William H. Rehnquist: We'll hear argument next in No. 89-1817, County of Riverside and Cois Byrd, Sheriff of Riverside County v. Donald Lee McLaughlin, et al.-- Mr. Coates, you may proceed.
Timothy T. Coates: Thank you. Mr. Chief Justice, and may it please the Court: This case arises from a class action lawsuit filed by prisoners in the Riverside County Jail against the County of Riverside and its Sheriff, Cois Byrd, seeking a determination that the County of Riverside fails to provide warrantless arrestees with a probable cause determination promptly after arrest, as required by the Fourth Amendment as interpreted by this Court in Gerstein v. Pugh. The case essentially raises two issues. First a threshold question of standing under Article III of the named plaintiffs to maintain this suit for injunctive relief. The second issue is one of substantive criminal procedure of great importance to the States at large, namely whether a State can incorporate a probable cause determination into an existing pretrial procedure, that by its nature may accomplish additional purposes, provide additional protections, and as a result take additional time to perform. The case originally was filed as a complaint by Plaintiff Donald Lee McLaughlin on behalf of himself and others similarly situated. A first amended complaint was also filed, again with Mr. McLaughlin alone as the named class representative. It alleged that he had been held 5 days in the Riverside County Jail, had been released, during that time had never seen a judge, had not received a prompt arraignment, probable cause, or bail hearing. The county moved to dismiss the first amended complaint based on Mr. McLaughlin's lack of standing to maintain an action for injunctive relief, since he was no longer in custody and hence no longer suffering the constitutional violation which formed the basis of the complaint. Plaintiffs then filed a second amended complaint, adding three additional plaintiffs for purposes of the probable cause dispute. As to these three plaintiffs it was alleged that they had been arrested without warrants, were presently in custody, did not and have not received a prompt probable cause determination, bail, or arraignment hearing. The county answered the second amended complaint, the class was certified, and then the plaintiffs moved for a preliminary injunction.
Anthony M. Kennedy: As to those three plaintiffs, were they in custody at the time they were added to the complaint?
Timothy T. Coates: They were in... the allegations of the complaint said yes, they were in custody as of the filing of the second amended complaint.
Anthony M. Kennedy: And no hearing had... no probable cause hearing had been held as of the time they were added to the complaint?
Timothy T. Coates: Not no hearing. All it says is no prompt hearing had been held. Did not receive and have not received a prompt hearing. Nothing was said about not receiving a hearing at all. The plaintiffs--
Sandra Day O'Connor: Well, had any hearing been... had any probable cause hearing been conducted as of that time?
Timothy T. Coates: --We do not know as to those three plaintiffs. We've not made a factual showing on that. We did not move for summary judgment on that issue. We're going simply on the four-square of the pleadings. Our position is--
Sandra Day O'Connor: Well, assuming they had had no probable cause hearing, what's the standing problem?
Timothy T. Coates: --The standing problem is still that if it is one that is temporally bound, something is either prompt or it is not prompt. Once they didn't get a prompt hearing, they would not be cured by the injunction that was sought in this case. The prayer of the complaint simply requested that the County of Riverside be directed to provide individuals with a prompt probable cause determination.
William H. Rehnquist: But even if you don't get a prompt-- --But the assumption that you-- --Even if you don't get a prompt hearing, you ought to get some hearing.
Timothy T. Coates: Yes, but again, looking at the nature of the injunctive relief sought and the ability of these plaintiffs to obtain that relief, you can't, once... if you're saying you didn't get a prompt hearing and you're asking to be given a prompt hearing, you simply can't benefit from that injunction. I would again stress, though, this complaint doesn't set that out.
David H. Souter: I don't understand that. They're not saying we want a hearing in 36 hours or no hearing at all. They're saying we want a prompt hearing. And if you want to know what a prompt hearing is, it's one which will be held within 36 hours. And if at any point after that we haven't had a hearing, we claim that we are entitled to one. And it seems to me that that's what these people are saying.
Timothy T. Coates: Well, I think the difficulty is, is that the allegations of the complaint do not say that they have not received a hearing. Again, it simply says that they did not receive a prompt hearing.
David H. Souter: You're right there. I was proceeding--
Timothy T. Coates: Yes.
David H. Souter: --I guess I should have said, on Justice O'Connor's assumption. If they had not had a hearing at that point, it seems to me the only reasonable way to construe their claim is that they want one.
Timothy T. Coates: That they want a hearing.
David H. Souter: They want a hearing, and if you want to know when they should have had it, they will tell you they should have had it after 36 hours.
Timothy T. Coates: Yes, but again, I think the position that we have taken in the case is there is simply no allegation that these particular people didn't have a hearing, but they didn't have a prompt hearing.
Antonin Scalia: Well, that's pretty picky, isn't it? I mean, it doesn't... the complaint is absolutely idiotic if they had had a hearing. They've had a hearing, and you think that that is what the complaint means? That somebody who has had a hearing wants not damages for not having had a prompt hearing, but he is asking for the Court to require a prompt hearing? Even though he has already had a hearing, it's too late for a prompt... are you going to read the complaint that way?
Timothy T. Coates: I read the complaint--
Antonin Scalia: That's just a ridiculous way to read the complaint.
