.
William H. Rehnquist: And therefore be reviewable here under Michigan v. Long, would it not?
Michael Ian Garey: It would be reviewable here under Michigan v. Long to the extent that the Federal question is posed. That would be correct.
William H. Rehnquist: Well, if it's been decided that both Federal and State grounds support Krivda, certainly the Federal question is posed, is it not?
Michael Ian Garey: The Federal question is posed but it is not posed entirely by itself. And I think if I may go back just a little bit and explain what I mean by that because we get into a number of problems with that. First of all, Krivda originally was decided before Michigan v. Long. I don't think that anybody has seriously contended it, and if they do, I'm prepared to address it but I don't think anybody has seriously contended that Krivda was not also decided upon independent State grounds. Indeed, this Court seems to have recognized that fact, at least the dissent of this Court seems to have recognized that fact in California v. Rooney quite recently. I don't think that we need to get into an extended analysis of would the original Krivda opinion have survived a Michigan v. Long analysis. And I note that in a footnote, petitioner has sort of alluded to that problem, although not really briefed it in any detail. So the answer to the Court's question I believe is as simple as, yes, there is a Federal question posed in the sense that part of Krivda rested on Federal grounds. There is an independent State ground clearly presented because Krivda in addition relied on its own independent State grounds.
William H. Rehnquist: Did you raise this point in your Memorandum In Opposition to the Petition for Certiorari?
Michael Ian Garey: I'm not sure, Your Honor.
William H. Rehnquist: If you didn't, there's language in our Tuttle opinion which would suggest that you have waived it.
Michael Ian Garey: Well, if I may proceed just a little bit, because--
William H. Rehnquist: Certainly.
Michael Ian Garey: --Thank you very much. The State law issue and the due process argument which I make in this Court was specifically, although again very tersely raised at the Superior Court level in the argument on the Section 995 Motion. That would be Reporter's transcript at page 16 where I pointed out that we are specifically not waiving Article I, Section 13, and that we are relying in part on the rationale that Article I, Section 28(d) which did away with the State's exclusionary rule, was violative of the principle in Mapp. That is the germ of the argument that I make at this point. It was made tersely and I will concede that it was made very tersely because the state of the law in California at the time this matter was going through the municipal Court, the Superior Court and the Court of Appeals, was stare decisis. Either analysis you took, stare decisis came up at the same point. As far as raising this in opposition to the petition for certiorari, a Federal question at this point seems to me to be raised on two different fronts. There is the Federal question that is posed to this Court relating to whether or not the trashcan search as indicated in this case or as based on the facts in this case violates the Fourth Amendment in the straight Fourth Amendment issue itself in the purest sense, and that is squarely presented to this Court. But there is another Federal question I think that is raised as well. The problem in California is not that the search under California law was lawful, because under California law the search was unlawful. The problem is by reason of the adoption of Article I, Section 28(d), California Courts are without power to cure or correct or remedy or deter, more appropriately, even an intentional and a willful violation of State Constitutional rights.
William H. Rehnquist: If we were to reverse this judgment here under the 1982 Amendment, the California Constitution provision on unreasonable seizure would be interpreted the same as we interpreted ours, would it not?
Michael Ian Garey: I'm sorry. Could the Court repeat the question.
William H. Rehnquist: Yes. Supposing we were to reverse here on Fourth Amendment grounds saying that search of trash does not require a warrant. Under your 1982 Amendment, wouldn't that also mean that the California cognizant provision was interpreted the same way?
Michael Ian Garey: No, actually it would not. And I would respectfully submit the real analysis that applied in that situation is that under California law, this search in this present case would be as illegal today as it was in say 1973 or 1980, but the problem is that exactly, just exactly.
Byron R. White: The evidence would come in anyway.
Michael Ian Garey: The evidence would come in.
Byron R. White: And the conviction would stand.
Michael Ian Garey: That is also correct.
Antonin Scalia: What about private suit, could there be a private suit against the person who conducted the search in violation of California law?
Michael Ian Garey: You mean like a civil damage suit?
Antonin Scalia: Yes, a civil damage suit.
Michael Ian Garey: The problem with that is exactly I think it is addressed in Mapp originally. Although Mapp doesn't--
Antonin Scalia: Oh, I understand you may not win it but the suit's available so we wouldn't have been making a dead letter of the California law.
Michael Ian Garey: --But as a matter of what rule this Court ought adopt under these very historically unique circumstances and I will address--
Antonin Scalia: But that's California's problem. I mean, at this point we're not talking about a Federal law anymore, we're talking about a California law. And if that is not... we will not have voided it completely and if California thinks it needs more teeth, California can give it more teeth.
Michael Ian Garey: --The problem is this. In adopting Mapp, this Court, even in view of the progeny of Mapp which has laid more and more stress on the deterrence rationale, even in view of that and perhaps even more because of that, the result so long as Mapp is viewed as good law and is constitutionally compelled through the due process clause, I think the question that need be posed is that of whether or not California or any State for that matter may define a right as fundamental or as inalienable and refuse any effective remedy or any effective enforcement for it. To say that there are civil suits possible is the same argument that was made in the interim period between Wolfe v. Colorado and Mapp v. Ohio. To the extent that Mapp is constitutionally compelled under the due process clause, the same analogy applies here. And it is one thing to say that it is a matter of California law, and indeed, it is a matter of California law determining the scope of the right of privacy as in California. But the question that it does not answer and does not even address the question of can California define that right as encompassing say a search like the one in the present case and yet have no effective means, have the Court completely stripped of its ability to use a deterrent effect, the analogy for Mapp in order to enforce its own constitutional provisions. And the answer is that if the State is in fact legitimately even in view of the Federal due process clause stripped of that ability, then what's left? And by the analysis in Mapp, what is left is that just as in this case, the State, the police are entitled to intentionally and deliberately and willfully violate the State Constitution and the State Supreme Court is absolutely powerless to do anything about it. If it were not that this raises the due process clause issue, then indeed the underpinnings of Mapp itself become questionable. This Court has historically not exercised a general supervisory power over State searches and seizures and so forth. The rationale behind Mapp is that it was compelled by the due process clause. That same due process clause I submit compels the conclusion that this Court use the due process clause to rule that California may not define a right as fundamental and inalienable and yet withhold the only thing that this Court has held for many many years at this point is an effect remedy or an effective deterrent. This case is in many many ways--
Antonin Scalia: I'm not sure I follow this argument. Mapp involved the violation of a Federal Constitutional right.
Michael Ian Garey: --Correct.
Antonin Scalia: Correct. And we said that the State courts would have to enforce that violation of a Federal Constitutional right by the exclusionary rule?
Michael Ian Garey: Absolutely.
Antonin Scalia: Now, you're saying that it follows from that that the State Courts also as a Federal Constitutional matter, must enforce the violation of any State Constitutional right by the exclusionary rule, and the Federal Courts have to do the same.
Michael Ian Garey: Essentially, yes, but with one qualifier.
Antonin Scalia: I don't see how the one follows from the other.
Michael Ian Garey: Well, if I may. First, with one qualifier, the qualifier would be limiting it to essentially fundamental rights which the State has already or will find to be fundamental substantial Constitutional rights bearing on the right of privacy. To the extent that Justice Scalia is questioning why is it that this follows from Mapp, it is not that the holding in Mapp which is indeed as the Justice just described it directed towards violation of Fourth Amendment Federal law and the Federal right of privacy, it is not that the holding directly applies. What I'm suggesting is the force, the dynamics behind Mapp and why it applies through the due process clause as opposed to through some non-existent supervisory power that this Court would have over the States in general applies to this situation equally. Because if you're saying that Mapp has to apply through the due process clause to enforce Fourth Amendment rights because that's the only way that you can insure that the State Police in essence will respect the Fourth Amendment right, what I'm saying is that that same due process command to use an exclusionary rule applies to make the State enforce its own law.
