Warren E. Burger: We will hear arguments next in City of Mesquite against Aladdin's Castle, Incorporated. Mr. Archer, I think you may proceed whenever you are ready.
Elland Archer: Mr. Chief Justice and may it please the Court: The primary question in this case is whether or not the playing of coin-operated machines is a fundamental right. There are other questions, of course. The second important question is which rules of law are applicable to adults and which are applicable to children. With your permission, I'd like to discuss the fundamental right question first. We think in finding a fundamental right on a par with freedom of speech and religion, right to travel and other important rights that the Court of Appeals used an extremely broad interpretation of the term "association". Of course, in its broadest terms "association" would encompass all commercial transactions. We realize that. If you rent an automobile, of course, there may be some associational aspects. If you rent a boat, if you rent a motel room, you may have guests in.
Speaker: Well, if you associate together to fix prices, I suppose that's freedom of association.
Elland Archer: Yes, yes. What we're saying is that you can't just take the term "association" in its ordinary sense and apply it as the association that is protected by the Constitution. We feel that there is something more than just mere physical proximity to constitute association protected by the Constitution. For instance, if you go in a bank to make a loan you're going to talk with people, you're going to meet friends and acquaintances. When you go in the supermarket, when you're at work, you have association with your fellow workers. But these are all matters governed by the law of contract. I'd like to discuss for just a moment the nature of the transaction that is regulated. What we have here is a simple rental agreement. Generally a customer pays 25 cents for use of a machine, generally from one to three minutes or whatever time it takes. No different from renting a lawn mower or renting a power saw or any other machine. Now, if this type of transaction is the association that is protected by the Constitution under the decisions of this Court, then every commercial transaction known to man becomes a First Amendment activity. This we feel will weaken the values that have traditionally been upheld by this Court. Going to the question of which rules of law are applicable to adults and which are applicable to children, we say children are simply not the same as adults. We don't mean to imply that children have no constitutional rights. Certainly they do. But the rights of children are not always the same as the rights of adults. I think in the words of Justice Frankfurter's concurring opinion in May versus Anderson, he said it much better than I can: "Children have a very special place in life which law should reflect. " "Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to a determination of a state's duty towards children. " As we read the opinion of the Court of Appeals, we feel that the Court of Appeals has relied upon cases that are good cases, but they are cases dealing with something other than children. They deal with race, they deal with adults, they deal in suspect areas, they deal with the right to decide whether or not to bear a child. But they don't deal with the facts at hand. Therefore we feel that these cases are inapplicable.
Speaker: Mr. Archer, is it the City's position that playing these games is per se harmful to children?
Elland Archer: No, I don't think that's our position. That may be correct, but I don't know that that's our position. I don't know that we have evidence to that effect. We think that playing them, playing the machines in the actual setting in which it takes place in many cases is harmful, not in every case. We don't claim that in every case there is harm. But we also say that we cannot tailor a law that will fit every establishment in town. There's just no way it can be done.
Speaker: Is the age matter still in this case?
Elland Archer: Yes. In fact, we consider the age question--
Speaker: The paramount question?
Elland Archer: --the paramount question. We do have a question regarding some language in the ordinance and I don't intend to waive that--
Speaker: Let me ask you: Didn't the... wasn't the ordinance declared unconstitutional on both state and federal grounds?
Elland Archer: --On the language part? No.
Speaker: On the age, on the age, on the age part.
Elland Archer: No, the state court has never reviewed the age question... or, I'm sorry. Maybe I misunderstood your question.
Speaker: I thought the claim was being made in this case by your colleague that we can't reach the age issue because it was declared unconstitutional under the state constitution.
Elland Archer: Oh, I understand. I thought you meant the state court.
Speaker: Well, what about that? What about that?
Elland Archer: All right. The provision of the state constitution is identical to the federal Constitution. The words may be slightly different, but there's no--
Speaker: Well, so what if they are? But nevertheless the court... it was nevertheless held that the state constitution invalidated this position.
Elland Archer: --Well, but that's not an independent state ground.
Speaker: Why isn't it an independent ground?
Elland Archer: Well, because it's identical. In other words, if a state adopted a constitution--
Speaker: You wouldn't say that the state court... would you say the state courts have a rule that they will always interpret their constitutional provisions identically with the federal? Is there such a rule?
Elland Archer: --Texas has such a rule.
Speaker: So that they're just forbidden independently to construe their own constitution?
Elland Archer: Oh, I don't think they're forbidden to, but I think since they are similar and since they were patterned after the federal Constitution--
Speaker: Well, I know. But would you say that it would be a departure from the regular Texas rule if the Texas court said, well, I know the federal courts are holding... would permit this kind of an ordinance, but we just construe our constitution differently?
Elland Archer: --I think that would be a substantial departure, because one constitution is patterned after the other and the cases construing one are authorities for the other, and that is the rule of law in Texas. And I think I've covered that in my brief, but I can go into that further if you'd like.
Speaker: No. Well, here in any event the holding that both the federal and state Constitutions were violated was a holding of the Fifth Circuit, wasn't it?
Elland Archer: Yes.
Speaker: Not of any Texas court?
Elland Archer: No, that's correct.
Speaker: Does that make a difference on whether or not this rests on an adequate state ground?
Elland Archer: I don't think so, because again I think the Fifth Circuit was simply stating that the two constitutions were identical and that, of course, if it violated one it would obviously violate the other.
Speaker: Well, to the extent that the judgment rests on the holding that it violates the state constitution, what's the case doing here?
Elland Archer: Well, again I don't think it's an independent state ground. I think that they are identical. The state constitution and the federal Constitution mean exactly the same thing. So you couldn't have a federal question without it also... I mean, you couldn't have violation of the federal Constitution without it also violating the state constitution. But I don't think that that is the meaning of the jurisdictional statute. I don't think it's--
Speaker: Well, you're not suggesting, are you, that if indeed you had a state, Texas state court determination of a state constitutional question solely based on the state constitutional question, that that would raise a federal question because the state constitutional provision was the same as the federal Constitution?
Elland Archer: --Oh, no. I think the state court would have to actually rule on a federal question before it could come to this Court, obviously.
Speaker: Well, how about a federal court? Would an action lie under any of the jurisdictional provisions were a federal court to invalidate an ordinance such as this on the grounds that it violated the constitution of a state?
Elland Archer: Well, in a diversity case, yes.
Speaker: Was this case a diversity case?
Elland Archer: Yes, this was a diversity case. Again, the federal question... the federal rule of law involved is the application of the strict scrutiny test. Now, that is not a state question. There is no state rule of law to that effect. The Court of Appeals, even in their discussion of the "rational basis", first found that there was a fundamental right, that of association, and then reasoned backwards by placing the burden of proof on the City, saying the City failed to produce evidence to show this and that. Therefore throughout the opinion... and I realize that we're not appealing from the opinion, we're appealing from the judgment. But I think the judgment is incorrect because of a body of federal law that the Court of Appeals misapplied, not any state law. There's no state law, strict scrutiny test versus rational basis test doctrine. Looking at the application of law to children, as I say, I think the Court of Appeals improperly applied rules of law pertaining to adults or to race and other matters, instead of confining it to children. Obviously, children do not have all the rights that adults have. Children do not choose their domicile. They do not choose the school they wish to attend. They do not in all cases choose the church that they wish to attend. And while this may be considered private action, it is buttressed at every point by state action. For instance, if a child refuses to reside in the domicile chosen by his parents, he's treated by the state as a runaway. If he refuses to attend the school that his parents choose, he's treated as a truant. If he refuses to do the other things that his parents require him to do, the state makes an exception and allows physical punishment that wouldn't be permissible for an adult. Of course, many states require a parent's signature for the issuance of a driver's license. Others require a parent's signature for a minor to marry. This is all state action. Of course, there are countless other things in which the state buttresses the action of the parent in not allowing the same rights to minors as adults. I think the failure of the Court of Appeals to give consideration to these facts is what caused the improper judgment.
Speaker: Well, this ordinance I gather does make the distinction, doesn't it, between this kind of entertainment center and other centers where teenagers gather?
Elland Archer: This ordinance itself does not. This ordinance simply does not deal with those other questions. But this Court has said many times that we were not required to address all the ills existing in one law or one enactment. I don't think we single out any particular establishment and say, this establishment cannot do this but all others can. We just fail to say anything about the others.
Speaker: Well, the ordinance does make a distinction, though, doesn't it, between teenagers who play these games and teenagers who are present in the same establishment?
Elland Archer: Well, yes. The ordinance does not address the question of being present, but we don't deny that denying them the right to play the games will discourage their presence. We've never denied that.
