William H. Rehnquist: We'll hear argument first this morning in No. 87-1759, Texas State Teachers Association v. Garland Independent School District. Mr. Chanin?
Robert H. Chanin: Mr. Chief Justice, and may it please the Court. The question presented by this case concerns the standard to be used in determining whether a plaintiff is a prevailing party for purposes of the Civil Rights Attorney's Fee Awards Act, Section 1988. The parties urge two alternative standards. The Respondents contend that the correct standard is the one used by the Fifth and Eleventh Circuits. It is referred to as the central issue standard under which a plaintiff must prevail on the central issue by acquiring the primary relief sought. On the basis of this standard, the court below held the Petitioners in this case were not prevailing parties and, therefore, ineligible for any fee award. The standard urged by Petitioners was initially articulated by the First Circuit in Nadeau v. Heigemoe in 1978. It is currently used by courts of appeal in 11 circuits, and it was characterized by this Court as a typical formulation in Hensley v. Eckerhart in 1983. It is referred to as the significant issue standard which establishes plaintiffs as prevailing parties if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing suit. Let me note at the outset that the question as to the correct standard for prevailing party status does not in and of itself relate directly to the amount of fees that ultimately should be awarded to a plaintiff. The standard at issue here is only the first stage of a two-stage process. It is a threshold standard to establish an eligibility for fees. If a plaintiff succeeds in crossing that threshold, the actual amount of fees to which he is entitled is determined by the district court after considering various factors, particularly the degree of success. To put this another way, there is no dispute here about the fact that the results obtained is a crucial factor in the application of Section 1988. The dispute concerns the stage of the process at which this factor should have its primary impact. Should it be at the threshold eligibility stage to deny prevailing party status to a partially prevailing plaintiff and totally preclude any fee award, which is the Respondents' position? Or should it have its primary impact at the second stage after prevailing party status has been achieved in determining the amount of reasonable fees in light of the results obtained? This is the Petitioners' position. In order to establish a framework for addressing this question, it is appropriate to begin with a brief review of the facts in this case, particularly since the briefs of the Respondents and their supporting amici present such a distorted picture of the merits outcome. This case involves a regulation adopted by a public school district in Texas, the Garland Independent School District... I'll refer to it as GISD... which prohibited all communications regarding employee organizations on school grounds at any time during the school day, including teachers' lunch break, non-class periods and other free time. The regulation covered face-to-face discussions and also prohibited any use of the school district's communications facilities, bulletin boards, teachers' mailboxes, PA systems. Those were all precluded to disseminate any information regarding employee organizations. This prohibition applied to communications by and among the teachers themselves, as well as the communications by outside representatives of employee organizations. The Petitioners filed a 1983 action and succeeded in having the regulation struck down as it applied to teacher-to-teacher communications and as it applied to the GISD's communications facilities by the teachers themselves. We were unsuccessful in regard to the prohibition against communications by outside representatives. We considered this to be a significant victory, and judging by the vigorous efforts of the Respondents to overturn the ruling, so did they. They left no stone unchallenged in seeking to reverse this ruling, including ultimately an appeal to this Court which summarily affirmed the Fifth Circuit on the merits in 1986. In the course of its efforts to reverse, the Respondents did something else. They also made clear what this ruling meant in practical terms. They repeatedly emphasized before the lower courts and, indeed, before this Court that invalidation of the teacher portion of the regulation would require substantial modification on the school district's policies and procedures. And that is, in fact, what happened.
Speaker: Mr.--
Robert H. Chanin: As a result of this ruling, teachers now have the right to discuss and promote employee organizations during their free time.
Sandra Day O'Connor: --Mr. Chanin, I wanted to ask about this point. As you say, you prevailed on one issue in the district court concerning the use of school premises during non-school hours. Now, the district court termed that issue minor since it said there was no evidence that union representatives were ever denied access to teachers during non-school hours. Now, if we were to agree with you on the appropriate test, that any significant issue test that you propose, do you think that that degree of success would entitle you to fees under that test?
Robert H. Chanin: Well, Your Honor, I think you're referring to a... a minor point of victory in this case, and the answer to your question is it would fall below the threshold. But let me clarify what I am talking about as our victory and what I think you are referring to.
Speaker: All right, okay.
Robert H. Chanin: In the course of this broad-based regulation that we challenged, there was a provision that said meetings could be held before school opened, 8:00 a.m. In the morning, and after school at 3:45. And it said that it would be up to the school principal to determine whether or not to grant access for those meetings. That was the only thing struck down by the district court as too vague because there were no standards. That was not appealed. It had no practical impact because the record indicates we never had been denied a pre-school or post-school meeting. If I had to pick a threshold, that falls below it.
Antonin Scalia: Mr. Chanin, is... is that before us here? I... I didn't--
Robert H. Chanin: No.
Antonin Scalia: --understand that... that we took this case in order to decide whether you had substantially prevailed or not. The question you presented in your petition for cert is... is simply whether a plaintiff who obtains judgment in his favor on a significant claim... whether he is precluded from recovering attorney's fees if the Court determines that the claim on which he prevailed was not the central issue--
Robert H. Chanin: Absolutely.
Antonin Scalia: --not the factual question of whether this was a central issue or wasn't a central issue--
Robert H. Chanin: We come--
Antonin Scalia: --whether it was significant or wasn't significant. Right?
Robert H. Chanin: --We... we come--
Antonin Scalia: That's not before us, is it?
Robert H. Chanin: --before this Court in this posture. We have prevailed, according to the Fifth Circuit, on a secondary issues of significance. The Fifth Circuit has said that ain't good enough. It was not the central issue.
Antonin Scalia: And we're not going to debate whether it was or wasn't. The--
Robert H. Chanin: I certainly hope not, Your Honor--
Antonin Scalia: --It's just question of law. Right?
Robert H. Chanin: --because we are satisfied with that.
Antonin Scalia: Good.
Robert H. Chanin: The reason we present it is because it does tie into our analysis and the Respondents go out of their way to downplay the significance of what we won. But let me accept that we did win on a significant issue, the court held it was not central, and move on.
Antonin Scalia: May I ask you this about the statute under which you're... you're seeking fees? The way it reads, it says that... that a court may allow the prevailing party a reasonable attorney's fee as part of the costs. The prevailing party. On its face, it seems to say either the plaintiff or the defendant. You have to pick who is the prevailing party. Now, under your theory you can have two prevailing parties. One party wins some significant issue, another party wins another significant issue. How can we possibly interpret the statutory language that way? Now--
Robert H. Chanin: Because if you focused on the word "the" and you said there can only be one prevailing party, I suggest it would be a far too rigid and wooden reading of the statute inconsistent with numerous prior holdings of this Court, inconsistent with the legislative history as well. Let me give you just one example. Both this Court and the legislative history have made it clear that fee awards are appropriate pendente lite, at an interim stage. And they made those references in the course of complex institutional civil rights cases which are ongoing, where issues change, where... where objectives and goals change as the litigation goes on. It is quite impossible at that point to know if a plaintiff who has won on an interim matter, when all the smoke clears, will ultimately be the prevailing plaintiff in the entire lawsuit. The cases that this Court has decided, including the ones that pick up that language from the legislative history, make it clear that there can be multiple prevailing parties in a case, and it has never focused on the word 1988 format or in connection with other statutes that similarly use the word "the". After this Court's summary affirmance--
Sandra Day O'Connor: --So, you agree that the defendant could be the prevailing party and get fees under the standard you propose.
Robert H. Chanin: --I think once the standard is established, if the plaintiff fails to meet that standard, the defendant could be the prevailing party. You threw in the question of fees, and I do want to just clarify that. I think the defendant could be the prevailing party certainly for cost purposes. Whether or not the defendant would be the prevailing party for fee purposes brings in an entirely different standard as this Court has developed under Christiansburg. He would only be the prevailing party if what we had presented as the plaintiffs was frivolous, groundless or without merit.
William H. Rehnquist: Well, was Christiansburg in Section 1988?
Robert H. Chanin: It was not, but the doctrine of Christiansburg has been applied to 1988.
William H. Rehnquist: By this Court?
Robert H. Chanin: By this Court in Hensley, yes.
Speaker: It has.
Robert H. Chanin: In a footnote in Hensley, it specifically applied it.