Antonin Scalia: It is our business to enforce the Federal law. It's not our business to enforce the State law.
Michael Ian Garey: In general, perhaps not. However, as recognized by this Court in Hewitt v. Helms and also Vitek v. Jones, there the due process clause recognizes rights that are created by Federal law and also those that are created under State law. And the question is whether or not the State law, the State Constitutional provisions create what is utilized and I'll use the phraseology that comes out of Vitek v. Jones, whether or not the State Constitutional provision has created a liberty interest in the citizen which the due process clause will prevent the State from arbitrarily taking away. And that is why it applies through the due process clause in such a fashion very similarly to the way, not identically to the way but very very similarly to the way that Mapp v. Ohio compelled State obedience to the Fourth Amendment. I think the way to underline why that is so necessary is that historical context of this very case. It has probably never happened, or at least to my knowledge, it has never happened in the history of this country since Mapp, that a State has developed a body of law which we will put under the general rubric of independent state grounds, that respects certain rights of privacy in its citizens, and thereafter have the State stripped of its ability to enforce that same right. ,-- If we need to see an example of why it is necessary that the due process clause be so applied, this case is exactly that case. Because for 15 or 16 years in California, Krivda held sway. It was stare decisis. So much was it stare decisis that at the appellate court level, the State conceded that it was stare decisis and that the Court of Appeals had no power to rule otherwise, at least on the Fourth Amendment aspect of the stare decisis issue. As soon as we have the advent of Article I, Section 28(d) there is what can only be described as a willful and deliberate violation of State Constitutional privilege as defined in the Krivda cases. Can it be said that the due process clause will not protect those rights of privacy where the due process clause will in fact protect the question of whether or not for instance a mental health patient is going to be involuntarily transferred to another institution, which would be like Vitek v. Jones, for instance.
Sandra Day O'Connor: Well, counsel, in open field searches, for example, where State law might make a trespass to come on to the open field or the premises, that hasn't determined the Federal law on whether evidence should be suppressed in a prosecution, has it? We haven't enforced the State trespass laws?
Michael Ian Garey: Well, that is correct. On the other hand, it has never come to pass as far as I know. And the argument I make now indeed is a novel one, and I could not find a case where anybody had raised precisely the issue that is raised here. And I think that's not because it is not a valid argument. It's because historically it has never occurred, the circumstance that we have here. And yes it is indeed true that this Court has made certain rulings on the question of open fields which are inconsistent with the rulings in California, both prior and subsequent to this Court's holding, I might add. The rule that I would suggest now would in fact operate I think and there is a concern on this subject, but it would in fact operate in such a way that if California as a matter of interpreting Article I, Section 13 and Article I, Section 1 says that an open field search is more restricted than this Court in its holdings has indicated then should this Court, should this Court impose on California the necessity of utilizing the exclusionary rule. I think the answer to that really comes from turning the question only slightly, and I mean very slightly. And the question is should this Court allow any State to define a right privacy as being inalienable or fundamental and be able to effectively take it away by not enforcing it, and by allowing its state officers to deliberately violate the State Constitution.
Sandra Day O'Connor: Why isn't that up to the State of California?
Michael Ian Garey: Because the State of California at this point is powerless, and it is powerless by reason of Article I, Section 23(d). They've lost their exclusionary rule. Because they've lost their exclusionary rule, they have lost the right or the ability--
William H. Rehnquist: They lost it because the people of California took it away from them. It's not an accident.
Michael Ian Garey: --I never suggested that it was an accident. The question is does it involve due process considerations.
Byron R. White: Your argument is that the 1982 amendment is unconstitutional?
Michael Ian Garey: As applied to this case, yes. Not in general.
Byron R. White: Or all cases like it?
Michael Ian Garey: All cases sufficiently like it where somebody couldn't come up with a good distinction, yes. There are a lot of different parts to Article I, Section 28(d). One of the arguments that was initially made to Article I, Section 28(d) is that it violated the single subject rule. How aware the voters were of this specific provision and how it would work is a matter of some speculation. Certainly some of the literature surrounding Proposition 8 before it was passed would have put people on notice. On the other hand, it was designated the Victims' Bill of Rights and it was not exactly designated, redefinition of Constitutional--
William H. Rehnquist: How aware do you think the voters of the United States were of the contents of the Fourteenth Amendment when they ratified it?
Michael Ian Garey: --Probably relatively little.
William H. Rehnquist: So what does your argument bear on?
Michael Ian Garey: It is only an answer to the question of the people of the State altered the rule.
William H. Rehnquist: Well, they did.
Michael Ian Garey: They did, and the net effect--
William H. Rehnquist: You answer the question when you say, yes.
Michael Ian Garey: --Very well, then the answer is, yes, but the question then still remains is can any State, whether through its electorate, through its legislature or through its executive branch take away a right that the State has granted.
Byron R. White: And then take it away?
Michael Ian Garey: Exactly, exactly. And I think I can focus this point fairly simply by pointing out this: had the people of the State of California done away with completely as in repealed Article I, Section 13 and Article I, Section 1, that would probably take the argument that I am dealing with now take it away completely and make it completely inapplicable. The problem is that they did not, and the problem is that what they did is, they left the right intact, the substantive right intact but took away any effective remedy. And that I think creates a due process issue where it might not otherwise be. And it is analogous to the situation where the State has no obligation whatsoever to have say parole but it does have an obligation to satisfy Federal due process in how it deals with parole. And so I think that the analogy is very tight and it is very tight especially if one views the rationale behind Mapp v. Ohio.
John Paul Stevens: But Mr. Garey, you're arguing mainly from procedural due process cases, Vitek v. Jones. I don't suppose you're arguing that the homeowner is entitled to a hearing before the garbage is searched are you?
Michael Ian Garey: No.
John Paul Stevens: No.
Michael Ian Garey: I'm not. However,--
Antonin Scalia: Why not. Wouldn't that satisfy me you're just talking about the due process clause here, and why wouldn't that be enough?
Michael Ian Garey: --Well, I think as a practical matter, a hearing before the garbage is searched, is that the question? All right, I think that would defeat the purpose of any search whatsoever, and I might indicate too, that it is not our suggestion and it is not my argument, either as a matter of Fourth Amendment law or as a matter of State law, that a trash search is illegal in every case. It is illegal when there is no probable cause and there is no warrant or there is no exigent circumstance excusing the use of a warrant. In this case the people eschewed at the trial court level any theory that they were going on probable cause or exigent circumstances, and so the question is squarely presented.
John Paul Stevens: May I ask you, are there some California cases that say that the trash search is all right provided, sort of like an automobile search, you have to have probable cause for it even though you don't have a warrant.