Speaker: What is the interest, then, that the City is trying to achieve with the ordinance?
Elland Archer: Well, I think it's twofold. I think the first is a financial impact. I think the city fathers feel that the children are spending money on these games that they can ill afford, money that they need--
Speaker: It's to prevent the children from spending their money?
Elland Archer: --We think that that is one concern. I think another concern, and the concern that was emphasized by our police department, was some of the things that take place at these establishments, such as drug transfers, fights, contacts by runaways.
Speaker: But the ordinance doesn't prevent them from going to the centers, right?
Elland Archer: Well, not directly. But we assume they go there because they want to play the machines. I don't think they'd go there if they couldn't play the machines, or not in any large number.
Speaker: Mr. Archer, I want to be sure about a statement I thought you made. You take the position this ordinance is not directed at Aladdin's?
Elland Archer: Well, no. It's directed at every establishment in the city.
Speaker: Isn't it really directed at Alladdin's, period?
Elland Archer: No. We had this ordinance in 1973, before we had ever heard of Aladdin's. Now, if they're talking about the amendment, the amendment probably affected Aladdin's and one other place in the city, Funfare, I believe, in another shopping center.
Speaker: I'm speaking of 1353, enacted just two days after a significant event.
Elland Archer: Yes, that ordinance... there had been a previous ordinance that made an exception to places located in a shopping center. Now, to the extent that it closed that loophole, if you may, then I guess it would be directed to all establishments in shopping center malls, which Aladdin's and I believe one other at that time were the only ones there. Now there are several. At that time Aladdin's and one other were the only ones. Now, the age regulation that we're seeking to uphold applies to every establishment in town, the Seven Eleven stores that maybe only have one machine and where there are no other customers present, where there's no association involved whatsoever.
Speaker: Then you can't justify that on the fact that you don't want the children to go to these places where there are drug transactions.
Elland Archer: Well, I think that... well, of course, I say one. You know, I don't know that there's cases where there's never more than one present.
Speaker: But your point is, the ordinance applies to the Seven Eleven stores, the hotel lobby, and everyplace there's one of these?
Elland Archer: Yes. And that would be based more on the financial impact. But I think most of the establishments have more than one machine, to be candid with you. But what I'm saying is that there doesn't have to be any association involved because it could just be one machine and it could just be one person present. And I don't know how you'd read association into that. Frankly, I don't know how you read association into a hundred people being present unless they go there for a common purpose, they're acquainted with each other or they become acquainted after they get there or something.
Speaker: Well, I wasn't really as concerned with the association point as the reason for the ordinance. The reason for the ordinance has to be, I think, limited to the fact that you don't want the under 17-year-olds to spend 25 cents without the consent of their parents.
Elland Archer: Well, unfortunately that's the term that the Appellee uses, spending 25 cents. But there's nothing in the record--
Speaker: Well, over and over again, maybe they'll spend 25 cents.
Elland Archer: --Right. In other words, just like if you smoke one cigarette you may smoke another cigarette. If you take one drink you may take a lot of drinks.
Speaker: Well, why doesn't that rationale apply to miniature golf courses and the like?
Elland Archer: Well, I don't know that we have negated regulation of miniature golf courses. This particular ordinance does not. But I don't think that we have said we do not have the power to regulate miniature golf courses. I can see distinctions, and again the record is not as strong in this case. We thought we were trying it on the rational basis question rather than the higher level test. But officers can drive by and see people playing on the miniature golf course. They're exposed to public view at all times. I don't know how much difference that makes, but our police department says it makes a difference. Now, that's not in the record and I don't know if I should even be saying it. But those are some of the things that could have been in the record had we known that we would be held to this type of test.
Speaker: Well, I can understand that if you're talking about an amusement center. But the ordinance isn't limited to amusement centers. That's why I made the analogy to the miniature golf course. It seems to me it's amusement machines, wherever located... Seven Eleven, hotel lobbies, pizza joint, whatever it might be.
Elland Archer: Yes, I think where it applies to just one machine it is primarily the financial impact. But I think you'll find in most cases it'll be more than one machine. I don't think any of the places just have... well, there may be a few. But I think most of them have from two to four, you know, that are not arcades.
Speaker: Counsel, do you have any doubt that a state or municipality could totally outlaw the use of coin-operated machines?
Elland Archer: The state could under the holding of this Court, I believe, in Murphy versus California. The state has not seen fit to do so, and of course we're merely a part of the state. And until we are given permission by the state to totally outlaw them, I don't think we can. The state has given us permission to "regulate" them.
Speaker: But the Fifth Circuit didn't base its holding of unconstitutionality on the grounds that you had exceeded your power under state law, did it?
Elland Archer: Well, to the extent that the state constitution is identical to the federal Constitution, I guess I'd have to say yes. But I don't think they indicated that there was an independent state law grounds, but merely that it was the same as the federal Constitution.
Speaker: Suppose over a period of time, counsel, the police reported to the authorities, to the council, that a great deal of drug traffic was taking place in three city parks, and there were only three city parks in the city. Could the council pass an ordinance saying that 17-year-olds could not be in the city parks?
Elland Archer: I think we would be a lot closer then to what they're saying here. For one thing, when they go into the park it's not a financial transaction, it's not a business matter. I think that that is more closely akin to, say, being on the streets, a curfew. I doubt that we could. I think we could regulate our parks and we certainly do regulate our parks, regardless of whether anyone may say that we've neglected that area. But we do regulate our parks. I'd like to speak just a moment on the vagueness question. I think both the District Court and the Court of Appeals failed to read the language "connections with criminal elements" in the context in which it's used.
Speaker: Has that provision been stricken from the ordinance?
Elland Archer: It has, Your Honor. But we do agree with Appellee that it's not moot. We would like to have it--
Speaker: Why isn't it moot? What controversy is there now about it?
Elland Archer: --Well, we would like to put it back in if this Court sees fit to allow us to.
Speaker: Do you want an advisory opinion from us on that?
Elland Archer: Well--
Speaker: Well, the ordinance just doesn't exist in the form that it was when this case began.
Elland Archer: --Well, that is correct. But it--
Speaker: And when the Court of Appeals rendered its judgment.
Elland Archer: --Yes. But it's only because we're not allowed to by the order of the District Court, and then in turn which was made an order of the Court of Appeals.
Speaker: Well, you were still appealing. You're the one who brought this case up, aren't you?
Elland Archer: Well, we brought it from the--
Speaker: Court of Appeals to here.
Elland Archer: --Court of Appeals to here.
Speaker: But meanwhile you amended your ordinance.
Elland Archer: Yes, we had already amended the ordinance because we were prohibited from using it.
Speaker: Well, but certainly you didn't have to amend the ordinance. You could simply comply with the Fifth Circuit's opinion and seek certiorari and get a judgment from this Court seeking to overturn the Fifth Circuit.
Elland Archer: Well, yes. But in the meantime we would have other applications and it would be unclear as to what the status of these applications were.
Speaker: If you thought you had to obey the order, you didn't need to repeal the ordinance to do it. You could just not have enforced this, that particular criminal elements provision.
Elland Archer: That is correct. I realize we could. We felt at the time that that was the best thing to do. But as I say, we would like to reinstate it if this Court should find either that the Appellee had no standing to question the language or that the language is not vague, or both. The reason we say they have no standing in the context in which this is used, this is not a standard upon which a license is granted. The standard upon which a license is granted is good character. This is simply a direction to the chief of police as to how he is to gather certain intelligence, no different from Laird versus Tatum.
Speaker: Is there any dispute about that, Mr. Archer, from the other side, your present analysis? It is directed to the chief of police?
Elland Archer: Yes. They claim that... well, no. But they claim because it is directed toward the chief of police that his recommendation in turn will influence the city manager, which in turn will influence the city council and the District Court and ad infinitum. We also say, of course, in the context in which it's used it's not unconstitutionally vague because nobody has to know what it means except the chief of police, and he obviously knows what it means. If there are no further questions, I'll save the rest of my--
Speaker: Do you... well, I can ask the other side. Where is the principal place of business of the Appellee?
Elland Archer: --The home office? Chicago.
Speaker: All right, thank you.
Elland Archer: Thank you.
Warren E. Burger: Mr. Tone?
Philip W. Tone: Mr. Chief Justice and may it please the Court: With the Court's permission, I would like to first address the matter of the existence of independent state grounds for the decision. The judgment of the Court of Appeals on the age restriction claim is supported not only by the federal constitutional ground, but by independent state law grounds. The court expressly that the ordinance violated the equal protection and due process clauses of the Texas constitution.
