William H. Rehnquist: We will hear arguments first this morning in No. 85-2116, Puerto Rico again Branstad. Mr. Saldana, you may proceed whenever you are ready.
Lino J. Saldana: Mr. Chief Justice, and may it please the Court: Petitioner in this case requested extradition of Mr. Ronald Calder, who was charged with murder and attempted murder, and is a fugitive from the courts of justice in the courts of Puerto Rico, and had fled to Iowa. The Governor of Iowa denied extradition. The commonwealth filed a complaint in the District Court for the Southern District of Iowa seeking a writ of mandamus directing the Governor to extradite Calder. The writ was refused. The Court of Appeals affirmed. The case is here on certiorari. The issue is whether or not the Federal courts have power to order the governor of a state to extradite a fugitive from justice in the courts of Puerto Rico who has been accused of murder and attempted murder. There is no dispute in this case that the extradition request made by Puerto Rico fully complies with all statutory and constitutional requirements. There is no dispute, either, that the duty of the Governor of Iowa to extradite Mr. Calder is an absolute duty, both mandatory and ministerial, under the Constitution and the statute. All that is at issue here is whether the court, the Federal court, may command the governor to obey that duty, or whether the governor may violate it with impunity. Now the facts are as follows. Mr. Ronald Calder on... in 1981 drover his car into a married couple in a parking lot of a grocery store in Puerto Rico. The husband was injured but survived. His pregnant wife was killed, as well as her unborn child. The justice... a judge, I'm sorry, of the Superior Court of Puerto Rico, after a preliminary hearing, found probable cause to charge Calder with murder and attempted murder. This was done after a hearing, as I said, in which the judge heard testimony from sworn witnesses, and in which Calder was represented by counsel. The witnesses, the eyewitnesses, told the judge that Calder had deliberately run his car over... drove his car into the couple, attempted to run down the couple with his car, and that after the wife was down, he repeatedly run over the body, her body, with his car. Mr. Calder was freed on bail after the District Attorney filed informations against him for these two alleged crimes, and he failed to appear at two successive hearings in the criminal case. And the court... another judge in the district... in the Superior Court ordered him to be arrested, issued a warrant of arrest, after declaring him a fugitive. He was found in Iowa, his native state, and there a request was made to the Governor of Iowa that Calder be extradited. The request of the Governor of Puerto Rico was... fully complied with all the requirements, both statutory and constitutional. In spite of that, an extradition hearing was held.
Harry A. Blackmun: Iowa was his home, was it not?
Lino J. Saldana: Iowa was his home, yes, sir.
Harry A. Blackmun: Do you know why so low a bond was imposed under a murder charge?
Lino J. Saldana: In Puerto Rico, you mean, sir?
Harry A. Blackmun: Yes, in Puerto Rico.
Lino J. Saldana: Well, he was first charged with manslaughter, and a small bond was requested from him. Apparently, what the court felt was that there was no danger that he would not appear. And he was working in Puerto Rico as an air controller. And only $5,000 bond was required from him. That's about all the explanation I can give Your Honor to that.
Harry A. Blackmun: I suppose there isn't any explanation. But it strikes me as a low bond on a murder charge.
Lino J. Saldana: Yes, it is. The Governor of Iowa in the... on the basis of the extradition hearing, denied the request for extradition. At the hearing, evidence was admitted to... by the declarations and testimony of Calder, of Calder's companion at the scene of the crime, of the alleged crimes, and of Calder's attorneys, to the fact that the Puerto Rico courts were unable to administer properly justice in this case, in Calder's case. Calder and his other two witnesses stated that there was a prejudice against white American men like Calder, and that, under those circumstances, the trial-- They also brought hearsay evidence to the effect that witnesses had been bought... bought off in Puerto Rico in some cases, and they attacked in that way the integrity and the quality of the justice of... that is afforded by the Puerto Rico courts. Now, the Governor of Iowa tried to intercede on Calder's behalf in some plea bargaining between Calder's attorneys and the Puerto Rico prosecutors. They were bargaining on whether to accept a plea of guilty from Calder on a lesser charge, and also, whether a sentence of probation would be imposed. The prosecutors conditioned all plea bargaining upon Calder's voluntary return to Puerto Rico. And the governor then tried to intercede and had some talks with Governor Romero of Puerto Rico. These talks failed, and thereon, the Governor of Iowa denied extradition. The Commonwealth filed a complaint in the District Court seeking a writ of mandamus against the Governor of Iowa to order him to extradite Calder. The court refused to issue the writ. It held that it was bound by the decision of this Court in Dennison... in Kentucky v. Dennison; that the Federal court had now power to order the state governor to extradite Calder. The United States Court of Appeals for the Eighth Circuit affirmed that judgment reluctantly, stating that the reasoning and the underpinnings of the Dennison case had been undermined, had been eroded to such a degree that the court... the only court empowered to do so, the Supreme Court, should reconsider it. Now--
William H. Rehnquist: You agree, Mr. Saldana, don't you, that we would have to overrule Kentucky against Dennison to rule in your favor here?
Lino J. Saldana: --Yes, sir. Now, the--
Antonin Scalia: Mr. Saldana, why is that... why is that so? That is so only if you insist that Puerto Rico is a state within the meaning of the provision here. You have a statute that purports to require extradition to either a state, a district or a territory. Might now the power of the United States be different insofar as its ability is concerned to require a state to extradite to a territory, than it is with regard to its power to require a state to extradite to another state?
Lino J. Saldana: --Well, the power of Congress to enact the extradition act is based on the implied power of Congress to implement the extradition clause. And the--
Antonin Scalia: Well, maybe this statute, insofar as it might apply to Puerto Rico, is not an implementation of the extradition clause of the Constitution but is an implementation of Congress' power to govern territories.
Lino J. Saldana: --Well, that power cannot justify the Congress ordering a state to extradite a fugitive to a territory. It would operate for Congress to direct a territory to extradite to a state, or to extradite to another territory. But the power of Congress to implement the clause as it did, ordering a state to extradite a fugitive to a territory, must rest on something other than the territorial power. It rests on the implied power of Congress, under the very... under the extradition clause itself, to implement that statute. And for... history reveals that the extradition statute was approved in 1793 a few years after the Constitution was ratified; and the people and the Congressmen who were there were, many of them were members of the Convention, lawyers and framers of the Constitution, who had at least drafted the Constitution and participated in the process of ratification. Now it has long been considered... it is really beyond question... that this contemporary interpretation of Congress, of the meaning of the extradition clause, is valid, and that it shows that Congress, in the extradition... that the extradition clause of the Constitution goes beyond states, beyond the 13 states of the Union; that it includes other entities like territories, like the Commonwealth, like the District of Columbia. Now we may not have... it may not be necessary to decide that question, because the statute, as Justice Scalia points out, imposes the duty of extradition upon the Iowa State Governor. There is no problem, no doubt, that it is a valid statute. And there is no doubt that it applies to Puerto Rico. Before 1952, this Court so expressly held. And after 1952, it is also clear that the extradition act was undisturbed in its application to Puerto Rico.
William H. Rehnquist: But that statute was in effect at the time Kentucky against Dennison was decided, wasn't it?
Lino J. Saldana: I'm sorry, I did not hear you.
William H. Rehnquist: I thought you were referring to the statute of 1793.
Lino J. Saldana: Yes.
William H. Rehnquist: And that statute was in effect at the time that Kentucky v. Dennison was decided.
Lino J. Saldana: That's right, sir. And the Dennison decision interprets both the Constitution and the statute. And it did interpret both together because the statute and the Constitution are coterminous. They speak in the same language. They use the same words. They must be read in pari materia. And it is impossible for this Court to decide the statutory issue without reaching the Constitutional issue. So both... they are inseparable.
Thurgood Marshall: Mr. Saldana, not that it matters, but what position do you hold in the government of Puerto Rico?
Lino J. Saldana: I am special counsel in this case.
Thurgood Marshall: I mean, I notice on the brief that everybody has a title but you.
Lino J. Saldana: That's right.
Thurgood Marshall: And I was just wondering, you're authorized to speak for the government?
Lino J. Saldana: Yes.
Thurgood Marshall: Thank you.
Lino J. Saldana: Well, we feel that no case, or few cases at least, would better demonstrate that Dennison should be overruled that this, the present one. First, the Dennison decision leaves the governor free to violate with impunity his duty to extradite, the duty that is imposed both by the Constitution and by the statute. Ronald Calder has been able to find precisely what the extradition clause and the extradition statute intended to prevent. He has found an asylum, a free asylum, in Iowa. And he has been able to avoid altogether responding for his alleged crimes. He has obtained what really amounts to an immunity in Iowa. That violates the concern of the extradition clause, the concern that was at the core of the extradition clause, to... which is the protection of law and order within the respective borders of each state and defeats and frustrates the administration and enforcement of criminal law in every state. The result, of course, is unsound, and is contrary to the express mandate of the Constitution and of the statute. Second, the Dennison rule, as seen in this case, the result it has in this case, is that it frustrates and defeats, also, the concern of the extradition clause for comity and respect between states. This case shows how the Dennison rule invites precisely the kind of friction, the kind of disagreements and retaliation that the clause, the extradition clause, was designed and intended to prevent.