Timothy T. Coates: --I'll tell you, I believe that the language of the complaint does support that interpretation, and I find it no more ridiculous in many respects than the fact that when they filed the initial complaint it was extremely clear that the named plaintiff was no longer in custody and would not benefit from the injunctive relief sought. We're holding them essentially to the language that was in the complaint. At no time have they offered to amend to say anything else. So, again, for purposes of looking at the standing of the named plaintiffs as of the complaint as filed, which is the standard the Court has--
Sandra Day O'Connor: Well, I think the Gerstein case sort of answers that and says there's standing. I mean, you're asking us to take a very strict and rather peculiar reading of the complaint, and I wonder if you shouldn't move on to the merits.
Timothy T. Coates: --I can only, as I mentioned, reiterate the argument that we have made below, that if... I think if you hold them to the four-square language of the complaint, there is then no offer to amend at any time, that it shows that these people not necessarily suffer the deprivation of which they are complaining. And as to the Gerstein question, again, I think the Court, looking at Gerstein, was talking of the question of mootness of that point. There is no extended discussion of standing. But--
Anthony M. Kennedy: Well, just so I understand your point, suppose a person has been held for 10 days and files a complaint and says I have not been given a prompt hearing. Is it your position is that, well, a prompt hearing would be 4 or 5 days, so there is nothing we can do for you?
Timothy T. Coates: --He would be able to--
Anthony M. Kennedy: I mean, is that your reading of the complaint?
Timothy T. Coates: --Gerstein requires a hearing. And if you haven't given him a hearing, at the very least he has the right to request a hearing, if he is still in custody. At some point he is entitled to a hearing. But again that's not what this is about. It's something with a temporal limitation on it. And again, I don't believe the allegations of the complaint--
Anthony M. Kennedy: But in that facts, I put your position is no standing.
Timothy T. Coates: --No. If you haven't received a hearing at all, you can say I deserve a hearing under Gerstein, you must give me one, period. That is not a question of a temporal hearing. That's what I'm saying, the allegations of the complaint here are not clear on that fact, and that is what our argument there turns upon. But turning to the merits of the argument, as mentioned, the preliminary injunction, the thrust of it was that the County of Riverside was not providing warrantless arrestees with a probable cause determination promptly after arrest. The period used by the plaintiffs to define this was 36 hours, which is a period applied in an Orange County case also brought by the plaintiffs' counsel, also decided by that district court judge, which was settled prior to resolution of the preliminary injunction. In moving for the preliminary injunction, the evidence presented by plaintiffs was that people in Riverside County, warrantless arrestees, would not receive a probable cause determination until the time of arraignment. The chief evidence presented on this were booking sheets for the Riverside County Jail which showed the arrestees' process through the system. The district court found that providing probable cause determinations within the time frame of arraignment in California, which is 2 days, excluding weekends and holidays, was too long under Gerstein, holding that per se once the time in which to complete the administrative steps instant... incident to arrest had passed, that was the time that you had to have the hearing, even if it was on an ex parte basis, even if it was on a weekend, within 36 consecutive hours of arrest. The county contended in the district court and again in the Ninth Circuit that California has essentially taken up this Court's invitation in Gerstein to incorporate probable cause determinations into existing pretrial procedures that may afford an arrestee additional benefits than would be available in a straight ex parte hearing devoted solely to determining the issue of probable cause. Indeed, following this Court's decision in Gerstein, the supreme court, California Supreme Court, in In re Walters expressly held that misdemeanants were to receive this at the time of arraignment. Prior to that time, in fact--
William H. Rehnquist: Mr. Coates, we'll resume there at 1:00.
Timothy T. Coates: --Thank you, Your Honor.
William H. Rehnquist: Mr. Coates, you may resume.
Timothy T. Coates: Thank you, Mr. Chief Justice, and may it please the Court: As I noted before the break, in Gerstein v. Pugh this Court expressly declined to set forth a specific period of time in which probable cause determinations were to be provided to warrantless arrests. Instead the Court recognized that there was no uniform State criminal procedure, and in fact invited the States to incorporate these hearings into existing pretrial procedures such as arraignment or even preliminary hearing. In so doing the Court even noted that several model codes of criminal procedure already provide for this, and one of them, the ALI model code, allowed this probable cause determination to be done as much as 72 hours after arrest. The State of California took the Court up on its invitation in Gerstein, and essentially has incorporated these hearings into arraignment, which, under California law, specifically Penal Code Section 825, must be held no later than 2 days after arrest, but excluding Saturdays, Sundays, and holidays.
Sandra Day O'Connor: Is there a California statute that provides for when the probable cause hearing must be conducted in felony cases?
Timothy T. Coates: There's no statute as to arrest, but as to an overall probable cause determination, yes, it must be done by preliminary hearing. Yet by case law, People v. Powell, the California Supreme Court has said that a defendant has a right at first appearance to challenge probable cause for arrest. The County of Riverside--
Sandra Day O'Connor: So what's the county policy that we're dealing with here exactly for felony cases? Precisely what is it that the county has been doing?
Timothy T. Coates: --The position we have taken, it was our argument throughout the preliminary injunction hearing that we would be willing to live with, would be to do the probable cause determination for felons at the time of arraignment. And I submit, the district court in fact took us at its word.
Sandra Day O'Connor: If the felon requests it, if the person arrested requests it.