Antonin Scalia: But you... you would say that... that we would apply Christiansburg issue by issue, that if... if you brought... if you brought up one frivolous issue, that fees... fees could be awarded to the defendant on that frivolous issue even though you might get fees an some other issue.
Robert H. Chanin: Yes. I think that is the extension of Hensley. All the Court said in Hensley--
Antonin Scalia: Well, it's a kind of extension you're... you're arguing for here.
Robert H. Chanin: --Yes. I think... I think it is--
Antonin Scalia: I mean, what's sauce for the goose is sauce for the gander. You want to us split up issue by issue.
Robert H. Chanin: --I think it is... it is where I am... I am prepared to go. What the Court said in hensley was that when you have one lawsuit with legally distinct claims that can be separated, that are unrelated, you can have a prevailing plaintiff and a prevailing defendant on frivolous, groundless issues. I would concede that even if they are related issues, conceptually you could have a prevailing plaintiff on a significant issue and a defendant if included with those are related frivolous, groundless issues. Yes.
Anthony M. Kennedy: Counsel, suppose you had two lawsuits, two different school districts. One was the lawsuit we rave before us. The second hypothetical case is a lawsuit in which the teachers bring suit on just the claim that you brought here where you prevailed. And assume the hours spent on just the prevailing claim are the same. Is the fee same?
Robert H. Chanin: Could I... the answer on that would be it would have to be determined by the district court in its discretion. But if I may, Your Honor, you've put your finger on what is the ultimate absurdity of the central issue rule. And if I may just take your example and run with it a little bit. After extensive litigation here, we succeeded in having the regulation declared unconstitutional in significant respects. And in that sense, we vindicated important congressional policies under the civil rights laws. Had that been the only issue in this case, there is no dispute that we would have been a prevailing plaintiff even in the Fifth Circuit entitled to an attorney's fee. Now, what... the amount of the attorney's would be determined in the second stage of the process at the discretion of the district court. However, because we chose to include a second related issue, which I might note the district court specifically found was certainly not frivolous or brought in bad faith, and because we failed to prevail on that second issue, we were denied any fees even for the issue on which we succeeded.
Anthony M. Kennedy: Well, under... but I want to know the answer to my question. Under your theory... under your theory, assume the discretionary factors are all the same except for the fact that in case number one, your case, there were claims on which you did not prevail. Should the fee be the same?
Robert H. Chanin: We--
Anthony M. Kennedy: Another way of saying... another way of saying it is can the judge discount for the fact that you had some claims on which you did not prevail.
Robert H. Chanin: --I think under Hensley the judge certainly has the authority to discount for that and, applying the Hensley factors, might well do so. It is our position that these were closely related issues and that the work put in on the one impacted and led to the success on the other. So, we would certainly argue before the district court that it should exercise its discretion to give us a full amount of our fee award. But the district court certainly has discretion and might well discount it.
Antonin Scalia: Mr. Chanin, may I... may I suggest that it... it doesn't strike me as utterly absurd... the hypothetical you gave us... that had you brought this one claim alone, you would have gotten all your fees, but when you bring it with another one, you... you don't get fees. It may well be that had you brought this claim alone, the school district here would have said, oh, heck, that's no problem for us. We'll settle this one. This isn't worth going to litigation on. But by combining it with another one, you... you compelled the school district to go to... to litigation anyway. So, they said, well, while we're at it, let's litigate the whole thing. It seems to me quite reasonable to say that in... in one of the situations, had you prevailed, you get all your fees. In this one, you don't. I don't see why it's absurd--
Robert H. Chanin: Well, Your Honor, I think it's absurd because I think it's directly contrary... what you suggest is directly contrary to the intent of Congress in passing Section 1988. As this Court observed very recently, last week, in Blanchard, in order to advance Congress' purpose under... enacting Section 1988 civil rights attorneys should be encouraged to explore all possible avenues of relief in their efforts to vindicate the high priority policies of Congress. And the Court cautioned. It cautioned against artificial incentives that could skew the way civil rights cases are structured and put forth. We submit that based upon what you have said, the central issue standard would create an economic disincentive which could have precisely that effect. It could cause and deter civil rights attorneys from providing the type of effective representation that this Court called for in Blanchard. Because of the inherent difficulty in determining what is the central issue and the uncertainty as to what some courts may hold in that regard, the economic self-interest of the attorneys could motivate them to press only those claims which look like sure-fire winners or have a strong likelihood of success and abandon issues that are somewhat more problematic even though they are bona fide, can be supported by a good faith argument for an extension or modification or even a reversal of the law. If you included those issues in your hypothetical, we run the risk that we wilt lose all fees even for those issues on which we are successful. I think this possibility is not a positive. I think it distorts artificially the way civil rights attorneys would prepare, present and handle cases, be contrary to this Court's admonition in the Blanchard case and be contrary to the legislative history. The significant issue standard avoids that problem and would not, as your question may also imply, encourage the inclusion of non-meritorious or insubstantial claims in civil rights lawsuits. I think the framework that this Court has established for applying Section 1988 provides ample safeguards against that possibility. Thus, for example, if we assert issues and include issues that are unreasonable or groundless, we may be required under Christiansburg to pay the fees to the defendants. I submit to you that is a powerful deterrent. Moreover, under Hensley, even as prevailing plaintiffs, we may be denied fees for time spent on non-frivolous issues raised in good faith, but we did not succeed. This is a further incentive for plaintiffs attorneys to consider very carefully the kinds of issues they include. But there is a major difference between the concepts embodied in Christiansburg and the concepts embodied in Hensley which are designed to motivate responsible action by attorneys for civil rights plaintiffs and the central issue standard which threatens to impose a financial penalty for providing precisely the type of effective representation that Congress intended and this Court has called for. Let me, if I may, pick up on Hensley v. Eckerhart because we believe and most courts of appeals believe that that case resolved this question and put to bed the question of the standard to be applied in determining who was a prevailing party for purposes of 1988. The issue in Hensley was whether prevailing... a party who had prevailed in part could recover legal fees for the services rendered on unsuccessful claims. In answering that question, Hensley established a comprehensive analytical framework to assure that civil rights plaintiffs obtain fee awards that are reasonable in relation to the results obtained. The framework involved a two-stage process. A plaintiff who achieves only partial or limited success must first cross what this Court termed the generous eligibility threshold to become a prevailing party. And it is appropriate for that threshold to be generous because it is only the first stage. The determination of what amount is reasonable is made by the district court, taking into account relevant factors including particularly the level of success achieved. There are several examples in Hensley itself which illustrate the application of that analytical approach. Take Hensley. Hensley was a broad-based challenge to the constitutionality of treatment and conditions at a state mental hospital involving six general areas. The Court indicated hypothetically that even if the plaintiffs prevailed in regard to only one of those areas, visitation, mail and telephone policies, which hardly would seem to constitute the central issue in the case, that those plaintiffs would have been prevailing parties eligible for a fee award, although the Court did say that the amount would be reduced at the second stage to reflect the work done on unsuccessful claims. Hensley's discussion of the Eighth Circuit's decision in Brown v. Bathke is equally explicit. There you had a discharged school teacher, sought reinstatement, lost wages, damages, and expungement from her record of the negative material. She achieved only lost wages and expungement, lost on the reinstatement, lost on the damages. But this Court said that that plaintiff was the prevailing party eligible for a fee even though... and I quote from the Court's opinion in Hensley... "she had lost on the major issue of reinstatement and obtained only a minor part of the relief she sought. " And these examples come as no surprise. They are the natural outgrowth of what Hensley establishes for assuring that civil rights plaintiffs receive reasonable fees in light of the results obtained. And as this case illustrates, the central issue standard simply does not fit within that framework. If we are to obtain reasonable fees for the significant results we obtained, having the GISD regulation declared unconstitutional as to teachers, we must in the first instance be allowed to cross over that eligibility threshold. That would allow the district court to have an opportunity to do, as the Justice suggests, to calculate under Hensley the amount of fees that are reasonable in light of what we achieved. The use of the central issue test has foreclosed that. It has foreclosed the discretion of the district court, and it has denied us the opportunity to recover any fees even though we have vindicated the policies of Congress by achieving substantial secondary success. The Respondents, we would submit to you, entirely missed the point of Hensley. Instead of looking at the reasoning and the analysis, which clearly preclude the central issue test, they focus instead on the opening paragraph where the Court refers to significant issue standard as "typical and generous". But admittedly, it does not say in so many words this is the only standard that can be used. Limiting themselves to that one isolated paragraph, Respondents suggest that even if the Court accepts the significant issue standard, that does not preclude the use of others. The Fifth Circuit would be free, while some use significant issue, to continue to use central issue. But this argument is wrong even on its own terms. The definition of prevailing party is a matter of statutory interpretation. There can be only one standard. The question is what did Congress intend. And it is not to be left to the discretion of each court of appeals to answer that question. If the significant issue standard accurately reflects the intent of Congress, which we submit is the teaching of Hensley, it cannot be that the Fifth or the Tenth or the Ninth or any other circuit is free to adopt a markedly narrower, less generous standard. Let me pick up one other point, another teaching of Hensley and of other cases, and that is that fee applications should not result in a second major litigation. Ideally, once the merits are determined, the parties should settle without further burden on Judicial resources. I submit to you that the central issue test cuts against both points. It encourages further litigation and it deters settlements. The basic reason for this is the inherent difficulty involved in many cases in determining what is the central issue. By its very nature that is a complex inquiry that requires the court to determine post hoc the goals and the motives of plaintiffs in initially bringing a lawsuit, to arrange in some type of hierarchical order the relative importance of the issues which the plaintiff has brought. This case proves the point. This is a relatively straightforward and simple case, but the fee application spawned further litigation. Petitioners contended in district court that we did prevail on the central issue. We said the central issue was can this school district preclude all communication, we lost. We briefed it. We argued it. When the district court ruled against us, we appealed to the Fifth Circuit. So, it spawned further litigation. Consider how much more difficult the problem would be of identifying the central issue in complex institutional civil rights cases. Take Hensley, for example, which involves six related issues involving treatment and conditions at a state mental hospital. What was the central issue? And how much Judicial time and resources would have been necessary to make that determination? Suppose four of the issues in Hensley were of equal centrality. What's the formula? Do we have to win on two plus to meet the central issue test? There is no need to belabor the point.