Byron R. White: Well, Mr. Saldana, the State of Iowa in its brief suggests, as a last argument, that Puerto Rico isn't entitled to use the clause or the statute at all, because you aren't a state; that you're a territory.
Lino J. Saldana: Well, Your Honor, that argument really is not in point. Because, as I explained awhile ago, Puerto Rico is invoking both the Constitution and the statute, and it does so because of the fact that it believes that the Constitution of itself, on its own power, extends to Puerto Rico, the constitutional clause involved here, the extradition clause; as do the other clauses, the privileges and immunities, and the full faith and credit clauses. Because those clauses are designed to create a national unity within the federation, the American federation. And there is a need to extend those provisions to a state like Puerto Rico that is so near--
Byron R. White: You say it's... Puerto Rico is a state?
Lino J. Saldana: --Well, it's a state not in the sense that it is a state of the Union, but it is a state that is joined with the United States by a compact, and has the degree, the same degree, a similar degree, of autonomy and independence as the other states of the union.
Byron R. White: Do you think just any territory of the United States could employ the extradition clause?
Lino J. Saldana: I think so, sir, I think so, yes. I think so because--
Speaker: Even though that isn't what the clause says.
Lino J. Saldana: --The clause refers only to states of the union. But for functional purposes, and for historical reasons, the clause should be read to extend, of itself, to states, to other entities like the Commonwealth and the territories. However, it did not--
Antonin Scalia: Maybe it should be written that way, but why should it be read that way if it wasn't written that way?
Lino J. Saldana: --Well, it wasn't written that way, but it was interpreted by the members... by Congress at an early date when the object and scope of the clause was common knowledge. And the Congressmen who dealt with the statute, the 1793 statute, which has not been substantially changed until today, interpreted that clause to mean that it extends to the territories. At that time there were two territories, the territory northwest of the river Ohio and--
Byron R. White: Well, it didn't need to interpret that clause to pass that statute. But it did; it said any state or territory, the extradition statute does. And so you may claim protection of the statute, may you not?
Lino J. Saldana: --Yes. And once the statute applies, as we claim it does, then as I stated a second ago, the constitutional issue raised in the Dennison case as to the interpretation of the clause, of the extradition clause, must also be reached by this Court, because the statute and the Constitution--
Byron R. White: If we... if we interpreted the statute differently than the Dennison case did, we wouldn't have to reach any constitutional issue at all.
Lino J. Saldana: --But the statute, Mr. Justice White, the statute repeats the words of the Constitution.
Byron R. White: Except it's got the word "territory" in it.
Lino J. Saldana: Yes, but we are concerned here with not only whether territories are covered but what kind of duty is imposed on the state governor to extradite.
Byron R. White: Well, isn't there some indication in the Dennison case that the court actually thought the statute imposed a duty, but only a moral duty.
Lino J. Saldana: That's right.
Byron R. White: And that it wasn't an enforceable duty, and wasn't intended to be enforceable. Isn't that what the Court said?
Lino J. Saldana: That is right.
Byron R. White: So that's a construction of a Federal statute.
Lino J. Saldana: The Court interpreted both the Constitution and the statute to mean that. And as a matter of fact Chief Justice Taney said, the Constitution leaves the performance of the duty to the fidelity of the governor to the Constitution of the United States. It is not a legal duty; it's a moral duty. And the statute necessarily does so, necessarily leaves the duty as one which is unenforceable, which is a moral duty. So it is impossible, I respectfully submit, to decide this case on the basis of a statutory interpretation, without reaching the Constitutional question involved.
Antonin Scalia: That may be, but not because Puerto Rico is a state, but because in order to interpret the statute as being mandatory, since it applies to both states and territories, you would have to contravene Kentucky v. Dennison, whether or not Puerto Rico is a state. I mean, I'm quite... it's an uphill battle to convince me that when the Constitution refers to states, and says states, and elsewhere it refers to territory, it makes no difference between the two. So it seems to me that if Puerto Rico comes under this statute, it comes under it as a territory, not as a state, which--
Lino J. Saldana: Well, that's an alternative ground for reaching the Constitutional question. But the Constitutional issue--
Antonin Scalia: --I'm not anxious reach the constitutional question. I mean, I would as soon avoid it. But it may well be that you can't read the statute the way you want to read it, or you couldn't read it to be mandatory for territories and permissive for states, because it doesn't purport to distinguish between the two. But I hope you will tell me we don't have to reach it because Puerto Rico is a state, because I don't think you will persuade me that Puerto Rico is a state.
Lino J. Saldana: --Well, if you interpret the Constitution narrowly and literally, with all due respect, you're right, Justice Scalia. If you interpret the Constitution functionally and from an historical point of view, you may not be right as to that point. But again, I say it's unnecessary to decide that issue, because there is the alternative ground whether Puerto Rico is a state today or a territory, it is covered by the statute. And the case can be decided under the statute. But in deciding the statutory issue, this Court will have to reach the constitutional issue.
Byron R. White: Why?
Lino J. Saldana: Because they, both the statute and the Constitution, read... must be interpreted in a--
Byron R. White: Well, what if there were no extradition clause at all? Do you think Congress could have passed the extradition statute?
Lino J. Saldana: --I don't think so.
John Paul Stevens: But Mr. Saldana, is it not true that even if we read the statute in your favor and say the constitutional clause doesn't reach it, there remains the constitutional question decided in Dennison, whether a Federal court has the constitutional power to order a governor to perform this duty. That's a constitution question, isn't it?
Lino J. Saldana: That is right.
John Paul Stevens: And if you win on the statute, we must then reach that constitutional question.
Lino J. Saldana: That is right.
William H. Rehnquist: Thank you, Mr. Saldana. We'll hear now from you, Mr. Appel.
Brent R. Appel: Mr. Chief Justice, and may it please the Court: I think I can best assist the Court today with a three-part presentation about the extradition clause. First, I would like to engage in a brief survey of its history, with special emphasis on the constitutional foliage that has grown up in the extradition area in the absence of judicial intervention. Second, I'd like to take a look at the court as an institution, and ask ourselves question: Would it be preferable for this Court to intervene and make extradition decisions rather than the governors of the state as a matter of constitutional policy? And then finally, I'd like to take a quick survey of the facts in this case, in which the State of Iowa has a fundamentally different presentation to make than does Puerto Rico. First, let's look briefly at the history--
Antonin Scalia: I think that's probably how Marbury v. Madison was argued, too.
Brent R. Appel: --I read Marbury--
Antonin Scalia: It lost there.
Brent R. Appel: --I read Marbury yesterday. And we'll get back to it, because I think it has some relevance, Justice Scalia. The history of the--
Harry A. Blackmun: You spent most of the day reading it?
Brent R. Appel: --Only a part of it, Justice. The history of the extradition clause is, first, that the courts have consistently stayed out of its interpretation; not simply the Federal courts, but the courts of all 50 states. And there's some 8,000 state-years of accumulative experience have stayed out, and have not intervened under state constitutions which deal with extradition as well. And as a result, in the absence of this judicial intervention, an executive common law tradition of interpreting the extradition clause of the Constitution and the state constitutions has developed. And what that executive common law tradition is basically is that the... the extradition clause in the Constitution does establish a general principle to be applied when states request that a fugitive be delivered up. And the language is, of course "shall". Just as the First Amendment says Congress shall pass no law. And the full faith and credit clause says, full faith and credit shall be given. And that has been recognized by all the governors. And extradition occurs on a routine basis, day-in and day-out. The question in this case is what happens at the edges of the doctrine. Every constitutional bone has cartilage on the edge. And that's where we are in this case. We're at the very edges of the doctrine. And the question is, who decides when to extradite and when not to extradite, and under what conditions? And the governors have come up with the following executive common law tradition. As I said, first it's generally a duty to extradite. However, where there is a serious question of the safety of the individual in the demanding state, extradition may be denied. Where there's a question of--
William H. Rehnquist: What's the source... how can you tell what this common law tradition is? Are there governors' statements and that sort of thing?
Brent R. Appel: --There's a smattering of case law. And admittedly, I must say, some of the case law is fairly oblique. Why? Because the governors' statements are not necessarily sweeping judicial statements. In general, it's a summary executive proceeding. There isn't findings of fact and conclusions of law, or anything like that. But my sources on these, if you look through Moore, Spear and Scott, which are the key extradition treatises, they present to you circumstances in which states have declined to extradite. And if you look at South Dakota v. Brown, the latest Supreme Court case... California Supreme Court case... there's a canvass. My bottom line point, however, is that this executive tradition has developed over a hundred years in interpreting... over 200 years, really... in interpreting that constitutional provision. Secondly, informal mechanisms of resolution of extradition disputes have grown up. There's a National Governors Association, of course. And there was reference to discussion between the governors of these states with respect to this extradition matter, and that occurred in this case. There's a national association of extradition officials, and they put out these manuals and pamphlets and so forth. And they get together and debate and discuss extradition questions. So there's been... in the absence of judicial intervention, which has been gone from the environment for 200 years, these informal mechanisms have grown up.
