John G. Roberts, Jr.: We'll hear argument next in Case 09-5327, Holland v. Florida. Mr. Scher.
Todd G. Scher: Mr. Chief Justice, and may it please the Court: It is undisputed that Petitioner was not provided notice that the State supreme court had denied his postconviction appeal and had issued its mandate, with the result being that his AEDPA statute of limitations expired. The very day he learned this, Petitioner immediately prepared a pro se habeas petition and filed it within 24 hours. Before this, Petitioner had taken--
Sonia Sotomayor: How do -- what in the record shows us that the failure to tell him that by the lawyer was anything other than negligence? What in the record suggests that the lawyer, just as many lawyers do, forgot to call the client, forgot to send him something? What shows that this is more than negligence?
Todd G. Scher: --Well, first of all, we have what the Eleventh Circuit characterized Mr. Collins's conduct as, which was gross negligence. And what we have here is a confluence--
Sonia Sotomayor: Well, I'm trying to find the basis for that finding.
Todd G. Scher: --We have a repeated pattern. For example, first of all we have to go back in terms of what happened in State court. First we have Mr. Collins's assurances to Mr. Holland that he would in fact file his Federal -- or was aware of this--
Sonia Sotomayor: But -- but--
Todd G. Scher: --I'm sorry.
Sonia Sotomayor: --That's what his intent was.
Todd G. Scher: Correct.
Sonia Sotomayor: People say I'm going to do something, and they fail to do it often because something else comes up, because something has happened. That doesn't show intentionality in -- the failure to act doesn't necessarily prove that it was intentional.
Todd G. Scher: Well -- well, in terms of that what we have here, for example, is Mr. Collins was given two opportunities -- or the record shows that there were two opportunities for Mr. Collins to provide answers to these very questions. The most significant of those responses was -- was in the Federal district court where the Federal district judge in fact issued a show cause order to Mr. Collins asking him to respond specifically to Mr. Holland's allegations. And in that response Mr. Collins completely ignored all of Mr. Holland's allegations. He never denied that -- being instructed to file the petition. He never denied that he had in fact informed Mr. Holland that he wouldn't -- that he would file the petition. He never denied any of the allegations with regard to the fact that Mr. Holland wanted that Federal habeas petition filed on time. He just went on to address--
Antonin Scalia: Well, that -- but that's the case in every case where -- where the lawyer is negligent and doesn't do something that -- that should have been done.
Todd G. Scher: --Well--
Antonin Scalia: He has assured the client, I will take care of your case, and he doesn't do it.
Todd G. Scher: --Well, here we have--
Antonin Scalia: That's all that happened here.
Todd G. Scher: --This -- this goes beyond the case of mere, garden-variety negligence that some of the courts have -- have addressed, because here we have a combination of not only a failure -- we have the failure to notify Mr. Holland that the State supreme court has in fact denied its opinion, despite repeated instructions from Holland to Mr. Collins that he file his petition. Mr. Holland wrote--
Samuel A. Alito, Jr.: The facts here -- the facts here are quite extreme, but I am troubled by where you think the line should be drawn. If it is just mere negligence, would that be enough for equitable tolling?
Todd G. Scher: --No, courts -- and this Court in Lawrence has held, for example, that mere negligence is not sufficient. What we have here certainly is suggestive--
Samuel A. Alito, Jr.: Well -- the difference between mere negligence and gross negligence -- one of the things I remember most clearly from torts in law school is that that's pretty -- that's an ephemeral distinction. But that's the one you one you think we should draw, between mere -- if it's gross negligence, then there's equitable tolling; if it's mere negligence, it's not?
Todd G. Scher: --Well, we know certainly that the floor from -- from cases from this Court and from other courts is this mere or garden-variety negligence. But when you get to other factors--
Anthony M. Kennedy: Why should -- why should that be? Two cases. Two criminal defendants. One spends a lot of time trying to find the most competent lawyer he can, and he does. He finds a highly skilled lawyer, who makes one little mistake and it's negligence. The other doesn't care. He gets a lawyer that's really incompetent, and the lawyer is grossly negligent. Now, you would be penalizing the client who exercised the most diligence under your rule. I don't understand the -- the justice of that. It seems to me that the first client should be better off, not worse. Now, maybe this is for your friend on the other side to answer as well, but I'm not sure, even following Justice Alito's initial line of questioning, we can distinguish between gross and mere negligence, that -- that it's even fair that we do so.
Todd G. Scher: --Well, this Court--
Anthony M. Kennedy: I didn't mean to interrupt his line of questioning, but it seems to be consistent with it.
Todd G. Scher: --This and other courts have -- have been able to draw that line, and, of course you have to look at the specifics of each particular case, because not only--
Anthony M. Kennedy: But what's the -- what's the point? What's the justice in doing that?
Todd G. Scher: --Well, the way--
Anthony M. Kennedy: Other than just limit the number of cases in which we are going to set aside convictions?
Todd G. Scher: --Well, in some circumstances, courts have just said, unfortunately you lose, your attorney didn't commit -- it was just a mere mistake. But what we have here, of course, is not -- we don't have a mere mistake; we have a confluence of these particular factors. And I think one of the more salient points that distinguishes Mr. Holland's case, for example, from Lawrence and from the situation in Coleman, is that Mr. Holland tried to rid himself of Mr. Collins on numerous occasions while this case was in State court. In Lawrence and in Coleman, the petitioners were not allowed to be free of their lawyers; they accepted those lawyers' representation -- they accepted their representation and the acts and omissions that occurred in Lawrence and in Coleman were attributed to -- to the petitioners in those cases. Here, however, by contrast, Mr. Holland did everything he could -- he could, to be -- reasonably, to be free of--
Sonia Sotomayor: Are you -- are you suggesting that there should be a different standard for those habeas petitioners who are -- whose counsel is appointed for them by the State or by the Federal government, as opposed to just a lawyer they hire? That's what I'm hearing you say.
Todd G. Scher: --No, and I didn't mean to suggest that--
Sonia Sotomayor: All right. So if the standard is going to be the same -- I -- I go back to Justice Alito's question, which is, the Eleventh Circuit is saying negligence/gross negligence, the line is too fine to draw. But there is a difference in a line between negligence, however one defines it, and an intentional, bad faith, dishonest, conflicted malfeasance.
Todd G. Scher: --Correct.
Sonia Sotomayor: All right. Why isn't that a more workable line, given that you can't have equitable tolling without exceptional circumstances?
Todd G. Scher: Correct enough, but I think each -- well, certainly those were some of the individual factors that the Eleventh Circuit discussed when saying gross negligence isn't enough. I think in Mr. Holland's case--
Sonia Sotomayor: You haven't argued why not, is what I'm saying to you. If exceptional circumstances has to mean something that really makes something exceptional, why is negligence of any variant exceptional?
Todd G. Scher: --Because when you look at, for example, in this particular case, when we are talking about an exceptional circumstance, you're talking about a lot of times -- and courts have done this -- is the confluence of what the attorney did or didn't do versus what the petitioner did. So we have, of course -- along the lines of the extraordinary circumstances here, we have Petitioner's diligence. And in some respects they dovetail. And I think what the Eleventh Circuit did was say we don't care what the Petitioner did; we don't really care what the lawyer did; anything the lawyer did unless the lawyer was mentally ill or had divided loyalties, then that's -- those are the only factors that were going to be considered in terms of equitable tolling. But that is -- that is antithetical to the very nature of equity. Here--
Antonin Scalia: We've never held that equitable tolling for anything is available under this statute of limitations here.
Todd G. Scher: --That's correct. This Court, however--
Antonin Scalia: And why should it be? It seems to me, this is not like the ordinary statute of limitations, where it says, you know, the statute is five years, and courts make all sorts of necessary exceptions to the five years. But here you have a statute that -- that provides exceptions, for example, "the limitation period shall run from the latest of the date on which the impediment to filing an application created by State action in violation. " "is removed. " In other words, we're going to toll it for that particular event. "The date on which the constitutional right asserted was initially recognized by the Supreme Court. " --we're going to toll it for that. "The date on which the factual predicate of the claim or claims presented could have been discovered through exercise of due diligence. " Many of -- many of the equitable tolling holdings involved precisely that. We'll toll it since you couldn't have found out about the violation within the statutory period. But all of these things are handled already in 2244(d). Why should we -- why should we assume the right to create some additional exceptions from the -- from the 1-year period?