Timothy T. Coates: Yes. He is advised of his right to that hearing. He can waive that right, as he can waive other substantive rights that are bestowed by the Constitution.
Sandra Day O'Connor: And if requested, it is conducted then and there at the arraignment?
Timothy T. Coates: Yes, it is.
Sandra Day O'Connor: Not at the preliminary hearing?
Timothy T. Coates: An additional hearing... there will... he will still get a preliminary hearing, because California law requires it.
Sandra Day O'Connor: Yes, but the probable cause determination is what we're talking about, I thought.
Timothy T. Coates: He will get a probable cause determination at arraignment based upon, at that point, probably just the arrest report and the like. Preliminary hearing ends up being more extensive, because at that point witnesses are called, there is a right to cross-examination in felony cases, and--
William H. Rehnquist: Well, that's a determination of whether he should be held to answer--
Timothy T. Coates: --That's right.
William H. Rehnquist: --which might be different.
Timothy T. Coates: That's right. But if you're going to be held to answer, you're per se going to have had probable cause to that point.
Byron R. White: You're saying it recognizes that kind of a hearing is different from what it is requiring for the Constitution?
Timothy T. Coates: It may be more protective; more may occur at that hearing. But a finding of going forward and being held to answer would certainly satisfy something more than just probable cause. But again, a felon in Riverside has the right, and he is advised so, of a hearing on probable cause at the time of arraignment. And indeed the district court--
Antonin Scalia: Excuse me, it's not really more protective in the sense that it may well... what's the maximum length of time? Is it 7 days, the maximum length of time that this can work out to?
Timothy T. Coates: --On arraignment?
Antonin Scalia: Yeah.
Timothy T. Coates: On arraignment, with the Thanksgiving holiday, that's essentially what you could get.
Antonin Scalia: You could be held for 7 days?
Timothy T. Coates: Yeah.
Antonin Scalia: And what happens is you can continue to be held if after 7 days this higher standard is met? But it may well be that at the time you were arrested there was no colorable basis for probable cause, and maybe for the first 3 days there was no colorable basis, or even the first 6 days, but then the State digs up enough evidence by the seventh day to establish that you could continue to be held. I don't consider that an additional protection. It means... it means in effect you never do get a... it's too late. You have been held for 6 days without any justification.
Timothy T. Coates: Well, in... there's an assumption there that there is no probable cause arrest to begin with. 7 days is the outside time period.
Antonin Scalia: I know, that is the assumption, but that's... that's the person I'm worried about, the person who is arrested without any probable cause.
Timothy T. Coates: Well, the... when you get the hearing, I mean, the hearing can be on the evidence that was before the officers. There may sometimes be additional evidence; typically there is not. But reading Gerstein, Gerstein is talking about continued detention, not necessarily an ex post facto determination of which... whether the initial arrest was per se legal or illegal. It may have ramifications in a case, I mean, California certainly would exclude evidence if produced by the illegal arrest itself.
William H. Rehnquist: Did any of the courts make findings as to what the average length of time was between... under your county's, Riverside County's, practice, between the time of arrest and the time of the arraignment?
Timothy T. Coates: The district court in granting the preliminary injunction said as much as 5 days. I believe it was using a holiday scenario, albeit maybe not the Thanksgiving holiday scenario. But it said it might be 5 days. That is including the weekend when the courts are not in session.
William H. Rehnquist: So you're not talking about 5 business days, you're talking about 3 business days plus 2 weekend days?
Timothy T. Coates: That's essentially what it is, yes, because if the 2-day period expires when courts are not in session, you don't have the hearing until the following court day. That is what 825 provides.
Antonin Scalia: Or 4 weekend days on the long holiday, such as Thanksgiving.
Timothy T. Coates: Yes. Because California courts are not open--
Antonin Scalia: So it would be three plus four.
Timothy T. Coates: --during that time period. The arraignment hearing itself is a more protective hearing and provides significant benefits, similar to those that the Court approved in Schall v. Martin in upholding the juvenile detention statute against a due process attack, and it even mentioned Gerstein and the probable cause time frame. Because at arraignment you get a much better hearing than this ex parte procedure envisioned by the district court and the Ninth Circuit. If you have the counsel present, counsel can review the evidence that is before the magistrate for the probable cause determination, and can speak to the issues in there. And that is simply not available to the plaintiffs in the ex parte proceedings. And we submit that the ability of counsel to assist you in and of itself is a significant procedural protection.
Byron R. White: Do you think... who started this case? McLaughlin?
Timothy T. Coates: Mr. McLaughlin filed it originally, yes.
Byron R. White: And he was in custody at the time?
Timothy T. Coates: At the time he filed the complaint he had been released from custody.
Byron R. White: What business does... what business has a Federal court got entertaining a suit like this which really is... aren't there some Younger considerations in this case?
Timothy T. Coates: Well, no one is... no one was arguing as to custody or to interfere with their pending proceedings, but yes, the problem is it's a direct injection--
Byron R. White: This issue could have been raised in the State courts as part of the criminal proceeding.
Timothy T. Coates: --Yes. In California if you are being held without a probable cause determination, you could apply for a habeas corpus if you believe you were illegally arrested and that they are using evidence obtained from that improperly. That is an issue that is raised in the underlying criminal proceeding. It is, we submit, a fairly significant invasion of the State process to--
Byron R. White: You didn't... you didn't argue that, though--
Timothy T. Coates: --Not argued extensively--
Byron R. White: --You never raised Younger or anything close to it.