Antonin Scalia: --Well, you're... you're inviting the same kind of... I mean, you can't have it both ways. If... if you don't like that issue-by-issue inquiry to be conducted, then you have to tell us. Moreover, the fees that you get on the issue you win on should not be reduced by the issues you lost on. You said earlier, well, you can take those other issues into account by... by chopping your fees down some. I mean--
Robert H. Chanin: But that, Your Honor, gets us--
Antonin Scalia: --So, that same problem arises under your theory as well.
Robert H. Chanin: --Not really. It gets us to the second point. First of all, that is a much more objective analysis where you look at records. You look at outcome. You look at issues in the objective sense rather than the motives and the... the thoughts of the plaintiff. But let me tell you why it isn't the same because the second objective that this Court hoped for was that these cases would settle. And the central issue case ceters settlement. There is virtually no incentive for me as a defendant to settle under the central issue test. I try it. I go for broke. If I win, I'm off the hook completely. And if I lose on the central issue test, the work hasn't been in vain. I'll throw it in at the second stage, or I'll use it as the basis for a favorable settlement. I tell you about this case. If we were not... if we were, in fact, declared to be the prevailing party, we would not burden the district court with stage two. I have every confidence that this case would have settled, which is exactly what this Court has hoped would be the case with fee applications. I would like to reserve any remaining time.
William H. Rehnquist: Thank you, Mr. Chanin. Mr. Luna?
Earl Luna: Mr. Chief Justice, and may it please the Court. I think it would be helpful for us to look at some of the facts that counsel didn't cover here and that is that the Texas legislature had passed a statute that... 21.904 of the Texas Education Code... that said no school district, board of education, superintendent, assistant superintendent, principal or other administrator benefiting by funds provided for in this code shall directly or indirectly require or coerce any teacher to join any group, club, committee, organization or... or association. As a result of that, the school board passed this regulation which simply said that you won't promote these organizations during school hours. And the reason for that is that there are administrators... there are administrators who belong to the organization, just like there are other people. So, if we had a policy that said administrators can call meetings and talk to people about joining the association and... and recruiting members, we'd be in violation of state law. Now, they didn't attack the state law. The state law is not attacked in this lawsuit at all. So, as the law was passed and the regulations begin to be established this case... he says it was one that could be settled. This was brought as a test case. They brought in... and the record here shows nine of their... what they call uniserve people from all over the state and descended upon 46 schools in this school district and covered most of them in a period of two days in groups of one and two. And they made demands during the school day to talk to the teachers, said they had a First Amendment right of assembly and speech. And we took many depositions. He talks about the amount of work. All of these people were outside association members except one of these nine people that made this trip. One of them was one of our teachers, but we took depositions of all of the eight others and of many, many principals in preparing for this case. Now, none at those... if he had brought... if he had brought a lawsuit just for the part that he's talking about, those... eight of those nine wouldn't have been there because that wouldn't have been important to this case to begin with. But by bringing it this way, it's an attempt to build a great fee perhaps like the one in the Riverside case. And we believe that that's not the intent of the legislation in this case. Now, as they... as they went to the... as the depositions showed they were asked is there anything else that you claim. Now, they set out some specific things in their complaint that they complained about, but they didn't set out... and it didn't show up until summary judgment... this portion about the discussion of teacher to teacher. Now, and even in their motion for summary judgment, they said it wasn't clear what the school's position was on that. Now, the only information they have... and we think, by the way, there is a question as to whether there could be a prevailing party in this case under any circumstances because this is little more than what this Court has referred to as an advisory opinion because we were talking about things in the future. None of these things had happened, and they arose in a deposition. What if somebody said so and so? So, there had been no dispute. There was no case in controversy between the parties on this issue. And these what-if questions were asked of some down-the-totem-pole administrators who were not policy makers of the school district. And, of course, this Court has recently held that it's... it has got to be something... it has got to be a policy maker that makes the decision. Therefore, there couldn't have been any liability on the school district for the mistaken belief, if it was mistaken belief, of some of these administrators. And under McCluskey, of course, the... the school board itself is the one who would interpret its regulation. They really didn't take the school board's deposition, but they did take the superintendent's. And they asked him. In his deposition, he said that we don't have any regulation that keeps teachers from talking to each other about TSTA at lunch. We don't have any regulation that keeps them from talking about it on their break. Now, as I say, they did ask in deposition some of the other principals, well, what if this happened. Well, I don't know, but I guess it would be a violation. And that speculation is the only thing that is in this record that they claim to have gotten relief on.
Sandra Day O'Connor: Mr. Luna, do you defend the central issue test used by the court of appeals here?
Earl Luna: Yes.
Sandra Day O'Connor: Do you think that that's consistent with the language that this Court included in the Hensley case?
Earl Luna: Yes, I do. The reason--
Sandra Day O'Connor: Do you think it's consistent with the holdings of the majority of other courts of appeal?
Earl Luna: --No. I think there probably are a majority of the other courts of appeals that have said otherwise. But let me just move, if I might, then to that central issue case. And the reason we think that the... first of all, in Ruckelshaus, we think this Court didn't adopt the First Circuit's rule. The Court simply referred to that First Circuit rule as a very generous rule. And the Court also referred to a number of other rules that were in use in the circuit including the Fifth Circuit rule of the central issue. And I think it might be well to look at where that Fifth Circuit rule came from. It came right out of the congressional history of this very statute. In the congressional history in this statute when Dorothy Parker... Parker v. Matthews... brought a suit in district court in the District of Columbia, the case was settled. And then in the district court's opinion, it discussed, first, what's a prevailing party and... and what's the criteria for it. And the district court in that case said... they brought up the central issue, said the central issue is the way you tell a prevailing party, and had a good deal of discussion on it, but noted there are no cases. And they came up with... from... and took it from a Black Law Dictionary. Now, the committee in the congressional history mentioned that case when they talked about the prevailing party and the central issue and how you set attorney fee. Now, the Petitioners here say, oh, but they only mentioned... they only cited that case because it was settled to show that there could be a recovery for settlement. That's not the reason they mentioned that case. That case went up on appeal and was affirmed in Parker v. Califano. Now, if the Court had just been wanting to note that it mentioned the settlement, they could have cited the court of appeals case. They cited three cases in... in the congressional history on... at that point including another circuit court case which also talked about settlement, but did not discuss central issue. The only one of them that cited... that discussed the central issue was the district court case in Parker v. Matthews, which was later Parker v. Califano. And the... we think that the reason they didn't cite the court of appeals is, as I say, on appeal they didn't discuss the central issue. But the... the committee was well aware of the central issue and talked in terms of it's something to protect people who have a valid civil rights case, and... and it is not something to build attorney fees for attorneys.