Todd G. Scher: --Well, with all due respect, I don't concur with the premise that those four particular subsections of 2244(d) are exceptions or -- or are tolling provisions. Indeed, this Court in Jimenez said that those four, (a), (b), (c) and (d), are--
Ruth Bader Ginsburg: How many circuits have said that there is equitable tolling?
Todd G. Scher: --Eleven circuits -- all of the circuits, and the only circuit that hasn't held that is the D.C. Circuit where it remains an open question. So all of the circuits that have addressed--
Ruth Bader Ginsburg: Then it's a question of what are exceptional circumstances and whether it has to be something deliberate, which is what the -- as I understand it, the Michigan Court of Appeals said -- yes, if it was bad faith -- if it was a lie, a deception--
Todd G. Scher: --Correct. And, in fact--
Ruth Bader Ginsburg: --So they're drawing the line between intentional and -- and without intending but just being careless.
Todd G. Scher: --Correct. And, certainly here, I think we have what they deemed to be gross negligence, which I think certainly has an element of, let's say, for example, to use the term "recklessness". I mean, we've got six or seven circuits which have addressed this particular issue in terms of this line between mere negligence and -- and something more than that, and those circuits have all -- in the 13 or 14 years since AEDPA has been around, all been able to effectively deal with these particular cases on their particular facts.
Antonin Scalia: We have a case this afternoon involving an opinion of ours named McNally, which held that there's no such thing as a fraud action for a right to honest services. How many of the courts of appeals had held that there did exist such a right when we held that there didn't in McNally?
Todd G. Scher: I'm not familiar.
Antonin Scalia: Every single court of appeals that had faced it had held that there was such a right. So the mere fact that you have 11 court of appeals that have found that they have extraordinary power -- judges like to find that they have power -- and that doesn't necessarily make it right.
Todd G. Scher: Well -- and I--
John Paul Stevens: Of course, that also assumes that McNally was correctly decided ---- [Laughter] --and I don't think it was. May I ask you another question--
Todd G. Scher: --Yes.
John Paul Stevens: --prompted by Justice Kennedy's question? Have any of the circuits taken a look at the probable merit of the underlying claim in evaluating the issue?
Todd G. Scher: In this particular case or in another case?
John Paul Stevens: No, not in this particular case. But Justice Kennedy says it's equally unjust to the client whether it's negligence or gross negligence, and I'm just asking whether in any of the reviews of this issue, that you are familiar with, have they sometimes looked at the probable merit of the claim, and if there was merit, why, you were more disturbed about attorney negligence, whereas if it's a frivolous claim, they wouldn't be. But do you know if any of them take a look at that at all?
Todd G. Scher: There are certainly some cases that address the tolling and then, of course, address the merits of the petition. I don't know that there are any that link the two. But, certainly, if you have, for example -- the Respondent has argued that the floodgates are just going open, but certainly one of the -- one of the ways that a Federal district court can deal with this and has dealt with this in the past 13 years is to look at the petition. And if the petition raises something that's so palpably meritless, you don't even need to get to anything about whether it's -- just dismiss the petition because, of course, the vast majority of cases that AEDPA addresses in this particular chapter are noncapital cases and are pro se cases.
Anthony M. Kennedy: I looked in the brief to see if there was reference to the merits, underlying merits of the case. Can you just tell me very quickly what the key arguments are, if we ever reach the merits?
Todd G. Scher: In the Petitioner's case?
Anthony M. Kennedy: Yes.
Todd G. Scher: He had -- well, there were a number of issues that he raised on direct appeal. There was issues regarding counsel. For example, I know in the postconviction motion, one of the key issues was he had a what's termed in Florida "a Nixon issue", which is where counsel conceded some of the elements of the crime.
Anthony M. Kennedy: Well, I shouldn't probably take your time with that. I will look at the State record.
Todd G. Scher: But -- but--
Ruth Bader Ginsburg: Mr. Scher, one point that you didn't mention, but you did I thought stress it in your brief, was that counsel here said: Oh, the deadline had run even before I was engaged, even before I was appointed to represent this man, so there was nothing that I could do for him, because the time had already expired.
Todd G. Scher: --That's correct, Justice Ginsburg. What happened is that that particular explanation came up after the fact. I think what's significant about that, number one, is that his explanations have been a moving target to a large extent. But what's even more important is that none of that information was ever imparted to Mr. Holland while the case was pending. While Mr. Collins was providing assurances and reassurances to Mr. Holland -- about, don't worry, your State postconviction motion will be filed on time, your Federal rights will be honored, everything will be done, your appeal will be taken, once we are done in the Florida Supreme Court we will go off to the Federal district court -- at no time did Mr. Collins ever say: We've got a big problem here; the statute may have run, and so we need to start thinking in advance of ways to deal with this. For example, if Mr. Collins truly believed that the statute had already run, the day the Florida Supreme Court issued that decision, he should have been in Federal court filing something right away.
Samuel A. Alito, Jr.: Could you just tell me in a sentence or two what test you think we should apply for equitable tolling? What is necessary in order for there to be equitable tolling?
Todd G. Scher: Your Honor, I think the -- the test is the test that this Court has applied, which is in Pace and in Lawrence, which is extraordinary circumstances coupled with diligence. I think under those particular -- coupled with diligence, the Petitioner's diligence.
Samuel A. Alito, Jr.: What does "extraordinary circumstances" mean?
Todd G. Scher: It's -- it's a case-by-case type of issue. It's because it's an equitable remedy. It's not something that's susceptible to rigid rules, which of course is the problem with the Eleventh Circuit's categorical exclusion of a particular large chunk of misconduct on the part of the attorney. But certainly here, where we have extraordinary circumstances, we have lack of notice to the Petitioner that his State court opinion had been issued, that they had affirmed, that the mandate had come out; and a failure to communicate, wholesale failure to communicate, bordering on, in fact, abandonment--
Antonin Scalia: Well then it's nothing to do with -- with what caused -- what caused the inability to -- to bring the habeas action.
Todd G. Scher: --Well--
Antonin Scalia: All of that is -- is preliminary to that. This may have been a very irresponsible lawyer, but that has nothing to do with the event that -- the simple event, failure to file in that what, 30-day period, which--
Todd G. Scher: --Fourteen days.
Antonin Scalia: --Fourteen days. It seems to me "extraordinary" means unusual. So you say any unusual event is a possible?
Todd G. Scher: Well, I think the one--
Antonin Scalia: Any unusual event is a possible for a court to say, oh, yes, it says a year, but this is unusual so we will give you a year and a half.
Todd G. Scher: --Well, I think what we have here is what makes this case I think unusual, and it's the first type of case that this Court has seen, is under these circumstances you have this confluence of events. And I think what makes this case -- what sets this case apart from the other ones that this Court has seen and that certainly other courts have seen is, for example, it's extraordinary -- or it was diligent for Mr. Holland to have asked the Florida Supreme Court on two occasions to rid himself of Collins, and he asked to proceed pro se.
Anthony M. Kennedy: The client -- this client was sort of the pesky client, but apparently knew a lot more about AEDPA than most people generally do. I mean, AEDPA's not exactly an ordinary term.
Antonin Scalia: And had a lot of time to devote to it.
Anthony M. Kennedy: And -- and suppose you have a client who is just bewildered. He doesn't know AEDPA; he doesn't know Federal court. Why should he be in any worse position than this client?
Todd G. Scher: Well--
Anthony M. Kennedy: It seems to me it would be the other way around. This fellow knew enough that, if he had really just done a little bit more, he would have -- well, he tried to file a petition, but he might have done a little bit more.
Todd G. Scher: --Well, I think--
Anthony M. Kennedy: But the uninformed client, the ignorant client, could never have approached this. I don't know why he shouldn't be more protected than your client, which goes back to Justice Alito's question. I'm not sure how we draw this line.
Todd G. Scher: --I think the problem we have here with Mr. Holland is that the more diligent he was, the more the Respondent and the lower courts have said he should have done. And so he did X, Y, and Z; they say you should have done A, B, and C. But what I think is -- is significant here is he was stuck with this lawyer. He tried to get rid of the lawyer. The State filed motions saying you can't -- not only can you not fire him, you can't file a pro se motion because you are represented by the lawyer. So all Mr. Holland hears from the courts is that: You can't speak to us and we can't speak to you. So he's stuck. And then, of course, he's writing to the Florida Supreme Court clerk begging for information, and in fact in footnote 11 of the brief--
Ruth Bader Ginsburg: But he never asked -- he wrote to the clerk, but he never asked to be informed when the judgment came down.