Michael Ian Garey: There is suggestion, and it's dicta, but there is suggestion in that, and indeed, that's a matter that the State Court can address itself to. And I suppose that in view of the political shift in California, there's always the question as to whether or not California will redefine the fundamental nature of privacy as it bears on cases like this one. That is a State court function. The due process clause I think becomes involved only to the extent that they continue to recognize the right but withhold the remedy. And I would, if I may, on the question of whether there's a distinction between substantive due process or procedural due process here, it is... and I realize that in cases like Vitek v. Jones, what's really being discussed is the procedures by which the right is taken away. But the shift in emphasis in this Court since Mapp in terms of what is the rationale for Mapp v. Ohio, and why is it necessary, it has put it in the rubric of a procedural necessity. It is not an integral part necessarily of the Fourth Amendment but it is a procedural necessity, without it, there's no way of enforcing the Fourth Amendment. And so we're talking about procedure in both senses. We're talking about the procedure by which the State takes away a right in the sense that it was used in Vitek v. Jones. We were also talking about the procedure by which the State either enforces or by not enforcing takes away the right of privacy in this case, too. And if there could be any question, can there be any question of the necessity for the deterrent effect of an exclusionary rule, I think the fact that we're here some many many years after the opinion in Krivda answers that fairly squarely. In terms of, and I'll return just briefly to the question that Justice O'Connor did pose, which is the raisability of this issue, as I'd indicated, essentially this argument was raised in the Superior Court without objection by the State whatsoever. The State did not request in their brief that this Court not address the merits of this, although there's a passing reference to the timing of the raising of this issue. The passing reference is not entirely accurate factually as the record would indicate, if one looks at Reporter's transcript, page 16. The issue is also purely one of law, and it is purely one of Federal law. And this Court clearly has the discretion under its own holding in Singleton v. Wolfe to entertain the merits of the issue. And I would urge the Court to do so, particularly since it presents a substantial issue of Constitutional principle. Now, if I may address briefly the question of the trash search itself, and I address it here not just a question of State law as we've been discussing for the last several minutes, but rather as either. Should it be included within the concept of a reasonable expectation of privacy. In part, the question I think can be posed why, as in why should this Court extend or apply... which I think is perhaps a better term... a reasonable expectation of privacy to opaque plastic trashbags placed out at the curbside for collection. The issue breaks down in my mind at least to almost a why and a why not, and it is almost the latter aspect of it which seems to be the most important, or at least it's the most revealing. On the primary question of why, it is fairly clear, and I think even the dissent in Rooney recognized that many people put all sorts of things that reveal their lifestyle that are secrets that are private in their trash. If you lay it out on the sidewalk not in an opaque bag so that anybody passing by can see it, I suppose there's no reasonable expectation of privacy. If it's put in an opaque container, especially under the circumstances involved in this case where it is to be picked up by the trash man, it is to be put in the trash truck and within seconds, and the record here I think demonstrates that, within seconds of it being picked up by the trashman, ordinarily the mixing part of the garbage truck would mix it in with all the other trash, and it would become essentially lost forever.
Antonin Scalia: You don't have any dogs in California? I don't know, you people just don't suffer from many of the problems that we suffer back in the east, apparently. We used to have dogs that used to get into those things.
Michael Ian Garey: We have dogs, and I suppose we have snoops and I suppose we have all sorts of private agencies that might interfere with somebody's otherwise reasonable expectation of privacy. I suppose--
Antonin Scalia: So you're pretty risky to leave something out on your curb in an opaque bag whether there are dogs around, anyway.
Michael Ian Garey: --It is an interesting fact that in this case, and really in any of the cases that I've read about including I think it's U.S. v. Terry where the DEA monitored somebody's trash off and on for a period of six months that at no time did the police in this case or the DEA in that case have to fight this horde of people that were standing around the man's trash in order to get at it. To talk about the mere possibility that a dog may get at somebody's trash or that the next door neighbor might come over and get at somebody's trash it seems to me avoids what is the real question here. What is the ordinary reasonable expectation of any normal ordinary citizen. The fact that there might occur a private intrusion... what I mean is a non-State action intrusion into the trash, whether it's by a dog or by a next door neighbor who wants to compile a dossier on their neighbor doesn't really answer the question. This Court, for instance, in Jacobsen and Walters drew a distinction between the private search and the State action type search that involves governmental intrusion. It seems to me that there would have been no occasion for this Court to have looked into the question of the scope of the governmental search in relation to the private search if it were not for the fact that the private search is not a Fourth Amendment issue, not because it's proper, not because it doesn't invade the reasonable expectation of privacy as to the householder, but because it involves no State action. And that's exactly why if you have the fact of a private search that invades somebody's privacy to the extent that the person's privacy has been breached by the perhaps unreasonable but not governmental private search, the Court will recognize that breach, but only to that extent and only within that scope. And I believe that it was Justice Scalia in your opinion in O'Connor v. Ortega where the Court defined the question of privacy not as a matter of absolute solitude but privacy. And so if you put your trash in opaque plastic bags out for collection reasonably knowing that what's going to happen is that it's going to be there for a half an hour, maybe an hour, the trash guy's going to come by, he's going to pick it up, put it in the trash truck, and the trash truck itself will chew up all the trash and stuff it in the back with everybody else's trash, the fact that there is some remote possibility that you don't have 100 percent certainty that your trash will not be looked into by someone, would not seem to have a really significant impact on that reasonable expectation.
Thurgood Marshall: Well, what happens if an ordinary citizen comes by and picks up your trash? Can you stop him?
Michael Ian Garey: Can you stop him?
Thurgood Marshall: Yes.
Michael Ian Garey: It seems to me that it's probably an invasion of your privacy.
Thurgood Marshall: My question didn't say privacy on any part of it. It says could you stop him.
Michael Ian Garey: I think that would depend on the law in the State in particular as to--
Thurgood Marshall: Could you stop him in California?
Michael Ian Garey: --I should think so.
Thurgood Marshall: On what basis?
Michael Ian Garey: On the basis that he's violating your right of privacy. Now, the question also, if I may, would seem to be could you stop him and how could you stop him.
William H. Rehnquist: I think you've answered the question, Mr. Garey. Your time has expired. We'll hear now from you, Mr. Pear, if you have any. You have 13 minutes remaining.
Michael J. Pear: If the Court has any questions, I'll be glad to respond. Otherwise, the State's prepared to submit.
John Paul Stevens: May I just ask one? What is the answer to Justice Marshall's question?
Michael J. Pear: On whether the person could be stopped?
John Paul Stevens: As a matter of... what's your view as a matter of California law?
Michael J. Pear: Would have no lawful authority to stop the person.
John Paul Stevens: He would not have any authority so that in California law, the neighbor can go in and look through the garbage?
Michael J. Pear: That's correct. In the People v. Grey case that I cited I believe in opening brief involves where the trash collector himself looks.
William H. Rehnquist: Thank you, Mr. Pear. The case is submitted.


William H. Rehnquist: Mr. Rubin, you may proceed whenever you are ready.
Asher Rubin: Thank you, Mr. Chief Justice and may it please the Court: This case involves the interpretation of two provisions of the Education for All Handicapped Children Act, the EHA. The first issue concerns the so-called "stay-put provision". That Section states, "During the pendency of any proceedings conducted pursuant to this Section, unless the state or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then-current educational placement of such child. " The Ninth Circuit has said that, "This operates as an automatic injunction in that it lists no exceptions. " The second issue involves a provision which, if I might paraphrase it, states that, "Where a local educational agency is unable or unwilling to provide services to handicapped children, the state itself must step in and provide those services directly. " The facts which gave rise to this case may be stated briefly. John Doe was released from a state mental hospital in the spring of 1980 and was enrolled in the San Francisco school district and an Individualized Education Program was designed for him, an IEP> ["], and he was placed in a special school. In October 1980, he got involved in an altercation with a child and attempted to choke a by-stander. No disciplinary action was taken at that time, although the principal and his aides tried to work with him. Shortly afterward, on November 6, 1980 a far more serious incident occurred. He got involved this time in an argument with a child over a basketball and he jumped on this child and choked him and strangled him to the point where this other child did suffer abrasions to his neck and pain--
William H. Rehnquist: Mr. Rubin, were these other children... were they handicapped also, or were they non-handicapped?
Asher Rubin: --They were handicapped children, Your Honor. This was a school for trainable mentally retarded children. He was in a class of about 12 children.
Sandra Day O'Connor: Mr. Rubin, both of the students involved in this case have now left the public schools system, is that correct?
Asher Rubin: I have a feeling I am going to hear about mootness here. Your Honor--
Sandra Day O'Connor: Well, I am just asking the present status of these students.
Asher Rubin: --Your Honor, the first student, John Doe, is over the age of 21. He is no longer in the school district. He is in a state mental hospital. The second student left the school system, actually in another town, in 1985. He is 20 years old and conceivably could re-enter the San Francisco school district.
Sandra Day O'Connor: May I ask, as long as you are interrupted, whether you raised the first question in your Cert Petition, the so-called "dangerousness exception" to the statute in the courts below?
Asher Rubin: Your Honor, we believe we did. We believe that it was not stressed at an early point. It was present in the case all the way along.
