Warren E. Burger: We'll hear arguments next in H. L. and Others against Matheson, the Governor of Utah. Mr. Dolowitz, I think you may proceed when you are ready.
David S. Dolowitz: Mr. Chief Justice, and may it please the Court: The question before the Court today involves the validity of a Utah statute which provides that before an abortion may be provided to a minor, her parents must be notified if it is physically possible to do so. The facts of the case involved a 15-year-old minor who determined she was in the first trimester of an undesired pregnancy, spoke with her social worker, determined that she should terminate that pregnancy. She determined further that her parents should not be involved, then consulted her treating physician--
Potter Stewart: The... now, who's "she"? The social worker?
David S. Dolowitz: --No. At this point the woman herself contacted the doctor and the doctor also had a social worker working with him. They consulted with her, determined with the social workers, the physicians, that her parents should not be notified.
Potter Stewart: Now, who made that determination?
David S. Dolowitz: That determination was made, Mr. Justice Stewart, by the woman, the doctor, and the social worker.
Potter Stewart: By H. L..
David S. Dolowitz: All of them felt that the parents should not be involved.
William H. Rehnquist: Where in the record, counsel, is the finding or testimony that the doctor felt the parents should not be consulted?
David S. Dolowitz: That is in the complaint, and that was part of her testimony when she testified.
William H. Rehnquist: Could you cite the pages?
David S. Dolowitz: I can only refer the Court to the transcript of--
William H. Rehnquist: I read the transcript. The physician felt he could not do it without consulting the parents. But I didn't read the transcript to find any place that he felt it was in her best interest that the parents not be consulted. Wasn't it a matter of notice to the parents rather than consulting the parents?
David S. Dolowitz: --Yes, it was. Well, it is a matter of notice rather than consultation and if I said Mr. Justice Rehnquist. It's a question of that they should not be given notice of it.
William H. Rehnquist: Now, where in the transcript or findings do you find anything that the physician thought it was contrary to her best medical interest that her parents not be notified?
David S. Dolowitz: That's what he told her as--
William H. Rehnquist: Where in what we have before us?
David S. Dolowitz: --I believe that is in her testimony. I was looking at it. It is definitely testified by her that her counselor... and I am looking in the pages 24 through 26--
Warren E. Burger: Appendix?
David S. Dolowitz: --of the appendix, Mr. Chief Justice. And she said that she should go ahead without notifying--
William H. Rehnquist: Could you give us the verbatim?
David S. Dolowitz: --I am looking now at her testimony and I am going down page 25: "Question: You consulted with a counselor that you were pregnant, or about the pregnancy? " And then it goes on to say, "You were living at home".
Thurgood Marshall: Mr. Dolowitz, is that you testifying or the--
David S. Dolowitz: Oh, I'm asking the questions that she is answering; right.
Thurgood Marshall: --Well, all she says is "yes".
David S. Dolowitz: That's correct, Your Honor, and if I may say so, I led her through this very carefully and the reason that I did that is, she had a highly unique fact situation, and as you read through the appendix you saw that this examination took place after the Court had already denied a preliminary injunction and had ruled that the peculiar facts of her circumstances made no difference. It was... the only question, under the Utah statute, the trial judge felt, was whether it was physically possible to notify her. Because then, Mr. Justice Rehnquist, after this, you see there's about ten pages of colloquy between the court and--
William H. Rehnquist: Do you think that any of what you have read from the testimony so far supports a finding that her doctor told her that it was in her... not in her best medical interests to get an abortion?
David S. Dolowitz: --In terms of the record, it does not. Now, what happened there is I forgot to ask her that question.
William H. Rehnquist: Well, in your--
David S. Dolowitz: I had spoken with the doctor myself and the doctor told her that and I talked to her.
Potter Stewart: --In your statement of the case, in your brief, Mr. Dolowitz, you say, "In consultation with both her physician and social worker, she determined that it was in her best medical interest that she be aborted and that her parents not be notified of either her decision or its implementation. "
David S. Dolowitz: I do, sir, and that is the finding.
Potter Stewart: And that's a fair paraphrase of what you read us, isn't it?
David S. Dolowitz: Yes, it is, Mr. Justice Stewart. That is the finding of the court, of the trial court.
William H. Rehnquist: But it is not a finding that the doctor told her it was against her best interest?
David S. Dolowitz: It is not a... it is a finding, I believe, and I at this point would have to refer the trial court... or this Court, Your Honor, to the specific findings, conclusions of law and in the findings that I'm referring to I am looking at page 40, Finding 7, of the Findings of Fact, page 40 of the appendix, where the trial court made the determination that she should be aborted and that he felt... that's the doctor... that it was not in her best medical interest to do... or was in her best medical interest to do so, but could not and would not perform an abortion on her without informing her parents prior to aborting her because of the statute.
Warren E. Burger: Mr. Dolowitz, you have emphasized in your oral argument... you have spent quite a bit of time on it, and our questions, and you did in the examination, direct examination of your witness, the importance, you have emphasized the importance of getting counsel and advice and assistance, lawyers, social workers, doctors. And you rest on the fact that she had the advice and counsel of all these people?
David S. Dolowitz: Yes, Mr. Justice.
Warren E. Burger: What if she has the advice of no one? Just walked in off the street and said, I want to have an abortion, and the doctor said, not unless I notify the parents. No other factors. Would this be any different from the points that you have got here?
David S. Dolowitz: Factually it would, Your Honor.
Warren E. Burger: And factually, would it be--
David S. Dolowitz: It would. But legally, in terms of the position I'm taking today, I am speculating... I would say, no. And the reason that I would--
Warren E. Burger: --You don't need to speculate on that, do you?
David S. Dolowitz: --What?
Warren E. Burger: You don't need to speculate on the Constitutional question, do you?
David S. Dolowitz: No. I would say--
Warren E. Burger: It would make no difference, would it?
David S. Dolowitz: --No. If she has the right of privacy, to go ahead on her own, then she has that right.
Warren E. Burger: Now, she's 15 years old, isn't she?
David S. Dolowitz: That's correct.
Warren E. Burger: Suppose she were 12? Same?
David S. Dolowitz: I would... the problem, Your Honor, is I've... then I move to speculation and I move to it in a very difficult area, and that is the level of maturity is such that as a 12-year-old she could be very mature, totally immature; though we're leaving something out, and that is that she is talking to a doctor and says, I want an abortion. But you're leaving out that the state has already said, who is going to practice medicine and what are reasonable standards? And the physician is going to say, I have a right to make a decision whether it's in your best medical interest and I'm not going to take an action which is in opposition to your best medical interest. And if the 12-year-old that you have asked me about the doctor feels cannot rationally make that decision in her own best interest, he--
Warren E. Burger: What about ten years of age?
David S. Dolowitz: --I would give you the same answer. I think that you're dealing with a doctor patient decision where the doctor who the state has said is licensed to practice medicine should be able to deal with his patient, and a minor, and deal without the outside influences; talk to that patient and say, at the end of that discussion, I'm not going to do this without your parents, I'm going to do this with your parents.
Warren E. Burger: In Utah, under Utah law, if she had walked in, a girl of 10, 11, 12, 15, whatever, and said, I want my tonsils taken out but my parents won't send me to a doctor and won't agree to it, would the doctor be legally permitted to perform the tonsillectomy?
David S. Dolowitz: There is no law that prohibits it, but I believe that most physicians would not do it. But there is--
Warren E. Burger: Because of the possibility of a malpractice suit, among other things, I suppose.
David S. Dolowitz: --There is a difference, though, and that is the decision of this Court in Danforth and Bellotti II, and a statute of the State of Utah which states that a minor of any age can consent to any treatment regarding pregnancy.
Harry A. Blackmun: Mr. Dolowitz, would you straighten me out? I want to be sure about this. On page 25 of the appendix... do you have it in front of you?
David S. Dolowitz: Yes, Mr. Justice Blackmun.
Harry A. Blackmun: Down just below the middle there is a question: "After talking the matter over with a counselor, the counselor concurred in your decision that your parents should be notified. " is what it says. Now, when you read it, you put a "not" in there. Should the "not" be in there?
David S. Dolowitz: It should have been, because if it wasn't, then I misspoke it at the time. Because it was very clear, all the way through, from the time that she came in, that she had spoken to her counselor, she had spoken to her counselors and her physician before she came to me, and that they all felt that this was a very unique situation and she should not, her parents simply shouldn't be notified.
Harry A. Blackmun: Well, all I want to know is, whether you and opposing counsel agree that this is an error in the printing of the transcript, that the "not" is in there?
Paul M. Tinker: Yes. I agree, Mr. Justice Blackmun.
David S. Dolowitz: Now, Your Honor, what we are dealing with... as you can see; and I realize from your questions, Mr. Chief Justice, that you're very concerned about the age of the woman involved. The problem is that I think that Utah has overstepped in doing that by saying that a parent must be notified in every case. Because just as I answered to you that the physician must be involved in making that decision--
Warren E. Burger: Then are you saying that it might, the statute might be constitutional if it fixed the limit at age 12 or 14?
David S. Dolowitz: --No, Your Honor, I would not. I would say it would be unconstitutional if it did that. But if it said that the physician... if the words "if possible"... and this, in fact, is I urged the Utah... on the construction I urged on the Utah Supreme Court... the language, if possible, should be construed to mean, "if medically appropriate", that, if the doctor in consultation with his patient feels that the parents should be notified, consulted, brought in, however that's to be phrased, that would be a rational statute, because it would be reasonable, it could be done.
Warren E. Burger: But could it not also, could that phrase not also be intended to take into account a child who had been abandoned by her parents, didn't know where her parents were, her parents impossible to reach, that sort of thing?
David S. Dolowitz: Yes, and that--
Warren E. Burger: Isn't that what the statute is aimed at?