Byron R. White: xxx needn't perform what otherwise would be his duty?
Brent R. Appel: Well, as to how to deal with the--
Byron R. White: Well, that's what it amounts to in this case.
Brent R. Appel: --Well, our interpretation, of course, is the governor has done his duty; and that the governor--
Byron R. White: Well, he needn't carry... he needn't extradite.
Brent R. Appel: --And that's our interpretation of the Constitution, that's correct, that while--
Byron R. White: Sometimes he has to and sometimes he doesn't?
Brent R. Appel: --Well, that's correct, just like the First Amendment says Congress--
Byron R. White: Well, are you defending the judgment that... are you defending Kentucky, the Kentucky case, that there is no power to make a government extradite?
Brent R. Appel: --I think that prong of Kentucky v. Dennison has been much chipped away.
Byron R. White: Well, I know, but how about my question?
Brent R. Appel: Am I saying that this Court has no power?
Byron R. White: Yes.
Brent R. Appel: Yes, I would say that.
Byron R. White: Has no power to order a governor?
Brent R. Appel: Has no power under the constitutional scheme, because that was not anticipated.
Thurgood Marshall: You know what you're asking for? A haven for any criminal from Iowa. Any criminal charged with a serious... all he has to do is run to Puerto Rico. Is that what you're advocating?
Brent R. Appel: What I'm advocating is that the governors have authority to interpret that constitutional provision. But the Governor of Iowa has no interest in harboring fugitives, murderers and all this kind of stuff on a regular basis. The Governor of Iowa routinely extradites.
Speaker: [inaudible]
Brent R. Appel: Affected by the facts, yes, exactly. And I think that the Governor of Iowa, if the case were presented--
Thurgood Marshall: He thinks this is a manslaughter case.
Brent R. Appel: --That's right, or less.
Thurgood Marshall: You mean when you drive over a pregnant woman three or four times, that's manslaughter?
Brent R. Appel: Well, that's what's alleged in the affidavits, of course.
Thurgood Marshall: Well, that's all you have to go on.
Brent R. Appel: Well--
Thurgood Marshall: That's all you have to go on under the extradition act. Well, again, I'd like to know, you think the governor, anytime he wants to, can refuse extradition, and that he may not be ordered to extradite by a Federal court?
Brent R. Appel: --That's correct. That's correct.
Sandra Day O'Connor: Well, Mr. Appel, what about cases like ex parte Young? Do they have any relevance, do you think?
Brent R. Appel: I think we need to perhaps distinguish between practical power and interpretation of the extradition clause. Our view is that when the extradition clause was put into the Constitution, as it's been interpreted over the years, the courts have said, judicial people stay out; hands off kind of policy. It wasn't designed for us to intervene. If you're talking about power itself, and does this Court... can it issue orders and so forth and so on, that's a different matter. And let me make it very clear: I'm here to say, the Governor of Iowa of course is going to follow whatever order this Court comes down with. We're not challenging in any kind of physical way whether the Court can enforce its own mandates.
Sandra Day O'Connor: The question is just whether that aspect of Dennison is valid today.
Brent R. Appel: Right, right. And--
Sandra Day O'Connor: It grew up a long time ago in different circumstances.
Brent R. Appel: --Right.
Sandra Day O'Connor: And the Court has gone a long way since then--
Brent R. Appel: True.
Sandra Day O'Connor: --in saying that Federal courts generally have power to enforce--
Brent R. Appel: Surely true. And I think... I think much of that underpinning, in terms of the rationale in Dennison, has been undercut today; no question about it. But that doesn't mean... that doesn't necessarily turn the interpretation of the extradition clause upside down. In fact, it was never contemplated that the judiciary become intensively involved in these kind of extradition--
Sandra Day O'Connor: --Well, didn't Dennison say that there was an absolute duty, a ministerial duty, on the part of the governor to comply with the extradition request?
Brent R. Appel: --Dennison did say--
Sandra Day O'Connor: And I read it as turning only on the question of whether Federal courts had the power to enforce the ministerial duty.
Brent R. Appel: --Dennison did say that. In the governor's opinion, that was dicta. And indeed, this very Court, in Taylor v. Taintor, which was decided in 1873, declares... and I'm just reading from the case... where demand is properly made by the governor from one state, the duty is not absolute and unqualified. It depends on the circumstances of the case. And it goes on to use the term "discretion". So the court has been across the board on that issue. But I would submit to you--
Thurgood Marshall: Well, if you're going to defend on the case, the Dennison case involved the slave act.
Brent R. Appel: --That's correct.
Thurgood Marshall: Which you agree that doesn't apply today.
Brent R. Appel: Oh, well, obviously there's no slavery today.
Thurgood Marshall: I hope you do. I don't want to get down off the bench.
Brent R. Appel: Of course not.
Thurgood Marshall: Getting back to my other point, the State of Iowa says, Calder has been charged by Puerto Rican authorities with murder in connection with an automobile accident. Do you agree with that? That is was just an automobile accident?
Brent R. Appel: There's never been any fact finding in this case, Justice Marshall. That was--
Thurgood Marshall: Well, do you agree that it was just an automobile accident?
Brent R. Appel: --That's the... there clearly was an automobile accident, yes.
Thurgood Marshall: Automobile accident, when you deliberately run over somebody?
Brent R. Appel: That was the allegations in the affidavits presented in support of probable cause.
Thurgood Marshall: Is there anything to disprove it?
Brent R. Appel: Yes, there's an entirely--
Thurgood Marshall: Is the woman dead?
Brent R. Appel: --Absolutely. Undisputable.
Thurgood Marshall: And the baby's dead?
Brent R. Appel: Undisputable. I'd like to move on to the question of why was bail so low, which is a good--
Antonin Scalia: Kentucky v. Dennison, by the way, not only involved a fugitive slave problem, but also in 1860, right?
Brent R. Appel: --That's true, of course.
Antonin Scalia: At a time when, if we had said we had had the power to compel it by the states, it's not at all clear that the states wouldn't have laughed at us, right, until after the Civil War.
Brent R. Appel: That's quite true, isn't it.
Antonin Scalia: You don't think that maybe things are a little different now, and we should reconsider whether that case was unduly influenced by the times in which it was decided?
Brent R. Appel: No question that things are a little different now. But it seems to me, as a matter of constitutional policy, the courts ought to stay out of these matters. And I'd like to move on to my second--
Antonin Scalia: Well, I'm suggesting that the policy was a very pragmatic one; that the times were such that the Court might not have thought it could have made a different decision stick.
Brent R. Appel: --Let me try and justify Kentucky v. Dennison on other grounds, other rationale, if I may, Justice Scalia. The issue in this case is simply a shifting of power from governors to the judiciary. If the judiciary decides to administer the extradition clause, there will be play in the joints. There's no such thing as a ministerial constitutional provision. And just as the full faith and credit clause, for instance, says, full faith and credit shall be given, the courts have engaged in a process of interpretation of when that clause applies and when it does not apply. Secondly, of course mandamus doctrine allows for all kinds of equitable defenses. It's not... the mandamus is not granted in an automatic fashion. That's what Marbury v. Madison says in passing, good government requires, and so forth and so on. And so what we're going to do--
Antonin Scalia: But those defenses would not pertain to whether indeed it was just an automobile accident or an attempt... or a murder. And they wouldn't pertain to whether there is a good system of justice in the state to which the individual is sought to be... they would pertain to quite different factors that the governors usually don't worry about.
Brent R. Appel: --Well, suppose... let me give you a fact hypothetical. Supposing there was a lynch... lynch mob mentality in a jurisdiction. And there mobs in Puerto Rico, if I get back to the record, from our perspective. Supposing the governor had good evidence that this person gets extradited, and there's going to be a lynching. Or there's a serious question of the physical safety of someone. Under the extradition clause, must a governor, simply by looking at the affidavits on its face, and the fact that he's a fugitive, must a governor in all instance extradite? Answer: I don't think so. And I don't think this--
Thurgood Marshall: In the '20s and '30s, I can give you thousand cases where that was just what happened.
Brent R. Appel: --I suspect so, and it might happen again in the future, unfortunately.
Thurgood Marshall: Was that all right.
Brent R. Appel: No, extradition should not have been granted in those instances.
Thurgood Marshall: Oh, we should have left them up there. Well, it's a little--
Brent R. Appel: Well, a number of governors declined to extradite on just those facts. It's our footnote 7, the Pennsylvania case.
Thurgood Marshall: --A case?
Brent R. Appel: There's a case out of Pennsylvania, yes, there is where a governor... a judge, actually, a court, declined to extradite under those circumstances.