Sandra Day O'Connor: Well, can you refer me to anything specific so that I might satisfy myself that you indeed raised it below?
Asher Rubin: Your Honor, in terms... I personally did not raise it. It was raised by the Plaintiffs who raised it in all of their pleadings. It was adverted to by the district court and, of course, discussed in great detail by the Ninth Circuit. And it was this perception that the children were dangerous were reflected in many of the evidentiary documents which were submitted as Exhibits to the initial Complaint. So, in terms of our raising it, we really focused in on it when the Ninth Circuit made clear that this was an issue that they intended to treat at some length.
Antonin Scalia: Mr. Rubin, could you elaborate on your statement that the 20 year old conceivably could come back into the San... I mean, anybody in the country could conceivably could go to the San Francisco school district.
Asher Rubin: With respect to possible mootness, Your Honor, we think that this is capable of repetition yet evading review, although within the Murphy v. Hunt requirement that there be a "reasonable expectation", in that it will recur between these parties--
Antonin Scalia: Between these parties?
Asher Rubin: --I can make no representation. I believe that would be up to Respondents who represent him and know more of his circumstances. All that I can say is that I believe he is in San Francisco or in the San Francisco Bay area; he is 20 and that it is possible that he could... these children have been in and out of services provided by the San Francisco school district. It is possible, but I cannot represent to the Court that he will in fact return. As I said, perhaps Respondents might be able to shed some light on that. With respect to the factual situation concerning... let me return then to the factual situation concerning John Smith. After this incident in the classroom, he was pulled off the other child; he kicked out a plate glass window and was immediately suspended from school. Before any administrative actions could be taken, the instant action was filed in the district court. With respect to Jack Smith we have another factual history. He was involved in certain acts of misconduct--
William J. Brennan, Jr.: How old was he at the time?
Asher Rubin: --Your Honor, at the time of the incident, he was--
William J. Brennan, Jr.: John Doe?
Asher Rubin: --John Doe was, 17 years old, he was 6 feet tall and he weighed 195 pounds.
William J. Brennan, Jr.: And the other one?
Asher Rubin: The other one was 13 years old. Now, with respect to Jack Smith, the Intervenor, he had a series of acts of misconduct, and among those was... were, stealing and a more serious incident where he grabbed another child up by the neck, pulled him into a bathroom, asked him for his money, took his wallet and took all the money that the child had, some six dollars. So we have children here, presented by the facts here, who may reasonably be perceived to be "dangerous children". And the question is, what do you do with such dangerous children? When you suspend them, what do you do with them pending review proceedings? Of course, to resolve this, we have got to look at the intent of Congress.
John Paul Stevens: Before you get into that, just to refresh my recollection, before the lawsuit was filed, what was the posture of the matter? The first plaintiff had been suspended permanently or for three or four days, or what? Your Honor, he had initially been suspended for five days, but that suspension was extended by the school district with a view to referring him for possible exclusion or expulsion from the school district. Was the lawsuit filed not until after that had been done, is that correct?
Asher Rubin: It was filed before it could be done, before a hearing could be--
John Paul Stevens: Was it while the five... before the five-day suspension had expired?
Asher Rubin: --No, it was after that five-day suspension had--
John Paul Stevens: So by the time the lawsuit had been filed, he had been suspended indefinitely?
Asher Rubin: --On an extended suspension. Your Honor, that is correct, and I should add, Your Honor, the State Petitioner here is not in agreement with all the actions taken by the school district. We think they made some mistakes. And we want to quickly establish that this is not the procedural sequence that we believe should be followed in California.
Thurgood Marshall: Was this ever referred to the juvenile court?
Asher Rubin: I am sorry, Your Honor?
Thurgood Marshall: Was this ever referred to the juvenile court?
Asher Rubin: No, Your Honor, not to my knowledge.
Thurgood Marshall: Is there any reason why not?
Asher Rubin: I do not know why it was not.
Thurgood Marshall: Well, is kicking out a window a crime in California?
Asher Rubin: Your Honor, I believe initially they try to handle these things administratively. Kicking out a window I would think would be a punishable offense.
Thurgood Marshall: Well, if you kick one out would get into trouble... you would have trouble, would you not?
Asher Rubin: Well, hopefully, Your Honor, it would not be a manifestation of my handicap. If it were, I would seriously question whether--
Thurgood Marshall: The fact that he is handicapped does not immune him from criminal prosecution, does it not?
Asher Rubin: --Well, no, Your Honor, as a matter of fact, this is not in the Record, but later on in 1982, I believe it was, John Doe was involved in the criminal justice system and did go on to the state hospital. I think we have got to decide how to handle this case by looking at the intent of Congress. That, of course, is our most important guide. There is nothing specific in the legislative history which touches directly on what you do with dangerous children. But we do have some clues. We know, for example, that Congress was heavily influenced by the Mills case and the Parks case, two district court decisions. Now, what did Mills say? In Mills the court said something that we think is directly on point here: in Mills, the court said, "pending the hearing and in receipt of notification of the decision there shall be no change in the child's educational placement, unless the principal shall warrant that the continued presence of the child in his current program would endanger the physical well-being of himself or others. " "In such exceptional cases, the principal shall be responsible for ensuring that the child receive some form of educational assistance and/or diagnostic examinations during the interim period. " "Now that is in Mills. " A comparable statement was made--
Antonin Scalia: Mr. Rubin, with reference to that statement, is a "suspension" a "change in educational placement"? I mean, if I have a child in the 8th grade who is suspended for a week for some infraction, is he no longer in the 8th grade?
Asher Rubin: --The consensus seems to be that 10 days... the 9th Circuit said 20 days here... a suspension would in effect become a change in placement.
Antonin Scalia: What do you think? Ten days? Twenty days?
Asher Rubin: Well, a short suspension, during which you are trying to figure out what to do with the child, certainly would not be a change in placement, whether it is ten days or twenty days, I would have to say 20 days, I think, which the Ninth Circuit allowed us--
Sandra Day O'Connor: Mr. Rubin, I thought the Ninth Circuit referred to 30 days, not 20 days?
Asher Rubin: --Well, 30 is in a special case, Your Honor when it involves a transfer from one school from another.
Sandra Day O'Connor: Is there not some federal guideline that suggests 10 days is the limit?
Asher Rubin: There is, I believe, and--
Sandra Day O'Connor: So that would be the administrative agency interpretation placed on it by the federal agency?
Asher Rubin: --Yes. Your Honor, I think that the significance is that after a short period of suspension, whether it is ten days or whether it is 20 days, you have got to give that child some educational services, and if you consider it an interim placement, the point is that you... or he... we realize he is being deprived of educational services so long as he is out of school. And it is our position you do not abandon that child; you do not warehouse the child; you do not rid yourself of some troublesome problem. You give that child services during this period. And what we are saying is, the worst thing in the world is to put him back in that classroom where he just assaulted another child and where he is likely to repeat that conduct.
Sandra Day O'Connor: Well, there is a problem with the "stay-put provision", which does appear to indicate that Congress thought that a child should stay put, pending following the procedural provisions in the statute. Now, if we were to say somehow there was a "dangerousness" exception, a school district could certainly evade the procedural protections envisioned by the statute by labelling a child "dangerous".
Asher Rubin: Your Honor, first, I think we can look at this as not really... an exception to the statute. We think that it is implicit in the statute. This Court in Rowley, for example, said that, "Implicit in this statute was the notion that, when a handicapped child receives benefits, that there will be some substantial benefit to that education. " And the Court used the word "implicit" in the statute. We think "implicit" in this statute is the notion that Congress is saying, "We do not intend to strip away from school districts their traditional authority and responsibilities to guarantee the safety in the school.... "
Sandra Day O'Connor: Call it what you will, you want us to read something into the statute that is not expressly there, and that would appear at least on the face of it to read in an exception that would be at tension with the statute. The Solicitor-General makes quite a different proposal to us than yours. Do you want to comment on the Solicitor-General's approach?