Speaker: Well, Mr. Tone, suppose that the only claim that you had made or that your client had made in the federal District Court was under the laws of Texas. Now, certainly in a diversity suit there would be jurisdiction.
Philip W. Tone: Yes.
Speaker: And certainly the Court of Appeals could have reviewed it.
Philip W. Tone: That's correct.
Speaker: And certainly we could review it here.
Philip W. Tone: You could on certiorari, Your Honor.
Speaker: Yes.
Philip W. Tone: The problem here is that this is here on appeal under Section 1254.
Speaker: Well, would you say it's an improper appeal?
Philip W. Tone: No, not so long as this Court--
Speaker: So the adequate state Ground argument is a jurisdictional argument?
Philip W. Tone: --Yes, it's a jurisdictional argument and it says--
Speaker: But we surely have jurisdiction in a diversity case to pass on state law questions. We hardly ever do. I don't know since I've been here where we ever--
Philip W. Tone: --Your Honor is quite right. But the mechanism by which you would reach the state law question, I submit, would be to dismiss the appeal under 1254(2) and treat the jurisdictional statement as a petition for certiorari--
Speaker: --Why is that? In a diversity case the Court of Appeals has stricken down a state law.
Philip W. Tone: --Right.
Speaker: Now, why isn't that a proper appeal here?
Philip W. Tone: It is a proper appeal. But Section 1254(2) provides specifically that in such an appeal the review on appeal shall be restricted to the federal questions presented. So Congress in 1254(2) has prohibited the Court from considering the state ground.
Speaker: I see. But if we dismissed the appeal and granted cert?
Philip W. Tone: Then Your Honors could... in fact, if the appeal is dismissed, the appropriate procedure according to Stern and Gressman, and I think that's correct, would be to treat the jurisdictional statement as a petition for certiorari under 2103, which commands the Court to do that.
Speaker: Well, don't you want it both ways, though? You don't want us to consider that, to be able to reach the state ground here, but you want to use the state ground to say we shouldn't reach anything.
Philip W. Tone: Well, I want to rely on the state ground, Your Honor, because I--
Speaker: To avoid reaching any ground, to say that we haven't any jurisdiction.
Philip W. Tone: --No. I say you don't have jurisdiction on appeal. I say also that you do have jurisdiction, if you choose to exercise it, to grant certiorari.
Speaker: But then have we not, on granting certiorari, on treating it as a cert, denied on the grounds that it was supported by an adequate state grounds?
Philip W. Tone: Adequacy in that sense, Your Honor, simply means that it is sufficient to support the judgment if correct. It doesn't mean that you have reviewed the merits of the state ground. The point I make is illustrated, if the Court please, by the Hastings case, in which Chief Justice Hughes addressed this very point in the context of a statute allowing appeal by the Government from an order dismissing an indictment where the indictment... where the order held the indictment invalid either on the ground of the invalidity of the underlying statute or the construction of the statute on which the indictment was based. And the Chief Justice said in that case that in order to... that the Court should first examine whether there was an independent ground for the order of the district court. If there was an independent ground that didn't relate to either the validity of the statute or the construction of the statute, he said the Court would be rendering an advisory opinion by ruling on the questions that were appealable. And he said that review of a judgment we cannot disturb because it rests on grounds we cannot examine would be an anomaly. And then he used as an analogy the appeal statute which provides for appeal from the highest court of a state. And he said the practice of this Court with respect to such appeals when there is an independent state ground on which the judgment... which adequately supports the judgment, is to dismiss the appeal.
Speaker: Do you think Cox Broadcasting has changed that analysis at all?
Philip W. Tone: I do not think it has, Your Honor. I believe, as I said, Stern and Dressman's position is consistent with mine, and I think that's a correct reading. It seems to me the analysis has to be that it has to be that way. We are, as the Appellee... we're entitled to rely on whatever state grounds are available to support the judgment. We're entitled to rely on state grounds even though the Court of Appeals didn't rule on them. And yet when it comes up here under 1254(2) we would be precluded from relying upon state grounds that support the judgment because this Court is not allowed to examine those grounds under this proviso of 1254(2) that we've been talking about.
Speaker: What do you think the proper disposition is if we agree with... if we happen to agree with you? To dismiss the appeal and then, treating it as a cert, to deny cert and dismiss it?
Philip W. Tone: That's correct, Your Honor.
Speaker: Dismiss it as improvidently granted?
Philip W. Tone: Yes, Your Honor.
Speaker: Or just deny it?
Philip W. Tone: Deny it, right. Yes. Your Honor is correct, the correct disposition in our view would be to dismiss the appeal, to treat the jurisdictional statement as a petition for certiorari, and deny certiorari on the grounds that there are adequate state grounds.
Speaker: Mr. Tone, that means that we just have no jurisdiction to grant the cert and decide and review the question of state law.
Philip W. Tone: No, it doesn't, Your Honor, because you could elect in your discretion, if you chose to do so... the case is properly in the federal court as a diversity case. And this Court has discretion to review state questions that come up that way if it chooses to do so. As Mr. Justice White pointed out, it rarely if even does. But it would have authority to do that under its certiorari jurisdiction.
Speaker: And you urge in this case what? Deny it, just deny cert?
Philip W. Tone: Yes, just deny cert.--
Speaker: And if we disagree and grant it, then we go on and review the state law question?
Philip W. Tone: --If you disagree and grant cert, then I submit to the Court that you would and should review the state law question, because as Respondents--
Speaker: Well, also, could we not if we took it as a cert... I understand you're arguing we must dismiss the appeal. But if we took it as a cert, could we not do what we did in the Ohio-Zacchini case and say, well, the state and federal law is parallel and we will decide the federal question and send it back to the Court of Appeals to review the state law question in the light of what we say about the federal law? We'd have power to do that.
Philip W. Tone: --You would have power to do that, Your Honor. I would question, however, whether that disposition would be consistent with the Ashwander admonition about no reaching federal constitutional questions unless necessary to do so.
Speaker: Mr. Tone, is there some evidence... in the Zacchini case, the evidence was, or there was indication, that the state courts felt compelled by the federal rules. But here is there any evidence that Texas feels bound to follow the federal Constitution in applying its own?
Philip W. Tone: No, there is no indication that Texas feels bound to follow the federal.
Speaker: And the Court of Appeals didn't say so.
Philip W. Tone: That's correct. The Court of Appeals treated the state law and the federal law--
Speaker: As independent.
Philip W. Tone: --questions as independent questions.
Speaker: And incidentally, to follow my Brother Stevens' suggestion, it's only to get them to do over again what they've already done.
Philip W. Tone: That's correct.
Speaker: They've already said what the state law is.
Philip W. Tone: That is correct.
Speaker: There's nothing to suggest that they'd change their minds because we decided the federal question one way or another.
Philip W. Tone: That's exactly correct. They've already decided the state law question.
Speaker: If they're wrong about the federal law and if they think the state and federal rules are the same, as your opponent argues... now maybe he's wrong... then if we corrected their analysis of federal law, conceivably they could say, well, that means that the state law result will be different.
Philip W. Tone: They could, Your Honor.
Speaker: This is all hypothetical. But it's at least conceivable.
Philip W. Tone: But there is nothing in the opinion of the Court of Appeals, I submit, to suggest that they felt that state law and federal law were identical on these issues.
Speaker: Or different. Really, all they do is have a phrase in there saying it violates both provisions.
Philip W. Tone: That's correct. We, however, have cited some state law cases in our brief which indicate that the Texas courts, although they phrase the standards approximately the same as this Court does and cite this Court's cases, nevertheless reach results which I think this Court would not reach on the same facts. So I think that the Texas law, although it was not analyzed by the Court of Appeals, is not identical with the federal law, and the Court of Appeals did rule on that grounds. There are also, I might add, two other grounds of Texas law, one a Texas common law ground which the Appellee has so far not been able to get a ruling upon. The Court of Appeals deemed it unnecessary to reach these two other state law grounds which we argue in our brief. And if this Court were to take the case we would at some point be entitled to an adjudication on those grounds which defend the judgment. And ordinarily we would be able to argue those grounds to this Court because they are grounds for affirmance. This Court can affirm on any grounds that it finds supported in the record.
Speaker: That you urged below.
Philip W. Tone: Yes.
Speaker: That you did urge and they didn't pass upon.
Philip W. Tone: That's correct. Both were urged below.
Speaker: Mr. Tone, you say if we were to take the case. Probable jurisdiction here was noted in May.
Philip W. Tone: Yes, Your Honor.