Thurgood Marshall: Well, you said the governor.
Brent R. Appel: Well, I'm sorry.
Thurgood Marshall: That's right. I know you're wrong. I had a few of those cases. Suppose we overturned Kentucky and said, yes, governors may be ordered to do their duty under the extradition clause. I take it you don't think the case is over even then?
Brent R. Appel: Oh, it is not.
Byron R. White: Because?
Brent R. Appel: Well, if we look at the way the shape... the way this case is framed. It's a petition for a writ of mandamus. And it characterizes the duty under the extradition clause as ministerial, and then says that the governor looked at materials outside the sufficiency of the affidavits accompanying the warrant and the fact that he's a fugitive. No factual dispute on that. The governor did consider material outside the scope of the stack of papers. No question about it. And what Puerto Rico has said is, bzzz, that's illegal right there. Mandamus, you cannot consider matters outside the question of whether or not he's substantially charged and whether he's a fugitive. Our position is, oh, yes, yes, because of this executive common law tradition, you can consider the safety of the individual.
Byron R. White: Well, so the case wouldn't be over.
Brent R. Appel: Right.
Byron R. White: But the case would be over in this Court.
Brent R. Appel: Well, it would be remanded back to the District Court for appropriate proceedings.
Byron R. White: So those issues, if you've got them, would be open in the district court?
Brent R. Appel: That's correct.
Byron R. White: And it didn't sound very much like the lower court would be too sympathetic with your position. But they may be.
Brent R. Appel: Well, we haven't had any development of it--
William H. Rehnquist: Right.
Brent R. Appel: --because we relied on Kentucky v. Dennison, and the motion to dismiss and all this.
William H. Rehnquist: Well, why is mandamus the only conceivable remedy for the demanding state if Kentucky v. Dennison were to be overruled? I mean, couldn't you just bring an ordinary 1983 action against the governor?
Brent R. Appel: I think it would be very difficult to bring a 1983 action and obtain a compulsive remedy of getting ahold of the individual. But I do want to speak to alternative remedies. First, the Congress of the United States has acted in this extradition area. It has not passed a mandamus statute authorizing district courts or this Court to issue writs of mandamus for fugitives. It's passed a mandamus statute, you're all familiar with it, 1361, which authorizes mandamus against Federal officials; and there's been much litigation about that in the Heckler case and so forth.
John Paul Stevens: Yes, but isn't there an easy explanation for that? They couldn't do that without defying the last sentence in the Dennison case?
Brent R. Appel: Of course. Of course, that's right. But you see, that's the Catch-22 situation. It's the fact that this doctrine has been historically established, and this constitutional vegetation has grown up. And Puerto Rico's argument is really a constitutionally violent one in the sense that it strips away all these informal mechanisms, and strips away the fugitive felon act, which is Congress' method of approaching the problem.
John Paul Stevens: But your informal mechanism, as I understand it, is that the governor of the asylum state should be free to decide whether the jurisprudence of another state... or the governor of another state is equipped to protect the extradited defendant from lynching. And you're suggesting there's enough danger of lynching around a different... one state or another that we should simply ignore the constitutional command.
Brent R. Appel: We're not ignoring the constitutional--
John Paul Stevens: Well, but that's your policy argument.
Brent R. Appel: --No, no. No, the question then is what is the constitutional command. I mean, it's like a First Amendment argument saying, well, you know, the First Amendment says, Congress shall pass no law. And then we say, fire in the theater, and we pass a Congressional regulation saying you can't do that. It's a question of substance. And I don't think there's such a thing as a ministerial constitutional duty.
Antonin Scalia: Don't you think that sometimes the governors' determinations about whether to extradite a particular individual may be affected by what kind of press coverage the case has gotten?
Brent R. Appel: Surely.
Antonin Scalia: And how he thinks he'll fare in the next election if he should extradite this individual?
Brent R. Appel: I suspect--
Antonin Scalia: And that problem is eliminated by having the... if indeed there are mandamus discretionary equitable kinds of considerations that should be taken into account, wouldn't they better be taken into account by a life-tenured Federal judge on a mandamus action, who doesn't have to worry about what the electorate would do the next time around?
Brent R. Appel: --A couple of difficulties, I think. First, the governors have access to all kinds of informal channels of communications that may not be available to a sitting Federal judge. They get on the phone, they call the other governors. They have frank and candid discussions about it.
Antonin Scalia: They can oppose the extradition if they want. They can come into the court, I assume, and provide whatever information those informal channels would yield.
Brent R. Appel: But of course, the reaction, if that were the law that the Federal courts were going to be involved, is, the governors are just going to more or less hand the issues over to them. I think we want to encourage this informal method of discussion that we have. Secondly--
John Paul Stevens: Well, I don't follow that argument. Isn't it true that in 90 percent of extradition requests, or maybe a higher percentage, they're routinely processed?
Brent R. Appel: --Surely true.
John Paul Stevens: It's only the exceptional case that produces this kind of controversy.
Brent R. Appel: Surely true.
John Paul Stevens: And that would not change, would it?
Brent R. Appel: No. The only... the questions in this case really are... in fact the governor's interpretation of the extradition clause I don't think is fundamentally very much different than what frankly the members of the Court are likely to come up with, though on the margins apparently there's some question. The governor believes that he can go beyond the affidavits to look at the safety of the individual and issues of fairness and so forth. That's what the governor believes as part of the constitutional provision. The question is, who administers, more than anything. I'd also like to point out if I may--
John Paul Stevens: You say... the question is, which governor shall have the final say? That's really what it boils down to.
Brent R. Appel: --The question is, who shall have the--
John Paul Stevens: The governor of the state in which the crime was allegedly committed, or the governor of the state in which the defendant seeks asylum. One of them has to have the final say.
Brent R. Appel: --Well, indeed, I think if the Court becomes involved, the Court of course will have the final say. And it may--
John Paul Stevens: Well, the only thing the Court would decide is what's been admitted in this case, whether there was compliance with the procedural requirement.
Brent R. Appel: --Well, I'm not sure of that.
John Paul Stevens: Well, what issue would be open for the court?
Brent R. Appel: Well, let me ask this: Supposing... supposing again, and I'm posing--
John Paul Stevens: Supposing a lynch situation?
Brent R. Appel: --Yes.
John Paul Stevens: The answer would be, if you follow the Constitution, that the governor of the state where the crime is committed has a duty to prevent lynching.
Brent R. Appel: No, I don't think so. It's like, for instance, the full faith and credit clause, for example, let's use that analogy. In the full faith and credit context, in the... in the so-called foreign state, you can challenge that foreign decree on the basis that were no jurisdictions, there was no due process, a number of other things.
John Paul Stevens: Right, but you can't challenge an extradition on that ground. There are certain specific requirements that must be met.
Brent R. Appel: I don't read that in the Constitution, quite frankly. I mean, that's like saying... look at the full faith and credit clause. Talk about sweeping. It says, full faith and credit shall be given to each... blah-blah-blah... for all acts, et cetera, et cetera, et cetera.
John Paul Stevens: xxx changed to whether it is a valid judicial act of the other state. And I assume that there can be fights here about whether there... there indeed was a valid request from the other governor.
Brent R. Appel: Well, Justice Scalia, that's not entirely true. For instance, in the Antelope case, for instance, back in Justice Marshall's day, it was held that penal provisions aren't enforceable under full faith and credit. It was also--
John Paul Stevens: xxx because no state generally enforced the criminal laws of another.
Brent R. Appel: --Right, but I think we're--
John Paul Stevens: That's why... that's why they put it in the Constitution.
Brent R. Appel: --I understand that. But I think you're assuming the question of the scope of the clause. It's like a... it's like a First Amendment type setting once again. We understand that the general obligation, as is the general obligation under the First Amendment, is that--
John Paul Stevens: And if we read Dennison, it's a ministerial obligation.
Brent R. Appel: --Well, and I just don't... I must say, I don't--
John Paul Stevens: We should overrule that part of Dennison, you'd have us reject?
Brent R. Appel: --I think that is not correct.
Byron R. White: Do you think that your governor could relitigate the question of probable cause to arrest in this state? And he'd say, well--
Brent R. Appel: No, the probable cause, we have stipulated that there was, on the face of the affidavits--
Byron R. White: --Well, that isn't what I was asking you. What if the governor said, you know, I just don't believe there was probable cause to arrest this fellow in Puerto Rico. They just don't have the facts there, despite this warrant and despite these affidavits. Now, can he relitigate that?
Brent R. Appel: --If the Court becomes involved, I assume he could. I assume he could.
Byron R. White: Well, what have we held in that regard?
Brent R. Appel: Oh, sure. Right, Michigan v. Dorn. But what did you hold in that regard?
Byron R. White: What did we hold?
Brent R. Appel: Well, as the Justice well knows, you held that a court... a court... would not look beyond--
William H. Rehnquist: Where the governor has decided to extradite.
Brent R. Appel: --When the governor has decided to extradite, precisely. There's a whole host of cases--
Byron R. White: Do you think the governor could decide not to extradite because he didn't think there was probable cause.