Sandra Day O'Connor: Mr. Luna, I guess you would apply the same test then to the defendant, and if there were several frivolous claims made on which the defendant prevailed, no recovery of attorney's fees unless there was a central issue on which they prevailed as a frivolous claim.
Earl Luna: Yes. I think it would not be material if... if a plaintiff had a central issue, a main civil rights suit, but had something... added something to it--
Sandra Day O'Connor: Added some frivolous claims.
Earl Luna: --Yes.
Sandra Day O'Connor: No recovery to the defendant for those.
Earl Luna: I don't... I don't think that the defendant is going to recover in that kind of case. If so, the plaintiff is going to recover, and it would be at most some offset under... under this Court's decisions where we said that you've got to... you can only recover for the work that you've done. It might be an offset, but certainly no recovery for the defendant if the plaintiff recovered on the central issue. I see no reason for the plaintiff to recover. Now, if we take a look then at why would the Court in a case like this now say that Hensley v. Eckerhart did not foreclose the issue and decide it... that's what Petitioners claim. Yet, this Court two or three months later, that... after deciding Hensley v. Eckerhart on May 16, 1983, decided Ruckelshaus v. Sierra Club. And in that case where the statute was different and said that the Court could set attorney fees where appropriate, they... the Court said that that is different. This Court said that is different from the standard that is used in the prevailing issue case. But even then the Court says there has to be some recovery. There has to be some prevailing in order... in order for them to recover it, but not as much as in a statute with the prevailing party. So, if this was a suit that was brought under the EPA statute, the plaintiffs might be in a different position that they're in here because this Court noticed that there was a difference in those. And those... and if the prevailing issue was decided, there wouldn't have been any need for the distinction that was mace in the Ruckelshaus case. Now, we think also that there is... another very, very important thing has developed in this case or failed to developed. After the Fifth Circuit made its decision on the merits of this case the first time, the Fifth Circuit said that if that statute... if that regulation was decided as... as somebody might say that in the future. If it was decided that way, it was unconstitutional. Now, they reversed then in part and remanded for... for further proceedings and not inconsistent with the Court's opinion. They did... on the holding then that if it was done that way, it would be unconstitutional. Now, it was reversed for further proceedings. And that's the time when it was appealed. It was rather suspected that the Petitioners in this case would, when it got back to the district court, ask as they had in their... in their petition originally maybe for nominal damages or for an injunction to keep it from being enforced that way. Now, the plaintiffs, though, apparently recognized that there was really no merit and that they had really gotten nothing from the court of appeals. So, when we got back to the district court, they don't ask for anything. They didn't ask for any further relief except attorney fees.
Anthony M. Kennedy: Had the regulation been declared facially overbroad and invalid or invalid as applied, or was the opinion not clear on the point?
Earl Luna: Well, the... the district court opinion held that it was... that it was overbroad only in that one little area that they admit doesn't amount to anything. Now, the... the Fifth Circuit held that it was unconstitutional in a very limited way, that if it kept... where it kept the teachers from talking to each other about organizations, time off and so forth, that under those circumstances, the Fifth Circuit said it was unconstitutional. Now, the Fifth Circuit disagreed--
Anthony M. Kennedy: On its face.
Earl Luna: --Well, not on its... I don't believe on its face. They said that there was no testimony to show. They said there was no testimony to show that the administrators would not enforce it that way. So, I don't believe they said it was unconstitutional on its face, only as applied... if applied in that hypothetical manner. There was... there was no holding that it was unconstitutional on its face. Now, so based on the... see, the... the Fifth Circuit applied the summary judgment rule most favorable to them, and... and then still affirmed the summary judgment except in that narrow area, and then turned around, using the same standard, and granted a partial summary judgment for them on that as applied theory. But when we got back, after it was appealed to this Court, they didn't ask for any more relief, only for attorney fees. And the court again found that they didn't recover anything, and that they were not entitled to attorney fees and the... the court costs were attacked... were taxed against the Petitioners. And on appeal, they didn't at that time challenge that portion of the court's decision. So, we think then that that brings it very close to the facts of Hewitt v. Helms where the plaintiff didn't recover anything. Now, the difference in... in this one and Helms, of course, was that in the Helms case, the Court had instructed them to enter a summary judgment on damages unless there has some immunity. Now, they didn't get that summary judgment entered when it went back. And this Court pointed out in that case that at the end of the rainbow lies not a judgment, but some action for... or cessation of action by the defendant that the judgment produces the payment of damages or some specific performance or the termination of some conduct. Now, we had even applied to stay that first order while we appealed up here to this Court so it wouldn't go back to the district court and... what we feared... ask for some affirmative relief. And then after this Court denied the appeal and it got back to the district court, they still didn't ask for any affirmative relief. So, we believe that this case comes right in the decision of the Hewitt case because there is no dispute. There wasn't any dispute between the parties on this. This has something that had not happened, but the Fifth Circuit says, if it does, there's no evidence that you wouldn't enforce it this way. So, there really had never been a dispute on that. Therefore, it... they... there was no dispute which affects the behavior of the defendant toward the plaintiff. Now, there would have been while this case was being appealed had they applied to the district court for injunctive relief and gotten it. We would have had to change the policy. But they didn't do that, and they didn't do it after the appeal is over. So, as the posture of the case is before this Court, they received no judgment that affected any action that any of the parties to this case have to take... or that is, that the defendant has to take. No action at all. No order was entered by the trial court. And it's not a place to complain about here, but the interesting thing about it was the... the circuit court disagreed with the findings of fact of the trial court and made some findings notwithstanding--
William H. Rehnquist: But that really doesn't have anything to do with the question before us, does it?
Earl Luna: --Yes, all right. It does not, Your Honor. In the case now where he's... they're continuing to ask for attorney fees, and the main thing they're asking... they're complaining about is... or one of the things they're complaining about, of course, is the mail. Under this regulation, they could... could put a stamp on it and send anything they wanted to to the teachers through the intra-school mail. Now, they don't want to do that. They wanted to take it all to the superintendent's office and have it delivered through the intra-school mail to the teachers. Now, of course, since then, this Court has heard the... and decided the case of Regents versus... California v. the Public Employment Relations Board, and that now is not even something that they would be permitted to do... use that intra-school mail. So, part of their case of what they claimed to win is out the window because of the University of California case. So, we think that the Petitioners have not shown that they have made any recovery in this case that changed any conduct of... or required the change of any conduct of the defendant that the defendant was carrying on. Now, they will say, yes, you can't stop the teachers from talking to each other at lunch about this. Now, the testimony showed we never tried to stop them. That had never been done. And you can't stop them from talking and... during the classroom... or during their off-period when they're not working. And the testimony showed that had never been done. The most it showed was there was no affirmative testimony saying we wouldn't do it if, in fact, it had happened. Thank you very much. Appreciate it.
William H. Rehnquist: Thank you, Mr. Luna. The case is submitted.


William H. Rehnquist: We'll hear argument next in Number 97 115, Margaret Kawaauhau v. Paul Geiger. Mr. Pressman, you may proceed whenever you're ready.
Norman W. Pressman: Mr. Chief Justice, and may it please the Court-- Section 523 of the Bankruptcy Code excepts willful and malicious injuries from discharge and the bankruptcy court's finding here that Paul Geiger intentionally administered substandard care and that his action shocked even a person lacking formal medical training met this Court's standards set out in Tinker v. Colwell because his actions constituted a willful disregard of his duty.
William H. Rehnquist: Well, Mr. Pressman, when you say that there was a finding that he intentionally administered substandard care, is that any different than a finding that the... that his standard, the standard of care which he recognized was negligent?