David S. Dolowitz: --Your Honor, the answer I'm going to say is that that might have been the intention and they added... the Utah Supreme Court said, if possible, within a rational time. And the problem is, that makes it very vague, as to precisely what it means. And the problem than then comes from that is, if you say, well, you know, if physically possible, like if they're on a trip, if they're somewhere else. You still have the same problem. But what happens if they're on the trip? But you have a social worker or a doctor who knows that family and says, gee, I'm glad they're on that trip; it is best not to notify them. So what happens when they're in town and he still feels it's best not to notify them? I can explain the reasons why that is good. I think Mr. Justice Powell in the Bellotti II decision did a very careful description of the reasons why a parent should not be notified. I think there's a tendency to mix up the concept of notification and consultation, assuming that if you notify the parents you're going to bring them into consultation. But that isn't always true, that you bring parents in, and frequently you bring them in, and have the result that that will cause more trouble, if it's an abusive parent. If it's a parent who for a religious reason doesn't agree, they will impose their values on a child. Now, on that case, this is the problem with the statute: instead of being able to respond to the very particularized questions you asked me, Mr. Chief Justice, this is a broad, it's an all inclusive statute. It disregarded the concerns that this Court has stated, that in this area a statute that's drawn should be drawn very narrowly, and very carefully, and consider the interests of the minor. Because you asked me about a 10-year-old, a 12-year-old. That's not what I'm talking about. Those are some of the circumstances. But Utah doesn't take any consideration into that. H. L.... you asked me when we started about a lot of the facts in this case. There is also another case that was filed between the decision of the Utah Supreme Court and the granting or taking of jurisdiction by this Court in this case. It was filed in the United States District Court for the District of Utah. In that case four women have been granted injunctions and allowed to obtain abortions by the determination of the trial judge in that case that they were mature minors, handling their own affairs... one of them had another child... who, on their own, could make the decision, and in fact it would be detrimental to them to have their parents notified.
Potter Stewart: Those four plaintiffs were all emancipated were they not? Not living with the parents?
David S. Dolowitz: Three of the four were; one was still living at home. And I've lodged the papers with the Clerk's Office if the Court wishes to pursue that so that, the findings, the conclusions, the orders, in each of those four cases... the first one is included as an appendix to my brief. The other three I've lodged with the Clerk's Office. Now, in each of those cases, they were mature minors and it was, and the trial judge, Judge Jenkins, determined that it would be detrimental to the parent child relationship to notify the parents, in some cases because there'd been a split. That's why the child had left; things were getting better. That would be broken out. These are just illustrations as to the overbreadth of the statute. Then there's a second set of problems that come up, and that is the doctor patient relationship has been invaded by this statute.
John Paul Stevens: Mr. Dolowitz, before you leave those other cases, I don't understand their relevance to the issue presented by this case.
David S. Dolowitz: The relevance, Mr. Justice Stevens, tends to come from the observations of Mr. Justice Powell in the second Bellotti decision, and that is that as applied to two... I will call them categories of minors--
John Paul Stevens: Well, let's say that the statute is unconstitutional as applied to a lot of people who are not before the Court. Assume that. How does that help you in this case?
David S. Dolowitz: --In this case we're dealing with a subgroup of a minor where the determination had been made by the social worker and the physician that it was not in her best interest, and the trial court--
John Paul Stevens: I thought you just agreed with Mr. Justice Rehnquist that there was no such determination, the child so determined after consultation with the doctor and the social worker?
David S. Dolowitz: --If I said that, then that was not what I meant. I think the determination was made by the social workers, by the doctor, by the woman.
William H. Rehnquist: You don't suggest anything that you read from the transcript said the doctor said it was not in her best interest to notify the parents?
David S. Dolowitz: Nothing that I read said that, and that means that when I asked the questions in the trial, I stopped one question too soon, because--
William H. Rehnquist: We review questions or cases on transcripts, not on unasked questions.
David S. Dolowitz: --Well, I realize that, Mr. Justice Rehnquist, and one of the problems that was going on in this case was that from the prior determination of the trial judge that the only question that he considered important is, was it physically possible to locate the parents, meant that I was conducting that hearing with her to simply show that the facts alleged in the complaint were in fact correct. And then, when we got into the questions, as you see, Mr. McCarthy asked her the question of, you know, do you feel you can't discuss this with your parents? And she said, "Right". And he said, do you feel you can't discuss other problems with your parents? And she said "Right". And he said, what other problems? And at that point I objected. We went from there around to the question that if the only issue, as far as the Utah trial court was concerned, was was it in her best interest, or was... I'm sorry, I misspoke that. Was it possible to physically locate her parents?
Warren E. Burger: Nothing in the record about that here. Have you got something in the record about giving notice?
David S. Dolowitz: I have that she did not want to give notice to her parents.
Warren E. Burger: Well... no, no, the possibility, the capability, the feasibility of writing a letter to the parents.
David S. Dolowitz: I believe... okay; no. But there was no question in terms of my representations to the judge, the discussion as far as Mr. Tinker and Mr. McCarthy were concerned whether she could physically, her parents, could be located. And I believe Mr. McCarthy asked her those questions and she responded that they could, that she went... again, I think we're going on just past that, where Mr. McCarthy is asking the questions. He said, "Are you still living at home? " "Are you dependent on your parents? " Now, again, this may be an error. I may have been too protective of her in the trial. But there is no question that her parents could have been readily notified.
Warren E. Burger: Had the doctor written a letter simply stating the simple, direct fact that, your daughter has come to me to have an abortion performed and I'm prepared to do it, and under the statute I'm giving you notice that I will proceed with this procedure seven days from today, would he have complied with the statute?
David S. Dolowitz: Yes, But she--
Warren E. Burger: I'm not sure you've answered my earlier question about whether it affects your case one way or the other... it would affect it one way or the other, if there had been no consultation with anyone. The girl, 10, 12, 14, 15, walked in off the street and said, I want the abortion, and the doctor said, all right, I'll give the notice, or, I won't give the notice. Is the counseling of any relevance here to a constitutional question?
David S. Dolowitz: --I believe it is not. Now, I... when I answer that, Mr. Chief Justice, I answer that knowing that a number of the members of this Court have expressed themselves in these opinions that you believe that it is, it's a wise policy to encourage the family and to some way get the families together so that that counseling occurs, so that... I say that with some degree of trepidation when I say, no, but I say it with the knowledge that when she is initially going to someone who the State of Utah has licensed as a physician, and said that, to this regard, you have to counsel. So, in this they weren't saying that there may not be mandatory counseling, in that sense. But you're asking me, does the fact that she had that counseling make it any different than if she had just walked in to the doctor and to the constitutional issue, I say, no, because this state mandates, this statute mandates that in all cases. But I say that with the knowledge that you have, that at least a number of the members of this Court feel that there should be some counseling. And I say that it in fact exists because the physicians provide it. And a physician is not in a position where he is going to simply go ahead and perform it without, that type of counseling without knowing that, if you want to call it this way, his license is at risk, his malpractice insurance is at risk, if he commits a malpractice or a violation of a licensing statute. And in fact, that same protection is insidiously, I feel, undermined in this case because it moves in and if a doctor is in a situation where the minor who comes in and they sit down, no counselor, no social workers at all, and the counseling takes place one to one and the doctor says, you should be aborted, your parents should not be notified, in my best medical judgment, but I can't do it because of this statute.
William J. Brennan, Jr.: Well, Mr. Dolowitz, I think you referred us to this Finding 7, didn't you, at page 40?
David S. Dolowitz: Yes, sir. Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: Am I to read that finding as you have just stated the proposition, that after consultation... or rather, when consulting with her physician, he advised her that she should be aborted, that he was unwilling to perform an abortion without complying with the provisions of the statute even though he believed it was best to do so, or to perform the abortion without complying with the statute? Is that the way we're supposed to read that?
David S. Dolowitz: Yes, he was not willing to do it.
William J. Brennan, Jr.: Is that the way you want us to read that?
David S. Dolowitz: I want you to read that as saying that he felt in his best medical judgment, one, an abortion should be performed; secondly, that her parents should not be notified; third, that he was not willing to act on his best medical judgment, which was to abort her, without notifying her parents because he was at criminal risk if he did so--
William J. Brennan, Jr.: That's what we read into it, even though he believed it was best to do so.
David S. Dolowitz: --Do so.
William H. Rehnquist: It's a very ambiguous finding, isn't it, if you read it with all the nuances that Mr. Justice Brennan puts in it?
David S. Dolowitz: What I have just expressed to you is what was intended to go that and if we were not, between the trial judge and counsel we were not able to articulate it--
Byron R. White: Did you submit the findings? Did you draft the findings?
David S. Dolowitz: --I drafted the findings, Mr. Justice White.
Byron R. White: Were they entered exactly as you drew them?
David S. Dolowitz: They were, after dispute. In other words, the State submitted its set, Mr. Tinker--
Byron R. White: And then the Court adopted yours?
David S. Dolowitz: --That's correct.
Byron R. White: Verbatim?
David S. Dolowitz: Yes, sir.
Harry A. Blackmun: Mr. Dolowitz, does the record in fact show whether she was aborted?
David S. Dolowitz: The record does not show that. What I am trying to indicate to Mr. Justice White in responding is that both of us submitted the findings. Then Judge Winter asked us both to come in and we talked, and Mr. Tinker and I both communicated with him. And if you'll note, that hearing occurred in, I believe, April or May and the entry did not occur until, I think, it's November or December. And a big part of that was the question over the findings, getting the transcript made, and going back over the questions that had been presented. Unless the Court has further questions, I would like to reserve the remainder of my time for rebuttal.
Warren E. Burger: Very well, Mr. Dolowitz. Mr. Tinker.
Paul M. Tinker: Mr. Chief Justice, and may it please the Court: By enacting the statue which is at issue here, the parents in the State of Utah... and after all, it's parents who are of voting age and who are represented in the Utah Legislature... have essentially said something to the effect as follows: yes, we recognize that it is not possible under the Constitution for us to exercise any kind of absolute veto or place a roadblock, an absolute roadblock, in the way of our minor daughter who is living at home and who may seek to have an abortion. And it should be noted that we've conceded this even in, as early as 1974, which is when this statute was enacted, which precedes both the Danforth decision and the first Bellotti decision. But, even if we may not veto the decision of our minor daughter living at home who chooses to have an abortion, we at least want to know about it.