Brent R. Appel: --Yes, of course.
Thurgood Marshall: xxx on the face of the document. Well, then the provision of the Constitution really doesn't do anything at all. If your answer to that is--
Brent R. Appel: Excuse me, I'm going to back off that. I think that's not correct. But... I know when I'm out on a limb, and that's one.
Byron R. White: --A weak limb, too.
Brent R. Appel: But I want to come back to the basic constitutional point, and that is, again, this business frankly, about is his duty mandatory or is ministerial, this is not a helpful distinction. There's no question that the... that the extradition clause in general establishes a norm of constitutional conduct, just as full faith and credit does, and just as the First Amendment does. And once again, the question is, what do we do at the margins? And I might add... let's look at this Article IV; I think it's kind of interest. Full faith and credit, et cetera. Congress shall provide how the record shall be proved, and the effect thereof. Congress is expressly authorized to prove the effect thereof of full faith and credit, and it has under 1738--
Thurgood Marshall: If full faith and credit applied, you wouldn't need the extradition act.
Brent R. Appel: --But if we look under--
Thurgood Marshall: Would you? If full faith and credit applied, you wouldn't need the extradition act.
Brent R. Appel: --Yes, I think that's probably true.
Thurgood Marshall: But we have the extradition act.
Brent R. Appel: Yes.
Thurgood Marshall: So obviously, full faith and credit didn't apply.
Brent R. Appel: Yes, but the point--
Thurgood Marshall: Well, why are you arguing full faith and credit?
Brent R. Appel: --Well, I'm trying to argue by analogy, to make two points, Justice. One is, just the provision says "shall" doesn't mean that it answers all our questions. And secondly, Congress is given express authority to determine the effect thereof on the full faith and credit. We move down, then, to the extradition clause, and we don't have such language. Indeed, the framers no doubt thought that the states in their own... that each state's governor would determine how to interpret that extradition clause. There's no further... say, Congress shall give effect, et cetera. In closing, I do want to go... raise--
Antonin Scalia: xxx have now with respect to the fugitive slave provision that Congress has authority to implement. There's no reason to think as far as the implementation power is concerned, the one is different from the other, is there?
Brent R. Appel: --Well, I think there is. And the reason for that is, again, the constitutional history of judicial nonintervention that's grown up.
Antonin Scalia: Yes, to be sure. I mean you can answer that... you can answer all my questions that way.
Brent R. Appel: I suspect I could.
Antonin Scalia: Just citing Kentucky v. Dennison.
Brent R. Appel: I wanted to address your concern about the power under the territories clause, and that we could conceivably put aside Article IV, the extradition clause, and go under the territory clause, right. First, that hasn't been raised in this proceeding. Indeed, it's not in the petition for writ of certiorari. The petition is only based on Article IV. And it seems to me that Puerto Rico is seeking for an opinion of this Court to declare that it's a state. There's an ideological interest at stake here, I think. They haven't raised the claim. But let me address the claim--
Antonin Scalia: xxx you think there might be some problem? Let's assume we were talking about a territory in which Congress had not even established any local courts; it was governing it by Federal courts, all right? Could Congress require a state to hunt down a... a state to hunt down a fugitive from an indicted crime in that territory?
Brent R. Appel: --I think not.
Antonin Scalia: Yeah, that's the problem I have.
Brent R. Appel: And the reason for that is that, Your Honor, the Tenth Amendment, all rights are reserved to the states. The extradition clause plainly says, when a sister state requests it, you know, that's cut into. But I think if Congress attempted to pass such a statute, it wouldn't pass constitutional muster.
Antonin Scalia: You say, Congress' remedy is, if it's a Federal offense in a Federal territory, use your own police to do it; you can't lay that burden on the states.
Brent R. Appel: That's right. And that can be done under the Fugitive Felon Act, which allows... someone who flees from one state to another is guilty of a Federal crime, if the Attorney General authorizes prosecution. You can see that Congress has been very chary about getting into this field. By passing the Fugitive Felon Act, which says it's a Federal crime to jump from one state to another, and a Federal prosecution can be brought with the approval of the Attorney General or the assistant Attorney General, which may not be delegated. And so there's no serious threat of a constitutional breakdown occurring in this case at all. The system has worked well. If it ain't broke, don't fix it, is part of our argument. It's hard to see how the injection of the judiciary into the environment is going to help improve things. In closing... this is my second closing... I'd like to briefly go through some of the facts that were stated. The question about bond being so low: One of the reasons is, they were afraid that this person if incarcerated in Puerto Rico would be killed; and that appears in the Appendix as part of the extradition proceeding. There was a serious concern about the safety of this individual. I want... I want to stress, Justices, this was on a motion to dismiss and a petition for writ of mandamus, and there hasn't been a factual development in a traditional sense down below. These are materials that were before the governor. But I just want to share with you some of the concerns that were motivating Governor Branstad, who normally extradites, of course. There was serious concern about the safety of the individual; fear that he'd be killed.
Harry A. Blackmun: This is the kind of thing we hear about extradition to foreign countries.
Brent R. Appel: I understand that.
Harry A. Blackmun: Would you make the same argument if Michigan instead of Puerto Rico were involved?
Brent R. Appel: Yes. Yes, I'd have to.
Harry A. Blackmun: Things are tough up in the Upper Peninsula?
Brent R. Appel: Well, I think... no... the basic construct is this, what is the substance of the extradition clause? It vests administrative authority in the governor to decide whether or not that general duty applies. And on the margins, the governors determine what the exceptions are. And in the course of this 150 years, there's been kind of a common law type evolution, documented perhaps kind of illy because there haven't been that many litigated cases. But the governors have developed a number of exceptions, just like exceptions have been developed to full faith and credit, and just like exceptions have been developed--
Antonin Scalia: You think they really like to do that? It is curious that no other states have come in on either side of this thing. I really wonder whether governors like to have to worry about this stuff; whether they wouldn't be delighted to have these questions about whether somebody's going to be hung if he goes somewhere else, worried about by courts. It seems like a strange thing for the Governor of Iowa or anywhere else to be worrying about. Are you sure you're doing your governor a favor?
Brent R. Appel: --I'm here at his instructions. I think there's some ambivalence about extradition to be sure among the governors. That's just my speculation; I haven't taken any poll. But again, we have to wonder, how will the best institutional results be fashioned here? It seems to me that--
John Paul Stevens: You're suggesting in that regard that we should treat the states... this is an aggregation of sovereign states that are just like Europe, might decide not to... it's the same... similar thing in that area.
Brent R. Appel: --Obviously, it's not just like Europe.
John Paul Stevens: And the reason it's not is because we have this clause in the Constitution.
Brent R. Appel: My red light's on, but to answer: What is the purpose of this extradition clause? What is has done, and no one can dispute this fact, what the extradition clause has done is ensured that each governor has authority to extradite a person to a sister state; and no one can go into Federal habeas corpus or state habeas corpus and say, look, no authority; you can't do it. And the extradition clause has made that absolutely, crystal, perfectly clear, and no court has held otherwise; just as they've also held that no courts should coerce a governor.
William H. Rehnquist: Thank you, Mr. Appel. Your time has expired. The case is submitted.


Warren E. Burger: We will hear arguments next in Gomez v. Toledo. Mr. Avery, I think you may proceed whenever you are ready.
Michael Avery: Thank you, Mr. Chief Justice, and may it please the Court. This case comes to this Court following the dismissal of Petitioner's 1983 action in which he alleged that he was discharged from public employment in retaliation for a speech on his part which we submit was clearly protected by the First Amendment and without regard to his due process rights to procedural due process under the Fourteenth Amendment.
William J. Brennan, Jr.: Mr. Avery, I wonder if I could ask you a question at the threshold. Has this Court ever decided that Puerto Rico was a State for purposes of 1983?
Michael Avery: I don't believe that has been decided by this Court, Mr. Justice Brennan, but the First Circuit has decided that on a number of occasions.
William J. Brennan, Jr.: But has the issue ever been before this Court?
Michael Avery: Not to my knowledge.
William J. Brennan, Jr.: I take it that it is the kind of issue that we can take cognizance of, isn't it? If it is not, then I gather --
Michael Avery: It is a basic jurisdictional issue. It is not disputed by any of the parties in the case.
William J. Brennan, Jr.: I appreciate that.
Michael Avery: And I know of no argument that has been presented --
William J. Brennan, Jr.: Well, what has been the rationale of the First Circuit, to suggest that it is a State.
Byron R. White: As you are aware, this Court has held that the District of Columbia is not a State for purposes of 1983. And at least I take it constitutionally Puerto Rico is a Territory, isn't it?
Michael Avery: It is not a territory in a strict constitutional sense but it has been treated as such by the First Circuit. It has a sort of unique Commonwealth status arising from the Organic Act earlier in this --
William J. Brennan, Jr.: Well, that isn't a constitutional matter though, is it? Congress has created something called a Commonwealth but I suppose for the purposes of the Constitution it is a territorial clause that applies, isn't it?