Todd G. Scher: --Well, what we have, Your Honor, is if you look on page 11, in footnote 11, Mr. Holland wrote a letter to the Florida Supreme Court clerk, toward the end of which he says: "I'm not trying to get on your nerves. " "I would just like to know exactly what is happening with my case on appeal to the Supreme Court of Florida. " So we certainly have in the clerk's office -- and, again, that was on page 11, footnote 11. It's also at the Joint Appendix at 146 to 147. What we have here is Petitioner putting the Florida Supreme Court on explicit notice that he is having a problem with his lawyer, and further -- earlier in that particular letter, he apologizes to the clerk, saying: I'm sorry to pester you with these -- with these requests, but if I had a lawyer who was responding to my letters and who was listening to me and who would send me the documentations, I wouldn't have to be bothering you, but this is the situation that I'm in. And then, of course, he tries to not only have Mr. Collins substituted, but he asks to go pro se. That's an extraordinary circumstance. And what makes it even further, more extraordinary is the State coming in and saying, no, you can't not only do that, but you are not even allowed to file the paperwork asking to do that. And, in fact, when Mr. Holland did file his pro se petition in Federal district court, the State moved to strike it because he was represented by -- by counsel. And so--
John G. Roberts, Jr.: Is this case different if the filing error -- I understand there was a lot going on, but if the lawyer just miscalculated the days and was off by one day, this case comes out the other way in your view, right?
Todd G. Scher: --I think not only under my -- I think, certainly, courts have -- have discussed this, that that's -- that's just an unfortunate mere mistake. But I think certainly we don't have that under the facts of this case. There has never been any suggestion that there was any miscalculation. We just have complete abandonment by -- by the--
Sonia Sotomayor: I don't -- you say -- you say "complete abandonment". But this lawyer filed a whole lot of things on behalf of this client. He missed a very critical thing, the Federal habeas filing. But it's not abandonment of a client in the sense of not doing anything for the client. So it goes back to my beginning question, which is, where is the line drawn between the types of negligence and what the circuit suggested, which is some sort of intentional malfeasance?
Todd G. Scher: --And I didn't mean to suggest -- when I -- when I used the word "abandonment", I'm -- I'm referring to, of course, in terms of abandonment with regard to preserving -- enforcing the assurances that Collins had made with respect to filing the petition. And, of course, he also had told -- that -- Mr. Holland that he would inform him of the Florida Supreme Court's decision, because that, of course, is the triggering date. We have Mr. Holland, who had already been -- you know, asked his lawyer, you know, please file certain issues in my case and please keep me informed. When those two promises and assurances were not kept by the lawyer, Mr. Holland at that point has reason to be concerned that the additional promise, which is, I will file on time, was not going to be honored. And so Mr. Holland embarked on a series of diligent steps in order to get some information, but he didn't know where to turn. And, then, of course, for example, he writes to the clerk's office of the supreme court. Sometimes they send him information; sometimes they tell him to send a check. He doesn't know. He is not getting any consistency, and he's certainly not getting any response from his attorney. Then he files these motions in the State supreme court, which are opposed by the State as nullities because he is represented by counsel. He then writes to the Florida Supreme Court saying, can you give me the information about your Web site -- maybe I can have some friends look up this case. Because, of course, he knows at this point that there is a problem, and he knows that the triggering date for the filing in the Federal petition is the denial by the Florida Supreme Court and the issuance of the mandate.
Ruth Bader Ginsburg: Then you are -- you seem, from what you just said, to be relying on a distinction between paid counsel, who is just as careless, and court-appointed counsel, because in the one case the client had picked that attorney, and in the other case, the client was given this attorney by the State. So I think you're suggesting that the State has some responsibility when it provides the counsel. But before you said, no, your answer would be the same if you were not making a distinction between court-appointed and paid counsel.
Todd G. Scher: I think the -- the distinction that I was making -- I'm not saying that there's a difference in terms of paid or appointed counsel, but here where you have appointed counsel, I think one of the extraordinary factors is the State coming in and -- and moving to strike these pro se pleadings, telling Mr. -- sending a signal to Mr. Holland that you are stuck with Collins, you can't speak to the supreme court, and the supreme court can't speak to you. Everything has to be funneled through your lawyer. And, of course, the ironic thing is that, had Mr. Holland been permitted to proceed pro se, he would have gotten copied with the decision by the supreme court of Florida. He would have gotten copied with the mandate. And then he would have known when the mandate issued. And as we know, when he found out -- I mean, the other extraordinary factor here is that when he found out that this happened, he prepared that petition that day and mailed it the next day. This is not somebody who sat on his rights. He didn't start complaining and writing letters and bemoaning his situation. He took action, which also distinguishes this case from a number of others.
John G. Roberts, Jr.: I guess I understand what the cases have said. I -- I have trouble understanding why that should make a difference, why that should be so pertinent, why he should be in better shape than somebody who says: Look, I don't know anything about this. I need a good lawyer. This is what I get. I'm trusting you. Tell me what I should do, and I leave it in your hands. And that person is in somehow worse shape?
Todd G. Scher: Well, because in Lawrence and in -- in Coleman this Court had -- had said that that made a difference. In Lawrence, this Court had said Lawrence was out of luck because it's not like he asked for another lawyer or asked to proceed pro se. And so Holland -- and so Lawrence was stuck. I would respectfully reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Makar.
Petitioner Scott D Makar: Mr. Chief Justice, and may it please the Court: This case, we believe, is decided by one principle--
John Paul Stevens: May I just ask just an information question before you -- are the postconviction lawyers in these cases that are appointed, are they compensated by the State?
Petitioner Scott D Makar: --Yes, they are.
John Paul Stevens: They are.
Anthony M. Kennedy: And also, just in the course of your argument, how -- how often do these deadlines missed (a) in capital cases and (b) in AEDPA cases? Do you have any statistics on that, or can you tell us from your experience?
Petitioner Scott D Makar: I can tell you anecdotally the attorneys that handle these cases in Florida, that the equitable tolling issue comes up with some regularity. I'm aware of three cases just in Jacksonville where I live where the district judge there has had evidentiary hearings and has looked at these equitable tolling issues. In Florida, we have 394 individuals on death row, and those cases are at various stages in the litigation. So there is a certain amount of that that goes on. As to the noncapital cases, we know that the system is flooded with habeas petitions. Obviously, most of those are unrepresented. But there still is, in those cases -- a study I saw recently, a 2007 study from Vanderbilt University, that about 20 percent of those cases are dismissed on statute of limitations grounds. I'm inferring from that that there is some equitable tolling action going on there, but the specific amount we're not sure of. But certainly in both the capital and noncapital area, this is an issue. And if I could get to the standard here, obviously, we're asking this Court to use the analysis it has done in other cases to find that there is no equitable tolling whatsoever. We--
Stephen G. Breyer: You mean to imply that earthquake, fire, flood, mad postman burns mail truck, et cetera?
Petitioner Scott D Makar: --Precisely, Your Honor. I mean--
Stephen G. Breyer: So, even if it's a terrible earthquake, all these people are just out of luck?
Petitioner Scott D Makar: --Well -- well, there are some, certainly, safety valves if there's a natural disaster, some--
Stephen G. Breyer: Well, why? Natural disaster, yes, you said no equitable tolling, they're out of luck?
Petitioner Scott D Makar: --Well -- well, for example, the Rules of Federal Procedure were recently amended to allow for late filing when the courthouse is inaccessible.
Stephen G. Breyer: The statute?
Petitioner Scott D Makar: Precisely, Your Honor. And we think--
Stephen G. Breyer: And, so, are you -- you read the statute to say in some cases, you could do it. If you're going to read it in some cases you can do it, then I guess we're at a discussion of is this one of those cases?
Petitioner Scott D Makar: --Well, two responses. Number one, we do not believe that equitable tolling was intended by Congress under this complex statute of limitations for all the reasons set out in our brief.
Stephen G. Breyer: So that's earthquake, fire, flood, et cetera?
Petitioner Scott D Makar: Exactly. And it relates to the same result, it seems -- to the same result as this Court came to in Beggerly and Brockamp, where the -- if Congress intended that to be the case, that's the case.
Samuel A. Alito, Jr.: What if the lawyer lies to the client and the client says my time is running out, have you filed my -- my Federal habeas petition, and the lawyer says, yes, I filed it and here it is, and it has a -- a forged date stamp on it? No equitable tolling there?