Speaker: You mean take it as a cert.--
Philip W. Tone: I was speaking to the supposition suggested in the colloquy with Mr. Justice White and Mr. Justice Brennan and the Mr. Chief Justice that if the Court agrees with our position that the appeal should be dismissed for the reasons stated earlier and treats the jurisdictional statement as a petition for cert, then it would have... then it was on that basis that I said, if the Court takes the case, my view is that the case should not be here on appeal for the reasons I've stated previously.
Speaker: --You would be quite content, I take it, if we held that this was not an appropriate appeal, but treated as cert we would deny it? I want to be sure.
Philip W. Tone: Yes, Your Honor, that is the relief we ask for in the first point in the brief.
Speaker: Just to be sure I understand one point, you're also arguing that unless we treat it as a cert and if we just act on a noting of probable jurisdiction under 1254(2), you would agree then we don't have the power to listen to any state law argument?
Philip W. Tone: Then you do not have the power to listen to the state law arguments. But then I submit you don't have power to decide the federal question either, because your decision would be an advisory one.
Speaker: Yes, I understand that.
Philip W. Tone: Right. And as to the state law questions the Court of Appeals didn't rule on, it would be unfair to the Appellee because we would never have a chance to present those arguments anyway. Now I should like... although, as I have said, it's our position that the Court should not reach the federal constitutional question, I am sure the Court does not want me to argue the Texas law points and so I think I should proceed to discuss the federal constitutional question as if it were to be reached on this appeal. And I shall proceed to do that. This Court has recognized that entertainment is a form of communication and expression protected by the First Amendment. It has also recognized that the communication and expression need not be verbal to be protected. Thus, musical compositions and dancing, including nude dancing, are protected. The First Amendment protects both the right to communicate and the right to receive the communication.
Speaker: Mr Tone, do you question that a state could totally outlaw pinball machines which require insertion of coins to operate?
Philip W. Tone: I do question that, Your Honor. I do question that. I think that these games, at least, involve First Amendment expression on the part of the author of the game and on the part of the player of the game. They are complex electronic devices that present a series of audio and visual effects through complex electronic circuitry. They call upon the player to respond--
Speaker: Mr. Tone, who is the author, the mechanic?
Philip W. Tone: --Pardon?
Speaker: Who is the author?
Philip W. Tone: The author, Your Honor--
Speaker: The mechanic?
Philip W. Tone: --is the person who designs the electronic circuitry.
Speaker: That's a mechanic.
Philip W. Tone: I think he's more than a mechanic, if the Court please. He is... I guess it depends on how broad one's definition of "mechanic" is. But he is a person skilled in electronics and in the visual and the video arts.
Speaker: Well, suppose this factory also puts out adding machines. Would they also be protected?
Philip W. Tone: I don't think so, Your Honor.
Speaker: But say it is the author... they had the same author.
Philip W. Tone: I think an adding machine does not convey a message to anyone.
Speaker: But it's the same author. I'm just worried about your word "author".
Philip W. Tone: Well, let me call him the originator of the game. He does get a copyright on it. The federal courts have uniformly recognized that these games are protected by copyright.
Speaker: But so is the adding machine.
Philip W. Tone: I'm not sure about the adding machine. I would not dispute Your Honor's statement, but I--
Speaker: I'm not sure. I just raise the question.
Philip W. Tone: --All right.
Speaker: Likely a patent, would it not be?
Philip W. Tone: The adding machine might have a patent.
Speaker: Well, Mr. Tone, supposing that in the electrical antitrust cases, certainly the person who thought up the phase of the moon element of that and the complicated parts of it in the early 60's was putting in a good deal of intellectual input and confiding it to a number of other people who were in the same position he was. Were their activities protected against the Sherman Act?
Philip W. Tone: Well, Your Honor, I think his right to communicate what he had dreamed up was protected. Their conspiracy was forbidden by other laws. But the right to communicate I think would be protected. Our position is that these games do involve communication. They involve a receipt by the player of the ideas of the designer of the game. He has... the game responds in certain ways, in very complicated ways, to matters that the player does. These are not... the games I am describing now are not so-called pinball machines, but those machines which make up most of the market now, audio-video games, which are very complicated affairs. And there is a very complicated interrelationship and interaction between the machine and the player. And I would submit to Your Honor that these are a form of expression and communication. One of the amicus briefs quotes at length from Marshall McLuhan. We have a small quote from his statement about games being communication. And he says, speaking of all games generally, that they are a media of communication and that that should now be plain. And as media of communication, we submit that they fall within the protection of the First Amendment. Like the composer of a musical composition or dance, the author of the game has a protected right to present his creation to people who want to receive it, and they have a right to receive the expression.
Speaker: How about the Red Lion case, where certainly people are communicating, but a Government agency is telling them that they have to present the other side too?
Philip W. Tone: That much is true. But there is a special governmental interest in regulation of speech over the restricted channels available for radio and television.
Speaker: That's because they're using the public highway, is it not? Isn't that the rationale of the Red Lion and related cases?
Philip W. Tone: Yes, Your Honor.
Speaker: Well, is there any other place, any place in the city that people under 17 can be entertained?
Philip W. Tone: The record in this case, Your Honor, is very skimpy, but there is an indication that there is one other coin-operated game center in the city. And I think there isn't any real dispute that--
Speaker: Well, certainly reasonable time and place restrictions are available, are legal, or not necessarily invalid, anyway?
Philip W. Tone: --That's correct. And a reasonable time limitation would be valid here. But this regulation--
Speaker: What about a place limitation?
Philip W. Tone: --If it were a zoning ordinance limiting the places where commercial establishments, including games, could be played, that would be reasonable.
Speaker: You mean a half a mile prohibiting games, a half a mile from a school, that sort of thing?
Philip W. Tone: That might well be reasonable, although that's somebody else's case and I wouldn't want to--
Speaker: Or prohibiting 17-year-olds to go in and play these machines in a bar, a barroom?
Philip W. Tone: --I think that would be reasonable, for a different reason, because the state has a right to prohibit 17-year-olds from going into a bar.
Speaker: It's a place. It would also survive First Amendment analysis.
Philip W. Tone: Well, but remember, the fact that it is a fundamental right does not mean that the state has no power whatsoever to regulate it. It merely means that it must regulate it only based upon a compelling state interest, and that the regulation must be reasonably tailored to protect that interest and must not be unnecessarily intrusive on the fundamental right.
Speaker: Do you think that rule applies, that every time, place and manner restriction has to satisfy that test?
Philip W. Tone: I guess that would be too broad a statement, Your Honor. I don't think it would. But this is more than a time, place and manner statement... or restriction before you at the present time. As to youths who are unable to persuade their parents to accompany them or who cannot... whose parents both work, it's a flat prohibition. They can't play the games at all.
Speaker: Can one gamble on these games?
Philip W. Tone: No, Your Honor. Gambling is expressly forbidden, and these are not gambling devices under Texas law. There is no... you do not have the old free games or anything, and so on. They are not gambling devices. And one could gamble on the games only in the sense that he could gamble on any competitive endeavor.
Speaker: You could bet on the outcome?
Philip W. Tone: You could bet on the outcome, just as you could bet on the outcome of a football game or on who can run faster. Some of these games are played by individuals alone, some are played by more than one or a group of individuals. So it is possible to gamble with the games, but that is not their purpose and there is no evidence in the record that these games have been used for gambling, and they are not gambling devices under Texas law, which does prohibit gambling devices. I submit that the only distinction that can be made between these games and various other forms of expression, including some that this Court has held to be protected, is in their social utility. And that is a matter of value judgment. It's easy to deprecate or ocularly put down the social utility of various forms of expression, including some form this Court has held protected. But the Court has also held that the level of protection to be given any form of expression does not turn on its importance or its social utility.
Speaker: Well, how about a chug-a-lug contest. Could a state or a city forbid that?
Philip W. Tone: I'm sorry, Your Honor, I missed the first part.
Speaker: A chug-a-lug contest, who could chug-a-lug the most glasses of beer.
Philip W. Tone: I guess I would not view that as rising to the level of protected expression. We also--
Speaker: There may be some 17-year-olds who would disagree with you. [Laughter]
Philip W. Tone: --That's possible. Also--
Speaker: Mr. Tone, these games are very lucrative.
Philip W. Tone: --Are very?
Speaker: Lucrative.
Philip W. Tone: Your Honor is correct.
Speaker: Even at 25 cents a shot.
Philip W. Tone: Yes, that's correct, they are lucrative. That is to say the owner and operator of the game collects 25 cents for each play.