Harry A. Blackmun: Does the statute refer to living at home?
Paul M. Tinker: No. The statute on its face--
Harry A. Blackmun: Then why are you putting those words in your description of the statute?
Paul M. Tinker: --Merely for emphasis, in that that is who the statute is primarily intended to control. The statute speaks in terms of minors, Mr. Justice Blackmun.
Harry A. Blackmun: Yes, but how do we know that? There are many emancipated minors even in Utah, I would assume.
Paul M. Tinker: Well, and I think that is precisely the separate question which is raised by this other case that Mr. Dolowitz has referred to, and which Mr. Justice Stevens has questioned the relevance here. I would suggest to this Court that the question of the emancipated minor is not before this Court, is not part of this record. It is--
Harry A. Blackmun: The statute does not refer to an emancipated minor or an unemancipated one.
Paul M. Tinker: --That's true.
Harry A. Blackmun: I'd like to look at the case in the face of your statute.
Paul M. Tinker: Right. And the statute on its face describes only "minors". And my suggestion, which I don't think is entirely relevant in this case, but is clearly the heart of this other case that is still pending, is whether under Utah law, as a matter of construction of Utah law, that term minor includes emancipated minors.
William H. Rehnquist: Well, do you think that a minor still living at home can challenge the statute that Mr. Justice Blackmun has just described, which does not limit it that way? Does she have standing?
Paul M. Tinker: Does the minor not living at home have standing?
William H. Rehnquist: Does the minor living at home have standing to challenge the statute on the ground that it's overbroad as to minors who are not living at home?
Paul M. Tinker: No, I don't think that that minor has that standing. And I don't think that's the case presented here at all. The case presented here is a minor 15 years old living at home, challenging the statute as it applies to her. And I don't think there's any reasonable question that can be raised that it was intended to apply to her. There can be a question raised, I think as to whether it was intended to apply to the emancipated minor.
Potter Stewart: She's challenging the statute on its face, not as it applies to her, isn't she?
Paul M. Tinker: Well, yes. She is--
Potter Stewart: Now, somebody else, an emancipated... let's assume that the Supreme Court of your State has already decided that the statute on its face is constitutional. On the other hand, the Federal court out in your state has decided that as applied to an emancipated minor the statute, if it does apply to an emancipated minor, is unconstitutional.
Paul M. Tinker: --That's correct, Mr. Justice Stewart.
Potter Stewart: She's not... in this case, the statute is not being challenged as applied, but it's simply being challenged on its face, isn't it?
Paul M. Tinker: Yes. But I would see the facial challenge as being substantially different if there were an authoritative construction of the statute that said it cannot, by virtue of state law, apply to emancipated minors.
Potter Stewart: What is a minor in Utah?
Paul M. Tinker: Under 18, unless married. Minors achieve their majority under Utah law if they are married; otherwise, not till 18. Now, that's by statutory law.
Potter Stewart: Therefore this statute could be, its constitutional validity could be attacked as it applies to people over 17, for example.
Paul M. Tinker: Yes.
Potter Stewart: But here it's being attacked on its face--
Paul M. Tinker: --by a 15-year-old who it clearly--
Potter Stewart: --who is living at home.
Paul M. Tinker: --does apply to; yes.
Warren E. Burger: Do you see any inherent conflict between the Federal court case and this one?
Paul M. Tinker: No, Mr. Chief Justice, I do not. The Federal trial court judge has taken pains in his findings to differentiate between what the Utah Supreme Court found. He has felt that that decision is binding as far as state law is concerned, so far as it goes. And he sees this as presenting a different class and a different issue. That's why I suggest that that case is irrelevant in this case as it presently stands before this Court.
John Paul Stevens: But, Mr. Tinker, the class described in the complaint, as I understand the trial judge, he did in effect say the class was proper, includes all minor women who are suffering unwanted pregnancies and desire to terminate them, which would include the emancipated minors as well as the unemancipated minors. I'm looking at page 5 of the appendix. There is nothing in the Supreme Court of Utah's opinion that says, we are only deciding the question presented by the named plaintiff as opposed to the class as a whole which had been certified.
Paul M. Tinker: But I'm not sure, Mr. Justice Stevens, that that alone, the fact that the class was not defined to exclude all these others, permits the named plaintiff to represent a class that she's not part of.
John Paul Stevens: Except that as a matter of state law the state judge said she's an adequate representative. And his reasoning would apply equally to emancipated or unemancipated, and the reasoning of the Utah Supreme Court would apply equally to both. Now, maybe the Federal cases are different, but it seems that if you have a class which as a matter of state law includes emancipated minors, and the Supreme Court of the State disposed of the case on the assumption that they were all before the Court, we have that issue, and I don't know why we shouldn't decide it. Unless, as a matter of Federal constitutional law, a particular plaintiff doesn't have standing to make a particular argument. That's right. And the trial judge did confine it, as I read his opinion on page 14, the last part of it, "under the facts involved here where the woman in question is aged 15, unmarried, resides at home with her parents and is dependent upon them for support, and where the identity of the parents is either known to the physician or easily ascertainable by him. " He did indicate that his reasoning, at least, was confined to the facts of this case in upholding the facial constitutionality of the statute. It was all that he did and all the Supreme Court of Utah did.
Paul M. Tinker: Well, at least there was no discussion--
John Paul Stevens: Had he certified the class? That was in his order denying the temporary injunction. Didn't he thereafter describe the... except the class? Maybe we shouldn't take your time with this.
Paul M. Tinker: --Well, I think the class was essentially defined at that preliminary stage and it was not changed in the subsequent proceedings. Let me suggest, further, what the Legislature of the State of Utah was doing. They're saying that with respect to minors generally we as parents forego any claim to being able to veto an abortion decision But if there is to be an abortion performed, we simply want notice of it.
Warren E. Burger: A little due process for the parents, is that what you're saying?
Paul M. Tinker: That's exactly I'm saying, Mr. Chief Justice. And we want to know about it. We would ideally like to have some input, perhaps some consultation. But even by this statute we do not mandate that. The statute on its face could be satisfied as one of the briefs has suggested by a mere telephone call at a certain point prior to the performance of the abortion, advising that the abortion will take place. That might not be an entirely satisfactory kind of performance under the statute, but it would be sufficient, I think, to preclude any criminal penalty upon the doctor. The parents are--
Harry A. Blackmun: And what does that accomplish? Does that enable the physician to exercise his best medical judgment a little better?
Paul M. Tinker: --Among other things. He may, Mr. Justice Blackmun, obtain additional information that he might not know in the case of a girl of tender years, by talking with her parents.
Harry A. Blackmun: And yet the statute doesn't go that far with respect to parents if the child is married, even though her husband is 16.
Paul M. Tinker: No, it does not take into account that particular situation. The parents are saying, we not only want a little due process, but they're saying, we would like to enhance the full range of choices that our daughter may have in this matter. We recognize that the trend of things, if you will, in our society is very much in the direction that abortion will be viewed by a great many people, especially the professionals, the counselors, the doctors, and so forth, as the option of choice in this situation. In some cases we may if we had the chance merely like to give another viewpoint there. Not that our viewpoint could be binding, by any means, and not even that the statute requires the consultation, but merely that the doctor must give the opportunity for the parents to know and then it essentially becomes the doctor's own problem as a matter of ethics. It's really thrown back entirely into the private sector without the state being involved.
Warren E. Burger: Is it possible the Legislature had in mind that... or is it possible that it's inherent in the case, that the parents might be able to give something of the medical history and background of the child which would be relevant to the doctor and his decision?
Paul M. Tinker: Well, the Utah Supreme Court in its unanimous decision made that specific finding but that would be one of the purposes. I don't think that's the only purpose, but I think that is a very significant one.
William J. Brennan, Jr.: I'm not quite clear what it is you say would satisfy the requirement of notification. Suppose he's about ready to perform the abortion. Before he does he picks up the telephone, he gets hold of the mother of the girl, and he says, I have your daughter here, I'm about to perform an abortion. Goodbye. Does that do it?
Paul M. Tinker: I'm afraid it does, Mr. Justice Brennan, on the face of the statute. As I say, I don't--
William J. Brennan, Jr.: Then how much input does this contemplate that the parents will have?
Paul M. Tinker: --Well, it contemplates, I think, only as much as the doctor in his professional judgment will permit. But I think most doctors, given the requirement that they must go at least that far, will at least be willing to hear a few things. Now, this gets us off into speculation again.
William J. Brennan, Jr.: But I just want to be clear. They don't have to. The statute doesn't require them to go beyond what I suggested?
Paul M. Tinker: Clearly not; clearly not.
Warren E. Burger: What if the mother in that hypothetical case then said, are you aware, doctor, that our daughter has been under psychiatric care for the last seven years, and the doctor, says, no, I'm not aware of that. Is that something he merely must apply to his medical decision--
Paul M. Tinker: I think he has... excuse me, I think he has a professional obligation to then take that knowledge into account. Again, the law of the State of Utah probably does not compel him to do that unless it were so egregious that it became a matter of malpractice. And in that respect, the statute may tend to protect the doctor.
Warren E. Burger: --Well, that might mean, among other things, that the minor patient was not capable of giving consent to anything, a tonsillectomy, an appendectomy, or an abortion. Might it not?
Paul M. Tinker: It could be. You have an interesting kind of overlap in my view of legal disabilities that are occasioned simply by minority and legal disabilities that are occasioned by absolute lack of competency, mental type lack of competency. You might have those overlapping, fitting in the same situation here. I think the teachings of this Court have been that as far as those disabilities which occur as simply because of lack of majority status are somewhat tempered, somewhat moderated or modified when you're in the abortion context or in the other contexts regarding the ability to procreate. But there you get into a very difficult situation when you bring both of them in and again you have a difficult kind of balancing problem.