Timothy T. Coates: --No, no. We interpret them as not really arguing for a change of the conditions of confinement, or to alter the sentences, but solely a challenge as to the procedures itself. Although we note that they do have a remedy under State law for habeas corpus and the right, if they are being held without probable cause, and I think that is somewhat different even than in Gerstein, where there was no habeas corpus available in the State court system to review the lack of probable cause. California has taken extreme steps to make sure that individuals do in fact get a Gerstein hearing. But again, it's the type of hearing that this Court envisioned States might in fact use at the time it decided Gerstein. That is to say, a hearing where something much more than just probable cause determination is going to take place. And as a result, because additional things are done at this hearing, per se it is going to take additional time. And essentially to have the clock tick solely based upon your ability to complete arrest reports, without taking into consideration that someone may get a better hearing with the right to counsel and the like, or that additional things may be accomplished, it really essentially precludes States from providing these more extensive protective proceedings. Because there is just inherent delay within the system. You have to have a court open. If your courts are not open on weekends, because it must be done in an open court. You have to be able to muster not simply a public defender or a defense attorney to represent the person in custody, but a district attorney. Also in California, arraignment has the benefit that you might get, with a misdemeanor, a disposition as to the entire case. You may get a dismissal of charges. And we note that the Second Circuit in Williams v. Ward found this a significant factor in upholding a probable cause scheme which took place at the time of arraignment within 72 hours of arrest. And we submit that that is also a concrete benefit to a defendant. I think--
Antonin Scalia: If it is, why not just give the defendants the option? I mean, you know, just tell them that. You can have your hearing right away and it'll, you'll be out in... right away if there is no probable cause, or we will give you even greater protections, just wait 7 days. If it's really in their interest, I presume they'll take it.
Timothy T. Coates: --Well, the difficulty... first of all, at the time you're making that offer to them, they generally are not represented by counsel, and they may not... it may not be in their interest to have the immediate hearing. Because again, and I think this is borne out... we have an amicus brief filed that notes most people waive this hearing when they are advised of it, even at the time of arraignment, particularly felons, and then they are represented by counsel. And you can understand why, because they would want the most extensive fact-finding proceeding, or the most extensive proceeding possible to vindicate, to vindicate their--
Antonin Scalia: So then it's not... it's not much of a burden on the State's system, if most of the people waive it, to give it to those few individuals who feel that there indeed was no probable cause for their arrest, and they think they can get out right away instead of waiting 7 days.
Timothy T. Coates: --Well, they waive it at the time of arraignment, knowing that there is another procedure down the line, if they are a felon. If they are a misdemeanant, it's up to their counsel. I mean, they get the hearing if they ask for it.
Antonin Scalia: I see.
Timothy T. Coates: If their counsel looks at it and thinks, gee, there is no probable cause, he is entitled at that time to raise it significantly. If you just make it available and then give them the option, then you are essentially are creating a separate tier of pretrial proceedings that really don't serve that significant of a benefit. They don't benefit the vast number of arrestees, and in fact they really operate to the detriment of the majority of arrestees, because you'll end up getting a slowing of the entire process. Obviously, fiscal concerns are not the be all and end all when it comes to constitutional rights. We're not saying they are, but there is a reality that criminal justice systems are operating within very strict budgetary parameters at times. And pulling a judge to sit in an ex parte proceeding to hear a handful or more of people who want these hearings is just not efficient, when you look that it will end up delaying arraignment, could delay preliminary hearings, and with resources, could even delay trials. It just doesn't benefit the arrestee class as a whole to have a less protective hearing. And again, I note that there is no finding by the district court, and certainly plaintiffs have not argued that the County of Riverside unnecessarily delays arraignment, that we're dragging our feet within the California period. There's simply an assumption that arraignment automatically is going to be too late, because it's going to take place sometime after these administrative steps incident to arrest take place. The State has and a very significant interest in having some sort of uniform time period within certain parameters that can be applied on a case-by-case basis, and indeed it is. California uses 2 days as an outside time period. But the California Supreme Court held in People v. Powell that... just that you get them to arraignment within 2 days isn't necessarily reasonable if they can show that there has been some pernicious delay through the system. And plaintiffs have at no point attempted to show that, and the district court doesn't indicate it. It goes solely by the standard that once the time you complete those arrest reports ends, you must have that ex parte... essentially an ex parte proceeding. And we submit, again, that the States have a considerable interest in uniformity. We literally have--
John Paul Stevens: They don't contend it must be an ex parte proceeding, do they?
Timothy T. Coates: --Well, the Ninth Circuit found it... yeah, that it could be an ex parte proceeding.
John Paul Stevens: But I mean the defendants or the plaintiffs in this action aren't asking for an ex parte proceeding, are they?
Timothy T. Coates: No, that is true, but that would add still another layer of complexity to transport them to the hearing officer, and at that time they don't have counsel. They would in a sense be in pro per at that point. But we refer to it as an ex parte hearing because that's essentially what... the Ninth Circuit reversed on that ground. The County of Riverside did not debate personal appearance or raise that issue, but the County of San Bernardino, in a consolidated case with us, did. And that is why the Ninth Circuit reached that.