Asher Rubin: Your Honor, I believe the Solicitor-General's approach, which I hesitate to characterize for him, is an alternative which... has some merit to it, that is, you can give the district court the ability to weigh these matters as ordinary injunctive matters and balance equities and irreparable injury, et cetera. That is a possible approach. But permit me, if you will, to precede to my second issue, which is the question of whether in an individual case, the state must provide direct services to a child? The Ninth Circuit says that, "where the local educational agency is unable or unwilling to provide services to one child, to any individual child, the state must step in and provide those services. " And we believe that is contrary to the language of the statute, which speaks in terms of "children residing in the area"; which talks about "programs". This is repeated in C.F.R. Section 300.360, where they talk about "children in the area served". We think that Congress meant this: Local school districts are on the front line. They give these services, and where you have children who can be served only in a regional center like a school for the deaf or a school for the blind, that is when the state steps in. Or where you have a small district that does not have a program in its district whatever for handicapped children. Or it is unwilling to set out a program for its district as a whole, then the state steps in. Otherwise you have got the complaint procedures in 1415, where the child or its representative, files the Complaint and goes through those procedures which are designed to protect him and gets the services to which he is entitled. And upon the completion of those procedures, 1 if it ever goes to a district court, the district court has a fully developed record and can make an intelligent choice. So, we think that in both these... on both these issues, we are implementing the intent of Congress. On the first issue it is implicit that Congress could not have meant to take form school authorities the responsibility to guarantee a safe classroom and a safe environment. And on the second issue, that the scheme is such that the state provides direct services only when a local district acts in the manner which we have indicated.
William H. Rehnquist: Thank you, Mr. Rubin. We will hear now from you, Mr. Nager.
Glen D. Nager: Thank you, Mr. Chief Justice, and may it please the Court: Primarily for the reasons stated by Petitioner, the United States agrees that the court below misconstrued the "stay-put" in the direct services provisions. Even if Petitioner is wrong, we submit that the answer can only be because the courts below erred on a remedy that they issued as relief for the asserted violations. This Court in Burlington said, "in devising a remedy for a violation of the EHA, a court should always keep in mind the principle overriding the objective of the EHA, which is the provision of free appropriate public education in the least-restrictive environment possible for all our nation's handicapped children. " The decision below deserves that congressional objective and does so in the following two senses: first, if school administrators are required to maintain the placement of a dangerous child pending administrative and judicial proceedings, the incentive in the initial IEP process will be for school administrators to resist the placement of any child who has a perceived risk of dangerousness in a mainstreamed environment. There are under this statute many children who have a risk of dangerousness. The question is whether or not they will act out those tendencies of dangerousness. We do not know until they are in the placement. If school administrators are told "you cannot take them out once they act on it. " they will not put them there in the first place, and many more children will be deprived of the benefits of this statute, the principal objective of the mainstream environment than would be the case if the "stay-put" exception were not so rigidly applied as it was by the Ninth Circuit as it was in this case. A similar point can be made with respect to the direct services provision. The child's IEP is determined on the local level. More often than not... indeed, in the principal number of cases, the least restrictive environment will be on the local level. If the local agency defaults, the appropriate remedy is to order the local education agency who did the IEP and has the direct services available, to provide them. The state acts in a supervisory capacity and should be held to order the local education agencies to provide those services, but the appropriate guns placed to the local educational agencies' head, not to the state agency's head. Let me move to each point in a little bit more detail: this Court has said on numerous occasions that equitable relief, such as injunctive relief and declaratory relief, should not issue as a matter of course. The Court has recognized that Congress can and sometimes does, restrict a court's equitable discretion, but it had said, given the history of equity practice, that the Court will not find the Congress has restricted the equitable jurisdiction of a court unless Congress says so in explicit words. And we submit that there are no such explicit words to be found in the EHA. Specifically we would refer the Court to 20 U.S.C. 1415(e)(2), which is the remedial provision of the statute. That is the section of the statute which says that "A court may order any appropriate relief. " This Court in Burlington said that is a broad grant of discretion to courts. And we submit that the "stay-put" provision was not intended and does not limit, the discretion with which a court may determine what is an appropriate remedy.
John Paul Stevens: Mr. Nager, do you have a position on what the appropriate relief in this case would have been?
Glen D. Nager: I can give a series of possibilities, Justice Stevens. An alternative placement would have been one which would have best simulated the placement that the child was currently in with the qualification that it would have reduced and/or eliminated the risk of dangerousness to other children or to the child. For example, a smaller classroom with closer supervision might have been appropriate as an interim remedy. 1 It may have been that only--
John Paul Stevens: Is it something that the district court should have ordered?
Glen D. Nager: --Yes. Yes, we believe that the appropriate procedure for the district courts, since this case we do believe was appropriately in the district court, would have been to ask the parties to submit proposals for alternative placements, and the district court should have reviewed those proposals and ordered the school district, assuming there was a violation of the "stay-put" provision, to put the child in the placement that most simulated the--
John Paul Stevens: Do you think there was a violation of the "stay-put" provision?
Glen D. Nager: --Well, our position is that there was not, because--
John Paul Stevens: Well, then there should have been no relief, I guess?
Glen D. Nager: --That is correct, although the state... the local education agency still would have had a continuing obligation under the EHA to provide--
John Paul Stevens: I am focusing on what the district judge should do when they come into a court in this kind of emergency. Your view is that they should have done nothing?
Glen D. Nager: --Because there was a basis for claiming that the children were dangerous here, it is correct that the district court, we did not believe, should have directed the local education agency as to which alternative placement would have been most appropriate. If this had not been a dangerous child, however, and the school had tried to change the placement of the child, we believe that there would have in fact been a violation of the "stay-put" provision and the district court should have awarded an appropriate placement would be, but more likely than not it would have been to order them to put the child back in the classroom.
Thurgood Marshall: Is there anything in the Record of expert information?
Glen D. Nager: No, and that is part of our point in this case, Justice Marshall. There was no expert testimony put in by the plaintiff when she--
Thurgood Marshall: On either side?
Glen D. Nager: --On either side, that is correct. We, just like the state, yes, we do. That is part of our point... just like the state, we do not believe that the local educational agency acted properly here. We believe that their actions frustrated the purposes of the EHA as much as the district court's ultimate remedy and the court of appeal's ultimate judgment. Our point is simply that, when you have a dangerous child, Congress did not remove the discretion of the federal courts to allow the school to safeguard the interests of the other children in the classroom, and certainly would not have intended that an equitable rule be issued such that in the future all school administrators within the jurisdiction of that court would resist ever placing the child who has any dangerous tendencies in an environment where the child might act out on those dangerous tendencies. Because the school district would have their arms tied behind their back.
Byron R. White: Is it your position then that the "stay-put" provision just is not violated when the school suspends a violent student?
Glen D. Nager: The short answer is "yes", Justice White. We do not believe that Congress--
Byron R. White: Whether it is for 30 days or 100 days or anything else?
Glen D. Nager: --No. They do not violate the "stay-put" provision by suspending. They would violate the EHA by not providing an appropriate placement... a continuing appropriate placement for that child. Now, if the Court were to determine, however that it was a violation of the EHA, then our argument which we presented in our brief would kick in and we would suggest that, nevertheless even thought there that violation would be a abuse of discretion for the district court to order the child to be placed back in the classroom if the child had a continuing risk of dangerousness.
Byron R. White: But I take it, then, that a district court in a case like this should say, "well, the" stay-put "provision is not violated by a suspension of a violent student, but I have got to make sure that the school is promptly taking care of this? "
Glen D. Nager: Yes. The qualification being that if the IEP process and the EHA review procedures because it is in that process where the correctness or the appropriateness of the procedure should be determined. However, if a court were to find that it was a violation of the EH... of the "stay-put" provision to suspend the dangerous child, then the court would have authority, because it would have a violation of the statute, to require the parties to bring in expert testimony, so it could determine as best it could what the best interim placement would be, because it would have authority to issue some remedial order.