Lewis F. Powell, Jr.: Mr. Tinker?
Paul M. Tinker: Yes, Mr. Justice Powell?
Lewis F. Powell, Jr.: In the plurality opinion in Bellotti II we said this with respect to notice: "We conclude that every minor must have the opportunity if she so desires to go directly to a court without first consulting or notifying her parents. " How do you construe that language, granted, of course, that it is part of a plurality opinion?
Paul M. Tinker: I construe that language as relating to the situation of the Massachusetts statute which was a consent statute, not a mere notice statute like ours, and which already created the possibility of alternatives. The question of notice, which is presented in what I would suggest is a pure form in our particular case because of the nature of the statute, was presented in a much more complicated scheme in the Massachusetts case.
Lewis F. Powell, Jr.: There was an alternative in Massachusetts, the court. No alternative in Utah.
Paul M. Tinker: Right. But the reason there was an alternative in Massachusetts was that there was consent required. You had to get consent from somebody. In Utah you don't have to get consent from anybody.
Potter Stewart: I have that... I haven't read it recently, but I thought the purpose of the constitutional requirement that the plaintiff, pregnant, unmarried female, be allowed to go to a court was to convince that court that she was a mature minor. There's no claim here, is there, that the plaintiff is a mature minor?
Paul M. Tinker: Not in the pleadings of this case or in the record.
Potter Stewart: Not that she's an immature minor, is there?
Paul M. Tinker: I'm sorry?
William J. Brennan, Jr.: Are we to assume she's an immature minor?
Paul M. Tinker: I believe so. I don't know of a finding to the contrary.
Potter Stewart: It's not clear at all that she's a mature minor or was prohibited or prevented from showing a court that she was.
Paul M. Tinker: No, in Utah we don't have a specific procedure for showing a court any--
Potter Stewart: There wasn't in the Massachusetts legislation either, and that's what we found constitutionally deficient, as I remember.
Paul M. Tinker: --My recollection was that the Massachusetts statute provided that if a parent refused to give consent or was unavailable, that you could then repair to the Court of General Jurisdiction and seek an order granting the consent in place of parent--
Potter Stewart: Despite the failure to give consent. But the Court held, as I remember it, that the minor should be permitted to go to the court for a determination that she was a mature minor and that therefore no effort to get consent was required. But now, as I understand it, in the present case, which doesn't, of course, involve consent but rather notice alone, there is no claim that the plaintiff was a mature minor and/or that she was prevented from going to a court to show that she was, is there?
Paul M. Tinker: --I don't believe there is such a claim, Mr. Justice Stewart.
John Paul Stevens: Mr. Tinker, may I ask on this subject, I think the record is a little unclear. As Justice Stewart has correctly pointed out, the trial judge did emphasize the specific facts here in denying the injunction. Then later on there's reference to the class she purports to represent. So I have some doubt as to whether the mature minor or emancipated minor issue is here. But assume for the moment it is and recognizing that the point is not clear, what is the position of the State of Utah? (a) Does the statute apply to the emancipated minor? And secondly, is the statute then constitutional?
Paul M. Tinker: That's sort of the horns of a dilemma, Mr. Justice Stevens. But the--
Potter Stewart: Under the district courts, under the holding in the Federal court, this statute is unconstitutional as applied to emancipated minors, is it not?
Paul M. Tinker: --If it applies, he essentially found in the alternative. Either it does not apply to them, or if it does, it is unconstitutional as applied to them. And I don't disagree with the findings of the Federal District Court on that point.
John Paul Stevens: That's a little ambiguous to me. On that point he gave alternative findings.
Paul M. Tinker: Yes.
John Paul Stevens: And now what is it you don't disagree with?
Paul M. Tinker: Well, that it either doesn't apply or that if it should be found to apply it's unconstitutional with respect to those.
John Paul Stevens: Do you have an opinion as to the matter of state law? First of all, do you have an opinion as a matter of state law as to whether it should be construed as a matter of state law to apply to emancipated minors?
Paul M. Tinker: Yes, I have an opinion, and my opinion is that it should be construed so as not to apply to an emancipated minor.
John Paul Stevens: And is there any judicial authority in the State that has so construed the statute, other than Federal judges? Any State judges?
Paul M. Tinker: No. It has not been before the State courts for that kind of an interpretation. It's not been... interestingly enough, in contrast to the many abortion kinds of statutes which have been so severely restricted and have been attacked even before they went into effect, this statute has been in effect, was in effect for about four years before it was even challenged on this parental notice issue. And this case that is presently before the Court and the other case that Mr. Dolowitz has supplied the information regarding, that's still pending in the Federal District Court, are the only two cases that I know of, and I'm sure they're the only two cases that exist.
John Paul Stevens: Well, you're in effect saying the statute doesn't mean what it would appear to mean to an uninitiated reader insofar as it excludes a class of minors which are not identified on the face of the statute. Does it also exclude a class of married women? I was wondering if it is as broad in that area as it appears to be?
Paul M. Tinker: Well, I don't think it applies to married women at all because in Utah the statutory provision is that all minors achieve their majority by marriage.
John Paul Stevens: No, but I'm talking about the requirement of notice to the husband of a married woman.
Paul M. Tinker: Oh. Well, that... I see that as a completely separate problem.
William H. Rehnquist: Oh, if she is not a minor, there is no requirement of notification.
Paul M. Tinker: Right. But another part of the statute which is not before the Court and not challenged here at all requires notice to the husband and that's what Mr. Justice Stevens is referring to.
William H. Rehnquist: If she is married, whatever her age, or whatever his age.
Paul M. Tinker: Yes. A married person of whatever age.
William H. Rehnquist: If she's not a minor, there's no requirement of notification to her parents?
Paul M. Tinker: Oh, that's definitely correct.
Thurgood Marshall: No question that she's not mature, this one. There's no question, is there?
Paul M. Tinker: There's no question that she's not mature?
Thurgood Marshall: Yes.
Paul M. Tinker: There's no question.
Thurgood Marshall: Because if she were mature, she wouldn't be included under the statute, would she?
Paul M. Tinker: Well, no. I'm not saying... I did not say, Mr. Justice Marshall, that the fact that she was mature would take her out of the statute. The question of maturity in--
Thurgood Marshall: That's why I'm confused about this marriage and maturity. You used it there but you don't want to use it here. I thought you said it did take her out of the statute? I thought so too.
Paul M. Tinker: --I make a distinction. One class is married. They are out by operation of law. Another class is mature, another category is emancipated. I don't believe that mature and emancipated in this context are coextensive categories.
John Paul Stevens: By emancipated, you are referring to a young person who is married and therefore not a minor within the meaning of the statute? An emancipated minor is somebody living away from her parents and living independently, among other things. And unmarried?
Paul M. Tinker: Among other things. Yes.
John Paul Stevens: Now, is that person covered by the statute? I think I know your answer but I'm-- --Well, he said in his opinion it is or ought to be. No, no. He said it was not covered. Not covered. But he said there's no state ruling on the subject.
Paul M. Tinker: Mr. Justice Stewart is correct in understanding me to this point on that issue.
John Paul Stevens: I apologize. The statute does apply as a matter of state law, in your opinion, to such a person?
Paul M. Tinker: No, not to the emancipated minors.
John Paul Stevens: But it's just a matter of his opinion, in any event. I understand that but I just want to know what his opinion is. Your opinion is, as a matter of state law the statute does not apply to that person?
Paul M. Tinker: To the emancipated minor.
John Paul Stevens: Unmarried; an emancipated minor.
Paul M. Tinker: Living away from home, all the other things. See, one the difficulties is determining what constitutes an emancipated miner. I see a number of factors which go into that. A still separate problem comes when you try to determine whether the minor is "mature". I think that's a lesser standard and a minor could be mature without being emancipated. The statute clearly takes in all minors who might be deemed mature and this comes down merely to a question of legislative line drawing, in my view. The Legislature had to make a category of who were included, and they took the standard definition of what constitutes the line between minority and majority, the age of 18.
Warren E. Burger: Also, maturity and immaturity?
Paul M. Tinker: Well, it's an arbitrary decision, in a sense, as to what constitutes--
William J. Brennan, Jr.: Aren't you saying that if there's any maturity element in this case at all it's in the use of the word 18 and over 18?
Paul M. Tinker: --Yes, I am saying that, Mr. Justice Stewart.
William J. Brennan, Jr.: In other words, you don't concede that someone might be 15 and mature?
Paul M. Tinker: Oh, I concede that somebody might be but there's nothing in this record to suggest that anyone is.
William J. Brennan, Jr.: Well, there's nothing to suggest that this 15-year-old is not either, is there, in this record? Well, doesn't the action of the State Legislature amount to a declaration that prima facie or presumptively a woman under the age of 18, if not emancipated, is too immature to make that decision, at least without notice to the parents?
Paul M. Tinker: At least without notice, but with no requirement that the parent can control the decision.
William J. Brennan, Jr.: Well, now, let me ask you again, is that to say, if there were evidence in this case that this 15-year-old was mature, then the statute would not apply?
Paul M. Tinker: No, I would not make that argument, sir. I would not suggest that.
John Paul Stevens: But you do say, if she were away from home it would not apply?
Paul M. Tinker: Well, if she were away from home and if all the other factors... and this is what we've gone through before Judge Jenkins in the Federal District Court, is trying to find out whether a particular girl is emancipated or not. And he's taken into account where she was living, what her source of income was, whether she's living apart on her own volition or whether the parents had something to do with that--
John Paul Stevens: The thing that puzzles me is how all those criteria can be found in this rather short statute. You seem to agree they can't.
Paul M. Tinker: --Well, no, I'm saying--
John Paul Stevens: You said if she's emancipated, the statute doesn't apply and those are all the things you look at and decide whether she's emancipated.
Paul M. Tinker: --Yes, I'm saying... But an emancipated person is not under terms of state law a minor for purposes of the statute.
William H. Rehnquist: Did the State make any motion for the Federal District Court to abstain on the question of state law construction?