William H. Rehnquist: Did... do you think Gerstein contemplated any representation by the defendant at this probable cause hearing?
Timothy T. Coates: No. The Court was careful to say that it wasn't absolutely required. In fact, my recollection is that the circuit court in Gerstein had basically imposed a fairly substantial procedural protections at this hearing, and the Court said well, that goes too far, you don't need those. But I think certainly the Court did not rule out the possibility that a State could provide those protections.
William H. Rehnquist: What do you think is the minimum required by Gerstein? Simply an appearance of a police officer before a committing magistrate to show cause for detention?
Timothy T. Coates: Or the evidence submitted by the police, the police officer. That is probably the minimum, because it parrots, basically, the warrant procedure, if you could get an advance warrant.
William H. Rehnquist: So that... so there would just be the submission of a warrant, or--
Timothy T. Coates: Evidence that would support a warrant for arrest.
William H. Rehnquist: --To a committing magistrate.
Timothy T. Coates: To a committing magistrate. That is essentially the Ninth Circuit's rationale for not requiring a personal appearance. But again, that may be the minimum you can get at that hearing. I think the Court made it clear it was not precluding the States from providing additional protections that may afford the arrestee additional benefits, and also recognize that the States themselves had an interest in not having an entire separate tier of proceedings. And again, that is essentially what we have mandated in California now. There is no uniformity. In fact, attorneys are basically going on a county-by-county, city-by-city basis to have a determination made within each jurisdiction as to what the reasonable probable cause time period is in that jurisdiction. For example, in our case you can see there are a trio of lawsuits involving Orange County, Riverside County, and San Bernardino County, all before the same district court judge. All of those have a 36-hour requirement. On the other hand, the Ninth Circuit, in the case of Bernard v. City of Palo Alto, said it was 24 hours. Indeed even,... indeed even in the context of our own case the district court has left open the question as to what the time frame might be for the outlying jails in Riverside County. And the result is that we end up having a real patchwork in California of the time frame in which these hearings must be conducted, and they are determined solely by the intervention of the Federal courts. We submit that that is an improper injection into the State's own administration of its criminal justice system. If... I would like at this time to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Coates. Mr. Stormer.
Dan Stormer: Mr. Chief Justice, and may it please the Court: I would submit in this action that the facts of this case are the guiding touchstone, that is, one merely needs to look at Gerstein v. Pugh and apply the facts of this case. And I think that in order to understand the case, one needs to go very quickly through the facts concerning the arraignment process and the arrest process in Riverside County, because I think that there have been some significant misstatements of facts as it relates to the record in this case and what is in fact provided. When a person is arrested, without a warrant and with a warrant, in Riverside County and they fall within the jurisdiction--
William H. Rehnquist: Mr. Stormer, what are you relying on now? Facts or evidence in the record, or--
Dan Stormer: --Evidence--
William H. Rehnquist: --statutes, or... evidence in the record?
Dan Stormer: --Evidence in the record, Your Honor.
William H. Rehnquist: Of a typical case?
Dan Stormer: Yes. Well, it is a combination of what is stated within the record, within particularly those components between the record at pages 120 through 126, pages 276 and 277, and the amicus brief.
William H. Rehnquist: That's not... you know, that's not helpful right now. I'm not going to thumb through that.
Dan Stormer: Okay, I'm sorry, but... I'm relying upon the record and upon the statements made by Grover Trask, District Attorney, in the amicus brief as well.
Anthony M. Kennedy: Just as a preface to that, can you tell us as to these class plaintiffs, had they had a hearing as of the time they were added to the complaint?
Dan Stormer: It was pled that they had not. I would have to go outside the record to answer that. And if I may, the answer is that they had not.
Anthony M. Kennedy: They had not had any hearing?
Dan Stormer: They had not had any hearing at all. And in fact, for Johnny A... Johnny E. James, he never got a hearing at all, and was released as a part of that group of prisoners which I will describe, who the district attorney makes a determination after 3 to 5 days and lets that person go, but he is maintained without arraignment, without hearing, and without any determination or appearance before court for anywhere from 2 to 5 days, and then is released.
Anthony M. Kennedy: Now, are these matters in the record?
Dan Stormer: These matters are in the record. They are contained in the study conducted by the county and submitted in the lower court. Sixteen of the 46 felony arrestees were released under what is called PC-825, and that is explained in the declarations of, I believe, Lieutenant Kiyasu. What that means is they are held... they are arrested, they are brought to they jail, they are maintained within the jail. During that time period, a determination is made by the prosecutor as to whether to file felony charges. They... and it is stipulated by the defendants at page 82 of the record that they will be released at or about 5:00 on the last possible day of arraignment without ever having been arraigned, or without ever appearing before court, and with no probable cause determination. For that group of people, that is exactly what this Court condemned in Gerstein v. Pugh. That is the determination as to probable cause is being made by the prosecutor, rather than by an independent magistrate. And not only is it being made by a prosecutor, it's being made by a prosecutor at approximately 5 to 7 days, and it's being made solely for the purpose of upholding prosecutorial discretion. That's by their own statement.
Antonin Scalia: Mr. Stormer, you can't prevent that, no matter... no matter what we say in this case. Even if we say that you need a probable cause hearing within 36 hours, the prosecutor can still say after 35 hours, well, you know, the door is open, go home.