Michael Avery: That would be our position with regard to the application of 1983, yes, sir.
William J. Brennan, Jr.: What has the First Circuit said is the basis for a conclusion that actions against Puerto Rican officials lie under 1983?
Michael Avery: As I recall -- and you do catch me somewhat off guard, Mr. Justice Brennan -- the argument that has been made in this case is that the Constitution must have meaning within the Commonwealth of Puerto Rico since it is under our jurisdiction. And that 1983 is the method for enforcing that.
Warren E. Burger: We said that in the Fourth Amendment case, didn't we?
Michael Avery: That may very well be.
Warren E. Burger: Not that it is a State, but that the Constitution is applicable.
Michael Avery: But didn't we also say in the opinion written for the Court by Mr. Justice Brennan covering the District of Columbia that Congress enacted 1983 because it thought that State legislatures would be considerably less receptive to Federal constitutional rights than Congress itself and that since Congress itself legislated for the District of Columbia, the District of Columbia was not a State for purposes of 1983. Well, that rationale would support the application of 1983 to Puerto Rico, because Congress does not legislate for Puerto Rico within -- in the sense that it does for the District of Columbia.
William H. Rehnquist: Well, it certainly passed the Organic Act.
Michael Avery: Yes, but the laws that govern the people of Puerto Rico on a day to day basis are passed by the Puerto Rifo legislature in Puerto Rico. And in that sense functionally it is in the same position to the Federal Constitution as a State or Territory.
William H. Rehnquist: Well, would you say then that the Home Rule Act enacted by Congress for the District of Columbia several years ago made our earlier decision saving 1983 was not applicable to the District out of date because now the City Council of the District of Columbia is the one that enacts the laws which govern the citizens of the District of Columbia?
Michael Avery: Well, that might be a possible argument, Mr. Justice Rehnquist. To be frank with you, I am a little out of my depth with regard to the Home Rule Act in the District of Columbia and I don't know that I can answer that question adequately. But I would say with regard to Puerto Rico that the same concerns that prompted the 1871 Civil Rights Act are in effect there, namely is the Federal Constitution going to be given the same even-handed application by local officials in that Territory as it is in all the other States and Territories. And I think that that justifies the application of 1983 to Puerto Rico.
Thurgood Marshall: Because there is a difference in the status of the Virgin Islands and Puerto Rico, they aren't going to stand for it, are they?
Michael Avery: Well, I accept your statement that they are not, Mr. Justice Marshall. I think that Puerto Rico does have the unique relationship --
Thurgood Marshall: That is what I thought.
Michael Avery: -- does have a unique relationship with the United States. And the District Court in Puerto Rico and the First Circuit have certainly entertained these suits with regard to Puerto Rico for a number of years now.
Byron R. White: Have there been any rulings with respect to 1981 or 1982 about Puerto Rico?
Michael Avery: I know of no 1981 and 1982 cases. There may very well be such cases but I personally don't know of such cases, Mr. Justice White. The complaint in this case was dismissed by the District Court purely for the reason that the plaintiff had failed to allege bad faith in his complaint despite the fact that he had pleaded constitutional violations and he had pleaded that these violations had transpired under color of law. And our position is that this question presents two analytically different issues for resolution by this Court. One, who has the burden of pleading matters relative to the qualified immunity issue in a 1983 case and two, what are the elements of a cause of action under Section 1983? In our view, the fatal flaw of the First Circuit decision is that it merged these two questions and decided both of them incorrectly by requiring the plaintiff to allege bad faith as an element of his cause of action under 1983. If I might turn to the qualified immunity issues first, this Court has decided we would submit in Scheur v. Rhodes that in a series of cases that have been decided by the Court that the qualified immunity matters are matters of defense. Although the Court has never referenced it specifically to Rule 8(c), we would submit that the matters of affirmative defense under Rule 8(c) have been continuously referred to in that way by the Court.
Byron R. White: Do you think all matters of immunity are?
Michael Avery: I think --
Byron R. White: What about absolute immunity for -- legislative immunity, for example?
Michael Avery: This Court has treated absolute immunity as a defense. In Doe v. McMillan, for example, I think the Court clearly put a burden on the defendant in that case to justify the conclusion that if --
Byron R. White: Just to plead the immunity, to establish that what was going on there was legislative.
Michael Avery: Yes, that is correct. The subordinate facts, if you will, that would have justified absolute immunity in that case. And that is part of our argument, that if the defendant has to do even for absolute immunity it would seem to follow that for qualified immunity the defendant certainly has to do it.
William H. Rehnquist: What about Eastland v. Servicemen's Fund decided three or four years ago, wasn't there some statement in there that a mere letter from the defendant stating that he was a member of Congress was all that was required, no pleading at all?
Michael Avery: I don't know, Mr. Justice Rehnquist, but in other absolute immunity cases rather more than that has been required of the defendants. But even if there are cases, for example a judicial immunity case where the mere status of the person is a fairly complete answer to the immunity issue --
William H. Rehnquist: You still have to say, I object.
Michael Avery: Yes. And in fact there are cases where even the fact that the person is a judge won't insulate him from liability under 1983 if he acts wholly beyond his judicial authority.
William H. Rehnquist: What if the plaintiff alleges in his complaint that the defendant is a judge and that it is clear from the allegations in the complaint that the judge was acting in his judicial capacity?
Michael Avery: I think the judge would be entitled to win on a motion to dismiss in that case.
Byron R. White: For failure to take a cause of action?
Michael Avery: No, because the immunity would be clear on the fact of the pleadings and the complaint in that sense would not state a claim for relief.
Byron R. White: Well, Tenney v. Brandhove this Court reinstated a District Court dismissal of an action where the Court of Appeals had ruled that they had stated a cause of action. And this Court reversed and reinstated the dismissal. And you would think it was because of his failure to state a cause of action.
Michael Avery: Well, I think the plaintiff states a cause of action when he alleges his constitutional rights have been violated and that they have been violated under color of law. And our submission is that the immunity matters, whether absolute or qualified, are really matters in confession and avoidance. Now, the absolute immunity cases are easy because so often it is obvious from the face of the complaint what the issue is. The qualified immunity matters, however, fall into a completely different --
Byron R. White: Well, you don't need to argue about absolute immunity.
Michael Avery: No, I do not. The qualified immunity matters are rather different and I think this Court did decide in Scheuer v. Rhodes that there is no automatic assumption of qualified immunity even with regard to the Governor of a State in that case. That case came here following the granting of a motion to dismiss by the District Court and this Court held in a unanimous opinion written by the Chief Justice that that was erroneous for the District Court to assume that good faith attached automatically and that there was no basis in in the record, factual or otherwise, to support the automatic assumption of good faith. And the Court specifically said that the complaining parties in that case were entitled to be heard more fully than was possible --
John Paul Stevens: That doesn't necessarily follow because you have to plead it that you have to prove it?
Michael Avery: That doesn't necessarily follow under the Federal --
John Paul Stevens: So what case do you have that the defendant not only must plead but prove it?
Michael Avery: This Court has not addressed the question of who has the ultimate burden of proof with regard to the qualified immunity matters. That issue has been widely litigated in the lower Federal courts and nearly all of the circuits outside the First Circuit, all ten circuits outside the First Circuit have ruled either on the pleading or proof matter and most of those circuits have decided that the defendant has the burden not only of pleading it but of proving it as well.
John Paul Stevens: Some decided the other way?
Michael Avery: There is only one case I know of outside the First Circuit and that is Cruz v. Beto in the Fifth Circuit where they held that the director of a State-wide prison system did not have that burden and in that case the plaintiff had the burden.
Potter Stewart: He had to plead it?
Michael Avery: He had to raise it --
Potter Stewart: He had to pose a defense but it is like an insanity defense in some jurisdictions. Then the Government must prove insanity.
Michael Avery: I don't know if that is an exact analogy, because the Fifth Circuit decision isn't so clear, actually, about the relationship between the pleading requirement and the proof requirement. Also there seems to be some disagreement among the various panels within the Fifth Circuit about who has the burden. The other circuits have pretty uniformly held that the defendant has the burden and the reason for that, I would submit, is because of very sound promising consideration, namely these matters, matters that go to the qualified immunity issue in many cases are singularly within the knowledge of the defendant. There were so many different types of sources which the defendant might turn to to justify a qualified immunity defense. The defense I think both as enunciated by this Court and as interpreted by the lower Federal courts is very broad. Defendants might look to administrative practice. They might look to decided cases. They might look to the advice of counsel. They might look to a manual that is produced by the police department or the government that they work for. Plaintiff simply has no way of knowing at the time he grants the complaint what the defendant's explanation for unconstitutional conduct might be and therefore we suggest that is only the defendant who can consistent with the requirements of Rule 11 come forward and plead the matter. That is true not only because the defendant is the only one who would know what the possible sources of his good faith might be but the defendant is the only one who would know the circumstances under which he claims to have developed some good faith belief in the legality of his action. For example, suppose the defendant relies upon advice of counsel and ultimately the defendant's position at trial is going to be, my lawyer told me that it was legal for me to engage in this act, which it has turned out violates the plaintiff's constitutional right. It is not only the question of what the lawyer told him but what that defendant said to the lawyer. What was the reason why he sought advice from that lawyer, what information did he give to the lawyer before he asked the lawyer for an opinion. What question did he finally put to the lawyer in response to which the lawyer gave him some advice. Those are matters totally within the control of the defendant's knowledge and the plaintiff simply has no information.