Byron R. White: Why is this case not moot?
Glen D. Nager: The United States is inclined to believe that it is moot. The reason why I say "inclined", is because as amicus we really do not have access to the facts. It is clearly moot in ordinary mootness principles in the sense that this is a question about interim relief and the children ultimately went through the IEP process and had a final placement. But under... in terms of capable repetition yet evading review, there is no circumstance in which it could be capable of repetition.
Byron R. White: There were claims for damages, but they were rejected, I take it?
Glen D. Nager: Yes, the district court held that there was sovereign immunity for the state; there was a settlement with regard to the local school district with regard to damages; and the court of appeals found that there was qualified immunity for the state officials.
Byron R. White: But there was a settlement on damages, but was that contingent on liability or what?
Glen D. Nager: Not to my knowledge, Justice White. In the local education is--
Byron R. White: What do you mean, if the local... if the school authorities win this case like you think they should, are they just going to pay the damages?
Glen D. Nager: --I believe they have already been paid, but I am not privy to the information whether the monies have been forthcoming. The local education agency that made that settlement did not petition to this Court and is not a Party before the Court. The question of mootness would be with respect to the parties before the case. The only plaintiff who it could be capable of repetition yet evading review is Respondent Jack Smith, and Respondent Jack Smith is 20 years old and is no longer in the public school system, unless Respondent's counsel is going to represent to this Court that he intends to enter into the school system, we do not say it is capable of repetition yet capable of evading review. Thank you very much.
William H. Rehnquist: Thank you, Mr. Nager. We will now hear from you, Ms. Brogna. Ms. Brogna, did your clients file a cross-petition for Certiorari or not here?
Sheila L. Brogna: We did not, Your Honor. Mr. Chief Justice and may it please the Court: I will begin right to the beginning by saying in fact John Doe is 24 years old. He is in a state hospital. It may be possible under California law that has just come out within the last ten days that he remain eligible for education by the State Department in California. Nevertheless, Jack Smith is 20 years old. As I am sure you know, the EHA extends the right for education to handicapped children through the age of 22. Therefore, he still is eligible for education from the Unified School District, and certainly under the auspices of the State Department of Education. We suggest, therefore, that the case is not moot, although I cannot represent whether in fact either of these students will ask for further education from the Petitioners. I think, as young people, they both look to this decision to find out what will happen after that.
Antonin Scalia: That would not ordinarily be enough, would it, to meet our standards?
Sheila L. Brogna: It may not be, given the inclination of the Court to say that, while it is technically possible for a Petitioner to come within the circumstances again, if in fact it is not likely that they will, then the case could be moot. We suggest, however, caution in that area, because of the very unique nature of the EHA, there is, as this Court has recognized, a very involved administrative process which involves a series of informal meetings and administrative review at the state level. Levels of either and/or both, state and federal review. It is not, I think, a coincidence to see that the only two cases that have come to this Court on substantive issues of education under the EHA involve children who started the dispute when they were in kindergarten. The cases of Tatro and Rowley were both small children. In cases at least like this, where we are dealing with the interplay and discipline in education, it is not unreasonable to expect that the children will be somewhat older than that when the process starts against them.
Thurgood Marshall: What about sending it back and find out what they do want? We are not in a position to decide what they want. You do not know what they want. Why not sending back to the lower court to see if indeed if it is moot?
Sheila L. Brogna: Perhaps that would--
Thurgood Marshall: Would it not be moot if both of them said, "we are not interested in education? " Would it not be moot?
Sheila L. Brogna: --I do not believe it would because the gravamen of the injury here, Your Honor, was in fact the absence of a state policy and a practice of the state to sanction actions like the Unified School Districts in continuing to treat handicapped children under the regular discipline code.
Thurgood Marshall: Well, you do not have any person before us who wants that right enforced.
Sheila L. Brogna: Well, with due respect, Mr. Justice Marshall, that is not true.
Thurgood Marshall: Well, who wants it enforced?
Sheila L. Brogna: Jack Smith is within the age when he can continue to be educated. He has not--
Thurgood Marshall: Has he asked to be placed in an education?
Sheila L. Brogna: --He has not asked to go back to the Unified School District.
Thurgood Marshall: Then how is he asking?
Sheila L. Brogna: He remains eligible under the federal Act.
Thurgood Marshall: Is anybody that is eligible old enough to bring this suit?
Sheila L. Brogna: Well, they would have been at the time it started because San Francisco or the State of California did not allow any handicapped child who was disabled--
Thurgood Marshall: Well, at this stage, so far as I am concerned, I would be satisfied if he told you that he wanted this case decided. Did he?
Sheila L. Brogna: --Yes, he did, Your Honor.
Thurgood Marshall: He told you that?
Sheila L. Brogna: Yes.
Thurgood Marshall: That he wanted this case in this Court decided?
Sheila L. Brogna: Yes, Your Honor. As I understand, they are both--
Thurgood Marshall: Now that you understand--
Sheila L. Brogna: --I have spoken to both of my clients within the last two weeks. They both are aware that their cases are coming before this Court for consideration. As the Petitioner represented, John Doe is in a state hospital. He is still under the auspices of the state. He is entitled to education. Jack Smith is within the State of California. He lives in the Bay Area; he has not graduated from high school.
Thurgood Marshall: --Well, does he not need a committee or somebody to represent him? How is that done in California? Who represents an insane person? Who?
Sheila L. Brogna: Jack Smith has not been found insane.
Thurgood Marshall: I am not talking about Jack Smith; I am talking about the one that is in the insane asylum.
Sheila L. Brogna: He does not need... as a matter of fact, he does not need a guardian or a conservator, if that is what you are suggesting. He has not been conserved.
Sandra Day O'Connor: Is Respondent Smith living in the San Francisco school district now?
Sheila L. Brogna: He is not living in the school district, although his guardians still are. He lives in a small town about 20 miles outside of San Francisco.
Antonin Scalia: So, for this case to recur, we have to assume that Jack Smith is going to move back to San Francisco; that he is going to be placed by the San Francisco school district in a program that cannot handle violent children; and that this same episode will repeat itself. Not very likely.
Sheila L. Brogna: We have to see. Well, I do not know which part of it is not very likely.
Antonin Scalia: Either one.
Sheila L. Brogna: I think it is likely that he could ask for education because he in fact has not graduated, and it is his right; he is a handicapped student and needs some training.
Antonin Scalia: Fine. Let us assume that he asks for it and he asks for it in San Francisco. He would have to move back to San Francisco first, right? There are a lot of people living within 20 miles of San Francisco whom we do not expect to move there in the immediate future, right. But he comes back in. We also have to assume that the state is going to be foolish enough... or the city... is going to be foolish enough at this point to place this individual that had this record of violence that they are worried about, in a program that cannot cope with that kind of a student, and then go through the same routine that they go through here... suspend them and what-not. Is that really capable of repetition in the sense that we have said in our caselaw?
Sheila L. Brogna: Your Honor, I would like to believe that it is not. But I have the Petitioner here before this Court saying that, if they are given this judicially-created exception that they seek here, that that is exactly what they would like to do for handicapped students like Jack, so I--
Antonin Scalia: Put them in a program that they know cannot handle them? Petitioner is not saying that.
Sheila L. Brogna: --Well, the more difficult problem, Your Honor, is that they want to put them in a program that they unilaterally have selected, and that is the concern more than any other, we feel, that proposition violates congressional intent. Congress particularly enacted the EHA to include parental involvement in the planning for handicapped children. The bottom line problem with the well-meaning intentions of the Petitioner are that they want to be allowed to select the program for handicapped children themselves without the involvement of the parents; without the involvement of the other professionals.
William H. Rehnquist: Ms. Brogna, when you say "the bottom-line intent of the Petitioner. " the Petitioner here is the State superintendent, is that right?