Petitioner Scott D Makar: Well, under our position that Congress intended to draw a very clear line, no. If the -- if the Court assumes or decides there is some sort of equitable tolling, then that's a different case, and -- and in those situations where there's something beyond the incompetence of the lawyer. And that's our rule. If the Court decides there is equitable tolling or assumes it exists, it has to be that the rule that the incompetence of the postconviction counsel cannot be a basis for relief. That's what this Court has essentially said in Lawrence and also in Coleman, and also what Congress inferentially said in -- in 2254(i). So, under those circumstances, here our rule works because you don't get into those gradations of negligence, you know, is it gross negligence? Well, how gross? And the bottom line here in this particular case, of course -- and the Court has asked these questions here -- is what really happened in this case? All you had was a Lawrence error, which was--
Stephen G. Breyer: Well, why should it matter? It's certainly unusual. Isn't that what we are after, one, is he diligent? Answer, yes, he has been diligent. Two, is it extraordinary? I would think it was fairly extraordinary that a person writes these letters to counsel and so forth, then the -- the thing isn't filed. Is that extraordinary or not? Whether it was his fault, whether he himself was kidnapped. I mean, maybe it wasn't the counsel's fault. You can imagine a lot of circumstances. But the question, I would think, is, is it extraordinary and is it fair?
Petitioner Scott D Makar: --Well, the answer -- is it extraordinary? The answer is no. This is common--
Stephen G. Breyer: You mean counsel in Florida often when -- miss deadlines and so forth when their counsel -- when their client specifically says to them, even a few weeks before and by mail several times, please file such-and-such, is not extraordinary in Florida?
Petitioner Scott D Makar: --It's not just Florida; it's nationwide there's -- there's problem with this complex statute of limitations--
Stephen G. Breyer: We have a problem with the bar, don't we, if -- if -- if the -- if-- [Laughter]
Petitioner Scott D Makar: --Well, there -- there has been no bar discipline, to my knowledge, for missing a deadline. And that -- and this Court has held that is not an extraordinary circumstance, in Lawrence. The only--
Anthony M. Kennedy: I -- I -- I didn't hear. You say there has been discipline or there--
Petitioner Scott D Makar: --To my knowledge, there has not been for missing a deadline.
Anthony M. Kennedy: --If we or -- this would probably be the Congress -- assuming some rule maker had probably be the Congress, assuming some rulemaker had authority to do this, would it make sense to say that the State is going to be subject to equitable tolling on a rather broad standard -- we're going to give equitable tolling often -- unless the State has attorney discipline procedures, so that this happens only once and then the attorney can no longer practice in the Federal courts?
Petitioner Scott D Makar: I suppose as a matter of--
Anthony M. Kennedy: Obviously, what we're looking for is some sort of a rule to keep the deadline, and if we're going to accommodate your friend on the other side, to have -- to have some rule about exceptional -- exceptional cases.
Petitioner Scott D Makar: --Well, perhaps something along those lines legislatively might be -- be considered, but -- but in the end, what we have here is garden-variety attorney negligence miscalculating and missing a deadline. The--
Samuel A. Alito, Jr.: Isn't there at least one additional thing here? Holland filed a request -- a pro se request to be relieved of Collins's representation, and that was rejected by the -- that was rejected by the court because he was pro se. And therefore he couldn't ask -- he couldn't file something himself?
Petitioner Scott D Makar: --Well, let me clarify that, because there's a misconception going on here. In the Florida Supreme Court postconviction process, Collins -- I'm sorry, Holland twice filed motions to remove Collins. Importantly, Holland never asked to go pro se. That is incorrect. If you look at Joint Appendix 134 and 149 -- those are the two pro se filings that Holland made here. In both of those, he said: I'm having a conflict with my lawyer. My lawyer won't do what I want him to do; I want a new lawyer. And that's all he said: I want a new lawyer. He never--
Samuel A. Alito, Jr.: Was that denied on the ground that he was pro se?
Petitioner Scott D Makar: --The first motion was stricken. It was then denied because he was represented by counsel at that point. Keep in mind, this is in the State postconviction process. This is not where the Federal AEDPA deadline and so forth is being kicked about. In fact, there is really no discussion whatsoever about what the actual deadline to file this petition was at all in the record. The only time Holland asked to go pro se in any court filing is after he filed the pro se petition in Federal court -- the untimely one. He then shortly thereafter filed an emergency motion to relieve Collins, and--
Samuel A. Alito, Jr.: What I don't understand is, how can a -- how can a client request to have -- to be relieved of representation, if the client can't file that motion pro se? I understand the other things, but I don't understand why -- how -- how you can deny the request to get rid of this lawyer? Unless he has to have the lawyer file the motion for him? [Laughter]
Petitioner Scott D Makar: --No, I think that certainly the filing of the motion, I think perhaps it was -- it shouldn't have been stricken the first time, but the court then on the merits denied it the second time. And keep in mind -- I forget who alluded to it -- this has been somewhat of an unusual case from the outset, in that if you look at the three Florida Supreme Court opinions that have been issued in this case, it shows that at the first trial Holland absented himself from the -- absented himself from the trial and he had to watch on circuit -- closed-circuit TV because he was being very difficult. And then in the second trial, we had two Faretta hearings amounting to hundreds of pages in which the Florida Supreme Court then said, well, he wants to represent himself, but he can't conduct himself properly and so forth. And also there's the issue of his -- his -- there's a mental issue there as well, that he has raised on appeal as well. So the court -- the Florida courts are sort of put in this difficult posture of saying, we want you to have counsel, we need you to have counsel because we want you to have effective representation, but then throughout the process here it's been a difficult, difficult number of decades, essentially, in this situation. So I think it's an unfair characterization to say that the Florida courts and also the Office of Attorney General who -- who routinely moves to strike these -- it's not because we're trying to deny anyone's day in court. It's because you have a lawyer and they have to speak to the lawyer, and the hybrid representation is impermissible. So--
Sonia Sotomayor: Can we go back to just--
Ruth Bader Ginsburg: The State -- the State has no responsibility even though it made this appointment? So you agree there's no difference, whether it was paid counsel, somebody that the -- that the defendant picked to represent him, and someone that he just had to take because it's what the State gave him?
Petitioner Scott D Makar: --Exactly. And -- and that's the way the Court's decision in Coleman has allocated the burdens and the risks. I mean, what the Court said was okay, if it's a direct appeal where the State is charged with that responsibility, that's one thing; but when it's postconviction, it's shifted. The whole paradigm and whole structure is flipped the other way, and you, the Petitioner, bear the burden, and not the State. This is important under AEDPA, because AEDPA--
Ruth Bader Ginsburg: Under -- on direct appeal, if counsel conducted himself this way, the State would -- he'd have to get relief because the State would have the burden, but not -- not on collateral? Is that what you're saying?
Petitioner Scott D Makar: --Sure. On direct appeal, if the lawyer is deemed to be ineffective, then that would be a constitutional error, and that would be subject to some sort of relief, but it flips in the postconviction stage, as this Court has held in Coleman.
John G. Roberts, Jr.: Counsel, I'm concerned about some of the situations Justice Breyer mentions, you know, if there is an earthquake, a plane crash, but the law seems to be focusing on other things when it's talking about extraordinary circumstances. Like here, we're talking about how diligent he was in pursuing his lawyer. There seems to be a disconnect there. I don't know why -- I mean, assuming we're going to have, for argument, equitable tolling, what should we be looking at? The unusual nature of the situation that comes up, or whether you've got a pesky client?
Petitioner Scott D Makar: Well, I think two responses there: Obviously, we believe that attorney incompetence or so forth cannot be a basis for equitable tolling. These other situations about natural disasters and hypotheticals where some, you know, very unusual, bizarre situation comes in that's external to the attorney-client relationship, perhaps those -- those could be considered. But we believe that the Congress, through its purpose in enacting this statute of limitations, a complex one that has exceptions, that -- that is designed to alleviate the burdens and delays -- its intent was not to allow equitable tolling, because we--
John G. Roberts, Jr.: Well, but it legislated against the background of cases like Irwin that stated the general proposition is, unless Congress says otherwise, there is equitable tolling.
Petitioner Scott D Makar: --But that can be rebutted. That can be rebutted, and we believe has been rebutted by the record here, which shows that these are precisely the kind of delays that Congress intended to avoid by having a strict 1-year statute of limitations, that there's burdens put on -- not just the States but the courts--
Sonia Sotomayor: --I -- what I worry about is that you're confusing the -- or perceive -- confusing the fact that lawyer negligence may not be the type of situation that Congress was looking at. With the hypotheticals that Justice Breyer listed, which are a different kind of situation, and you are trying to pigeonhole both and say Congress didn't intend for both to be covered. And yet you suggested a little later that they may have intended what Justice Breyer was thinking about. I -- I don't see anything in the structure of the statute that would preclude what Justice Breyer listed.