Paul M. Tinker: I have argued the abstention question in the L. R. case and Judge Jenkins said that he would not abstain in this particular case because of the exigencies of time. The girl was near the end of the first trimester, nearing the point where the possibility of an abortion was complicated if it went longer and he felt that to send this back to a State court would aggravate that situation and so he refused to abstain I still propose to ask Judge Jenkins to certify the question to the Utah Supreme Court, whether... this precise question that I've been discussing with Mr. Justice Stevens, of whether an emancipated minor is included in the statute at all.
William J. Brennan, Jr.: Does Utah have one of those certification statutes?
Paul M. Tinker: I just found out recently that the Utah Supreme Court adopted by a minute entry, it's not in their Rules, but they've accepted one certification in the past and they tell me they're willing to accept them.
Harry A. Blackmun: Mr. Tinker, how old is this Utah statute?
Paul M. Tinker: The statute was passed in 1974. That was the point that I thought was significant in that it came before Danforth and before Bellotti I and of course long before Bellotti II. It was passed in '74 and challenged in this case in 1978. A particular emphasis that I would like to give, just in summary, to this case is that the State of Utah has chosen in this sensitive area to keep the State and its mechanisms, its agencies, and everyone else, far removed from the decision making process. It has seen this problem as being one to be handled within the family context. And that's why I see this case as an important case involving what the limits of family participation are, what the rights of the family as a unit are. The appellant has painted a picture of many adverse consequences that might come to a young lady seeking an abortion if her parents were notified. The problem is that any of those adverse consequences come purely, if they come at all... which is not in the record... come as a matter of private action of parents. There is no state action involved. The State has no right to veto an abortion decision, much less does it have the right to delegate to someone else the right to veto an abortion decision. The State is not trying to do any of those things. The State is merely trying to encourage within the private sphere of action the maximum possible parental knowledge and participation, if that is permitted by the doctor.
Harry A. Blackmun: Was that always true in the State of Utah prior to 1973?
Paul M. Tinker: No, I believe Utah had requirements prior to 1973 that were controlled and invalidated by this Court's 1973 decisions.
Harry A. Blackmun: So that what you've just said didn't apply to Utah prior to Roe against Wade?
Paul M. Tinker: No.
Warren E. Burger: Mr. Dolowitz, do you have anything further?
David S. Dolowitz: I do, Your Honor. I wanted to point out to the Court briefly as a matter of history the statute actually was adopted in '75. The statute adopted in '74 was declared unconstitutional by a three judge Federal court. Appeal was taken to this Court and it was dismissed when this statute was adopted in '75. It was challenged within a few weeks of being adopted. The Federal court found it very vague and abstained. That was appealed to the 10th Circuit who affirmed the abstention decision. This case was filed in '77 as a result. So there has been a series of challenges to this spread out over the years. Then I wanted to point out from the questions of Mr. Justice Stewart and Mr. Justice Stevens where they were talking about the mature minor or emancipated minor, none of those exist in the statute. This statute is, on its face... and Mr. Justice Stewart, you asked and I didn't fully respond about emancipation occurring. Emancipation in terms of moving out of the house, no; in terms of marriage, yes. But Utah doesn't have the emancipated minor. Mr. Tinker gave his opinion but that isn't even in the Attorney General's Office opinion, that's his personal opinion that's come about. And the problem is, this statute says, "all minors".
Potter Stewart: Well, I understand in Utah, once a woman is married, whatever her age she is no longer a minor?
David S. Dolowitz: That's a question I'm discussing. We do not have a clear answer. The statute said she gains her majority. But in terms of the question I was asked, what happens if she is 16, marries someone who is 16, and you send notice to the 16-year-old husband, is now acquired. Okay If three weeks later they get a divorce, it's determined that the marriage was a mistake. Then it's not--
Potter Stewart: Well, we don't have that case.
David S. Dolowitz: --We don't. No, we don't. But the problem is that this statute says, you notify the parents in all women, including... in this case let's say there's that 16-year-old, if there is a divorce and she now suddenly finds out she's pregnant three or four weeks later, who do you notify? The statute says, her parents.
Warren E. Burger: We don't need to worry about that problem now, do we?
David S. Dolowitz: I think, Mr. Justice Burger, you do, and the reason I say that is because this statute says, all parents. There is no distinction, and it says it--
Warren E. Burger: Well, if marriage emancipates a minor woman, divorce does not probably vitiate--
David S. Dolowitz: --Utah law doesn't... Utah law isn't clear on that point. I can't give you an answer on that. And picking up on--
Thurgood Marshall: --I think you'd lose a lot of weight when you talk about divorces. Why don't you talk about annulments?
David S. Dolowitz: --Okay. That's also a problem. I will accept that.
William H. Rehnquist: What are you... you'll lose that point. Doesn't all of this add up to making some sense of the idea that we have not applied the overbreadth doctrine except in cases dealing with free speech generally as a matter of standards?
David S. Dolowitz: I think in this case that it must be done in overbreadth, because that's what was done. And the questions that you've asked, first me and then Mr. Tinker, have demonstrated how overbroad the statute is. Remember, Mr. Justice Rehnquist, that the Utah Supreme Court between the the time this was argued to Judge Winder, who had before him only the lower court decision in Bellotti, and the Utah Supreme Court decision, this Court rendered its Bellotti II decision and that case was argued by me twice to the Utah Supreme Court. Because after this Court enunciated that decision, I filed a motion with the Utah Supreme Court for an intermediate injunction enjoining the statute, and argued many of the points that we've covered today. They denied it, said they would defer it, set us on an early calendar. Mr. Tinker and I argued it again. They had it, they knew about the problems of the mature minor, but they didn't exempt the mature minor, they didn't, they knew about the discussion in terms of best interest.
William H. Rehnquist: But you were free also to go to the Circuit justice and ask for the same relief, were you not?
David S. Dolowitz: At that point, Mr. Justice Rehnquist, that's true. But I had staring at me a 10th Circuit decision saying that the trial court was correct in abstaining because the statute was vague, because the Utah Supreme Court hadn't said what that language "if possible" meant. And I didn't have a ruling until when the decision came out in March of this year. It was at that time that we had a definition as to what the statute was and instead of doing that, further cases were filed in the Federal District Court because we finally had an interpretation of what the language "if possible" meant.
John Paul Stevens: Mr. Dolowitz, do you agree with Justice Brennan that the answer to Mr. Justice Brennan's question that if 10 minutes before performing the abortion the doctor called up the parents and said, I'm about to abort your daughter, I want to give you notice in compliance with the statute. He does so and then aborts. There would be no danger to interference with the... I mean, it would be no violation of the statute if he went ahead and there would be no terrible danger that he could--
David S. Dolowitz: I do agree with Mr. Tinker that that would be compliance with the statute, which is what shows that despite its--
John Paul Stevens: --And if it's that easy to comply with it, how can you seriously argue that it substantially burdens the, a woman's private right to choose a decision?
David S. Dolowitz: --Because if that, if the reason that he did that is that he knew, for example, that the parents were unbalanced and she risked physical injury when they found out, that injury risk is still waiting for her when she gets home, if she gets home, or when she next meets her parents, if she's afraid to go home. They can still hurt her.
John Paul Stevens: So you'd say it would be equally unconstitutional if there was a requirement that two hours after an abortion is performed they notify the parents because they might be unhappy about it?
David S. Dolowitz: Yes. It is still too overbroad.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


John G. Roberts, Jr.: We'll hear argument first this morning in Case 06-11429, Burgess versus United States. Mr. Fisher.
Jeffrey L. Fisher: Thank you, Mr. Chief Justice, and may it please the Court: The rule of lenity requires that any penal statute the government seeks to enforce against an individual must clearly and unambiguous apply to him and, as the government acknowledges its brief in this case, this Court has applied the rule of lenity in numerous recent cases involving mandatory sentencing provisions. A reaffirmation of that time-honored principle is all that is necessary to decide this case. The 20-year mandatory--
Anthony M. Kennedy: Is it time-honored since Granderson? Is that the first time we did it?
Jeffrey L. Fisher: --Well, the rule of lenity has been--
Anthony M. Kennedy: As to sentences?
Jeffrey L. Fisher: --As to sentencing? No, in the mid-20th century, Justice Kennedy, in the Bell decision written by Justice Frankfurter and in Ladner, both involved the degree of punishment which the defendant would receive. There are other cases: In 1980 the Simpson case, and Bifulco around the same time. So this Court has a history of applying the rule of lenity with equal force to sentencing provisions as it does to statutes demarcating criminal conduct or not. And of course, as the green brief specially highlights, the very essence and the core of the rule of lenity derives from the English common law, which is... which was designed to invoke the rule of lenity to avoid mandatory punishment, not... not so much whether conduct was criminal or not. So we think that applying that rule in a straightforward manner to this case requires a reversal. The 20-year mandatory minimum in Section 841(b)(1)(A) applies only to defendants who have a prior conviction for a, quote, "felony drug offense". Now, a sensible reading of that provision is that a State law misdemeanor simply does not constitute a felony drug offense.
John G. Roberts, Jr.: Well, but if the rule of lenity depends upon of course some ambiguity in the term, the definition says "1 year. " It doesn't say anything about State classification.
Jeffrey L. Fisher: That's right, Mr. Chief Justice, and if that's all you had on the statute books this might be an easier case. But as you know, I think, above section 44 and section 13 the term "felony" is described and defined as "a crime that is classified as a felony under Federal or State law. " And so when you start with section 841(b)(1)(A), which uses the term "felony drug offense", and you go to the definitional section, the first thing you come to is the definition of felony, which says a crime classified as such. And then, as you say, in section 44 you reach another definition. So we think that at the very least you have an ambiguity here in which Congress has given two facially applicable definitions to the operative provision of the statute.
John G. Roberts, Jr.: Well, obviously one is a definition of "felony" and the other is the definition of "felony drug offense" and the term that's at issue here is "felony drug offense".