Norman W. Pressman: The distinction here, Your Honor, is that Dr. Geiger knew the standard of care. He was asked and the record shows that he knew the proper standard of care was the administration of intravenous penicillin and he said, notwithstanding that, I gave Mrs. Kawaauhau oral tetracycline. The distinction here is the intentional administration of something--
William H. Rehnquist: Well, I'm not sure I follow you, because you could say that about any number of things where you talk about medical malpractice. The standard was to perform surgery, but a... in a hypothesis, but this particular doctor prescribed medicine instead. He intentionally prescribed medicine and, therefore, his action was not merely negligent but intentional. I think that just blurs the entire dist... difference between negligence and intent.
Norman W. Pressman: --The distinction here, Your Honor, is that this is not a case of a slip of the scalpel. If Dr. Geiger had reached into his bag and pulled out the wrong medicine, or if he had botched a complicated medical procedure, we wouldn't have a case.
Sandra Day O'Connor: Well, what if you have a driver who intentionally puts his car in reverse and doesn't look back to see what's behind him and drives over somebody. I mean, under your theory, then that's inten... it's willful and no bankruptcy provision applicable. Indeed, first degree murder. Yeah, I suppose.
Norman W. Pressman: In that... I would agree with that... that--
Antonin Scalia: You would agree.
Norman W. Pressman: --description, Justice O'Connor--
Antonin Scalia: Yes.
Norman W. Pressman: --that if somebody intentionally says, I'm going to put my car in reverse and I'm going to drive back and I don't care who's there, I think that is intentional. I believe an example which shows our point is--
Sandra Day O'Connor: You know, I just find it hard to believe that that's what Congress had in mind in writing this provision for exclusion under the bankruptcy law.
Norman W. Pressman: --Well, my response to that, Your Honor, would be twofold. First, I think if we go back to the Tinker case--
Sandra Day O'Connor: Well, I find Tinker a little hard to understand myself. I mean, maybe we can confine it to what it is, but I think that's a weak read.
Norman W. Pressman: --Well, Your Honor, I would compare what happened here... and let me start by saying, I think what's hard initially to understand about this case is that people assume that a physician would always act according to his duty and would never intentionally disregard it. I think a better example here, an example which illustrates our point, was one used the other day which we considered, the builder who uses substandard steel. He doesn't... building collapses, it violates a code provision. He doesn't intend to kill anyone.
Sandra Day O'Connor: Do you think that there's anything in this record that indicates that the doctor intended that the petitioner lose her leg--
Norman W. Pressman: No.
Sandra Day O'Connor: --or suffer some serious health loss?
Norman W. Pressman: No. We concede that Dr. Geiger did not intend to hurt Mrs. Kawaauhau, but our position, Justice O'Connor, is that... and Dr. Geiger testified numerous times, he admitted it, that he knew that intravenous tetra... intravenous penicillin was the correct standard of care and--
Ruth Bader Ginsburg: --said candidly that you are not contending that he meant to hurt... that the doctor meant to hurt this woman and yet you say that the Tinker case is helpful to you, and that I don't understand, so... I thought Tinker was a clear case of intending what in those days was a very grave offense against a man's property.
Norman W. Pressman: --Your Honor, let me address that point. In Tinker, when Justice Peckham wrote for the Court, he recognized and he... recognized that the willful and malicious test had two prongs, willful and malicious. When analyzing whether Mr. Colwell... Mr. Tinker's action was willful, he said the action is willful, not that the injury was willful. He referred to the action and he said it was willful in the view... in the idea that it was intentional and deliberate. Dr. Geiger's actions here were intentional.
David H. Souter: Well, but the trouble in Tinker was that the act which the defendant performed could not, as a matter of law or as a matter of definition, be performed without the necessary consequence of the kind of injury for which the law allowed recovery. That is not the case here. The relationship between any deficiency in the doctor's care and the ultimate loss of the leg was not a relationship as a matter of law or as a matter of definition. It was a contingent factual relationship. It turned out that way, but you can't say, I think, that at any given moment when he decided to use an oral antibiotic as opposed to an injection or what not, that there was any kind of legal inevitability to the consequence for which the plaintiff is seeking to recover and that, I think, is why you have a problem in relying on Tinker.
Norman W. Pressman: Justice Souter, I believe that Peter Halford, the expert defin... deposition, the expert who testified both in Hawaii and in the bankruptcy court, testified to that fact. He stated that the intentional administration of substandard care led to the worsening of her condition and the eventual amputation of her leg.
David H. Souter: There's... I don't think there's any question in anyone's mind that it did. I don't believe the people on the other side will argue or have suggested that it did. But in fact, the relationship is one of simple factual cause and effect. It is not the kind of necessity relationship that Tinker relied upon.
Norman W. Pressman: And I think the point of your question and Justice Ginsburg's question is, does the term willful apply to the injury or does it apply to the act--
William H. Rehnquist: Well, how--
Norman W. Pressman: --and our point is--
William H. Rehnquist: --How can you say that an injury was willful if you're not referring to the act by which it was caused? I mean, injuries don't have intentions of their own.
Norman W. Pressman: --Your Honor, the definition of injury is twofold. The word injury can mean either the damage, the cut on my hand, the result of an action, or it can mean the action which causes the harm.
William H. Rehnquist: How can an injury mean the action which causes the harm? I've never heard of that.
Norman W. Pressman: In the phrase, for instance, his injury to the painting, it is the act and I believe--
Antonin Scalia: Well, his-- --Whoever said that? Whoever said that? Yes. [Laughter] Send them back to school.
Norman W. Pressman: --Your Honor, let me cite the definition from the Merriam Webster Dictionary. Injury an act or the result of inflicting something that causes loss or pain. We cannot forgive his injury of the painting, or, his falsehood gave great injury to his brother's reputation. We're saying that the word injury is the act, not the damage, and I believe that's the definition which--
Antonin Scalia: What dictionary was that? Let me--
Norman W. Pressman: --That is the Merriam Webster Dictionary and a similar dictionary... a similar definition, Your Honor, appears in the Oxford Second Edition.
Ruth Bader Ginsburg: --If one asks, what injuries did you suffer, well, I broke my collarbone, I dislocated my hip, that's what one thinks of as the injuries.
Norman W. Pressman: And I believe if I were starting with a clean slate in this case and I didn't have the definition that we had in Tinker, I think I'd have to... I do have to fight that battle.
Stephen G. Breyer: I mean, the problem I think that at least you have is, this is not your... the tort in your case is not an intentional tort on the Restatement's definition of intentional torts, I take it, and if that is so... if that is so, and I... it seems so, then either the word willful means to pick up intentional torts, in which case you'd lose, or somehow willful extends beyond intentional torts in the way you suggest, in which case you might win. But if you're right, it seems to create an irrational distinction among negligence torts. Sometimes what is really the same thing, negligence, would not be dischargeable. Sometimes what is really the same thing, negligence, would be dischargeable, and that irrational distinction, though sometimes it would benefit your clients and sometimes hurt them, you see, doesn't seem one that the statute would like... be intended to make. Now, I put that to you because I'd like to hear your response, since I think it's important.
Norman W. Pressman: I believe that in order to rule in our favor, one has to look at the term willful as meaning the same thing that this Court held, that willful means voluntary. Dr. Geiger in this case was asked and he knew what he was doing. His action was intentional. Therefore, we meet the standard, the standard this Court set out. I don't believe I've answered your question, though.
Ruth Bader Ginsburg: But then it would work without the special provision for, I knew I got into that car when I imbibed much too much and I happened to kill or maim someone. So I knew what was intentional was, I got drunk. What was not... but you're transferring that... that's the act. I put myself in that shape so that I couldn't drive carefully.
Norman W. Pressman: And Your Honor, in 1946 the Eighth Circuit in Harrison v. Walker held that drunk driving was a willful and malicious injury. It was only until after the enactment of the Bankruptcy Code in 1978 that there was some uncertainty as to whether that was still the law.
Ruth Bader Ginsburg: Yes, but now we have a specific provision doing that and, if malpractice should work the same way, one would expect a similarly specific provision.
Norman W. Pressman: Our position, Justice Ginsburg, is that the Congress reenacted the identical language in the Bankruptcy Code of 1978 and therefore the same interpretations apply. If you look to the legislative history, which my colleague relies on, it doesn't say that Tinker is overruled.
Ruth Bader Ginsburg: But you run up against that terrible problem that Tinker was a deliberate trespass on another man's property. Those were the facts. This was criminal con... what do they call it?
Norman W. Pressman: Criminal conversation, Your Honor.