Petitioner Scott D Makar: --Well--
Sonia Sotomayor: So what can we read to suggest that -- forget about the lawyer malfeasance; let's talk just about equitable tolling--
Petitioner Scott D Makar: --Sure. Well--
Sonia Sotomayor: --in its traditional sense. Most of the cases in equitable tolling, by the way, have to do with court errors.
Petitioner Scott D Makar: --Sure. What we're suggesting is that under the structure of the Brockamp decision, what the Court looked at there to determine when there is no equitable tolling intended by Congress, that here likewise there is no equitable tolling, and as the Court held in Brockamp, the fact that there may be unfairness in individual cases was the price Congress was willing to pay, the tradeoff it was willing to allow, to have a habeas system that was functioning. Now, assuming that position is rejected by the Court or the Court assumes equitable tolling, the next question is what should be allowed. And we believe it has to be exceptionally narrow. And certainly in this case -- and this case is all about attorney negligence or attorney gross negligence -- those -- those sort of circumstances are not enough. And--
Stephen G. Breyer: Why could you not say here -- I mean, the key sentence, I take it, is the Eleventh Circuit and it says: "No allegation of lawyer negligence or failure to meet the standard of care. " --none -- without "proof, bad faith, dishonesty, mental impairment. " on the part of the lawyer, could ever qualify. Now, that's -- so we just say, no, no, that isn't so. Sometimes it could, when combined with other circumstances. And then go back and let them -- I don't know what this particular individual Petitioner's prior conduct has been. I understand the problems that you have. But do you -- I guess you're going to say no to this, but -- but it's a little hard to see why you couldn't have a narrow standard but just not rule out the possibility that under certain circumstances, just negligence or even less -- maybe the lawyer wasn't even at fault; maybe he got kidnapped. You know, I mean, there are odd things that happen in life. And just say go look for this; see if it's truly extraordinary, if it's fair, if he was diligent. What about that?
Petitioner Scott D Makar: --Well, we agree with the Eleventh Circuit standard to the extent it says, you know, that this sort of attorney negligence, gross negligence, incompetence, is not enough. Where we differ from the Eleventh Circuit is we're concerned, based upon our pragmatic day-in, day-out handling of these cases, that when you say dishonesty, well -- or a conflict -- that those concepts can be conflated into things that they are not, particularly when these communications between lawyer and client are outside the State's view. We are not privy to what goes on between lawyer and client. The lawyer says, I will do this, says it verbally or maybe even in writing. We don't know about that. We're not privy to all that. And it creates this potential, when we allow the standard, as the Eleventh Circuit held -- we allow the standard to gravitate away from its core purpose and allows it to be used to sort of game the system in a way to gain an advantage. That's why we are concerned about any degree of attorney misconduct or behavior because it could easily--
Sonia Sotomayor: Do you have any idea, before the Eleventh Circuit announced its standard, how many habeas petitions were tolled by district courts in that -- in your -- in Florida, on the basis of equitable tolling, that -- that they permitted petitions to go forward after the statute of limitations?
Petitioner Scott D Makar: --Unfortunately, I'm not aware of any data on that. There are not that many.
Stephen G. Breyer: So would there be -- I mean, what I'm actually worried about is not a lawyer being kidnapped. I'm actually worried what can happen in a person's life. He gets deathly ill. His wife gets sick. Something happens to the children. Some very unusual thing comes along at the last minute, and all the plans go awry. And to have a little bit of flexibility in this statute to take care of those very unusual human circumstances seems a reasonable reading of it. But you say it's not because--
Petitioner Scott D Makar: Well, we say it's not because Congress intended not to have equitable tolling, and then to the extent it did, it could have drafted something along the lines of what's in 2263, which is the next chapter -- it's the companion chapter that says instead of having 365 days with no equitable tolling, you can have 180 days and 30 days for good cause if there's a deadline missed--
John G. Roberts, Jr.: You're not -- you're not worried about Justice Breyer's case of the really extraordinary circumstance where everybody would say, well, that's -- you know, we understand. You're worried that if you create an exception, that all sorts of other stuff will come in. And so why isn't the answer to that concern that you've got an unusual case here where you do have the client saying, do this, do this, do this, and the lawyer doesn't?
Petitioner Scott D Makar: --Well, under these facts--
John G. Roberts, Jr.: It's very hard to argue against -- against equity, against equitable tolling. But at the same time, I think you do need a constraining principle that it doesn't do away with the statute of limitations. So why isn't what we have here good enough?
Petitioner Scott D Makar: --Meaning the Eleventh Circuit's standard?
John G. Roberts, Jr.: Meaning the fact that you have got a client who is constantly telling the lawyer, do this, you know, get it done; doesn't get the judgment. And, you know, it's not just your run-of-the-mill case where the lawyer happens to miss a deadline.
Petitioner Scott D Makar: Well, that goes to the issue that -- of not -- of diligence, of course, which is not the issue we're looking at. We're looking at the extraordinary circumstances, not the diligence. Extraordinary circumstance has to be something that -- attributable to the lawyer or something along those lines. We're not -- we'll concede diligence for the moment and say here it's what the lawyer did, as Lawrence held. He missed the deadline. In fact, this case -- you know, Lawrence, obviously -- it was 364 days before they even filed the State postconviction motion, and the lawyer in that case wasn't appointed for 300 days, and the State postconvictions process was sort of in disarray. And all those things that the Court in Lawrence said are not supportable for equitable tolling apply equally here. The only difference in this case is this allegation about the -- the lawyer didn't communicate with his client. Well, if that becomes the governing rule, all is lost, because attorney communication with client is perhaps even more amorphous a concept. It could be based on verbal representations and so forth. So we are very concerned that it not slip into that sphere where it can be easily manipulated for the advantage of getting some sort of delay. And as I say, the analysis here of purpose of AEDPA, structure of AEDPA, and the burdens -- as I say, the burdens are important to the State and to the court system. I was looking at that recent study, the 2007 study, that seemed to suggest that AEDPA is -- basically, when these cases are being filed in Federal district court, it has taken a year and a half to 2, 3 years for them to be resolved, and in this case keep in mind it took 18 months in the district court, 18 months in the Eleventh Circuit, and then further. But that's allowing the invocation of this doctrine, not just in this case. We're worried about the noncapital context as well, that that will somehow put an end to the importance of what Congress enacted. There is a pre-AEDPA mentality out there, I'm afraid. And it's natural. It's understandable. We're all human. There's a pre-AEDPA mentality that there must be a remedy. There must be some equity done. And I think that sort of undergirds why perhaps most of the circuits have either assumed -- I think 11 have either assumed or adopted some sort of equitable tolling. I think they are waiting for this Court, which has left the question open to provide guidance on that issue, and we suggest that either there be no equitable tolling or that, if there is to be equitable tolling, on the circumstances of this case it has to be extreme attorney misconduct or incompetence, and that just simply is not established on this record.
John G. Roberts, Jr.: What -- why isn't it extreme attorney incompetence to miss a deadline? I mean, you either miss it or you don't. It's not going to get -- why doesn't that qualify as extreme attorney misconduct?
Petitioner Scott D Makar: Well, I guess the short answer, of course, is the courts have said no, that's not enough, we need something that's truly extreme, something far from just missing a deadline. We probably all know lawyers who have missed deadlines. We all know lawyers who haven't communicated with their clients. Those things are ordinary, run-of-the-mill, happen-every-day sort of events. It has to be something beyond that. It has to be something that is truly extreme for the exception to kick in.
John G. Roberts, Jr.: I mean, give me an example.
Petitioner Scott D Makar: Well--
John G. Roberts, Jr.: That's worse than missing the deadline.
Petitioner Scott D Makar: --I mean, the example I've tossed about in our conversations is -- is to say, well, what if the postconviction lawyer is bribed by the victim's family to not file something on time? I mean, oh gosh, that strikes us all as just -- that's--
John G. Roberts, Jr.: Well, we don't -- that's not negligence.
Petitioner Scott D Makar: --No. No. But the question I thought you were asking is, you know, how extreme can we think about a situation, and -- and--
John G. Roberts, Jr.: So you're -- it has to be criminal behavior?
Petitioner Scott D Makar: --It has to be something beyond just attorney incompetence. What the -- that's a concept that we can get our arms around, and we certainly get into this line-drawing of, well, is a failure to communicate three or four times enough? Or a failure to have a letter go to the client in response to his request -- is that enough?