Speaker: Do I understand that more than twice as much money is spent on these in this country today than on motion pictures?
Philip W. Tone: I have read those statistics, Your Honor, and I understand them to be correct.
Speaker: That's a powerful speech.
Philip W. Tone: Pardon? It's powerful speech, yes, sir.
Speaker: Would you say... in seriousness, who is doing the speaking there, the player or the originator?
Philip W. Tone: Well, Your Honor, I think both.
Speaker: It's a colloquy, is it?
Philip W. Tone: The player has to respond to a great variety of challenges that the game presents which are invoked by what the player does. So there's an interplay between this computer-programmed game and the player. So it's an expression by the designer of the game of the idea of the game, and there is interaction by the player to the various, numerous variables that are presented by the game. And of course, the owner and operator of the game I suppose is in a position analogous to the movie theater operator. He too is in the stream of communication. He's the conduit through which the communication goes.
Speaker: What about the little one at home? Same kind of machines you have at home now.
Philip W. Tone: It's essentially... Your Honor is correct. It's essentially the same as the videogame that you play on the television set, except that it is much more elaborate. It's a heavier and more durable--
Speaker: And much more expensive.
Philip W. Tone: --machine, and more expensive, exactly. It's much more expensive. The ones that are sold at home I think are sold on the order of a few hundred... the cost is a few hundred dollars, while these games--
Speaker: These machines are several thousand.
Philip W. Tone: --That's correct, that is correct. We also have argued in our brief that the right of association is implicated, and the court... the case came here on the question stated in the jurisdictional statement of whether there exists a right of social association. That was the principal issue stated. I submit that there is. This Court has... although it hasn't ruled on that point expressly, I submit that there ought to be such a right, just as there is... just as entertainment enjoys First Amendment protection as expression. And in the case at bar, at least the stated purpose of the ordinance is to prohibit young people from congregating. The preamble says in fact that congregation of youthful patrons creates problems of policing due to the need to protect the patrons from the influence of those who promote gambling, sales of narcotics, and other unlawful activities. So the purpose of this, although as Justice Stevens points out it's directed to individual games as well as places where there are more than one game, the purpose, the stated purpose, is to prevent congregating, which is an exercise of the right of association. The method chosen is to prevent them from playing the games when they get there. So it's perhaps an ineffectual method of preventing them congregating, but that is its purpose. I should also like to say in the few minutes left available that constitutional guarantees apply to minors as well as adults. The scope of the particular right may be reduced in the case of a minor by one or more of the factors identified by Justice Powell in Bellotti II. These factors are taken into account in defining the state interest to justify the regulation limiting a fundamental right. But nevertheless, even though minors are involved, the fundamental right should enjoy the strict scrutiny... the protection of the strict scrutiny test, having in mind that the state may have a stronger interest or a different interest in regulating the conduct of children than adults. But nevertheless, the strict scrutiny test should apply and the restriction should bear some... should serve some substantial purpose in regulating the evil to which it's directed, and it should be reasonably limited... the means should be limited to that which is necessary to protect the interest.
Speaker: How about truancy laws, Mr. Tone, where a group of youths say, we want to congregate at this particular pool hall during school hours rather than go to school?
Philip W. Tone: I would say, Your Honor, that the state's compelling interest in requiring children to attend school is sufficient to justify the truancy law and prohibiting children from congregating elsewhere during school hours. But that doesn't mean that their congregating is not a fundamental right. It just means that that fundamental right has to be balanced against the compelling interest of the state, and in that instance I believe the state... the compelling interest prevails. As we point out in our brief, if the Court agrees that the games involve expression and a fundamental right, then there is, in addition to the fundamental right analysis, strict scrutiny analysis that I have already stated, a similar analysis under the equal protection clause. I think I shall leave to my brief the vagueness issue.
Speaker: Let me just ask you something about that. If you think the issue is moot, which I take it you do... do you?
Philip W. Tone: No, Your Honor. We've argued that it is not moot.
Speaker: Well, why is that?
Philip W. Tone: Well, we say that there is a reasonable expectation of recurrence, and we argue that there is some indication of that from the fact that the city has never seen fit to tell any court that it repealed the old ordinance and replaced it with another one. And the city says it would like to go back to it. Now, that's the--
Speaker: Do you know of any other instances where, in a situation like that, we've recognized this exception to the mootness doctrine, capable of repetition, yet evading review; is that it?
Philip W. Tone: --That's it... no, not... I'm sorry. The tests are, under the Los Angeles County case, whether there is any reasonable expectation of recurrence of the violation or whether events during the pendency of the litigation have completely eradicated the effects of the violation. That's the test of mootness.
Speaker: Let me ask you, suppose that, however, we disagree with you and say that it's moot. Shouldn't we then to that extent vacate the opinions below and dismiss the case to that extent?
Philip W. Tone: We argue that you should not, Your Honor, and the reason is explained in the very last section of our brief. That would be the more usual disposition.
Speaker: If we thought it was moot.
Philip W. Tone: If you thought it was moot, yes.
Speaker: But unless we do that, if I understand it, the City is now disabled from re-enacting the ordinance it wants to enact, by the Court of Appeals' judgment.
Philip W. Tone: That would be correct, the Court of Appeals' judgment would stand. The alternative--
Speaker: If we vacate everything, presumably they'll just reinstate it.
Philip W. Tone: --That would be... they would be free to reinstate the ordinance all over again. And they apparently would like to do that. So I think there is good reason to treat this as the exceptional case in which determination of mootness should not result in the vacating of the judgment of the Court of Appeals.
Speaker: It really isn't... it's a jurisdictional question. It's a case or controversy question.
Philip W. Tone: I think the question of whether... the question of whether this Court decides the case is a case or controversy question. The question of whether this Court leaves standing the judgment of the Court of Appeals is not, in our submission.
Speaker: Well, I don't know. There's no longer a... the Court of Appeals judgment isn't final. We have to do something. We've noted probable jurisdiction, so we have to do something with the case. That judgment isn't final, and it's moot.
Philip W. Tone: You could dismiss the appeal on the ground the issue is moot, Your Honor. We're speaking now of the vagueness issue.
Speaker: But there's nothing then to... there's nothing then for the Court of Appeals' judgment to operate on. The issue it decided is gone.
Philip W. Tone: That's... there's nothing for it to operate on, but the ordinance was in existence. And at least there is a determination that that ordinance, which has now been replaced, was void for vagueness. So at least the city can't re-enact that ordinance.
Speaker: Well, so you think that our practice of vacating moot judgments in moot cases is just prudential?
Philip W. Tone: I think it is prudential, yes.
Speaker: Would your first option take care of all these problems?
Philip W. Tone: I'm sorry, Your Honor?
Speaker: Your first option that you argued today.
Philip W. Tone: The first option would take care of all of the problems except for the vagueness issue. The first option takes care of the age restriction. On the vagueness issue, I would submit that the Court, if it determines that the case is moot since the ordinance is no longer in existence, then simply has to decide whether to vacate the judgment or simply dismiss the appeal. We argue in our brief... and I do not, of course, have time to argue it here... that the judgment is not moot because it meets the tests of the Los Angeles County case.
Speaker: Well, do you have anything further, Mr. Archer? You have a few minutes.
Elland Archer: Mr. Chief Justice, may it please the Court: I don't agree with counsel's idea of how the case may be treated as the only alternatives either to dismiss the appeal and then deny certiorari or grant it. I think this Court could remand the case back to the District Court or to the Court of Appeals for clarification as to whether they are making a decision based upon an independent state ground or whether they consider the provisions identical. I think that it would be a terrible thing if the case does go off on that point, because even though you're reviewing a judgment and not an opinion, that opinion of the Court of Appeals is in the books. And that means that the cities throughout the Fifth Circuit that desire to have this type of ordinance, whether there's any diversity jurisdiction between their operators in the city or not, are going to be harmed by this opinion on the books, assuming of course that you disagree with it. Of course, if you agree with the opinion I assume that that would become the law of the land and it wouldn't make any difference which circuit you were in. But assuming that you did disagree with the opinion of the court, but you felt that you must deny certiorari, then as I say I don't think that's the only alternative. I think it can be remanded back for clarification as to whether or not this was an independent state ground or whether it was just mere verbiage to the effect that, yes, the state constitution is similar to the federal Constitution. I think the overriding question was federal law, and I think that's how the Court of Appeals decided the case, based on the level of review to be accorded this type of activity. In other words, whether it should be a rational basis--
Speaker: Let me ask you, under your view if this problem of state-federal law had been threshed out more fully in the Court of Appeals during argument, which... should it have based the decision on state law or federal law, if it had to choose between the two?