Speaker: Right.
Norman W. Pressman: It was... nothing that I've seen in either the State court or the Supreme Court, this Court's opinion indicates that Mr. Tinker even knew who Mr. Colwell's wife was. It was an act which was intentional in that he--
Antonin Scalia: Mr. Pressman, every act, every... even a negligent act has some willful action connected with it. You will to leave the snow on your sidewalk which somebody slips and falls on, but we don't call that doing willful injury to someone. It seems to me we call it willful only when the intentional act is not one that leads to the injury, but the intentional act is the injuring. That's what I've always thought willful injury meant, not that there's some willful act along the line. There always is.
Norman W. Pressman: --Your Honor, if willful modifies injury, I don't think we have a very good position, but in Tinker, Your Honor, Mr. Tinker wasn't intending to hurt Mr. Colwell.
Antonin Scalia: He didn't have to intend to hurt Mr. Colwell. He had to intend to do the injury, and he did intend to do the injury, which was criminal conversation.
Norman W. Pressman: I would have to disagree with you, Justice Scalia. I don't--
Antonin Scalia: I take Tinker to mean only you don't have to hate the person. You don't have to have some personal desire, maliciousness towards the individual, but that's quite separate from whether you intended to produce the harm, the very harm that you produced, and it seems to me in Tinker the person did.
Norman W. Pressman: --I don't see any evidence in the Tinker opinion that Mr. Tinker intended to harm anybody.
Antonin Scalia: He knew that he was sleeping with some other man's wife. Did he not know that?
Norman W. Pressman: In the opinions that I have read, that fact is not apparent. It appears that he slept with someone who was not his wife.
Stephen G. Breyer: Well, that-- --Well-- --you'd have a good case if that were so. I... no, please. You-- --I have some language here in the House report which says that Tinker is overruled in... I mean, when they passed the statute. It says they... willful means deliberate or intentional. To the extent that Tinker v. Colwell held a looser standard, it's overruled. Of course, in enacting the statute they didn't change the language. A little hard to--
Norman W. Pressman: And Justice O'Connor, you're correct, they did not change the language of the statute and this Court has noted that reenacting the same language would be a strange way to change a statute. But even if we get to the legislative history--
Stephen G. Breyer: --That's a good answer.
Norman W. Pressman: --I've won that argument? [Laughter]
David H. Souter: Mr. Pressman, I... I'd like you to comment on this. One of the questions that I had, and I had it even after reading Tinker, was whether there was redundancy in the statute unless I read it your way, and I decided that there wasn't redundancy in the statute and this is the way I worked it out, and you tell me whether I'm wrong, or whether Tinker is inconsistent with this. It's got to be willful and malicious. We start, I guess, with the definition of malicious as the act whose purpose is to harm the third party. I don't suppose willful adds anything to that sense of malicious. You can't be any worse than that. But there's also a sense of malicious in which, although you do not personally have a purpose or an animus to hurt the victim, what you do inevitably will hurt the victim, and I think that's what was going on in Tinker. In that sense of malicious, the word willful does add something, because if you take willful there to mean, he knows it's going to hurt the other person, he knows the inevitability of it and he does it anyway, knowing that that will be the consequence, that, then, as it were, jacks up the moral reprehensibility, the seriousness of the act. So in the weaker sense of malicious, willful adds something, and I thought that was consistent with Tinker. Am I wrong?
Norman W. Pressman: Your Honor, in terms of the redundancy of the words, I believe it's difficult to come up with an action which is malicious but not willful. I think it's easy to come up with an action that is willful and not malicious. An example of the second action would be if someone came in here to harm one of the justices and Marshall Bosley shot him. His action would be willful but not malicious. He wasn't disregarding his duty. On... an example of something which is malicious but not willful might be someone who came from a State where carrying a firearm was perfectly okay, but he knew in the City of Washington, D.C. that carrying one was illegal. He carries it through the airport, makes it here, it drops out of his pocket, the bullet hits someone. His action there I think is arguably not willful but it's malicious. He had a duty. He disregarded his duty. I think that's an example of something where you use both of the words willful and malicious. If the words willful and malicious both modify injury, then I think they are redundant, because--
Antonin Scalia: Excuse me. What action of his was malicious there, the dropping of the gun, or the carrying of the gun? I agree with you, the carrying of the gun, intentionally violating the law is malicious.
Norman W. Pressman: --It was not the dropping of the gun, because that was an accident.
Speaker: Right.
Norman W. Pressman: It was the carrying of the gun--
David H. Souter: Well, you're-- --You'd say that was malicious.
Norman W. Pressman: --Yes.
David H. Souter: You're using malicious in the sense of doing any wrongful act without just excuse, right?
Norman W. Pressman: Without just excuse--
Speaker: Yes.
Norman W. Pressman: --or a willful disregard, or a dis--
David H. Souter: Do you think that the... well, I guess you do think that that, maybe third or weakest sense of malice is the sense in which this... that this statute used it, but if that is the case, then the word willful adds the requirement that the harm that results to whatever the eventual victim is be a harm which is either intended or known by the actor to be the necessary consequence and if that's what willful does in this case, that doesn't fit your case.
Norman W. Pressman: --I would agree with that. If the word willful modifies injury, then I don't have a very good case.
William H. Rehnquist: What else would willful modify besides injury?
Norman W. Pressman: Your Honor, in Tinker, this Court says an act is willful in that... in the... in that the act is intentional or voluntary, not that the injury is intentional or voluntary. That's what this Court I believe said in Tinker.
Anthony M. Kennedy: So you interpret the statute as saying, for a willful act which results in malicious injury--
Norman W. Pressman: Justice Kennedy, that is the way I interpreted it and that is the way I read Tinker.
Sandra Day O'Connor: --Well, maybe we'd better clarify Tinker and do it soon if that's your reading of it. I think the language used is somewhat careless, but it did say in Tinker the act is willful in the sense that it is intentional and voluntary and we think it is also malicious. I don't know what the Court meant by that, but perhaps some clarification of that language is in order.
Norman W. Pressman: Your Honor, I'd also point out that in this case the standard that this Court set in Tinker has been a standard which has not... which has been well used until the 1978 amendments. The matter came up before the courts in the McIntyre case and it came up before the case in Aetna. In McIntyre the Court found itself with a case of someone who converted some collateral, even though there was no default on the loan. There was no problem with the Court finding that action was intentional and malicious. The amicus in this case on my opponent's side has suggested that they're concerned about consumers being injured by my position and I think that answer is taken care of by the Aetna case, where there were some inadvertent... there was some inadvertent conversion of collateral.
Ruth Bader Ginsburg: May I ask about a few of the facts here, it is extraordinary that a doctor would have no malpractice insurance, but that was the case here, was it not?
Norman W. Pressman: Yes, it was, Your Honor. There was no malpractice insurance, and--
Ruth Bader Ginsburg: Doesn't Hawaii State law require it?
Norman W. Pressman: --I don't believe it does. Some States do require it. Missouri does not require it and I don't believe that Illinois requires it.
Antonin Scalia: Explain to me how consumers would not be hurt by your position. Most consumer debt is probably credit card debt. Let's assume a consumer who has a lot of credit card debt seeks a discharge in bankruptcy and the credit card company comes in and says, at a time when you knew you were insolvent you sought additional credit.
Norman W. Pressman: Justice Scalia--
Antonin Scalia: That's a willful... willful act and therefore all of your charges, once you knew you couldn't pay them, are not dischargeable in bankruptcy. Wouldn't that be the consequence? I think it would.
Norman W. Pressman: --In that case, yes, but I think the amicus point is that--
Antonin Scalia: But that's a lot of cases, and you think that all credit card charges run up after the person is insolvent are not dischargeable in bankruptcy?