John Paul Stevens: May I ask another question? It doesn't go to the merits, but I'm really curious. The lawyers selected for postconviction work, which I understand now are compensated by the State, are they selected from the same panels as the lawyers that represent defendants generally and who are appointed by the State in criminal matters?
Petitioner Scott D Makar: Well, there's a collateral counsel registry list.
John Paul Stevens: Is it--
Petitioner Scott D Makar: There's actually what they call CCRC. There's actually State lawyers around the State who provide this, and then there's a registry list as well. And they have to meet certain standards. Chapter 27 of our Florida Statutes set out the standards that these counsel have to meet.
John Paul Stevens: --But the collateral counsel registry is a different group of lawyers than are generally appointed in criminal cases?
Petitioner Scott D Makar: Yes.
John Paul Stevens: I see.
Petitioner Scott D Makar: Well, Your Honors, if there's no further questions, we ask that the court affirm the Eleventh Circuit below, either on the basis that there's no equitable tolling or that on this record there's no basis for it under the attorney incompetence standard. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Scher, you have 4 minutes remaining.
Todd G. Scher: I just have a couple of brief points. First, to clarify, the Respondent argued that Mr. Holland never asked to proceed pro se in the State court, and that's just incorrect, and it's flatly contradicted by their brief on page 43, where they write: "Holland moved to replace Collins with another attorney (whom Holland presumably thought would raise any issues Holland desired) or to proceed pro se if substitute counsel could not be appointed. " And I think, again, going back to one of the things that Justice Breyer was discussing with Respondent's counsel, was I think that that -- the problem with the Eleventh Circuit's analysis is this categorical exclusion. Equitable tolling and extraordinary circumstances have to be considered as a -- consider all the circumstances, and so to categorically exclude this one particular area, we submit, is what the problem is here. And we also do have, contrary to what the Respondent contended--
Ruth Bader Ginsburg: But you would say -- it is -- you could categorically excuse ordinary negligence as opposed to gross negligence?
Todd G. Scher: --That's where courts, including this Court, have drawn the line. That seems to be the floor, but, you know, obviously, when you get into the particular circumstances of a case, that's where a categorical rule excluding a particular type of area beyond just garden-variety neglect -- really, that's the problem here, is that was antithetical to the notion of equity. And I just wanted to point out briefly that this record does avail itself of numerous instances where Mr. Holland had alleged that the attorney lied to him. JA -- in the Joint Appendix on 170, Mr. Holland writes that Mr. Collins lied to him. On the Joint Appendix on 194, that Mr. Collins deceived him and misled him--
Samuel A. Alito, Jr.: What were the lies?
Todd G. Scher: --about when the petition was going to be--
Samuel A. Alito, Jr.: What was -- give me an example of a lie that he told him?
Todd G. Scher: --These were in the context of Mr. Collins telling Mr. Holland that he would protect his Federal habeas rights. Those--
Samuel A. Alito, Jr.: Doesn't that go without saying, that every attorney -- and every attorney presumably undertakes not to miss the statute of limitations? Is there a difference between the attorney who simply says nothing and the attorney who says, yes, I'm not going to miss the statute of limitations?
Todd G. Scher: --I think it makes it more--
Samuel A. Alito, Jr.: That's a lie?
Todd G. Scher: --I think it makes it makes it more extraordinary. And what makes that situation even yet more extraordinary is where the client has tried to rid himself of this lawyer on a number of occasions or to go pro se, precisely because he has been experiencing these -- these -- lack of trust and other problems in terms of these deceptions from his lawyer, so he was really hamstrung by the time that--
John G. Roberts, Jr.: If I'm worried--
Todd G. Scher: --it was too late.
John G. Roberts, Jr.: --If I'm worried about the open-ended nature of what you're asking for, how -- how would you state the test you would like in the most restrictive terms?
Todd G. Scher: I think in terms -- I think the test would be appropriate, what Justice Breyer articulated, which is--
John G. Roberts, Jr.: Hurricane or kidnapping?
Todd G. Scher: --No, no.
John G. Roberts, Jr.: Oh, the different one. [Laughter]
Todd G. Scher: No, the other test, the other test. We need a hurricane exception in Florida. But in terms of the Eleventh Circuit was incorrect in excluding this particular type of attorney misconduct and negligence because that's antithetical to equity, and so I think--
John G. Roberts, Jr.: What type -- the problem comes up when you say "this type of attorney negligence". What is your test? What type of--
Todd G. Scher: --I certainly think, given the unique facts here, we have, again, the confluence of circumstances. We have the--
John G. Roberts, Jr.: --No, I know your test will mean your client wins.
Todd G. Scher: --Correct.
John G. Roberts, Jr.: But, I mean, can you articulate it more -- because I'm very concerned that if you start saying, well, you can forgive an inequitable case, every time a case comes up, you're going to -- there's going to be sympathy for the client. The lawyer goofed. Of course, you don't want to penalize the client, but Congress obviously had something more in mind.
Todd G. Scher: Well, but certainly -- but the other part of the test for equitable tolling is diligence, and I think, when -- when one looks at the -- at the body of case law that has developed since 1997 on the issue of equitable tolling and AEDPA, the vast majority of these cases are disposed on the fact that the Petitioner is indiligent. Here, of course, the Respondent, if I heard correctly, is now conceding that the Petitioner was diligent. And so there are certainly other ways to avoid even having to get to the question of exceptional circumstances; for example, just looking to the diligence prong. But here, where you have a failure to notify, you have the failure to heed the instructions from a client, you have the client saying you've lied to me, the client telling the State and the Federal courts this lawyer is not my agent anymore, I don't want him, I don't trust him, he has misled me, he has deceived me -- all of those factors certainly go to a consideration of whether equitable tolling should be warranted, and the problem here is that the Eleventh Circuit said no, categorically no. Thank you very much.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Number 22, Peter Chaunt, Petitioner, versus United States. Mr Forer.
Joseph Forer: Mr. Chief Justice, may it please the Court. This is a denaturalization case, which is here on certiorari to the Ninth Circuit. The petitioner, Peter Chaunt, was born in Hungary and he came to this country in 1921, when he was 22 years old. On June 27, 1940, he filed a formal petition for naturalization in the eastern district of New York. And on that date, he was interviewed by examiners for the Immigration and Naturalization Service. They passed him and recommended his naturalization. And on November 28, 1940, the eastern district admitted him to citizenship. I think it is of some relevance that he was admitted to citizenship under the Nationality Act of 1906. The 1940 Nationality Act, which superseded the 1906 Act had already been passed, but was in effect until sometime in 1941. Anyway, on November 28, 1940, he became a citizen. Thirteen years later, the Government brought a denaturalization suit in California under Section 340(a) of the Immigration and Nationality Act alleging that he had procured naturalization by concealment and misrepresentation and asking for a judgment cancelling his citizenship. The complaint alleged concealments and misrepresentation on three subjects. And the first subject was on an arrest record. Briefly, the complaint alleged that the in the naturalization proceedings, Chaunt has been asked if he had ever been arrested and he said he had not been arrested and in fact he had a record of several arrests. I will at a subsequent point in detail what those arrests were. And the second ground was that he had concealed Communist Party membership that having been asked whether in effect whether he was a member of the Communist Party, he had denied it and this denial was untrue. And the third ground, I would lump together in one alleged that he had misrepresented his attachment to the Constitution disposition to the good order and happiness of the United States and he has intend to owe allegiance to the United States. And those three allegations as to his -- what you might call as political state of mind when I refer -- if I referred to him again, I will call them the attachment ground. But those were the three subjects of misrepresentation alleged. Arrest, Communist Party membership and attachment.
John M. Harlan II: Was there -- was there a specific question in Communist Party membership?
Joseph Forer: That's what the complaint alleged and that's what the evidence -- well --
John M. Harlan II: I couldn't find it in the questionnaire.
Joseph Forer: No. There was nothing in the questionnaire and the reason why there is nothing in the questionnaire was because there was nothing in the statute.
John M. Harlan II: I just want to check.
Joseph Forer: But the -- the -- the immigration examiner according to the word of his testimony, asked them two questions relevant to that subject. One was, do you believe in communism, fascism or Nazism. In which he answered no, according to the immigration examiner. And the other was, according to the immigration examiner, that he asked on what organizations do you belong to, and he answered, "The International Workers' Order." And apparently no others --
John M. Harlan II: Is there any difference between this questionnaire and the ones that that were involved nowhere (Voice Overlap) --
Joseph Forer: No, no, this questionnaire has that same famous question 28, that no act (Inaudible).
John M. Harlan II: The Court --
Joseph Forer: The same questionnaire.