Jeffrey L. Fisher: Well, in a sense it's our position that both are at issue here. The term "felony", which is within the term "felony drug offense", is also at issue here. And as we've pointed out in pages 11 and 12, 11 and 12 of our yellow brief, it's not uncommon for Congress to have two separate definitions one of which is a single term within a broader term in a statute. And so the mere fact, as the government would argue, that the word 44 does not mean that Congress meant that to be the sole definition. We've given three examples on pages 11 and 12 where the sensible reading of the statute is that Congress attempted to nest the definition of a single term within the definition of a broader term.
Samuel A. Alito, Jr.: Could I... could I ask you what you think Congress might have been trying to do with the 1994 amendment under... under your reading? Before 1994 the offense had to be classified as a felony. Then they added this definition of "felony drug offense", and as I understand it your reading is that now the offense must be classified as a felony and it must be punishable by more, by imprisonment for more than a year. What would be the reason for adding this new requirement as you see it, that it be punishable by more than a year, if there were not offenses that were classified by States as felonies but were punishable by less than a year? I can't see the point unless the point was to rule those out. And you haven't cited any State statute in your brief that involved an offense that was classified as a felony and is punishable by less than a year. You cited a couple that were punishable by exactly a year, not more than a year but exactly a year. So is it your, your theory that the reason for adding this new language was to make it clear that those offenses where the maximum was 12 months, as opposed to 12 months and a day, would not be counted?
Jeffrey L. Fisher: I think there is an agreement between us and the government on this point. We cite in our blue brief statutes from Arizona as well as a couple of other States where there are crimes that are classified as felonies but punishable in less than a year. And in those cases we agree with the government that that is the effect of the 1994 conforming amendments, is to exclude those outlier States that take low-level crimes and nonetheless classify them as felonies. What this case is about--
Samuel A. Alito, Jr.: But if I could just come back to that. I looked at those. You cite Ohio, North Carolina, and Arizona and those are all punishable by... they all have a maximum term of 12 months, not less than. So the difference is between 12 months and 12 months and a day?
Jeffrey L. Fisher: --Well, that works on the language of the statute, Justice Alito.
Samuel A. Alito, Jr.: But is it plausible that's the reason why Congress added this language? They didn't want... they wanted to make sure that these felonies that were punishable by just 12 months would not be counted?
Jeffrey L. Fisher: Well, I think it is quite plausible that the language that Congress added has very little practical effect. And that flows from the fact that Congress called these nothing more than conforming amendments, so Congress apparently wasn't trying to accomplish any dramatic change here and I think it might help to understand by looking at the other outlier states that the government claims got swept in with the 1994 amendments. We cite statutes from States like Colorado. Perhaps if I used a concrete example. Take possession of a single ounce of marijuana. That is one of the crimes in Arizona that we were just talking about, that is a felony punishable by no more than a year. There are a few other States who are outliers in a different sense, in which they call these crimes misdemeanors, like the vast majority of States, but make them punishable by 18 months or more. And so what the government's position is is that in 1994 when Congress passed a conforming amendment to exclude a couple of outlier States like Arizona, it was trying to sweep in for the first time into section 841(b)(1)(A) outlier States like Colorado that treat low-level drug crimes, low-level drug possession crimes, as misdemeanors that are punishable by more than a year. So we think, for the very reasons the government explains, that Congress is trying to avoid disuniformity and happenstance according to how a few local jurisdictions might treat certain drug crimes, that it makes sense to read the '94 conforming amendments as requiring both the one-year punishment rule and the felony classification requirement. And if you have any doubt on that, we submit it really makes sense to remember that what we're what talking about here is a mandatory minimum. And so--
Samuel A. Alito, Jr.: What would you do with someone who was convicted... had a prior conviction of... for importing 10 tons of heroin in New Jersey, for example, where there are no felonies? What would you do with that, a very serious drug offense in a State that doesn't use the term "felony" at all or a foreign conviction?
Jeffrey L. Fisher: --Well, we've cited a case in our brief in the Second Circuit that deals with that exact problem, at least with the New Jersey problem. And what the courts did and what they have done in other circumstances where there's a felony classification requirement is they simply take the crime in New Jersey and analogize it to a comparable Federal or local State crime, and if it was... if it would be classified as a felony in that local jurisdiction, then courts... and this is even before the 1994 amendments... courts have treated it as a felony.
Samuel A. Alito, Jr.: But what they did... what they did in the Second Circuit case was to say this is punishable... this offense is punishable by more than a year in New Jersey and therefore it's a felony.
Jeffrey L. Fisher: I believe, Justice Alito, this was a case before 1994, so that's--
Samuel A. Alito, Jr.: I know. And that's how they analogized it to a felony.
Jeffrey L. Fisher: --Right, because that is the Federal definition of a felony, and so that was the analogy that the Second Circuit was able to draw here and reach what we think is a commonsense way to deal with the unusual problem of New Jersey. Another--
Antonin Scalia: You say there are other examples where a... a noun that is nested in another definition is separately defined and the two are read together. How are those phrased? I mean, I could understand what you say if this provision here read "The term "felony drug offense" means a felony that is punishable by imprisonment for more than one year. " Then I'd go back to the "felony" definition for what a felony means, but it doesn't repeat the "felony". "The term "felony drug offense" means an offense that is punishable by imprisonment for. " --do any of the examples of nesting that you... that you bring forward read this way?
Jeffrey L. Fisher: --All three of them do, Justice Scalia.
Antonin Scalia: Which ones are they? Where are they--
Jeffrey L. Fisher: They're pages 11 and 12 of the yellow brief. And so the first place to start is looking at the bottom of page 11, where the term "employee" is defined in one provision of the Federal... of the Federal statutory code. And then the terms "employee of the Capitol Police", "employee of the House of Representatives. " are also defined, and they're defined... and those broader definitions are in the footnote at the bottom of page 12. And so you see that there, after having defined the term "employee", the word "employee" is not repeated in those definitions. They talk about "a member" or "an officer" or "an individual". And so it's much like the circumstance here, where a more generic term is used in the broader definition, but it makes sense to read in the original definition. The same thing I think you can see in the middle of page 12 with the part of the Bankruptcy Code that we've given this Court. The word "debtor" is defined in a certain way, and then later on in the definitional provision, the term "debtor's principal residence" is defined as "a residential structure" and such and such. Again the word "debtor" is not repeated in the broader definition, but we think the only way to make sense of it is to import the definition of the single term into the broader term. If Congress had wanted--
John G. Roberts, Jr.: Just on that... just on that last one, are you saying that if it doesn't say "debtor's residential structure", you'd think it was somebody else's residential structure?
Jeffrey L. Fisher: --Well--
John G. Roberts, Jr.: I don't understand the point.
Jeffrey L. Fisher: --Well, there might be, you know, a very rigid plain-text argument that might be made. The point is that Congress used... defined the term "debtor's principal residence" without using the term "debtor" again and defined it somewhere else. My--
John G. Roberts, Jr.: Well, in a provision of the Bankruptcy Code that deals with debtors I don't think there's any question about whose residential structure they would be talking about, even though they don't repeat "debtor". It strikes me as quite different than the provision we have before us today.
Jeffrey L. Fisher: --Well, then I think I'd refer you back to the employee example. I mean, no example is going to be exactly on all fours. I'm happy to acknowledge that. The idea that I'm trying to get across is it's not unusual for Congress to define single terms that are nested within larger terms.
Antonin Scalia: --And--
Anthony M. Kennedy: --better example. It doesn't quite work because it does not supersede the term "debtor" that was used earlier. In the government's submission at least in this case, 13.
Jeffrey L. Fisher: I think that's right. And I think one way to--
Anthony M. Kennedy: So it seems to me they're not comparable in that sense.
Jeffrey L. Fisher: --Okay. I think one way to understand how this statute... if Congress had wanted to do what the government says it wanted to do, how Congress could have made it absolutely clear... while we have the yellow brief open, we can look at page 13.
Ruth Bader Ginsburg: May I ask you a question before going on with this line? You say that both the 802(13) definition has to be satisfied and the 44 definition, right? But was 802(13) ever applicable to this situation? What was the law prior to the 1994 amendment? There was a section, wasn't there, that defined "felony drug offense"?
Jeffrey L. Fisher: For a time, yes, Justice Ginsburg, but... so when the statute was originally passed, 802(13) was the sole definition of '94 amendments, a definition of 841(b)(1)(A)--
Ruth Bader Ginsburg: Right.
Jeffrey L. Fisher: --but that itself just used the word 802(13). So, again, I think there is an agreement between--
Ruth Bader Ginsburg: Would you take a look at that provision that was in 841(b)(1)? Because it seems that it would be duplicative of 802(13).
Jeffrey L. Fisher: --Are you looking, Justice Ginsburg, at the 1988 version of the statute?
Ruth Bader Ginsburg: Yes.
Jeffrey L. Fisher: No, because--
Antonin Scalia: --Where would we find this?
Jeffrey L. Fisher: --Oh, this is at 13a of the blue brief, Justice Scalia. So, at page 13a it says, "For purposes of this subparagraph, the term "felony drug offense" means an offense that is a felony under any provision of this subchapter, under any Federal law. " Now, the word 802(13). If I understand--
Ruth Bader Ginsburg: But read... read the end of it. Read on where it says, "or a felony under any law of a State or foreign country. " et cetera.
Jeffrey L. Fisher: --Right. But I think, again, the word 802(13) as of 1988--
Ruth Bader Ginsburg: Well, what--
Jeffrey L. Fisher: --because there isn't the explicit classification requirement.
Ruth Bader Ginsburg: --But it defines what the felony is: "A felony under any law of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marijuana. " et cetera.
Jeffrey L. Fisher: Well, I think the latter language, Justice Ginsburg, is defining--
Ruth Bader Ginsburg: Why would you need to look--
Jeffrey L. Fisher: --"drug offense", whereas the word "felony" I think is not a self-defining term in that statute as it's written. And to understand whether we're talking about something like a one-year rule or a classification requirement, the reader needs to go back to the definitional section.