Elland Archer: --Well, I think they could have based it on both, all right, if they--
Speaker: No, if they have to choose. They decide they ought to take one. Is there a doctrine they should take the state law ground in order to avoid the unnecessary decision of a federal Constitution question?
Elland Archer: --I would think that they should, yes. I think this Court does that and I would think that the Court of Appeals... maybe they're not required to, but I would think that would be a proper disposition. But I don't think it was their intent to determine that there was separate state and federal law. I think they just mentioned that, yes, there--
Speaker: They really just cited federal cases except for one state case that had nothing to do with the issues.
Elland Archer: --Yes, I think that's correct. I would yield the remainder of my time. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: Mr. Wilkins, I think you may proceed whenever you are ready.
Richard G. Wilkins: Mr. Chief Justice, and may it please the Court: On March 31, 1977 the United States commenced a civil in rem forfeiture action in the United States District Court for the District of South Carolina seeking forfeiture to the United States of an assortment of firearms seized on January 20, 1977 by special agents by the Bureau of Alcohol, Tobacco and Firearms. The forfeiture complaint alleged that Patrick Mulcahey had used and intended to use the firearms in violation of the laws of the United States while engaged as a dealer in firearms without a license. The forfeiture was sought pursuant to the provisions of 18 U.S.C. Section 924 (d). Mr. Mulcahey filed a claim for the return of the firearms and also sought to raise his prior acquittal on a related criminal firearms charge to bar the civil forfeiture action. The District Court on motion of the government dismissed Mr. Mulcahey's collateral estoppel and res judicata defenses noting that the criminal acquittal did not preclude a subsequent civil action. The parties thereafter submitted by stipulation the transcript of the criminal trial to the court, and the court thereupon found that the government had shown by preponderance of the evidence that the firearms were indeed subject to forfeiture. That evidence which is not in dispute here show that during the period when Mr. Mulcahey was not indeed licensed he nevertheless bought and sold numerous firearms including making 16 offers to sell various firearms. On appeal a divided panel of the Fourth Circuit reversed finding that this Court's decision in Coffey v. United States precluded the section action. Chief Judge Winter of that court dissented reasoning that while a criminal penalty following a criminal acquittal was barred by the Coffey case that case did not preclude the imposition of subsequent civil penalties. On rehearing en banc the Court of Appeals adhered to the panel decision by a 5-4 vote. The majority again relied on Coffey and rejected the government's argument that it was not applicable on the facts of this case. The court also noted that even if the government's interpretation in Coffey were correct this forfeiture action would nevertheless be precluded because "there is nothing remedial about forfeiture under Section 924(d). " Judge Winter joined by three others again dissented relying principally upon his dissent at the panel stage although he also added that while the criminal provisions of the Firearms Act reach only completed violations, the forfeiture provision at issue here reaches firearms that are merely intended to be used in violation of the law. This he said evidences Congress' intent to provide a broad remedial sanction. The question in this case, therefore, is whether an acquittal on criminal gun control charges precludes a subsequent civil in rem forfeiture action against those weapons. This question can best be analyzed by dividing it up into two interrelated inquiries. First, assuming for the moment that forfeiture is indeed civil is there any basis for the Court of Appeals' conclusion that the penalty action is precluded. This question is readily answered by established decisions of this Court in the negative. Therefore, the second question necessarily becomes whether or not Section 924(d) is properly classified as a civil sanction. This question is one of statutory construction and is also easily answered because Congress has clearly indicated its intent to provide a civil sanction. The Court of Appeals concluded that this Court's decision in Coffey mandated preclusion here because the civil action arose out of the same facts that were involved in a prior criminal prosecution. While there is indeed some language in Coffey which would lend support to this broad rule of preclusion the subsequent decisions of this Court have given Coffey a significantly narrower reading. In Helvering v. Mitchell the government brought a civil penalty action to recover a $364,000 fine for the fraudulent avoidance of income tax following the taxpayer's acquittal on criminal charges of willfully evading the income tax. The taxpayer, of course, faced with this large fine raised his prior criminal acquittal to bar the civil penalty action. The Court of Appeals relying on Coffey reversed, but this Court in an opinion by Justice Brande is reversed. The Helvering court first dispatched the argument that res judicata barred the subsequent penalty action. The Court noted reversing the position taken in the Coffey court that the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata. This Court quite recently in the One Lot Emerald Cut Stones case used the exact same rationale to dispense with the argument that a criminal acquittal collaterally estopped a subsequent civil forfeiture action. The Helvering court also dismissed the contention that double jeopardy barred the subsequent action noting that Congress has the authority to impose both civil and criminal penalties for the same conduct. Finally, it dispensed with the Coffey objection noting simply that the rule in the Coffey case does not apply when there has been a criminal acquittal followed by a subsequent civil action requiring a different degree of proof. Therefore, the crucial question here is not--
Speaker: In the Coffey case, Mr. Wilkins, was the proceeding civil or criminal?
Richard G. Wilkins: --The forfeiture action? It was an in rem civil forfeiture action, and the Court said that this was nominally a civil in rem forfeiture action. The crucial question here, therefore, is not whether Coffey mandates preclusion but rather whether Section 924(d) is properly classified as a civil sanction. This Court's decisions clearly indicate that this is a question of statutory construction that proceeds on two levels. First, the Court seeks to determine whether Congress either expressly or impliedly has indicated its intent to apply one label or the other; and second, when Congress has indicated its intent to apply a civil label the court examines the particular sanction involved to see whether that sanction is so punitive in purpose or effect as to negate that intention. That analysis shows that this sanction here is civil. Perhaps the clearest indication that this sanction is indeed civil is the fact that Congress provided civil procedures for its enforcement. Section 924(d) incorporates the provisions of the Internal Revenue Code which among other things provide for notice by publication and administrative forfeiture if the goods seized are valued at less than $2500.
Speaker: Was that necessarily a very persuasive argument, Mr. Wilkins? Supposing that the forfeiture provision were extremely stringent, say, you forfeiture $100,000 to the government if you are found with these sort of weapons on you and the government says "Well, to show it is civil we will simply have all civil procedures. " "There will be no right to counsel and nothing else that would go with a criminal trial. " That would not really move the ball much would it?
Richard G. Wilkins: Well, Justice Brandeis in Helvering said that Congress may not provide civil procedures for the enforcement of punitive sanctions. In a case that you posit where it was rather clearly quite a confiscatory sort of forfeiture and for rather obviously punitive motives perhaps the court would say, no you could not provide that sort of--
Speaker: The fact that civil procedures had been provided would not advance the argument that it was a civil rather than a criminal penalty.
Richard G. Wilkins: --Well, it does to the extent the question here is congressional intent if you are looking at what Congress thought they were doing when they provided this forfeiture statute. The fact that they provided civil procedures they certainly thought they were providing a civil--
Speaker: What exactly is the intent of Congress that we are talking about?
Richard G. Wilkins: --The intent to call a particular sanction. Is this a civil sanction or is this a criminal sanction?
Speaker: You mean Congress simply by intending to make this civil can make civil what otherwise would not be?
Richard G. Wilkins: Well, no. Of course, as we said in the opinion in Ward there is a two step inquiry. First you look to see whether Congress has intended it to be civil or criminal and second you ask, well, is it so punitive in purpose or effect as to negate that intention. So there is a second level of inquiry, of course. The remedial structure of the Act also indicates that this is a broadly... that this is a civil sanction. Forfeiture cannot be ordered as part of the criminal punishment for a criminal violation of the gun control law. Forfeiture can be obtained if at all only by bringing a subsequent civil forfeiture action against the firearms. Therefore, if this Court were to conclude that forfeiture is somehow criminal it would do quite a bit of violence to the remedial structure of the Act. The government would be forced to choose between forfeiture or criminal prosecution. It couldn't have both.
Speaker: Sometimes, Mr. Wilkins, we see the term "quasi-criminal" apply to these forfeiture proceedings. Does that have any relevance?
Richard G. Wilkins: That term has had some limited relevance as it applies to certain discrete constitutional rights.
Speaker: For instance, would the Fourth and Fifth Amendments apply perhaps in this situation?
Richard G. Wilkins: Yes. The Court's rather established with Boyd and continuing threw Coin and Currency quite recently would establish that, but--
Speaker: This statute is one of those that might be characterized as quasi?
Richard G. Wilkins: --Exactly.
Speaker: But not double jeopardy?