Norman W. Pressman: --It's a matter of what the facts are before the judge. In that situation, I think it would be. The point I think the amicus made was that in credit card debt in this country, if I buy a refrigerator at Sears, I give a lien on my refrigerator to Sears and the concern is that people will buy a refrigerator and maybe give it to their aunt, or sell it and 2 years later file and then find themselves being charged with committing a willful and malicious conversion, as the act used to mention, and in the Davis case, someone who converted collateral in accordance with an ordinary practice, a custom that was agreed upon with the lender, was found not to have acted willfully and maliciously. In the example given by the amicus, I'd say if someone bought 25 refrigerators from Sears and then filed bankruptcy 3 days later, or a month later, I think that would be willful and malicious, at least if I were the judge hearing that evidence. Mr. Chief Justice, this Court has long held that the discharge is for the honest and unfortunate consumer debtor, and I think the evidence in the record below here shows that Dr. Geiger is none of the above. Justice Murphy in her dissent below said that those words could be better applied to the Kawaauhaus, people, honest consumers who had the unfortun... the misfortune to land in Dr. Geiger's office. I'd ask to reserve my time if there's no further questions.
William H. Rehnquist: Very well, Mr. Pressman. Ms. Grandy, we'll hear from you.
Laura K. Grandy: Mr. Chief Justice, and may it please the Court-- The Eighth Circuit held that the debt owed by Dr. Geiger to the petitioner was dischargeable because he had no intent to harm the petitioner. That has been admitted this morning. The Eighth Circuit opinion is supported by the plain meaning of section 523(a)(6), the legislative history of section 523(a)(6), the purposes and policy of the Bankruptcy Code, and the Tinker case itself. The plain meaning of section 523(a)(6) focuses on the language, willful and malicious injury. Willful and malicious both modify injury. You need both a willful injury and you need a malicious injury to comply with section 523(a)(6). Willful was defined in Tinker as meaning intentional and voluntary. In the legislative history the Congress said willful means intentional and deliberate. It wasn't a whole lot different than the Tinker definition. Malice has been defined--
Anthony M. Kennedy: Are there some instances in which reckless conduct is so reckless that you can apply the definition of willful and malicious to it?
Laura K. Grandy: --No, Your Honor. Reckless conduct is not intentional conduct and the statute, the congressional history as well as Tinker looked to intentional conduct. Tinker in particular, the examples they gave, Justice Peckham gave an example of, if I negligently drive my car into a busy thoroughfare, injuring someone, that would not be an intentional injury because I didn't intend to injure anyone, as opposed to if I intentionally went into that thoroughfare to injure someone. That would be intentional--
Anthony M. Kennedy: And the case where the man throws the firecracker into the gasoline laden basement and the explosion injures the fellow worker, that's... is... how does that come out, in your view?
Laura K. Grandy: --Your Honor, you're referring to the Hartley case, I believe, which--
Speaker: Yes.
Laura K. Grandy: --was also decided by the Eighth Circuit, and what the Eighth Circuit said there was, the intent was to cause an injury. The injury was to startle and scare the employee in that case, as opposed to the injury which went further and actually injured the... caused physical harm to him and the Court in that case said, when you have an intent to injure someone, be it startling or scaring them, we're not going to say the injury was only meant this far, not this far. In this case before you, we have no intent to injure at all.
William H. Rehnquist: Well then, Ms. Grandy, did I understand you to say that Justice Peckham in 1903 was talking about driving a car into a busy intersection and--
Laura K. Grandy: He said driving into a crowded thoroughfare. I was assuming he was driving a cart or buggy, Your Honor.
Speaker: --Yes.
Laura K. Grandy: I didn't think he was driving a car.
Speaker: Not a car, okay. [Laughter]
Laura K. Grandy: I had to think about that, too.
Sandra Day O'Connor: If willful means intending to injure, what's left for malicious? What does that add?
Laura K. Grandy: What malicious adds is almost an escape clause. You can have an intentional injury that's not necessarily malicious. For instance, the banks of the Mississippi River are swelling and I know if I cut a hole in the levee I may flood out Farmer A, but I'm going to save the village down the river and that's why I'm cutting a hole in the levee. I don't intend necessarily to injure Farmer A, although my actions will and I know they will injure Farmer A, but my just cause or excuse, which comes out of the malicious definition, is that I'm trying to save the village down below, or in the example given earlier, where the deputy or the marshal stops someone from injuring you, he intends to injure that person, but his excuse is, he's trying to save the justices. So that's what malicious adds.
John Paul Stevens: May I ask just one question about this famous Tinker case for you? Do you agree... and I'm inclined to think he's right... with your opponent that the opinion there did not rely at all on the notion that the defendant or the bankrupt tried to injure the husband of the woman he seduced? It was merely the question of whether she'd given consent and that was not enough to void--
Laura K. Grandy: In that case, Your Honor, the injury went to the marital right itself.
John Paul Stevens: --That's right, but--
Laura K. Grandy: That's what the Court determined.
John Paul Stevens: --my question is whether, is it not correct that the defendant, or the seducer, whichever party it was, it's clear from the record that there's... the Court did not rely at all on the notion that he was trying to injure the husband of the woman he seduced?
Laura K. Grandy: That's correct, Your Honor.
John Paul Stevens: So that basically are you saying Tinker is an unusual fact situation and it was un... overruled by legislative history, or we should overrule it now? What is your position about Tinker?
Laura K. Grandy: Your Honor, I don't think the legislative history necessarily overruled Tinker. I... the legislative history said that to the extent that other cases have relied on Tinker to hold a reckless disregard standard, they are overruled.
Speaker: Right.
Laura K. Grandy: Within Tinker itself, one of the real, or one of the main substances that have come out of Tinker is the implied malice standard and I think that's what the Court was referring to there. In an act such as that, it's implied, whether you knew her husband or not, you were damaging his marital rights. You didn't have to know him. It was implied the minute that type of act was done, and there are--
John Paul Stevens: Well, why couldn't we by analogy say here there's implied... an implied intent just as much as was implied there?
Laura K. Grandy: --Because in this case, Your Honor, there's no showing of any intent at all, which is admitted by the other side, to cause any injury.
Stephen G. Breyer: Well, if you could-- --Well-- --be malicious without being intentional, then what about the act of practicing medicine, not having malpractice insurance and then injuring your patients through negligently failing to look up the right remedies? I mean, if you can have... what is... I mean, practicing... for a doctor to practice medicine, doesn't have malpractice insurance, just goes bankrupt and can't pay the debt, I mean, is that the equivalent today to what criminal conversation was 100 years ago?
Laura K. Grandy: No, it isn't, Your Honor. The intent not to have malpractices insurance isn't an intent to cause an injury.
Stephen G. Breyer: No, and you'd have to say it's not intentional, but malicious. I mean, the argument he's making from Tinker is that it is... it is... it's not intentional, or it is intentional, exactly like here. In Tinker, you could have been found to fall within the statute, though you're... say he was sleeping with a woman. He may have been negligent and not known that she was married, all right. He says, similarly the person here, the doctor, gave a certain remedy not knowing, though he should have known, just like Tinker should have known, what the right remedy was. So he says, that's all of a muchness. I mean, that's the same case, he said.
Laura K. Grandy: No, it isn't, Your Honor.
Speaker: Because?
Laura K. Grandy: I believe in Tinker--
Stephen G. Breyer: All right, go ahead.
Laura K. Grandy: --If we go with your facts, Your Honor, if in Tinker the husband did not know she was married at all, I would agree, but--
William H. Rehnquist: The adulterer... yes.
Laura K. Grandy: --Yes. Yes, that Mr.... yes, that he did not believe that she was married, then I think that fact cannot be true. I don't think those are the facts in Tinker.
John Paul Stevens: But there's no showing that he did know in Tinker.
Laura K. Grandy: There's no showing that he didn't know, but I think the conclusions that are set forth by the Court in that case imply that he did know. The Court says this is one of the grossest--
John Paul Stevens: Well, it surely doesn't say so. It surely doesn't say so. Well, could it have--
Laura K. Grandy: --I'm sorry--
David H. Souter: --Just as a matter of... the definition of the offense, could it have been criminal conversation if he didn't know?
Laura K. Grandy: --If he didn't know?
David H. Souter: I was assuming that it couldn't have been criminal conversation unless he, in fact, knew of the marriage. Am I wrong? I assumed so, too, unless--
Laura K. Grandy: I--
Antonin Scalia: --Unless the crime was fornication and not adultery. I thought it was an adultery crime.
Laura K. Grandy: --Yes, Your Honor. In Tinker, in order to prove criminal conversation you had to prove that there was a marriage and that the act was performed, and those two--
David H. Souter: Well, but do you have to know that the defendant knew that there was a marriage?
Laura K. Grandy: --In--
David H. Souter: That he knew that the woman he was sleeping with was married?