Antonin Scalia: I don't... the definitional section contradicts... contradicts what's in (b)(1)(A).
Ruth Bader Ginsburg: --Yes.
Jeffrey L. Fisher: As of 1988?
Antonin Scalia: Yes. It contradicts it because the "felony" definition is classified as felony by Federal or State law.
Jeffrey L. Fisher: Well, it says "a felony under the law of a State. " So I think the classification requirement... I don't think it's inconsistent with it. It might clarify it.
Antonin Scalia: Which is "under any provision of this subchapter or any other Federal law that prohibits or restricts. " And then in the last part, "under any law of a"... of "State"... it picks up "State"... "or a foreign country". 802(13).
Jeffrey L. Fisher: That's right, Justice Scalia.
Antonin Scalia: So you have to say that there "felony" stands on its own, right?
Jeffrey L. Fisher: Well, I guess you could, but then you wouldn't have a definition; then you'd have to figure out how to define "felony", whether it was a classification or a one-year rule or something else. I think the natural reading, again, would be a classification requirement to the extent to which you couldn't look further than that provision of the statute, but--
Stephen G. Breyer: Is the following true, that if you are right the reason Congress passed this new definition was it wanted to take those handful of States which have felonies as a year, the ones Justice Alito is talking about, and make clear that they are not covered?
Jeffrey L. Fisher: --Yes.
Stephen G. Breyer: All right. But if the government's right, then the reason Congress did this is that it recognized what I think is the truth, that felonies and misdemeanors are defined differently in many different ways under the laws of many different States and, in a matter where so much prison time turns on it, wished to create a single, uniform definition. Now, if that's right, I'm asking myself which is a more plausible purpose.
Jeffrey L. Fisher: Well, we don't disagree with the government that the one-year rule does serve the purpose of helping iron out--
Stephen G. Breyer: No, it doesn't, because if you're right, then you first have to look to the patchwork quilt of laws in all the different States to see whether those different States define the conduct as misdemeanors or felonies. And then, having solved the patchwork problem, we add on the requirement of one year. And so the bite of the new definition would be what Justice Alito said and nothing else. Now, that's... and, yet, on the government's interpretation, the bite is to create a single, readily applied, uniform rule. Now, if I ask myself which of those is most plausible, I hate to tell you which answer I get.
Jeffrey L. Fisher: --Well, I think, Justice Breyer, with due respect, if you look at the way different States treat drug crimes--
Stephen G. Breyer: Am I right? I mean, I put that out to give you a chance to say. I'm not sure I am right.
Jeffrey L. Fisher: --That's what I'm trying to respond... different States treat drug crimes dramatically different, and this is so... I think it's common sense that States treat different crimes... treat... different States punish the same crime differently. And that's nowhere more true than in drug crime, because there's a great amount of experimentation that goes on in the States. And one of the things that certain States do, like Colorado, is take very low-level drug crimes and punish them by more than a year, in part so they can give treatment and keep people in, prison, long enough to have treatment take hold, whereas some other States treat drug crimes very differently. So you have a patchwork whether you look to the classification or whether you look to the one-year rule. That's why we think it makes sense to use both. Now, if Congress had wanted to do what the government is suggesting, which is have the one-year rule be the sole and exclusive way of determining whether you have a felony before you, it could have very easily said so. And there's an example... and this is at page 13 of the yellow brief... of what... of what the Federal Sentencing Guidelines do. They define... in a "career-offender provision" there is a definition of "felony" there that is quite explicit. They say a "felony" is "an offense punishable by more than a year, regardless of whether such an offense is specifically designated as a "felony". " So there are other provisions where Congress could have looked and it would have been well aware of how to make absolutely plain what it was trying to accomplish in the statute. Now, we don't think that the government's reading is implausible, Justice Breyer, for the reason--
Ruth Bader Ginsburg: Mr. Fisher, could I just go back to what you quoted. Are you quoting... you're quoting a Sentencing Guideline, right?
Jeffrey L. Fisher: --Yes.
Ruth Bader Ginsburg: Not a statute.
Jeffrey L. Fisher: Yes, I'm quoting the Sentencing Guideline, although in the Armed Career Criminal Act you can find another place where Congress dealt with this problem explicitly. It said that felonies are crimes punishable more than a year; however, if the State classifies the crime as a misdemeanor, it has to be punishable by more than two years.
Antonin Scalia: You think... you think it would mean something different if you just left out the "regardless of" clause?
Jeffrey L. Fisher: Well, Justice Scalia, with the problem--
Antonin Scalia: The "prior adult Federal or State conviction for an offense punishable by death or imprisonment for a term exceeding one year. " you think it means something different without the "regardless".
Jeffrey L. Fisher: --Not necessarily, but leaving that clause--
Antonin Scalia: Not at all? Not possibly.
Jeffrey L. Fisher: --Well, our position is, Justice Scalia, that, standing alone, I will grant you; but the problem as we see it in this case is that that is left out. In a very common problem, how to define a felony, they leave out that explicit statement of whether classification is important. And what is more, in the same definitional provision--
Antonin Scalia: I would say that "regardless" clause is extraordinary and I would not want to have to deal with such prolix statutes on a regular basis.
Jeffrey L. Fisher: --Well, I think there's a good reason why Congress put it in, and that's because it is a continually vexing problem, how to define what is a felony. That's why Congress did it explicitly in the Armed Career Criminal Act. That's why the Sentencing Guidelines are explicit here. And leaving that out, and against the backdrop of a statute where the classification rule was the controlling rule for over a decade, and where they leave that classification rule in the very same definitional provision of the statute, we think, gives rise to an ambiguity.
John G. Roberts, Jr.: If it's such a vexing problem, why would Congress have incorporated the problem into the definition of "felony drug offense"?
Jeffrey L. Fisher: Well, I'm not sure I follow the question.
John G. Roberts, Jr.: Well, you seem to suggest that it's a vexing problem that "felony" is defined differently in different States. And, yet, you say that the term "felony", which relies on how it's defined by different States, was incorporated in the felony drug offense, which seems to have a quite clear definition of punishable by more than one year. If they don't want to repeat the problem that "felony" is defined differently in different States, they would not do what you're suggesting, which is incorporate it wholesale into the latter definition.
Jeffrey L. Fisher: Well, with all due respect, what Congress did is they left 802(13) on the books, which does turn on classifications. And it's not... even though it is a... it is something of a patchwork, it is not unusual at all to have very serious consequences turn on whether something is classified as a "felony" or not.
Ruth Bader Ginsburg: But, of course, they had to leave it on the books because they need a definition of "felony". "Felony" has to be defined in many places, but this is a definition of "felony drug offense". So--
Jeffrey L. Fisher: Well, again, Justice Ginsburg, I think that is right. But then what Congress could have done is use the language that the Federal Sentencing Guidelines use, or something comparable to make clear its intent. And the classification of a felony or not a felony, as this Court knows, has a time-honored import. Things like the right to vote, the right to bear arms, the right to various civil rights turn on whether somebody has been convicted of a felony or a misdemeanor. And, again, this brings us in a sense back to the rule of lenity because one of the principal reasons for the rule of lenity is fair notice. Now, this Court, as early as the McBoyle decision recognized that we're dealing with something of a fiction when we imagine an offender is looking at the statutory books to decide whether certain conduct is prohibited or not. But in the context of recidivist enhancements that lead to mandatory minimums, we're talking about very real and serious notice problems. Imagine the conscientious public defender advising someone like Mr. Burgess as to whether he should plead guilty to a misdemeanor or a felony. This happens in States across the country that have three-strike provisions, that have very serious immigration consequences turning on "felony" or "misdemeanor". That lawyer might have concluded, as the District of Columbia Circuit did, that pleading to a misdemeanor here would not expose Mr. Burgess in the event he was convicted of a later crime to such a serious punishment as the 20-year mandatory minimum in this case.
Anthony M. Kennedy: Can you tell me what happened in South Carolina? Could he on those facts and under the charges have been sentenced to more than a year? It was just that the judge gave him less than a year?
Jeffrey L. Fisher: Mr. Burgess's crime, possession of cocaine, was punishable by up to two years. So, yes, he received a sentence far less than that.
Anthony M. Kennedy: But he, himself, was eligible for the--
Jeffrey L. Fisher: Yes. The crime to which he pled guilty was punishable by two years. But you should understand that that kind of hypothetical, punishable-by problem is one I know this Court dealt with a couple of months ago in the Rodriguez case. And you should understand that not just what Congress, under the government's view, had been looking to sweep in outlier States like Colorado, but if the government prevails in the Rodriguez case where the term 1994 amendments, which were termed "conforming amendments", have an even far more sweeping effect and bring in lots of State-law misdemeanors that were never covered by the prior act. If there are no more questions, I will reserve my time.
Ruth Bader Ginsburg: --Just one. You said that in most States what Burgess did, his crime, simple possession, would not encounter a sentence of upward of one year. Did you do a survey? Did you document that in your brief?
Jeffrey L. Fisher: No. But I said earlier, Justice Ginsburg, giving the example of possession of one ounce of marijuana, that the vast majority of States punished that as a misdemeanor by less than a year. Mr. Burgess's crime, at best, was a misdemeanor punishable by less than a year under Federal law, but different States treat that crime differently. And I think a majority of those, a majority of States, would treat that as a crime punishable by more than a year and classified as a "felony. " "If there are no more questions-- "
John G. Roberts, Jr.: Thank you, counsel. Ms. Saharsky.
Nicole A. Saharsky: Mr. Chief Justice, and may it please the Court: Congress answered the question presented in this case when it adopted an express definition for "felony drug offense". Under that definition, "felony drug offense" means an offense punishable by more than one year of imprisonment under certain State, Federal, or foreign drug laws. There is no textual basis for going beyond that definition to also require that an offense be classified as a "felony". The enhancement trigger in the sentencing-enhancement provision is a felony drug offense, and the way that the definition works is that you take the definition Congress provided for "felony drug offense".