Sheila L. Brogna: That is correct, Your Honor.
William H. Rehnquist: The San Francisco Unified Schools have never petitioned for Certiorari.
Sheila L. Brogna: They did not, Your Honor, that is correct.
William H. Rehnquist: So what then we are talking about here is really Jack Smith's possible relationship, not to the San Francisco Unified School District, but to the State of California and to the Superintendent of Education, are we not?
Sheila L. Brogna: That is correct. However, the EHA, we believe, makes very clear and in particular the regulation interpreting the statute at 34 C.F.R. 300.600 does very clearly state that the State Department of Education is the ultimately responsible agency for the education of handicapped children.
William H. Rehnquist: Yes, but what I am suggesting for the purposes of mootness, are the State of California is the one involved here. It is not really just the San Francisco Unified School District.
Sheila L. Brogna: Well, that is correct, and I certainly point--
Antonin Scalia: The Chief Justice is trying to help you, Ms. Brogna, and I think-- 0 [Mirth.]
Sheila L. Brogna: --We would point out that there are final Orders that would continue to be in effect against the School District; the injunctions do stand and have not been appealed. However, in fairness, given the amount of concern that this case has generated, I think you can see that many, many school districts that were not... would not be, under the Orders of the lower court would like to try to return to the pre-1975 days of unilaterally deciding where handicapped children should be placed.
Antonin Scalia: Ms. Brogna, the State of California has conceded, however, has it not, that the procedures employed here were in some respects not correct.
Sheila L. Brogna: Apparently they have.
Antonin Scalia: So again, even if the State is the only party, do you think there is a real likelihood that the same thing would occur in another school district in California?
Sheila L. Brogna: I submit I cannot predict what they would do. I certainly would hope not. We are of the opinion that the district court injunction is a well-reasoned injunction where she did balance the equities and determined that the balance of hardships tips in favor of keeping handicapped children in the current placement while the dispute is resolved. However, the vehement opposition that the district court's injunction has engendered leaves me unable to say that with surety. The fact that Petitioner now says they think that what the School District had done was wrong, is very heartening for us. However, I do want to point out to this Court that aside from all the conversations about what sorts of placement the child should be moved in, the facts of this case were very different. There was not a dispute about alternative placement going on. What happened in the San Francisco Unified School District and what was sanctioned by the California State Department of Education, was that these children were turned out of school; they were provided no alternative education, no tutors, no special programs. They were proposed to be excluded, out of any educational services. And were it not for the orders of the district court that is exactly what would have happened. So we need to look at the idea that Congress was aware of a history of discrimination of discrimination and exclusion on the part of handicapped children, and in fact, the exception that the school districts and the State Department of Education is asking for here could very easily result in that exclusion again-- The fact that this Court has recognized the genesis of the Act out of the cases of Mills and Park, as this Court observed, cases which arose from parents' concern about the exclusion of their children, did in fact have an exception for dangerous children, which the Petitioner referred to you. We feel it is tremendously significant that, when Congress adopted the due process procedures that had been outlined by the district courts, it specifically did not allow that exclusion at a principal's recommendation to be codified in a federal law.
William H. Rehnquist: Ms. Brogna, when you say, "it specifically did not", referring to Congress, are you suggesting that there is evidence that this proposal was made to Congress and Congress said, 'no, we do not want that in it? "Or that it just omitted it? "
Sheila L. Brogna: There is not a discussion about that in particular, although there are many, many references in the congressional history, Your Honor, to the fact that Congress reviewed the consent decrees in Mills and Park in quite detail, and provided all the other due process rights that had been written up and drawn together as the scheme in the Mills Court in particular, notice and opportunity for a hearing, the right to be accompanied by counsel; the right to have a transcript; the right to appeal into state or federal court... all of those due process procedures you will find in the consent decrees in Mills and Parks, and you will also find in 20 U.S.C. 1415. The only thing that you will not find is the exclusion at the principal's determination that child is dangerous. And we think when you read that in conjunction with the federal definition which appears with 1401, of who are "handicapped children", the inclusion by Congress of emotionally disturbed children leads, we believe extricable to the conclusion that the kind of behavior that is being so cavalierly characterized as "dangerous" here, was in fact behavior that was not unreasonably expected to occur by Congress. Congress did not leave school administrators helpless in the face of emotionally disturbed children.
William H. Rehnquist: Well, Ms. Brogna, you say "cavalierly characterized as "dangerous". " Are we to take it from that that you do not agree that this particular incident could be described as being "dangerous"?
Sheila L. Brogna: No, I want to--
William H. Rehnquist: "No", what?
Sheila L. Brogna: --I am not saying that it was not or could not, have been dangerous, Your Honor. What I am saying is, these children should not be labelled as "dangerous".
William H. Rehnquist: Despite the fact that they are?
Sheila L. Brogna: Well, I think, as perhaps Justice Scalia was suggesting, if appropriate programs and appropriate planning has been made for these children, the types of outbreaks of behavior that we had in this situation should not properly occur. There are many, many other methods that school administrators can use to keep the behavior of children under control.
Sandra Day O'Connor: Well, Ms. Brogna, we are dealing with situations that are not always predictable and human beings do not always operate with perfection, as we know. But if a case such as this is properly before a district court, do you not agree that the district court, if it is asked for injunctive relief, should make the kind of balancing traditionally made by courts in granting an injunction, as suggested by the Solicitor-General? Is that not proper?
Sheila L. Brogna: It is absolutely proper. We have no argument with that.
Sandra Day O'Connor: Did the district court make that kind of a balancing inquiry here, do you think?
Sheila L. Brogna: Yes, she did, Your Honor. You will find it in the Appendix at pages 64 through 66. And again, at I believe 263, in both the issuance of the preliminary and the later issuance of the permanent, injunction. The argument that we see with the Solicitor-General's position is that (e)(3) is not and does not and was never intended and has not been interpreted, to act as an automatic injunction on the district courts. It is, however, intended to act in the nature of an injunction on unilateral action by the school officials. It addresses itself to the parties in the dispute. There is no question under 1415(e)(2), as well as under traditional notions of judicial power that a district court could balance the equities, could take the facts before it, and could, by judicial Order, change the placement pending the determination of an ultimate proceeding. We have never argued with that.
Thurgood Marshall: Had you ever presented the court a plan that would take care of the situation?
Sheila L. Brogna: Certainly, Your Honor, and in fact you will notice at--
Thurgood Marshall: Did you... a plan? I did not see where there is a plan.
Sheila L. Brogna: --Yes, Your Honor, at page... I believe it is in the Appendix at page 64, when the district court is talking about "balancing the interests", she remarked about the fact that "plaintiff himself came forward #"--
Thurgood Marshall: I want to know what is the plan to handle a kid that has a habit of choking other people?
Sheila L. Brogna: --There are many other plans. In fact, with Doe, the Plaintiff--
Thurgood Marshall: Like what?
Sheila L. Brogna: --He was returned to his classroom and in this case, under court Order, with an aide in the classroom and it is important to note that he finished the school year without incident. There are other ways to deal with--
Thurgood Marshall: What plan was used to prevent him from choking people?
Sheila L. Brogna: --He cooperated with his psychiatrist and with the school officials. There was the addition of an aide in the classroom. There was some understanding, I hope, in the classroom teacher, of the frustration. But, in fact, there were no other incidents. This may have been solely an isolated incident.
Antonin Scalia: Ms. Brogna, may I ask you about the government's proposal which you accepted here, do you think it is correct that the district court has discretion despite the language of the statute to use some other placement if that is more appropriate? That seems like a very nice resolution in this case, but if you allow that to happen, you are saying that, "even though the School District violated the law, the remedy for that violation cannot be putting him back in the same classroom, right? " "The district court may give a different remedy? "
Sheila L. Brogna: I would say, the district court, having viewed the particular circumstances of a case before it, Your Honor.