John M. Harlan II: The Court did -- didn't reached that but it's the same questionnaire.
Joseph Forer: That's right, same questionnaire.
Felix Frankfurter: When you -- when you said according to the immigration examiner, was --
Joseph Forer: Well --
Felix Frankfurter: Was there a stenographic minute of the examiner?
Joseph Forer: No, the reason I -- I -- I hitched it a bit was because the immigration examiner, naturally enough, could not testify as to what had actually happened at the interview. He (Voice Overlap) --
Felix Frankfurter: There were no stenographic minutes of the interview.
Joseph Forer: No. All he could testify to was what was his practice as to what questions he asked and what some of his symbols -- sort of hieroglyphic symbols meant. Now as to the arrest ground, this we should be clear on, that was on one of the forms, and as to that ground, it wasn't just what the practice of the examiner was to ask, although the examiner testified, it was his practice as (Voice Overlap) --
Felix Frankfurter: Aren't -- aren't the interview by the immigration expected normally taking down stenographic minutes?
Joseph Forer: No.
Felix Frankfurter: So that --
Joseph Forer: Certainly not --
Felix Frankfurter: -- subsequently depends on his recollection on what took place.
Joseph Forer: His recollection and his notations.
Speaker: Was that --
Felix Frankfurter: Isn't -- that is the practice not to.
Joseph Forer: Well that was the -- that -- that was the practice then and the -- I don't know what the current practice is. I know that it used to be the regular practice because in every denaturalization suit that I've seen that participated in, it was always the same way.
Hugo L. Black: Was that issue raised if he did not ask the questions?
Joseph Forer: The issue was raised as to the sufficiency of the evidence, yes.
Hugo L. Black: On -- in the defense -- was it the defense that the immigration in respective did not ask the communist questions?
Joseph Forer: Well, I wouldn't -- one of the defenses was that the evidence was not sufficiently show that he had asked those questions. Yes, that was one of the issues I think. But I'd like to get away from the communist question to get to what I think is the real question which is the arrest question. I said there were three grounds of misrepresentation or three subjects of misrepresentation alleged. With the complaint, it was filed an affidavit of good cause as required by the statute. But the affidavit only alluded to two of the grounds of misrepresentation, namely, the ones as to Communist Party membership and the ones as to what -- what I have quote attachment to the Constitution. And there is not a word in the affidavit relating to arrest or the concealment of arrest. And this is really conceded by the Government in its brief. Now, the case went to trial and the trial court ordered the -- the petitioner's naturalization cancelled, making findings adverse to the petitioner on all three subjects contained in the complaint including the arrest subject, which was not contained in the affidavit.
Felix Frankfurter: Was it argued at the trial that the issues have to be limited to the two affidavit designated subjects.
Joseph Forer: The -- the petitioner's Los Angeles lawyer filed a motion to dismiss the original complaint. One of the grounds of which was that the complaint that as to the arrest ground, stated in the complaint, that was an invalid ground because it was not covered in the affidavit of good cause. Thereafter, the Government amended its complaint, and as a matter of fact, the case went to trial on a second amended complaint.
Felix Frankfurter: That's it for all three grounds?
Joseph Forer: Yes. All of the complaints set forth all three grounds.
Felix Frankfurter: But the affidavit did not.
Joseph Forer: The affidavit only set forth two.
Felix Frankfurter: And your contention, is it -- I'm jumping ahead that the -- that the main issue must be restricted to the claims made in the affidavit of good cause.
Joseph Forer: Yes. And it becomes acute for this reason. The appellant appealed to the Ninth Circuit and the Ninth Circuit affirmed that the judgment solely on the arrest ground, that is solely on the ground, which was not covered in the complaints. And it didn't reach at that point.
William O. Douglas: In the affidavit.
Joseph Forer: Not covered in the affidavit, I'm sorry.
William O. Douglas: That's your point for -- found on page 11?
Joseph Forer: Eleven of what? My brief Your Honor?
William O. Douglas: Of the record. The court is without jurisdiction and one of the cause of action sought that the alleged and the claims is not supported by the affidavit. Is that the --
Joseph Forer: Yes. Yes, that's the arrest you're referring --
William O. Douglas: That's right.
Joseph Forer: -- to arrest.
William O. Douglas: That's right.
Joseph Forer: I should say I was not the trial counsel on that but that was obviously what was intended in the Government. But the Court of Appeals affirmed the denaturalization on the one subject that was not in the affidavit, and then it said that since the arrest support the judgment, we don't have to go into the other two subjects of alleged misrepresentation namely, Communist Party membership and attachment.
Hugo L. Black: Did you raise in the Court of Appeals the question?
Joseph Forer: No. The lawyer did not raise it in the Court of Appeals.
Hugo L. Black: Nor in the petition either?
Joseph Forer: I beg your pardon.
Speaker: Not on the rehearing either?
Joseph Forer: No.
Hugo L. Black: I wonder if your second complaint was attack on the grounds of the failure to allege in the affidavit.
Joseph Forer: No. He -- he -- he raised it on -- with regard to the first complaint. The -- the District Court ruled against them and he didn't raise it against thereat. But without going now into further factual details, I would like now, which I will mention when they become appropriate. I would like now to argue my first point which as basically already been stated by Justice Frankfurter, and that is that the natural -- the judgment of the court below, he stand because it was based on a misrepresentation or concealment, which is not alluded to in the affidavit. Now in the Zucca case, the Court said that the filing of this affidavit of good cause is a prerequisite through filing and maintaining a denaturalization action, and it has to be filed with the complaint. And the year or two after Zucca and that was a companion cases, the Court said that this prerequisite what it said in the statute and was so important that you couldn't cure the failure to file an affidavit upon -- with the complaint by amendment, and you couldn't have a late filing and an amendment of the complaint so as to make a valid denaturalization action or a valid denaturalization judgment. Now, here we have an affidavit, but so far as the ground of denaturalization is concerned and as the case is now before us, the ground of denaturalization. The ground on which petitioner was denaturalized is the one ground on which the Court of Appeals had. Insofar as the ground for denaturalization is concerned therefore, we have no affidavits. Now we do have an affidavit on other grounds, but not an affidavit on the ground on which denaturalization was a decree. And that seems to me to be the same as having no affidavit at all. And the matter was virtually anticipated by a sentence in the Court's opinion written by Mr. Justice Harlan in the Nowak case. And in the Nowak case, the -- one of the issues was whether or not the affidavit of good cause was sufficient, because it wasn't based on personal knowledge, but based on matters seen in the files and records of the immigration service. And the Court held that that affidavit, even though not based on personal knowledge was sufficient because it said, it fulfilled the general purpose of the affidavit requirement. And in setting out what these purposes were and how it fulfilled it, the Court's opinion in Nowak said, and I think this was the first thing it said on the subject "In substance, the affidavit set forth the same matters upon which the District Court's later decree of denaturalization was based." Now then it went on and mentioned other matters. But the first thing to which the opinion called attention to was that the affidavit matched the judgment. In this case of course, it doesn't match the judgment.
John M. Harlan II: But we had no such issues --
Joseph Forer: You had no such issue but you have that language and this was part of the ratio decidendi. Now on principle --
Tom C. Clark: The Court got jurisdiction on the Communist Party of the case but not on the other (Inaudible).
Joseph Forer: I beg your pardon.
Tom C. Clark: You said that if this Court has jurisdiction on the communist issue but not on the arrest issue.
Joseph Forer: Yes. Or if it -- it may not be entirely a jurisdictional question, but whether it's jurisdictional or quasi jurisdiction, it was a statutory prerequisite which from there, adjudicating that issue that there'd be the affidavit, and since that prerequisite was not meant, the adjudication of that issue was error. That's what --
Felix Frankfurter: Well, I should think it makes all the difference in the world whether the requirements, the affidavit sets forth all the grounds where competent determination is a prerequisite to the courts considering the case. Well -- or whether an affidavit is necessary giving grounds that show good faith and consideration and responsibility, etcetera, etcetera. And then as it could in other litigations, you can amend your -- your complaint as it were.
Joseph Forer: Yes, I -- Justice Frankfurter, I think that is the issue and what I'm trying to argue now is that in the light of the -- the holding first in the -- the holding and the was that you can't amend your complaint. Secure it. Secondly, in the light of the statement in Nowak, and third, in the light of the purpose of the affidavit which I'm going to come through, it is the first alternative that I think is -- is the one that is the correct one that should be followed.