Dan Stormer: Nor do I seek--
Antonin Scalia: He can't avoid that.
Dan Stormer: --I don't seek to hold that, either. In fact, I think that that has a salutary effect on the judicial process. What we're saying is that the record indicates that 24 hours is the appropriate time period within which this entire booking process and administrative steps incident to arrest can be completed.
Sandra Day O'Connor: I thought the record showed 36 hours was appropriate in this particular county?
Dan Stormer: I'm sorry, Your Honor, but the, the defendants have conceded that the process can be completed in 24 hours. The judge ruled that 36 hours was appropriate, essentially he gave a 12-hour cushion.
Sandra Day O'Connor: Do you take issue with that?
Dan Stormer: We do not.
Sandra Day O'Connor: No.
Dan Stormer: This booking process that I have discussed takes, as I said, approximately 12... excuse me, approximately 24 hours to complete in full. Thereafter, there are basically three groups of people that come within the... this process that they have described. The first group is the one I've just described. That's those 16 of 46 felony arrestees who are released without ever having any probable cause hearing and are released by their own stipulation on... at 5:00 on the last possible day for arraignment.
Byron R. White: And why does that happen?
Dan Stormer: That happens--
Byron R. White: Because the prosecutor determines that they haven't got enough evidence?
Dan Stormer: --The prosecutor determines that... basically they decline to prosecute, whether it's because of not enough evidence or whatever other reasons they might decline to prosecute on.
Anthony M. Kennedy: And some of these had been held, at the time the complaint was filed, were still in custody?
Dan Stormer: Yes. In fact Mr. James fell within that category. The second group are felony arrestees, those persons charged with felonies. And I take significant issue with the description give by... given by my opposing counsel. The record indicates the following. A felony arrestee is arraigned at 1:30 on the last possible day for arraignment. That's anywhere from 2 to 7 days after arrest. At 1:30 the felony arrestee is taken to the--
Sandra Day O'Connor: Well, what's the policy? It's arraignment within 2 days, not counting holidays and weekends?
Dan Stormer: --That's correct, Your Honor. In 2 days--
Sandra Day O'Connor: So when you say 7 days, could that only occur on Thanksgiving?
Dan Stormer: --7 days will only occur during Thanksgiving week or in certain times at Christmas, and the rest of the time the maximum would be 5 and sometimes 6 days.
William H. Rehnquist: Counting weekends.
Dan Stormer: Counting weekends, Your Honor, yes. For felony arrestees, they are taken in, at 1:30 they are brought into the jail chapel and they see a videotape. On the videotape they are told of their rights, some of their rights. More comes later in the arraignment. At the very end of the videotape they are told that you have a right to a probable cause hearing if you request one at this time, and it will be held at a later date. In... that's absolutely clear in the record, and Mr. Trask, the District Attorney, in his deposition, which is also in the record, testified that this would be held up to 10 days after the arraignment process. That's because the arraignment process is not set up to handle it. At the arraignment process there is, for felonies, an attorney present, but it only concerns the arraignment, because they are told specifically it will be held at a later date, and Mr. Trask concurs in that. It will be held up to 10 days later. So for felony arrestees it will be held anywhere from 2 to 17 days later. For misdemeanants, those persons charged with misdemeanors, they are held until 10:30 on the last possible day for arraignment. They are brought into the chapel. There is no lawyer present. In fact the record is quite clear in the description given by the defendants, in their own submission before the trial court they say that felony arrestees get attorneys, but there is no reference to misdemeanor arrestees, and I would submit that there are no attorneys provided for misdemeanor arrestees. And they are told that they have a right to a probable cause hearing if they request one. This is a one-way videotape, no live person there at this point, no attorney present, and no description--
William H. Rehnquist: Mr. Stormer, the court of appeals didn't consider this aspect of the case at all, as I understand it. Reading their opinion, I don't find anything corresponding to what you're saying.
Dan Stormer: --They did not go into these specific facts.
William H. Rehnquist: Yes. And we're basically reviewing the decision of the court of appeals that something has to be done within a particular time. You're pointing out that in fact it may have taken a lot longer in some of these hearings than the person representing the county says, but I don't know how all of these details really bear on the judgment of the court of appeals.
Dan Stormer: The reason is, Mr. Chief Justice, is that each of these segments has a different violation of Gerstein v. Pugh contained within it, a very specific action condemned by this Court.
William H. Rehnquist: Yes, but the court of appeals says the State of California, as I understand it, must provide a probable cause hearing within 36 hours. The State is saying Gerstein against Pugh doesn't require that. And you, instead of arguing that Gerstein v. Pugh does require that, are saying look, the county not only didn't do it in 36 hours, but they took 11 days. But that really isn't what we're talking about, how long the county did take. The question is how long does the Constitution permit them to take.
Dan Stormer: The Constitution permits them... and I apologize to the Court for my incomplete description... but the Constitution permits the County of Riverside to conduct a probable cause review within that time necessary to complete the steps incident to arrest. And the record below is that that process is approximately 24 hours.
William H. Rehnquist: Now you're drawing on language from Gerstein to say they must conduct it as soon as they have completed the booking process?
Dan Stormer: The language in Gerstein says those steps incident... those administrative steps incident to the arrest. And that's the language we're drawing upon. That's been interpreted in many cases to mean essentially the booking process--
William H. Rehnquist: Well, what are cases from this Court?