Byron R. White: To you think the burden matter is even here?
Michael Avery: Do you think the --
Byron R. White: Do you think the burden issue is here?
Michael Avery: Yes, I do think it is here, because it seems to me what the District Court and what the First Circuit decided was that --
Byron R. White: Well, wasn't the complaint dismissed?
Michael Avery: The complaint was dismissed, yes.
Byron R. White: On what -- motion?
Michael Avery: It was dismissed on motion but the District Court really sua sponte raised this issue.
Byron R. White: Well, I know but it wasn't even pleaded. There would have still been a dismissal just for failure to plead.
Michael Avery: The dismissal was for failure to plead.
Byron R. White: It couldn't have been for failure to prove.
Michael Avery: That is correct.
Byron R. White: So and neither could the First Circuit. So why is the burden issue here?
Michael Avery: As to burden of proof? Well, that issue is not here. I was talking about that, Mr. Justice White, because you asked me a question about it.
Byron R. White: Well, you certainly would seem to argue and assert that is your position, anyway.
Michael Avery: That would be my position.
Byron R. White: It is your position in your brief, isn't it?
Michael Avery: Yes, it is our position in our brief but we do state in the brief that we think it would be a mistake for the Court in this case to announce a flat rule covering all 1983 cases as to the allocation of that burden. Just like Scheuer v. Rhodes, the Court announced it would be imprudent to try to cover the whole waterfront with regard to the qualified immunity --
Warren E. Burger: Why get to the burden at all?
Michael Avery: The burden of proof?
Warren E. Burger: Yes.
Michael Avery: I don't think the Court does need to get to the burden of proof.
Warren E. Burger: Well, then you are using the term "burden" in two different senses, at least for my ear.
Michael Avery: Let me apologize for my lack of clarity but --
Potter Stewart: Pleading is the only thing that is here.
Michael Avery: This is a case about the burden of pleading. However --
Byron R. White: Isn't it also true that if the Court should ultimately decide that the burden of proof was on the defendant, then necessarily the burden of pleading would fall a fortiori.
Michael Avery: That is correct.
Byron R. White: So to the extent that you make an argument favoring placing the burden of proof there you are supporting an argument in favor of placing the burden of pleading there as well.
Michael Avery: That is correct. I only meant to say that I don't need to go that far in order to win this case.
Warren E. Burger: But the converse of that is not true, necessarily?
Michael Avery: That is correct also. This is a case though which is somewhat confusing in terms of what the First Circuit decided, because the First Circuit appears to say not only in this case but in its other decisions that the reason they put that burden on the plaintiff is as though they consider pleading bad faith an element of the plaintiff's cause of action. And that is the second half of the analysis that the First Circuit gives us, namely that in order to plead successfully a 1983 case the plaintiff has to allege that the defendant acted in bad faith. That is a ruling which may very well, although I just saw it a few moments ago, be disposed of by the Court's decision today in the Owen case because I take it that one of the things that we could say on the basis of that is that bad faith in the sense of negating qualified immunity can't be an element of the very cause of action if that cause of action can be asserted against the municipality without making the claim of negating qualified immunity. It would also, the First Circuit decision viewed that way, it would seem to me require this Court really to overrule or at least to do substantial damage to Monroe v. Pape, and Carey v. Piphus, cases in which this Court has in effect said there were two requirements for making out a cause of action under 1983 -- (1) deprivation of a constitutional right and (2) a deprivation which takes place under color of law. To add a third requirement, namely that the defendant acted with some malice or recklessness or bad faith in the sense in which the First Circuit uses those terms would be to add a new requirement to --
John Paul Stevens: Unless some element happens to be independently an element of a constitutional violation?
Michael Avery: That is correct. There are constitutional violations that require some mental element.
William H. Rehnquist: In New York Times v. Sullivan, as I understand it, the requirement of intent to defame or actual malice is a burden on the plaintiff as a matter of constitutional law.
Michael Avery: In pleading a defamation case such as The New York Times v. Sullivan, that is correct. I think an example of that in this case is the First Amendment violation. Under the Mt. Healthy case, as I understand it, the plaintiff has to allege first that he was engaged in protected activity and it was then in response to his being engaged in protected activity and it was then in response to his being engaged in protective activity that the defendant discharged him from employment. In other words, the plaintiff does have to allege that a substantial factor or a motivating factor in the defendant's action in discharging the plaintiff was the plaintiff's -- the content of the plaintiff's speech.
Byron R. White: And in a racial discrimination case.
Michael Avery: And in a Fourteenth Amendment racial discrimination case invidious discrimination is required.
Byron R. White: Intentionally.
Michael Avery: And intent, and in an Eighth Amendment case some deliberate indifference is required. But those are very specific requirements which the Court has developed as a result of the substantive jurisprudence of each of those constitutional violations. I think in the First Amendment case, for example, we know exactly what it is that the plaintiff has to allege as a result of the Mt. Healthy decision. Just to call that bad faith or malice is to muddy the waters, we would submit, because those terms are much more general, indeed not nearly so meaningful as the specific content of those constitutional rights which are developed with regard to the substantive law in those areas. In this case, then, our submission is that the plaintiff had only a responsibility to allege the substantive elements of the constitutional violations he was pleading, namely with regard to the First Amendment violation that he had been engaged in speech activities which are arguably protected by the First Amendment and (2) that he was fired as a result of the fact that he engaged in that speech. And with regard to the procedural due process question that the plaintiff had employment in which he had a property right and (2) that he was discharged without a hearing.
Warren E. Burger: And you say that is pleading merely the ultimate facts?
Michael Avery: Well, I say that those are the elements of those two constitutional violations, that the -- with regard to the First Amendment issue I think that he has to fairly put the defendant on notice that he is claiming that he was fired because of the content of his speech and I think with regard to the procedural due process issue he does have to plead that he lost his job and that he lost it without a hearing. I don't think he has to do any more than that under the notice pleading rules. And I think the plaintiff did that in this case.
Potter Stewart: Mr. Avery, I think before you sit down, perhaps I should have looked at 1983 before I asked you the question I did whether Puerto Rico is a State, the statute reads. "Every person under color of any statute, ordinance, regulation, custom or usage of any State or Territory" --So I gather it is under 1983, because Puerto Rico is a Territory.
Michael Avery: Oh yes, if Puerto Rico is considered a Territory it --
Potter Stewart: Well, all right, then.
William J. Brennan, Jr.: It is just a question of whether or not Puerto Rico is a Territory.
Michael Avery: I thought that was what Mr. Justice Brennan's question was addressed to.
Potter Stewart: All right.
Potter Stewart: It is a Commonwealth, it is a Commonwealth by congressional legislation.
Michael Avery: Correct as I say, and I am repeating myself, it has been treated as a Territory for the purposes --
Byron R. White: Incidentally, it has been a Commonwealth for not that many years, has it?
Michael Avery: The Commonwealth status, if I am not wrong, is in the late 'Fifties or early 'Sixties.
Byron R. White: 1983 would apply if it were a Territory or if it were a State?
Michael Avery: Yes.
Byron R. White: And the Court of Appeals of the First Circuit says, well, whatever it is, it is somewhere between the two.
Michael Avery: Yes, that is correct. And they treat it as a Territory.
William H. Rehnquist: What was it before it was a Commonwealth?
Michael Avery: It was, I believe, a Territory.
William H. Rehnquist: A Territory?
Michael Avery: Yes. I would like to reserve the rest of my time for rebuttal if I may.
Warren E. Burger: Very well. Mr. Cedo.
Federico Cedo Alzamora: Mr. Chief Justice, and may it please the Court. It has been brought before this most honorable Court the fact that Petitioner was discharged from public office because he chose to exercise his freedom of speech.
Potter Stewart: Are you familiar with any cases that have addressed directly the question whether Puerto Rico comes within 1983, and why?