Felix Frankfurter: I should think the -- your third -- your third inquiry is really the first ones, the crucial one. This is --
Joseph Forer: Well, first -- yes. I -- yes (Voice Overlap). Well I will just get rid of the precedents before --
Felix Frankfurter: All right, go ahead.
Joseph Forer: -- I came to the purpose. And the purpose was stated in the Zucca case. It said the purpose of the affidavit is to protect the individual that is denaturalized citizen, so that he shall not feel obliged to defend his citizenship and to defend his reputation unless at least the Government first has this probable cause. In other words, it's a matter of reputation because in Zucca, the Court pointed out that mere -- even the allegation can damage the citizen so that Congress intended that the allegations shouldn't be made without having this showing of just cause. And the situation you have here is that the petitioner here had its reputation damaged with respect to concealment of arrest, and he have to defend his citizenship with respect to alleged falsification of arrest without this safeguard of the affidavit that the Court in Zucca said was a prerequisite and the purpose of which was to protect the citizen from even having to defend his citizenship and his reputation. Now the Government says, well after all, he was already suffering because the other two causes of action are sustained by the affidavit. Now that's like saying that if the Government has a right to give a man one black eye, he has a right to give him two black eyes. Now because they have a right to do something which injures -- injures the reputation in one respect, that doesn't mean that they have a right to tear away every last strip of his reputation, and because the affidavit gave him a right to make this man defend his reputation insofar as something about communism was concerned that doesn't mean that he had no reputation left and therefore they had a right to put him to the test of defending his reputation and a citizenship so far as falsification of arrest are concerned. And if the Government is right, what they could in this case have alleged only arrest in the affidavit and confine the litigation entirely to the matters of communism even though they weren't mentioned in the affidavit. And certainly, that would be under the present environment of very serious blow to his reputation. And yet, if the Government is right, the safeguard of the affidavit would not be required on that subject. Or if the Government is right, they can file an arrest on subject A, let us say concealment of arrest, let us say concealment of the number of years in this country and then they go to trial, they don't even litigate the subject in the arrest. They litigate all kinds of other subjects, some of which maybe very damaging to the man's reputation. So it is my position that if you are to give the affidavit, the function which it was intended and are to serve its purpose, then you have to confine the litigation to the ground in the litigation as the Court's opinion in Nowak recognized. And now I want to come to the next point of my argument which maybe described as the materiality point. Now the petitioner here in the denaturalization proceeding did say that he had never been arrested and as to this, there's no problem because on one of the forms, he answered “No” when he was asked that he's never been arrested or charged of violation of any law. And there's no question but that the evidence demonstrates that in fact, he's been arrested three times all in New Haven, Connecticut. In all three arrests occurring, 10 to 11 years prior to his-- the time he filed his application of citizenship. And I'd like to tell you what these arrests were because the factual situation becomes crucial. The first arrest was on July 30th, 1929 and this arrest was on a charge that the petitioner had violated a New Haven City Ordinance by distributing handbills on the public street. The petitioner pleaded not guilty and he was discharged and that's the first arrest in this disposition. Incidentally, the text to the ordinance, under which this -- he was arrested in which the warrant was issued, appears on the record at pages 69 and 70. The Court of Appeals was mistaken when they make the observation of their opinion that the text of this and the second ordinance was not before the trial court. In fact, the text of the two ordinances because this one would be -- what I'll mention next were introduced as government exhibit without any opposition or objection by the petitioner. So as I say that was the first arrest. Needless to say, I think it's quite obvious you look at the ordinance and look at the charge by the way that in the light of Jamison against Texas subsequent cases, this New Haven ordinance was unconstitutional. The second arrest occurred on December 21st, 1929.
Charles E. Whittaker: This is an important (Inaudible) where they're not viewed, the arrest or wasn't (Inaudible)?
Joseph Forer: I don't think it's particularly important. I don't think so. But for whatever bearing it has, the ordinance was plainly a violation of the First Amendment at least with the hindsight of the Supreme Court decision to decide it afterward. On December 21st, 1929 which was also more than 10 years before the petitioner applied for his naturalization, he was arrested on the charge that he had violated the New Haven park regulations by making, and I'd better quote this, “an oration, harangue, or other public demonstration in New Haven Green, outside of the churches.” The -- this -- he pleaded not guilty to this offense and the disposition is unclear in the record as everybody admits including the Court of Appeal and so I don't know whether he was convicted or not convicted or acquitted or what happened. I don't think it's important. I would mention that the maximum fine under this ordinance, in fact, the only penalty under the ordinance was applied now with fine. And I might say it's also clear that this ordinance was unconstitutional because it said that nobody should be allowed to make an oration, harangue, or other public demonstration in the Green and outside of the churches that is, unless he got special authority the Commissioner has gave no standards for the Commission to exercise. So under Crook (ph) against New York, decided some years later, that was under unconstitutional. The third arrest also occurred more than 10 years before the application and that occurred on March 11, 1930 and that arrest was on a complaint issued by the New Haven City Attorney which charged that the petitioner committed general breach of the peace and that's all it said. It didn't say wherein he committed a general breach of the peace and I suppose one might claim that it wasn't sufficient. They definitely state any kind of cause of action. Anyway, the petitioner here pleaded not guilty. First, he filed the demurrer which was overruled by Whittaker, Jay but he was convicted after that demurrer was overruled. He was convicted by the city court and was found to -- found guilty and fined $25 and he appealed that to the county court which made it a -- a trial de novo and on appeal the case was null so that the ultimate disposition of that case was also -- no conviction. So those are the three arrests, 10 or to 11 years of prior to the application of citizenship, all of them of the utmost trivial charges nothing involving the moral turpitude or anything like that, none of it resulting in convictions with the possible exception of the one in which he might have been fined $5 and that two of them on obviously unconstitutional orders. And the question arises whether concealment of this tribute justifies denaturalization. Now, the Government recognizes that a -- and admits that you can only denaturalize for a material concealment or misrepresentation.
John M. Harlan II: Could I ask you a question, is there any issue before us as to whether or not, with a lack of time, otherwise this man was in good faith. Good faith, forgotten about these arrests, is there any issue of that claim?
Joseph Forer: Well there's just no evidence on that one way or another and the Court found that it wasn't in good faith.
John M. Harlan II: You're not arguing that obviously.
Joseph Forer: And I didn't raise that in my petition. As far as I'm concerned, I don't -- my argument applies no matter what is bad faith was.I accept it. I mean I'm just not -- I'm not claiming that. Now the Government says you'll have to suppress a material of fact or not only of material concealment or misrepresentation to justify denaturalization and then they start examining and analyzing the meaning of the word material in the light of case law and judicial definitions and public policy and whatever are the considerations that the courts has taken to account in determining what a concept or a word means. And they end up that -- frankly, I don't know what they think material mean. My approach is entirely different because I say it isn't a question of the case law or definition of the word material. I say that if you must use it, the technique -- the issue in terms of materiality which maybe a little misleading, I say that the statute has a built-in definition of materiality and this is my approach. If you look at these statutes, it doesn't authorize denaturalization on account of any concealment or misrepresentation. It only authorizes denaturalization in cases where the naturalization was procured by concealment or misrepresentation. So under the statute, the test of materiality is, did the falsification or suppression procure the naturalization. If it didn't procure the naturalization then it doesn't make any difference how material it maybe in terms of case law in other field, it has nothing to do with the statute and it doesn't authorize denaturalization. And when you say that the falsification or suppression must have procured denaturalization, what you are saying is that the test of materiality is -- did the falsification make the difference between getting denaturalization and not getting denaturalization. If it wouldn't have made difference, if the true facts had been revealed then obviously the suppression of the true facts did not procure the naturalization. So how do you apply this test that I'm saying, the test of did the falsification procure the naturalization? The first thing you have to do is to look at what where the conditions for naturalization at the time of naturalization? In this case, you would look at the 1906 Act and see what the requirements and conditions were for naturalization and then you have to ask yourself two questions. First, would the facts which were suppressed have in themselves justify the naturalizing court in denying naturalization? If they did, then obviously by suppressing those facts, the applicant for naturalization procured naturalization by this fraud and you can end the inquiry there, and an example would be where if the naturalization statue require five years residence and the applicant said, “Well, I've lived here five years”, in fact, he'd only lived there four, obviously, that falsification procured denaturalization. But you don't stop there because -- let's assume a situation like here for instance where the facts which were suppressed would not in themselves have justify denaturalization. Nevertheless, the suppression might have procured denaturalization if the true facts had they been disclosed, would have led to discovery of other facts which would have resulted in just or which would have justified the naturalizing court in denying the naturalization. Thank you.