Richard G. Wilkins: Right. In fact in other decisions this Court has refused to apply the quasi-criminal sort of analysis to apply Sixth Amendment confrontation rights, the Fifth Amendment double jeopardy clause, for example, any due process requirement of proof beyond a reasonable doubt. All of these sorts of constitutional rights have been denied.
Speaker: If the statute in a given forfeiture statute were characterized as criminal as being punitive in nature and not remedial would double jeopardy apply to all elements even though some of the elements of the civil offense... the forfeiture offense were different from the criminal?
Richard G. Wilkins: If the Court were to conclude that it was so punitive in nature and effect as to be properly called a criminal sanction I would assume that it would apply to the entire action, but you noted one very important point here. There is a difference in the elements between the forfeiture actions here and the criminal action, and we believe that that is another strong indication that Congress intended this as a civil sanction because it reaches weapons that are merely intended to be used in violation of the law whereas the criminal sanction only applies to completed actions. Finally, although the court below said there was nothing remedial about forfeiture we believe that this simply ignores that broad prophylactic goals of the gun control legislation that this Court has repeatedly noted. This legislation was enacted to enable the states to control firearms traffic within their borders, and elimination of unregulated firearms that have been set apart or intended for use in unregulated commerce furthers that remedial purpose. Therefore, six Courts of Appeals have taken the position that forfeiture under this provision is civil and remedial in nature, and the court below stands alone in its characterization. Therefore, the Court is required to take the second step adverted to by Justice Rehnquist, that is, to determine whether or not this sanction is so punitive in purpose or effect as to negate that clear intention that Congress indicated to provide a civil sanction here. This question is rather difficult because the standards to be applied in making it are somewhat vague an ambiguous. The fact that a statute has a severe subjective impact upon an individual cannot by itself suffice to make a statute punitive and criminal. The taxpayer in Helvering faced with a $364,000 fine certainly felt punished, yet that was not enough to label that statute criminal nor is it enough that the particular sanction depends on criminally proscribed conduct because this Court has repeatedly noted that Congress has the authority to impose civil and criminal sanctions for the same conduct. Therefore, the Court has properly noted the government believes that only the clearest of proof would suffice to establish the unconstitutionality of a statute on this second ground. There is no clear proof here. To show that we would use some of the factors that the Court indicated in the Mendoza-Martinez case. Initially the declaration of a forfeiture poses no affirmative disability or restraint upon a property owner. The declaration of the forfeiture does not render him criminal. Indeed Mr. Mulcahey could go out and purchase more firearms. He is not subject to the ownership restrictions.
Speaker: Well, he is restrained from using his property.
Richard G. Wilkins: Well, he is restrained from using his property, but he is not stigmatized as a criminal. He is not thrown in jail. His liberty in many traditional senses is--
Speaker: His property is being taken from him only because he's been using it to transport drugs.
Richard G. Wilkins: --This case does not involve drugs. There are other--
Speaker: Well, I know but others do.
Richard G. Wilkins: --Yes.
Speaker: And you would be making the same argument.
Richard G. Wilkins: Yes. Also the second Mendoza-Martinez factor unquestionably indicates the civil nature of this sanction. In rem forfeiture is a traditional civil sanction. Indeed the Helvering court noted that forfeiture has been considered civil since the original revenue law of 1789 and has been upheld repeatedly against the contention that it is essentially criminal. The other factors I do not know whether it is necessary to go into them at any great length but they all indicate to some degree or other that this is a civil sanction. It has a remedial purpose. It does not require a showing of scienter. Indeed the only factor that indicates at all that this is a criminal sanction is the fact that it is based on some conduct that is criminalized or that is already a crime, but as the Court noted in Ward just three years ago this indication does not carry substantial weight because Congress can indeed criminalize conduct and also impose a civil penalty for the same conduct. In any event in this case forfeiture can be ordered for conduct that is not indeed in violation of any criminal provision. The United States believes that the--
Speaker: May I ask just one question?
Richard G. Wilkins: --Yes.
Speaker: Supposing we agree with everything you say, but we are still troubled by the fact that we may find ourselves confronting Coffey and feel we have to overrule Coffey explicitly to decide in your favor how strong are the stare decicis interests in this particular case?
Richard G. Wilkins: We do not think you have to do anything to Coffey that has not already been done to it?
Speaker: You take the position it has already been overruled?
Richard G. Wilkins: It has already been done.
Speaker: We should just say so.
Richard G. Wilkins: We should just say so. Justice Brandeis did it in Helvering. Thank you.
Warren E. Burger: Mr. Louthain.
Herbert W. Louthian: Mr. Chief Justice, and may it please the Court: I think it is important to note that the criminal action alleged in the indictment the identical elements which were alleged in the forfeiture case, hence, the same issues were raised in both cases. The same facts were present. The government had its day in court.
Speaker: The same burden of proof present?
Herbert W. Louthian: No, sir, and different burden of proof, and I will get to that a little later. But Coffey says and I content that Coffey has not been overruled that where the same facts, the same acts, the same elements have been put at issue and resolved against the government in a criminal case the government cannot later adopt a label, call it a civil case, put the same facts in evidence and issue and have its second bite at the apple. I think that is the clear out issue here. Coffey I say I believe has a very narrow preclusion doctrine. I do not think it is a broad doctrine at all. I do not think it encompasses Helvering. I do not think it encompasses Ward. I do not think it is included in the One Lot Emerald Cut Stones case, and I think each of these can be distinguished. A careful analysis of Coffey I believe establishes the reasoning of that Court being not res judicata and not even double jeopardy but collateral estoppel. The same issues cannot be determined twice after having been determined once. It does not apply to a civil action after a conviction. Of course, that is an entirely different case. Certainly after conviction of a violation of the Fireams Act in this case the government could have forfeited the firearms. It does not... Coffey does not apply to a subsequent civil action where the issues are different. But Mulcahey was charged with engaging in the business of dealing in firearms without a license in the criminal case. He was put to trial and acquitted. In the forfeiture case the firearms were charged with being used or having been intended for use by Mulcahey because he did not have a license to deal in firearms, identical issues. The government has in its brief relied a great deal on Stone as saying that this can be allowed because in Stone there was a criminal acquittal and a later civil action, but in Stone the civil action was brought by the government as the owner of the properties. Some timber was cut by Stone on government land. He was charged with feloniously cutting the timber, and he was acquitted. In the criminal case... Excuse me, in the civil case then the government as owner of the property brought an action to recover the value of the timber. Hence, there is a vast difference between the status of the government in both cases. The Helvering case on which the government relies is vastly different from Coffey. Helvering did not involve a forfeiture. Helvering involved a civil penalty, a 50 percent tax penalty, and the Court was very careful to say... It distinguished Coffey... it was very careful to say this is a civil administrative remedial sanction. Now we contend that there is nothing civil or administrative and certainly not remedial about taking firearms. In the One Lot Emerald Cut Stones case the individual on trial in the criminal case was charged with willfully, intentionally, knowingly smuggling into the United States certain contraband items, stones and a ring. Later forfeiture of the contraband smuggled goods was allowed after the individual was acquitted, but the reason for it and the Court was very careful in discussing Coffey and Boyd and all of the other cases that went on and which had not been overruled. The reason was that intent was not an element in the forfeiture of the contraband items. Intent was an element in the criminal case. I think we need to pause here for a moment and think about the nature of the goods forfeited in Mulcahey's case, in this case. None of these firearms were contraband. None of these firearms were illegal per se. There was not an illegal automatic weapon. There was not a sawed off shotgun. There was nothing illegal about the guns. The only contention that the government had in either case was that they were being used by an individual who they claim was engaged in the business of dealing in firearms without a license in both cases.
Speaker: Well, accused in the criminal case selling firearms without a license.
Herbert W. Louthian: Yes, ma'am.
Speaker: He was not found guilty of that.
Herbert W. Louthian: That's correct.
Speaker: But the evidence apparently according to the government is sufficient to establish that he intended to do it. His defense in the criminal case was entrapment, right?
Herbert W. Louthian: Yes. That was one of the defenses.
Speaker: So what came out was he intended to sell them all right without a license. Why is it not remedial to say that the guns can be forfeited?
Herbert W. Louthian: I think that can be answered on two grounds. One is in United States v. United States Coin and Currency which is cited in the amicus brief. That issue was addressed, and if you recall in that case some gambling proceeds were taken and the Court said that you cannot take things simply because they are intended or there is some suggestion that they are intended to be used in violation of the law. Now the statute does allow that here. But I contend that that furthers our argument that this 924(d) is punitive. It expands the punitive nature of the statute. For example, a firearm used in a criminal act... 924(d) refers to the Gun Control Act or any other criminal sanction, criminal law of the United States. A typical case would be a person committing a felony with a firearm. Certainly the firearm can be forfeited, but you expand the punitive aspect of it when you say that any gun intended to be used. That weakens the government's argument that this is not punitive. If you sell one gun without a license it is forfeited. If you sell one gun without a license and you have 50 guns in your garage or your basement or your shop then the government can say since these guns were here they were intended to be used so we'll take all of them.