Dan Stormer: --There are no cases from this Court. The cases... well, however, the booking process is not the only process that is considered in this 24-hour period that is before this Court at this time. Also the time period that it takes the officer to complete his arrest report and to submit it to a supervisor who reviews it to determine if there is probable cause contained on the face of that report. That is essentially what we are proposing, which is the Orange County procedure, that that document would go to a neutral magistrate, perhaps as is done in Orange County, who comes to the jail. In Orange County they dealt with 14,557 in a year period, one magistrate.
William H. Rehnquist: You're saying that would be a possible method of complying with what you view as the requirement of the Constitution?
Dan Stormer: That is correct. The... the problems that exist for the county in this action also are demonstrated by the fact that there is nothing in the court record below that indicates what benefit is conferred upon any of these individuals as a result of the procedure used. They rely upon Schall v. Martin, which essentially says that if there are significant benefits conferred in some fashion by the State's administrative process, you may elongate the process because of those benefits conferred. But Schall v. Martin is not comparable. Schall v. Martin involved a situation where you had more benefits than it provided to an arrestee with a warrant. Schall v. Martin had, prior to detention, notice, hearing, opportunity to heard... be heard, opportunity to have a parent or counsel. That is more than you get in a regular warrant situation, and that is what this Court in Schall found to be significant enough to extend the time period. And then in Schall, after that initial hearing, another hearing was held within 3 or 4 days that allowed... that was a full-blown adversarial process. This record is totally bereft of a single stitch of evidence as to what the probable cause review would consist of. They have never, ever, in any component of this case, submitted a single iota of evidence which would show what they complain, what they say would be the benefit.
Sandra Day O'Connor: Mr. Stormer, do you think that the Constitution allows for a lengthier period of delay before conducting arraignment than the probable cause hearing?
Dan Stormer: Yes, because the purpose--
Sandra Day O'Connor: And why is that?
Dan Stormer: --The... the probable cause hearing is a Fourth Amendment analysis of what took place at the arrest, and potentially even what could be gathered within the period incident to arrest. The arraignment and the preliminary hearing are Fifth Amendment procedures that deal with whether there is sufficient evidence to bind over for trial or to maintain the prosecution.
Sandra Day O'Connor: Well, what has this Court said is constitutionally required in terms of time for conduct of arraignment?
Dan Stormer: I, to be frank, don't know whether there is a specific ruling of this Court that has set a time period for arraignment.
Sandra Day O'Connor: Just that it has to be conducted promptly?
Dan Stormer: That's correct.
Sandra Day O'Connor: And it's not sufficient, in your view, to say that the probable cause hearing must be conducted promptly, and perhaps at the same time as arraignment?
Dan Stormer: They could be. Even under State procedure they could be, because People v. Powell and People v. Chambers say that if the delay is unnecessary, then it's unconstitutional. But the arraignment process is only of sufficient time... combining the two, the Fourth Amendment probable cause and the Fifth Amendment arraignment process, is only of a benefit to the prisoner if there is some analysis that goes into that process to look to see whether there is probable cause for the original arrest. That isn't what is done at the arraignment, nor is that what is done at the preliminary hearing.
Sandra Day O'Connor: Well, it could be, though. They could be combined, could they not?
Dan Stormer: They could be, and there is no reason why they couldn't.
Sandra Day O'Connor: And why wouldn't the time limit for each be adequate?
Dan Stormer: If the time period for arraignment was correspondent to the time period for probable cause, then they could. But the problem in this case, for arraignment you need a sitting judge, you need somebody to hear the defendant, you need the presence of the defendant, you need all of those components of the arraignment process. For a probable cause review, you don't need any of those things. All you need is the document that shows that on its face there is probable cause.
Sandra Day O'Connor: And the defendant needn't be present?
Dan Stormer: And the defendant needn't be present.
Sandra Day O'Connor: But a judge needs to conduct it--
Dan Stormer: Or a hearing--
Sandra Day O'Connor: --or a magistrate?
Dan Stormer: --I'm sorry. Or a hearing officer. Because, as in Orange County, there is one single appointed hearing officer who is an attorney who reviews these documents, and found in 1989 that 9.1 percent of the persons who were arrested could be released because, on the face of the documents, there was not probable cause. And when you are dealing with a county like Riverside, that's a significant number of people.
Harry A. Blackmun: Mr. Stormer, we're dealing with the Riverside City Jail, aren't we?
Dan Stormer: Yes.
Harry A. Blackmun: And the injunction applied only to the city jail?
Dan Stormer: That is correct.
Harry A. Blackmun: Is this a widespread practice in California throughout the entire State?
Dan Stormer: The practice of conducting the arraignments at the same time as a probable cause hearing? It is... it is not. The practice varies from county to county. In Santa Clara County, for instance, they do it by fax and telephone review. In Orange County they conduct it within the jail. They don't exclude weekends. It is a... it is the beauty of Gerstein, which is each county is entitled to set up its procedure according to those administrative steps which are necessary.
Harry A. Blackmun: So we have a case of very narrow application here.
Dan Stormer: Extremely narrow application, because it simply applies to the facts of this case as they exist within Riverside County, within the Riverside County main jail.
Harry A. Blackmun: Should we have taken the case?