John G. Roberts, Jr.: Is "drug" a nested term in that? It doesn't really define "drug". Do they look somewhere else for that definition?
Nicole A. Saharsky: Well, the term "felony drug offense", the "drug" component we understand to be the component that says "an offense" that prohibits... "under law that prohibits or restricts conduct related to narcotic drugs, marijuana, anabolic steroids-- "
John G. Roberts, Jr.: Is there a place you would... is that a place you would look if you didn't know what they meant by "drug"? If an issue arose whether, you know, a natural narcotic, I mean is that a drug or not?
Nicole A. Saharsky: --There is a definition of 802. It refers back to the general definition of 321 of the Controlled--
John G. Roberts, Jr.: So that is nested in this definition, "felony drug offense"?
Nicole A. Saharsky: --The term "felony drug offense" has only the meaning that Congress gave to it. In the words it shows that it be punishable by more than one year under State, Federal or foreign law relating to those particular drugs. In fact, the question that you asked shows why Petitioner's reading of the statute cannot be correct, that you can't use both the definition of "felony drug offense" that Congress provided and try to import in separate definitions for "felony" and separate definitions for "drug", because the definition of "drug" in the Controlled Substances Act is very broad and applies to many different kinds of drugs, whereas the definition of "felony drug offense" only refers to offenses that involve narcotic drugs, anabolic steroids, marijuana or depressant or stimulant substances. In the same way, this shows why Petitioner cannot be correct that the definition of "felony" also must be brought into "felony drug offense", because Congress chose that the measure of seriousness in "felony drug offense" is an offense punishable by more than one year. And it actually took out of the statute the measure of seriousness which is classification as a felony. So to bring that requirement back in would undo the change that Congress made in 1994. That's the language, Justice Ginsburg, that we were looking at at the bottom of the... at the back of the blue book. In 1988 it said ""Felony drug offense" means an offense which is a felony. " And that language was taken out and Congress replaced it with this new language, which says "punishable by more than one year of imprisonment. "
John G. Roberts, Jr.: What do you do with your friend's argument that the classification... or the term, more than one year or less than one year, doesn't always have to do with how serious they view the offense, but they may impose a sentence of more than one year to allow time for rehabilitation?
Nicole A. Saharsky: Congress chose the words that it did, "punishable by more than one year. " because it believed it to be a good measure of seriousness. This Court has recognized in cases like Blanton versus City of North Las Vegas that the term of imprisonment that a legislature chooses is a good measure of the seriousness of the offense. There may be offenses that a State classifies as more or less serious based on punishment, but Congress wanted to do its best to get uniformity in provision... in this provision. So what it did here was to take out this requirement that would look to varying State and foreign laws and instead have one that was just based on term of imprisonment. And actually this... this raises a very serious problem with Petitioner's reading of the statute, which is with respect to foreign offenses. The "felony drug offense" definition allows an enhancement based on State, Federal or foreign offenses, and the definition of "felony" unadorned and standing by itself doesn't refer to foreign offenses at all, which means that there is a serious ambiguity if both apply as to what would be done in the case of trying to enhance based on a foreign offense.
Ruth Bader Ginsburg: Well, I suppose it might for countries that use that classification, for common law countries.
Nicole A. Saharsky: There are countries that do use the felony-misdemeanor distinction. There are some that do not. But we understand in 1994 that Congress... the change Congress made to be one that eliminates those kinds of ambiguities. And certainly, if Congress had thought in 1994 that both the separate definition of felony and the definition of felony drug offense mattered, that it would have placed foreign offenses in the definition of felony, and it didn't do that here.
Ruth Bader Ginsburg: The... the information we have in the brief says that there are two States that have dropped those labels. Are there more than New Jersey and Maine?
Nicole A. Saharsky: New Jersey and Maine are the only ones that I'm aware of. Certainly, as this Court discussed in some previous questions, there may be ways in which courts could try to work around ambiguities that, for example, existed in the statute 1990... prior to 1994, to figure out how offenses in New Jersey should be treated. But the fact that Congress made the change in 1994 to pick clear language that would just turn on the authorized term of imprisonment shows that that's what should be used, that choice should be given effect. The fact that courts might be able to deal with an ambiguous statute certainly does not give license to create one where it doesn't otherwise exist. There's an example the Petitioner raised, which is how violent felonies are treated in the Armed Career Criminal Act, and I think that that... that illustrates how Congress could have done what Petitioner wanted if that was, in fact, its intent. In the ACCA, a violent felony, which could be the basis for a sentence enhancement, is defined as various violent offenses that are punishable by imprisonment exceeding one year. But then Congress specifically decided that it wanted to exempt state misdemeanor offenses that it didn't consider serious enough to qualify as violent felonies. So it exempted State offenses that are classified as misdemeanors and punishable by less than two years. And we think that the Congress' treatment in the ACCA exempting specific State offenses shows that if Congress had wanted to exempt offenses classified as misdemeanors in the way that Petitioner suggests, then it would have done so in that way. Congress chose a meaning here for "felony drug offense" and we think that it needs to be given effect.
Anthony M. Kennedy: Could you tell us just a little bit about the rule of lenity? You want us to apply sort of a watered down discount rule of lenity in sentencing cases? And do you have authority for that?
Nicole A. Saharsky: The government--
Anthony M. Kennedy: After we said in Granderson the rule of lenity applies without qualifying or modifying it at all.
Nicole A. Saharsky: --The government's position is that the rule of lenity operates in the same manner in both the defining the offense context and in the sentencing context. The point that we were making in our brief is that the purposes behind the rule of lenity are really implicated to a lesser extent when we're talking about sentencing, and particularly with respect to mandatory minimums, because there's not a question of whether the offense conduct at issue is illegal, and there's not a question about the maximum offense, the maximum term of imprisonment that the person could be subject to. So, our brief should be best understood as a response to Petitioner's extensive historical discussion of the rule of lenity and a suggestion that it applies with even more vigor in the context of mandatory minimums. We don't think that that's the case, but at the same time we are not suggesting there is a new different rule of lenity in this context. And again, we don't see this as a rule of lenity case. Congress picked a particular definition and it used those terms... that term "felony drug offense" to trigger each of the sentencing enhancement provisions here. We don't think there is any reason to look beyond it. If the Court has no further questions, Government submits the judgment below should be affirmed.
John G. Roberts, Jr.: Thank you, Ms. Saharsky. Mr. Fisher, you have four minutes.
Jeffrey L. Fisher: Thank you, Mr. Chief Justice. If I might pick up where Justice Kennedy left off with the rule of lenity, because we don't want this Court to lose sight of the importance of the rule of lenity in this case. It's not our position that the government's reading is unreasonable. It is simply our position that our reading of the statute is a possible one and that Congress may have been--
Anthony M. Kennedy: Well, but there has to be a real ambiguity. I mean, if there is a plausible defendant-friendly interpretation, that doesn't trigger the rule of lenity, does it or doesn't it?
Jeffrey L. Fisher: --I think, Justice Kennedy, a fair way to ask yourself the question is, would the statute here rise to the level of a plain statement of a kind that is required to, for example, abrogate sovereign immunity or to realign the Federal State balance. The term "clear statement" and "clear and definition statement" that is used in the historical context--
Antonin Scalia: How many statutes exist like that, my goodness? You want the government to be held in all statutes to a level that is clear enough to satisfy the clear statement--
Jeffrey L. Fisher: --With all due respect, Justice Scalia, that's what the historical cases say.
Antonin Scalia: --That's what the rule of lenity means.
Jeffrey L. Fisher: Yes. With all due respect. If you look at the examples in Blackstone, that's the Greenbury cite, if you look at this Court's earliest cases, Chief Justice Marshall wrote for the court in Wiltberger that even though it's extremely improbable that Congress wanted the result that the defendant presses, the Court is nevertheless going to insist on it, because it is not unambiguously clear this was Congress' intent. And so, it's easy to forget given the modern proliferation of Federal criminal statutes how rare criminal cases used to be in this court.
Antonin Scalia: Do our cases reflect what you're saying? I thought our cases on the rule of lenity say that where there is an ambiguity you give the tie to the defendant.
Jeffrey L. Fisher: Well, I think this is very important, Justice Scalia, your cases, especially the historical cases and the modern ones, I think, waffle in different directions, but there are plenty of cases from this Court that are much more than a tie-breaker in the sense of the rule of lenity and say, we require clear and definite terms, that's the phrase Justice Frankfurter used to repeat. Justice Holmes said the statute must be clear. Even up to Granderson it says--
Anthony M. Kennedy: That was in a context where the question was whether or not the conduct was criminal at all not since.
Jeffrey L. Fisher: --That's right. But for the reason--
Anthony M. Kennedy: If you apply clear statement rule to the sentencing code, I don't think we are going to be able to get beyond the second sentence.
Jeffrey L. Fisher: --Well, I think with due respect what you're going to do is actually reduce the number of cases this court hears, because once you have a clear statement rule, two things are going to happen. The lower courts are going to find it more... easier to resolve these kinds of cases because just like in the sovereign immunity and Federalism context, it's much easier to look for a clear statement. And even more importantly, Congress will know that when it legislates in the realm of criminal sentencing, that it needs to be clear, and it will solve this case... this Court the problem, perhaps, of having four or five cases on its docket every term involving circuit splits and how to apply mandatory minimums in the vast labyrinth of Federal criminal sentencing provisions. So we think this Court can rest assured, of course, that if it rules for the Petitioner in this case and Congress doesn't like the result, that it is well and able and ready to step in to solve that problem. The problem is, is that if this Court accepts broad readings of the government, from the government of criminal statutes, that the institutional forces that drive legislation are... make it much less likely that Congress can step in to solve that problem in favor of criminal defendants. So for the reasons we've explained, we think this Court should go back to the historical understanding brought forward to the present of the importance of the rule of lenity, and in this case find that the statute does not clearly and unambiguously apply to Petitioner. If there are no further questions, I'll submit the case.
John G. Roberts, Jr.: Thank you, Mr. Fisher. The case is submitted.