Speaker: But they would have to prove intent to the satisfaction of the trier of fact.
Herbert W. Louthian: No, sir. In either case they do not have to approve intent. Intent is not an element of the criminal case in this particular statute either.
Speaker: Well, then why did you refer to the requirement that they be intended to be used?
Herbert W. Louthian: It was in response to Justice O'Connor's question. The Court affirmed Coffey in One Lot case and it discussed Coffey explicitly. It said that collateral estoppel in One Lot Emerald Cut Stones would bar a forfeiture if in the earlier criminal proceeding the elements of the forfeiture had been resolved against the government. That is exactly what happened in Mulcahey's case. The elements were resolved against the government. Coffey did address the burden of proof issue specifically and answered it. It says that the government urges that the difference in the burden of proof in civil versus criminal cases should be something to distinguish the two cases, and the Court went on to say nevertheless the fact or act has been at issue and determined against the United States and all that is imposed by the statute as a consequence of guilt is a punishment. There could be no new trial of the criminal prosecution after the acquittal. That is what the Fourth Circuit held in this case. The Fourth Circuit said in the majority opinion that everything in 924(d) is punitive. It provides for imprisonment of up to five years, a fine of up to $5000 or both, and a forfeiture of firearms used in violation of that law or any other law of the United States. So I believe what you have is the government making a choice. Trying the criminal case, if they win it the defendant goes to jail. He pays a fine. He loses his firearms. If they lose it under the position of the government he does not go to jail. He does not pay a fine, but in a separate case they can still take his firearms for the same reason, the same acts, the same elements that they failed to prove the first time.
Speaker: May I just ask if there is a criminal case and a conviction is there then a separate forfeiture proceeding?
Herbert W. Louthian: The mechanics are separate, but it is automatic. It says that upon--
Speaker: They have to file a separate complaint?
Herbert W. Louthian: --Yes, sir.
Speaker: Well, why could you not if you take the position that that is also a criminal proceeding why could you not say that he had been punished once for the crime and it is the same crime so you do not have to forfeit?
Herbert W. Louthian: Because I think the careful reading of the statute specifically allows the government to do that. I do not think there is any question--
Speaker: Is that statute constitutional if they are both criminal proceedings? Could you have a statute saying if you commit a murder you should be tried and convicted and should be sentenced to so many years in jail and if the government elects to come back in and try you all over again and have a second sentence?
Herbert W. Louthian: --No, sir. I do not think they can do that?
Speaker: Well, is that not what you are saying this is?
Herbert W. Louthian: No, sir. I am saying that under 924(d) the government can take the firearms after a conviction. I am saying that under 924(d) conceivably the government could bring a civil forfeiture with no preceding criminal case, but once having elected in the beginning to assert the criminal statute... Now remember this is a little different criminal statute. This is not the ordinary statute of smuggling or dealing in drugs or carrying contraband around. This statute just charges a man with no intent requirement of dealing in firearms without a license. That is all. They have done it twice. As a second part of our argument we contend that if the Court decides that Coffey is overruled then we urge the Court to consider that 924(d) is definitely punitive for the following reasons. Boyd stated that even though a case may be civil in form it may be criminal in effect or punitive in effect, and the nature of it could be criminal. Now much has been said by the government about the fact that the Internal Revenue Service procedures are set up for the mechanics of the forfeiture. Well, Boyd says that does not make any difference. The mechanics are not important. It is the result. It is the effect. The effect is that a person is having his property taken from him, and then the question is is that punishment.
Speaker: Do you put any reliance on the fact that the forfeiture is in a criminal statute?
Herbert W. Louthian: Yes, sir. All of it is in Section 924.
Speaker: It is in the criminal statute?
Herbert W. Louthian: Yes, sir. I think that is very important to show congressional intent that it is labeled penalty. This particular section is labeled penalty. That can to me only mean punitives, what it says. It was all enacted at one time. It was not added later as the case was in Ward where some 70 years later the civil sanction--
Speaker: Had the government originally gone after the forfeiture and not the criminal you would not be here?
Herbert W. Louthian: --Exactly. We think that this case insofar as a measure of the punitive aspects of a forfeiture does fit the requirements of Kennedy v. Mendoza-Martinez. We think that it is an effective affirmative disability or restraint. The individual who owned these guns will not have them any longer. It is a taking of his property. We think it does stigmatize his reputation. He went to trial in criminal court and came out acquitted. He goes back and the government takes his firearms. We think that is a stigma. We believe that this sanction has been historically regarded as punishment, another one of the tests of Mendoza-Martinez. It is clearly to further the deterrent and punitive purposes and to impose an economic penalty. When you take a man's lifelong gun collection from him... This man had been collecting these firearms since he was, I think, 14 years old--
Speaker: Does the record show the value of these firearms?
Herbert W. Louthian: --The value is in dispute. The government alleged in the forfeiture complaint a little over $5000. Our answer alleged approximately $15,000. I do not think that became terribly important if they took all of them, but we contend that at the time... That was back in 1977... they were worth $15,000 and assuming they have been taken care of would be worth substantially more today. We think that the sanction does further retribution and deterrence and certainly this forfeiture arose out of an underlying criminal act so the act alleged was already a crime. Can an alternative purpose be assigned to this sanction? I have answered that. The firearms were a collection of a lifetime. The congressional findings and intent I think is important, too, and is recited in our brief. It states that the purpose of all the Gun Control Act was not to interfere with the right of law abiding citizens to use and enjoy firearms. It was very clear to enunciate that, and we believe that taking a person who has been adjudged in effect a law abiding citizen by a jury of 12 people, take his firearms certainly takes care of that requirement. Then the excessiveness of the sanction. I think we have already answered that by asking about the value. The maximum fine he could have been assessed had he been found guilty would have been $5000. Having failed in that he now faces a forfeiture of even by the government's own allegation of a value of more than $5000.
Speaker: He might have had both, of course, is that not so?
Herbert W. Louthian: Yes, sir. I think the case has serious public policy ramifications. The case of Partman Corporation v. Paramount Pictures talked about collateral estoppel by by a judgment and said this doctrine was established as a procedure for carrying out the public policy of avoiding a repetitious litigation. Well, if the government prevails here I think we are going to open the door to repetitious litigation by having happen to other citizens what has happened to Mulcahey, having been tried, acquitted and then having to face the civil forfeiture based on the same charge. We contend that the holding in Coffey is still good law; that 924(d) is punitive; that the government had its one bite at the apple; they should be precluded from bringing this action and that the Court of Appeals should be affirmed.
Warren E. Burger: Do you have anything further, Mr. Wilkins?
Richard G. Wilkins: Just one or two responses, Justice Burger. To respond to any contention that perhaps we are doing something wrong in having two bites at the apple or taking an undue choice, any choice that was given the government was given by Congress. As Justice Frankfurter in his concurring opinion in United States ex rel. Marcus v. Hess case stated the short of it is that when two such proceedings merely carry out remedies which Congress has provided in advance for a wrong they do not twice put a man in jeopardy for the same offense. Congress thereby merely allows the comprehensive penalties which it has imposed to be enforced in separate suits instead of in a single proceeding. Moreover, responding to Justice Marshall's inquiry as whether or not the fact that this was in Title XVIII had any significance. The gun control law in 1968--
Speaker: I did not say Title XVIII. I said the act of Congress.
Richard G. Wilkins: --The act of Congress--
Speaker: Thank you.
Richard G. Wilkins: --the fact that this act was codified in Title XVIII which is the criminal title of the United States Code. The Gun Control Act of 1968 replaced an act that had been previously codified in Title XV. The Act itself has many regulatory procedures such as 923 which is purely a regulatory licensing sort of a provision. The fact that there are also criminal segments of this statute we do not feel has any particular relevance, and as to the fact that why did we not seek forfeiture first and would that not solve the problem, there are significant reasons why we should not and we could not seek forfeiture first. For example, we might indeed unduly impinge upon a property owner's Fifth Amendment rights. If he took the stand to defend his right to keep his property in the prior forfeiture action, that evidence could be used against him in the criminal proceeding. Those sorts of reasons are why we do not seek the forfeiture action first.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday next, the 5th of December at 10:00.