Antonin Scalia: Right, but the next suit, in the next suit, it will have been established that the school district and its officials violated the law by taking him out of that particular placement. And those individuals will then be subject to civil liabilities, will they not, if they take him out of that placement? And merely using the injunctive powers of the court does not solve that problem, so you are ultimately going to end up with an interpretation of the statute that prohibits the school district from removing him from that placement, even if he is dangerous.
Sheila L. Brogna: Prior to receiving a court Order or reaching agreement of the parents, I agree with you.
Antonin Scalia: So, in the future, although in this one case, the injunctive powers of the court would solve the problem, it will not solve the problem in the future, because we are going to be imposing civil liability on people who take the "dangerous student" out, if you will accept that characterization, out of this particular placement.
Sheila L. Brogna: Your Honor, with respect, I believe that Congress has already made that determination. Congress has said, "students shall remain in mandatory and very clear language. "
Antonin Scalia: I agree with you, but let us just be clear what we are saying, if we say that only the injunction... only the injunction remedy exists.
Sheila L. Brogna: Yes, we think that the statutory scheme is set up so that, for example, when a child acts out in the classroom, the school districts may immediately suspend him. California currently... you are allowed an immediate suspension of up to five days. And in some cases longer. During those five days we suggested that the school administrators should be looking at what adaptations or program changes seem to be necessitated by the behavior, if any. They have that time to work on the addition of related services, corrective services, behavior modification techniques... any other teaching methods which may be brought to bear on the behavior.
Byron R. White: Is that because suspension is not a change in placement? Is that it?
Sheila L. Brogna: That is correct, Your Honor, and it was never in dispute. The short-term--
Byron R. White: Why would it... a 100-day suspension be a change?
Sheila L. Brogna: --Well, as Justice O'Connor observed, there is a regulatory ruling that suspensions of more than five... ten, days probably--
Byron R. White: We are construing a statute here. You are saying that a suspension under the statute is not a change in placement and does not violate the "stay-put' rule".
Sheila L. Brogna: --That is correct in the interpretation that comes from the comments that interpret the language of 1415 that talks about change of placement. It is clear that Congress did not want to completely bind the hands of school officials and what they have done in the comments--
Byron R. White: How do you pick out five days or 30 or 40 or 50?
Sheila L. Brogna: We pick out five days from California State provision for suspension; we pick out ten days from this Court's ruling in Goss v. Lopez and the interpretations by the United States Department of Education. We think anything beyond that will rise to a level of a change in placement.
Byron R. White: And that is just because of the... you are just saying--
Sheila L. Brogna: --It is a juxtaposition of the state and federal--
Byron R. White: --Despite the language of the statute, suspensions may be put into effect and the child excluded from school--
Sheila L. Brogna: --Well, Your Honor, you will see that--
Byron R. White: --for a length of time without violating the "stay-put" position?
Sheila L. Brogna: --You will see the comment at--
Byron R. White: Is that not right? That is your--
Sheila L. Brogna: --There is no language in the statute that talks about suspension, you are correct. There is, however, a comment at 300.513 that says, "the intent of 1415(e)(3), the. " stay-put "provision, is that while a placement may not be changed, the school district may use its normal procedures for dealing with a disruptive child. " We submit that, under state law, the normal procedure is the short-term, five-day suspension.
William H. Rehnquist: --Who is that comment by?
Sheila L. Brogna: It is by the... well, it was issued by the Department of Health, Education and Welfare, prior to the change in the Administration. But it is an officially-published comment to the regulations issued in 1978.
Sandra Day O'Connor: Ms. Brogna, if your position is correct on the statute and that there is no authority for the school district to make any exception for a dangerous child, other than the five-day suspension in California, will not the inevitable effect be that a school would want to place such a child in the most restrictive environment at the outset, rather than run the risk that it otherwise would, that it couldn't change the placement if the child acts out?
Sheila L. Brogna: Well, Justice O'Connor, we would certainly hope not, because one of the main purposes of the Education for the Handicapped Act was to mainstream these children and have them educated with non-handicapped to the maximum extent possible, so that--
Sandra Day O'Connor: Yes, but if you are going to be held liable... if you make a misjudgment in the placement, then it seems to me it is human nature that would cause the school to be very conservative in making the placements in the first instance, so I think the result you may get could be one you would not want.
Sheila L. Brogna: --It could be. We would suggest that the Act has been very expansive in providing funding and the impetus for training personnel for innovative teaching techniques for looking at related services and all sorts of alternative educational programs to deal with and address the handicaps of these children. One would hope that they would not take the sort of low risk alternative of simply returning to the 1975s, where as this Court recognized, handicapped children were simply warehoused, or segregated in separate programs.
Antonin Scalia: Well, it is not that they cannot get them out of the program. They can get them out of the program but only with the consent of the parent--
Sheila L. Brogna: That is, of course, always the problem.
Antonin Scalia: --And one would assume that the parent would not want to leave them in a program where he is likely to choke somebody.
Sheila L. Brogna: That is an assumption we have always made also, but it is predicated upon the school district offering in good faith a reasonable alternative. Again, I have to remind the Court that, in this case, no such alternative was offered to the Plaintiffs. In fact, no discussion of related services, no discussion of alternative programs was ever proposed, and we suggest that makes the difference. In viewing the comprehensive nature of this statute, I would finish by saying that the court's Order under the direction of 1414(d) that, in some circumstances, the State Department of Education would be held responsible for provision services to a handicapped child directly is in keeping with this comprehensive nature and purpose of the statute, that above and beyond all else, handicapped children should receive an education. We submit that 1414(d) does contemplate a situation exactly like what happened in 1980 in San Francisco when you have a local school district unwilling to follow the law; unwilling to maintain a handicapped student in the current placement; unwilling to abide by the provisions of (e)(3)... we believe it was correct for the district court to say that in circumstances such as that, the State Department as the ultimately responsible agency, must step in, provide education to that handicapped child in the interim, to ensure that, regardless of which agency is ultimately responsible, the child, at least, does not suffer a lack of education while the dispute is being resolved. Thank you.
William H. Rehnquist: Thank you, Ms. Brogna. Mr. Rubin, you have two minutes remaining.
Asher Rubin: Your Honor, Respondent in answering a question from Justice Marshall, indicated that it was significant that when an aid was placed in a classroom with John Doe, there were no further incidents during the year. That is not correct. At Docket No. 84, there is a document which states "there has been one violent incident involving other students in the TMR school since the instructional aide began. " So there was an incident even after the aide was put in there. With respect to Justice O'Connor--
Antonin Scalia: With an emotionally disturbed child, I mean, one expects that that is occasionally the problem. Was it an incident that reached the point of real danger to another that the previous incidents have?
Asher Rubin: --Your Honor, all we have in the Record is that it was a "violent incident". However, we do have this: No. 137, "he was enrolled in a more restrictive placement called. " Challenged Learning. "He barricaded himself in a room; he came out; he knocked out three windows; he attacked a teacher. " This is not just disruptive conduct which we ordinarily will expect from handicapped children. This is violent, dangerous conduct. That is all in the Record. Justice O'Connor asked about what... whether the district court did balance the equities and did undertake to do that. We think that the district court did not do so. She made certain conclusionary statements having to do with irreparable injury, stating that it was... irreparable injury had been shown by the Complaint and the Exhibits. We do not think that that is the kind of balancing that must be undertaken in a finding for an injunction.
John Paul Stevens: Well, but her language... sentences, considering, after going on both sides of all of these factors, the court finds that the balance of these hardships in the public interest way in favor of allowing Plaintiff in there. Is that not the way you end up a balancing--
Asher Rubin: Yes, Your Honor, but it was not based on the presentation of the evidence before the court or on trial.
John Paul Stevens: --of dangerousness because apparently it was not argued.
Asher Rubin: Well, Your Honor, I would simply say that that is a conclusionary finding by the court not based on evidence. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Rubin. The case is submitted.