Federico Cedo Alzamora: No, sir. Before delving any further into the issues of the case I would like to state some of the facts. Petitioner had been -- as it is reflected in Exhibit 1 of his complaint -- had been engaged for about two years in a constant vortex of several problems concerning his fellow officers. He accused some of them of fabricating cases, using false witness. He suffered emotional problems himself which affected him in his work professionally. He was not discharged then because of that. He pressed charge against his fellow officers, he interfered with the Bureau of Inspection Services investigation. He charged that some of his fellow officers had gained entry into the police through illegal means. Then some of his fellow officers in turn accused him that he was maligning them -- many of them, about four of them. They questioned his reputation, they accused him of tampering with a witness and he was not discharged then. He was accused of passing information to the defense of a notorious criminal, he was accused of supplying information to out-of-town killers in order that they could prepare their defense. He was accused of creating problems, internal problems in the police as to help underworld figures. He was accused of having suspicious person in his own house. He was not discharged then. The fact is that an impartial investigation was carried on by the police itself and he was cleared. He was transferred because he could not properly work in this unwholesome environment, surrounded by so many people who he had accused and who had accused him in turn, he was transferred to the police headquarters and to the police academy.
Warren E. Burger: How does this bear on the holding of the First Circuit with reference to the pleading question here?
Federico Cedo Alzamora: Well, it has been said here that his right of freedom of speech had been violated. That was not pleaded directly and so he did not state a violation to the First Amendment at a District Court. This was not before the District Court and was not decided by the Court of Appeals. So it should not be before this Court. And that wasn't an element of pleading. He was not discharged either when he testified in the criminal case against his own supervisor, underlining his authority or when criminal charges were brought against him for wiretapping of his fellow officers in conversations concerning official matters. He was discharged two months afterwards, after three years of all this when it came apparent to the Superintendent of Police that his conduct was injurious and harming to the Police Department. So I say that in justice it couldn't be said that he was arbitrarily discharged as he actually pleaded in his complaint. The complaint was dismissed mainly because of a failure to state a cause of action. He did not plead any bad faith on the part of the respondent. And I deem that the logic would justify on the plaintiff the absence of such bad faith on the defendant is that otherwise defendant would not have been liable for damages. So we have the concurrence of that very bad faith, linked it with valid cause of action. It seems to me that discharge from employment does not entitle anyone to recover from damages under civil rights action. Bad faith, malice or recklessness, such circumstances actually constitute elements of any valid claim for relief, simply because in their absence the pleader would not be entitled at all to the relief requested. I would like to bring your attention to the opinion delivered this very morning by Mr. Justice Brennan in the case of Owen v. The City of Independence where on page 2 it says. "Where an immunity was well established at common law and where its rationale was compatible with the purpose of 1983 this has been construed to incorporate that immunity." The same page establishes that police officers actually enjoy that immunity. The purpose of pleading is to inform about the essence of the claim and the ground on which it rests, to indicate the basis upon which relief is sought. And so no one should be required to put forward a defense against minor imputations which have not even been formulated or articulated or to state his position concerning possible or probable issues which have not been raised yet in a case against him.
Thurgood Marshall: Are you suggesting absolute immunity?
Federico Cedo Alzamora: It is a qualified immunity.
Thurgood Marshall: Well, how is the party under 1983 to know what immunity there is?
Federico Cedo Alzamora: Because of the very position.
Thurgood Marshall: Well, how would you allege it you are a lawyer, how would you allege if you want others --
Federico Cedo Alzamora: I would have claimed that regardless of defendant being a police officer the immunity did not apply to him because he had acted in bad faith.
Thurgood Marshall: Well, what other defense would have to take care of in your original pleading? What other defense would you have to negate in your original pleading?
Federico Cedo Alzamora: I think this is main point on which the defense rests. We don't negate all the other elements of the violation.
Thurgood Marshall: Suppose you put in a provision that says a defendant has no valid defense. Is that enough?
Federico Cedo Alzamora: I would say that this is a very valid defense.
Thurgood Marshall: I said if the moving party says and the defendant herein has no valid defense, would that be enough?
Federico Cedo Alzamora: No, I would not say so. I would say that that is --
Thurgood Marshall: He would have to be very particular, wouldn't be?
Federico Cedo Alzamora: Yes. I would say that he would have to be very specific --
Thurgood Marshall: He would have to be very specific about something he didn't know anything about.
Federico Cedo Alzamora: Well --
Thurgood Marshall: Is he obliged to know the immunity or lack of immunity that the police officer has?
Federico Cedo Alzamora: I think he should know about it, since he is actually pleading that it was implied in the allegations.
Thurgood Marshall: What was implied?
Federico Cedo Alzamora: Before the Court of Appeals it was argued that though they had not pleaded bad faith in those many words, it was actually implied in the allegations.
Thurgood Marshall: Do you mean that the only way a police officer can be held liable under 1983 is on proof of bad faith, affirmative proof of bad faith?
Federico Cedo Alzamora: That is correct.
Thurgood Marshall: That is your position?
Federico Cedo Alzamora: That is my position. Well, first I think that it should be pleaded.
Thurgood Marshall: Why plead it if you don't have to prove it?
Federico Cedo Alzamora: Well, why crossing the bridge before you get to the river? We are at this stage of the pleading, the case was dismissed because it had not been pleaded properly, not because of any consideration --
Thurgood Marshall: But what you want to do is go to the other side of the river. You want the moving party in 1983 to take care of all the defenses in his pleading.
Federico Cedo Alzamora: I would --
Thurgood Marshall: There is just one defense.
Federico Cedo Alzamora: I would ask from him to anticipate and at least give notice of what he intends to say. That is the purpose of pleading, to give notice, to inform as to the essence --
Thurgood Marshall: Do you have discovery in Puerto Rico?
Federico Cedo Alzamora: Yes, we do.
Thurgood Marshall: I assumed so. Thank you.
Potter Stewart: Supposing you had a complaint in which there were two defendants, one a municipality and the other the chief of police. And say in two counts with the same transaction basically in both. Would you say that there must be pleading of bad faith in the count against the municipality?
Federico Cedo Alzamora: Well, your very case of Owen v. The City of Independence, Missouri covers that adequately. My personal opinion is that in the face of an immunity you would have to plead an indication of how that immunity would not apply.
Potter Stewart: But you would agree that under Owen there would be no necessity of pleading bad faith against the municipality?
Federico Cedo Alzamora: Yes.
Potter Stewart: And you would say there is an additional element in the cause of action against the individual?
Federico Cedo Alzamora: Affirmative, yes. Now, concerning the due process violation I would say that considering the fact that petitioner was granted a hearing and that he was rendered whole and he was reinstated, his claims don't have any foundation. The fundamental requirement of due process is an opportunity to be heard at a meaningful time and in a meaningful way. And decisions of this Court suggests rather strongly, I would say, that an employee who has a hearing held after removal get his due process, for example, Arnett v. Kennedy.
William H. Rehnquist: Counsel, is that so clear that it could be decided on the complaint in this case?
Federico Cedo Alzamora: It was definitely clear because Act 26 of 1974 on which the claim was based does not provide for the celebration of an evidentiary trial-type, formal administrative hearing. It just mentions an opportunity to be heard, which in my opinion, could be accomplished by a chance to file an answer. And petitioner has not alleged that he was denied such opportunity. Besides, petitioner had a hearing and it seems that the statute that created the Commission of investigation, prosecutions and appeals of the police provides that the Commission may confirm, revoke or modify the decisions or acts appealed, it could be said that petitioner's discharge was not in fact final until its time for an appeal had expired or after 15 days after being affirmed upon appeal that a Commission reconsideration was requested. So he was granted his hearing before his discharge was final and that comes from the very facts that were pleaded. I think the case is very clear. Thanks for your attention.
Warren E. Burger: Do you have anything further, Mr. Avery?
Michael Avery: Just two points, if Your Honor please. First of all, this is a case where the plaintiff did allege that he was entitled to a hearing, and that allegation is supported by regulations which were drafted and promulgated by the respondent in this very case. And so it is a case where if he has any good faith defense that might even remotely or conceivably be imagined, no one other than the respondent could possibly know what his excuse or rationale for not following his own regulations might be. And this is a case that in that sense the burden definitely belongs on him to come forward and escape from the logical import of his own regulation. Secondly --
William H. Rehnquist: I don't have it in front of me right now, but isn't there something in the complaint itself about the conducting of a hearing?
Michael Avery: The complaint alleges that the plaintiff was entitled to a hearing under the Puerto Rico Police Act of 1974.
William H. Rehnquist: But doesn't it also say he got one but it was defective, or --
Michael Avery: No, he didn't get a hearing, Mr. Justice Rehnquist. There was an investigation by the Legal Division of the Police Department which exonerated the petitioner. But that wasn't a hearing as such. In fact the answer admits -- there was an answer filed in this case and it admits that he was discharged without a hearing. He received no hearing. There was an investigation by an attorney for the Legal Department of the Police Department but not a hearing as such.
Warren E. Burger: The affirmative allegation is that his discharge was without prior hearing.
Michael Avery: That is correct. That was admitted in the answer. And the second point was that although the petitioner does not use the phrase "First Amendment" in the complaint, which is what the respondent was referring to when he spoke about the First Amendment issue, the petitioner clearly does set forward the facts which support a First Amendment claim. And we feel that really beyond doubt that the First Amendment claim is very much a part of this case. Thank you very much.
Warren E. Burger: Thank you, gentlemen. The case is submitted.