Laura K. Grandy: --I don't know, Your Honor.
Stephen G. Breyer: In the argument I think they argued that he didn't have to know, and that rather he ran the risk of the woman being married. I think we're going to get back to the 18th Century pretty soon, the Statute of Anne again. [Laughter]
Laura K. Grandy: The case doesn't tell us, Your Honor.
John Paul Stevens: No, it doesn't. I mean--
Laura K. Grandy: No.
John Paul Stevens: --you read the opinion, he might not have known anything about the marital status of the woman that he seduced.
Laura K. Grandy: That's correct, Your Honor, but the examples that are given throughout Tinker refer to intentional conduct. If you look at the examples given by Justice Bailey--
John Paul Stevens: Right, but they implied the intent because the facts were so outrageous to the judges at the time and I don't know... you know, the same kind of reasoning might justify... I'm not saying it would, but the conclusion of, well, this doctor was sufficiently outrageous in his failure to be careful and so forth and so on, that you'd take the same reasoning the Court used in Tinker, that you imply the intent. That's what they did. They implied the intent.
Laura K. Grandy: --They--
John Paul Stevens: Or inferred it, I guess is the proper way to say it.
Laura K. Grandy: --My... Your Honor, I believe that the implied intent actually grew from the examples they gave of other intentional conduct in that case--
Anthony M. Kennedy: Well, the implication of--
Laura K. Grandy: --not necessarily from Tinker.
Anthony M. Kennedy: --The implication of malice was that there was a wrongful act done without any justification or excuse.
Laura K. Grandy: Well, it was as--
Anthony M. Kennedy: And it was intentionally done and so that implied the necessary malice.
Laura K. Grandy: --If he were intentionally doing a wrongful act, he would have had to have known it was wrong to sleep with Mr. Tinker... Mrs. Colwell, then--
Speaker: No--
Laura K. Grandy: --Your Honor, because he knew she was married.
Anthony M. Kennedy: --No. It was the kind of act which was done without excuse and therefore the Court implied malice. That's the way I read the case.
Laura K. Grandy: Right, Your Honor. I was just bringing up the language--
Anthony M. Kennedy: It was Mr. Justice Peckham's case, not mine. [Laughter]
Laura K. Grandy: --It is a difficult case to read and I think--
David H. Souter: No, but however you read it, isn't it fair to say that either he did not have to know of the marriage, but the injury followed as a matter of law whether he knew or not, or that he did have to know of the marriage and therefore we should assume simply by the definition of the offense that he knew in this case, and therefore the injury followed as a matter of law. One... either way, the injury in that case was inevitable and the injury in this case is not, isn't that--
Laura K. Grandy: --Yes, Your Honor.
David H. Souter: --the distinction that you would rely on?
Laura K. Grandy: Yes. At the time that Dr. Geiger made the choice to do the various procedures that he did throughout this, his intent was never to injure, nor was his choice governed by any intent to injure.
David H. Souter: Nor was the injury, as it were, logically a necessity of whatever deficiency he may have been guilty of.
Laura K. Grandy: That's--
David H. Souter: It happened, but it didn't necessarily happen.
Laura K. Grandy: --That's correct, Your Honor.
Ruth Bader Ginsburg: But as you see the case, then, malpractice actions in general as a category would not come under (a)(6).
Laura K. Grandy: No, Your Honor, not unless there was some intent on the part of a doctor to injure and I don't believe you find that in malpractice cases.
Ruth Bader Ginsburg: How do you regard defamation actions for (a)(6) purposes?
Laura K. Grandy: You would have to have an intent to defame the person. If--
William H. Rehnquist: Well, isn't that an element of the crime of defama... or the action of defamation itself?
Laura K. Grandy: --I believe it is, Your Honor.
William H. Rehnquist: I mean... or can you negligently defame someone? I don't know. I thought you had to say something defamatory knowing of its falsity.
Laura K. Grandy: That's correct, Your Honor.
Antonin Scalia: I don't think it's correct, only if you're defaming a public figure.
Laura K. Grandy: Okay. There are exceptions. [Laughter] Your Honor, the Eighth Circuit looked for its definition of intent to the Restatement and, in doing that, it determined that an intentional act is one where the actor desires or believes that the results are going to occur and, looking at that definition, the Court determined that Dr. Geiger did not intend to harm the patient, therefore he had no willful desire, or therefore there was no willful injury. Having reached that point, the Eighth Circuit concluded that section 523(a)(6) did not apply and therefore the debt was dischargeable.
Ruth Bader Ginsburg: Do you know what the practice is in the States with respect to requiring, as a condition of retaining a medical license, malpractice insurance?
Laura K. Grandy: No, I don't, Your Honor, but as a policy reason, if the State was concerned that this Court's ruling would have some effect to cause doctors to not carry malpractice insurance, they could govern that by licensing it within their own States and requiring insurance, just as in... most States are now requiring, or several States are requiring insurance in order to have a driver's license. Dr. Geiger, as found by the bankruptcy court, had several reasons for his treatment. He in prescribing various types of medicine at all times 1) believed his patient was getting better, 2) thought he was... she had the ability to absorb medicine very well through her stomach, which is why he made the various choices he made, thought her infection had burned out, and thought she had developed a superinfection in determining to stop using antibiotics altogether. So even if you were to take the definition of malice as set forth in the Tinker case, Dr. Geiger would have just cause or excuse for having done what he did. The legislative history also supports this by looking at the language to the extent other cases have relied on Tinker to hold a reckless disregard standard. There, the courts once again are focus... or Congress is focusing on the intent of the injury itself, because a reckless act would be one that would not require intent. Within the section 500 of the Restatement is the definition of recklessness and within that subsection (f) of that definition there's a comparison of intentional misconduct to recklessness and, when you compare the two, recklessness does not require an intent. That's why we feel reckless conduct, which the Eighth Circuit said at the very worst his conduct was reckless, it would be dischargeable because there's... you don't have the element of intent in a reckless type of act. Tinker we... I do not believe is in conflict with the decision of the Eighth Circuit, because most of the examples in Tinker appear to require an intent to injure. The implied malice standard is limited to certain facts in certain situations and Tinker certainly does not support a reckless disregard standard, so the legislative history is not overruling Tinker but basically saying, read Tinker correctly. The purposes and policy of the Bankruptcy Code will be furthered by the decision of the Eighth Circuit. This is because the purpose of the Bankruptcy Code overall is to provide a debtor with a fresh start and that is why exceptions to discharge are narrowly reviewed. The... requiring an intent to cause an injury would lead to such a narrow interpretation and enhance the fresh starts. Intentional act, if you only require that which results in injury, would lead to virtually everything being nondischargeable, as pointed out by the Eighth Circuit. If you speed up to a yellow light because you're in a hurry to pick someone up, that would be an intentional act. It would be nondischargeable. If you're driving too fast for conditions, even though you're driving within the speed limit, that would be an intentional act which would be nondischargeable. Buying something on credit because you think you can pay for it, but intentionally buying it and then ultimately losing your job and not being able to pay for it would be an intentional act and be nondischargeable under that theory. Once again, Justice Peckham's example of driving into a crowded thoroughfare would be an intentional act under that definition. We feel the policies and the purpose of the Bankruptcy Code are furthered by this Court deeming that the decision of the Eighth Circuit was correct and affirming that decision.
William H. Rehnquist: Thank you, Ms. Grandy. Mr. Pressman, you have 5 minutes remaining.
Norman W. Pressman: Mr. Chief Justice, unless there are any questions I will--
John Paul Stevens: I don't mean to be... I'm just curious. How do you pronounce your client's name?
Norman W. Pressman: --Kawaauhau.
John Paul Stevens: Thank you. I thought in Hawaiian every vowel was supposed to be pronounced.
Norman W. Pressman: Mr. Kaw... I've had trouble pronouncing it. That's... my understanding is that that's how to pronounce it.
William H. Rehnquist: Well, you--
Norman W. Pressman: Kawaauhau. Maybe it's Kawaauhau. I--
William H. Rehnquist: --I'm sure you know better than we do.
Norman W. Pressman: --I may be using the St. Louis pronunciation. [Laughter]
William H. Rehnquist: Very well. Thank you, Mr. Pressman. The case is submitted.
Norman W. Pressman: Thank you, Your Honor.