Dan Stormer: I don't believe that the case should have been taken, to be frank. I think that, both on standing and on the Gerstein issue, that the facts of this case plainly indicate that this is not the type of case that has the significance or the importance that should be reviewed by this Court.
Harry A. Blackmun: Do you feel there was any conflict with a Second Circuit case?
Dan Stormer: The only conflict that exists, if we're talking about Williams v. Ward, would be the analysis that goes into whether, in that 2 to 1 decision, it should have reached that result. The legal analysis was identical. Are there sufficient procedures in... and sufficient protections and sufficient exigent circumstances in New York City to extend that time period to 72 hours. It's a simple factual analysis. In New York they said it's a highly populated crime wave-type city, you need the extra time period.
Harry A. Blackmun: The conflict is pretty shallow.
Dan Stormer: The conflict is extremely shallow. And certainly it does not exist for Robinson, which is the other case which was cited to by the county.
Byron R. White: Is Gerstein satisfied if there has been an arrest warrant?
Dan Stormer: Yes. If there is an arrest warrant, that's the... Gerstein essentially creates a post-arrest warrant, and if there is a pre-arrest warrant, then Gerstein doesn't apply. Just very quickly on the issue of standing, the... in the complaint at paragraph 11 the defend... it was pled quite clearly that there would be, quote, "unless and until ordered by the court, excessive detention of warrantless arrestees before probable cause hearings. " On the face of the complaint it is shown and complained that there should be a halt to those... that extensive period of time that the plaintiffs at that time were suffering. And for those reasons I believe that the... this Court should either rule that this case was... improvidently certified, or affirm the ruling of the Ninth Circuit. Thank you.
William H. Rehnquist: Thank you, Mr. Stormer. Mr. Coates, do you have rebuttal? You have 5 minutes remaining.
Timothy T. Coates: Yes, I do, Mr. Chief Justice. If I may respond to Justice Blackmun's inquiry as to the practice throughout the State of California. I note that when Mr. Stormer responded he talked about Santa Clara County which was subject to the injunction in Bernard v. City of Palo Alto, 24 hours, and also to Orange County, which was another county that was subjected to a district court hearing like this one. The general practice in California, and it is clearly evident in California Penal Code Section 991 and also in the California Supreme Court's decision in In re Walters, is that the Gerstein hearing is conducted at the time of arraignment. People v. Powell, a California Supreme Court decision that predates In re Walters, says this is an issue that is raised at arraignment. So I take great exception with Mr. Stormer's representation that this is unique to Riverside County. It is not. It is completely codified in California law. And I think it again bears noting that when you look at the district court's findings of fact, brief though they were in the order granting preliminary injunction, the time period it talks about is the arraignment time period. When the Ninth Circuit issued its opinion in this case it talks about the 2 court day time period of arraignment. I think there is an assumption here, and I think it's clear from the record, the county gives these hearings at arraignment if they are requested. You are advised of your right. If there is a problem that the advisement isn't as clear for felons as it is for misdemeanants, or that the district court didn't believe we were doing it at arraignment but were waiting until preliminary hearing for felons, then the remedy would have been, and if the court believed you could do it at arraignment, would have been to require it... make us clearly do it for felons at the time of arraignment. But the district court was willing to assume that we did it for felons at arraignment, but just said no, you can't do that, that is per se too long under Gerstein because you don't need that amount of time in which to basically do an ex parte hearing of probable cause issue alone. And Mr. Stormer is correct that we acknowledged in the district court that a strict probable cause hearing alone might be done in the average case in 24 hours. It doesn't take that long to just prepare that paperwork. But what has never been denied in this case, that if we are in fact to be permitted to include it in our preexisting pretrial proceeding, such as arraignment, that proceeding and the additional protections themselves inherently take more time. Those we cannot do within 24 hours. Those we largely cannot do within 36 hours, although I would suggest that a review of the booking sheets that we submitted in opposition to the motion for preliminary injunction, and I... we have a statistical breakdown in our brief, show that we are fairly quick in arraigning people. There are people that are arraigned within 1 court day. The majority, vast majority are easily within 2 court days of arrest. We are not slow in arraigning people. The essential issue before this Court is whether Gerstein meant what it said in many respects in terms of allowing the States to incorporate these hearings into existing pretrial proceedings. Now, in Williams v. Ward the Second Circuit very carefully examined this Court's decision in Gerstein, and also in Schall, and said if the proceeding, such as arraignment, offers additional benefits and serves other State interests as well... some of the benefits are for the arrestees, some are for the States... then it's okay. It is a reasonable delay, it is necessary to incorporate it into existing pretrial proceeding. But I suggest there is a clear conflict between that and the position taken by the Ninth Circuit, because the Ninth Circuit allows no delay beyond the time necessary to conduct those administrative steps incident to arrest. Now the Ninth Circuit decision in this case does not mention Williams v. Ward. It doesn't even talk about the California Supreme Court's decision in In re Walters. It doesn't mention Schall v. Martin. It simply declares that once, administrative steps incident to arrest have been completed, you must have this hearing. And I suggest again, if you look at Bernard v. City of Palo Alto, where the Ninth Circuit upheld a 24-hour probable cause determination, you see the same counting done. That is to say, the lower... in the lower court the public entity argued that under California procedures they were doing it at arraignment. The Ninth Circuit said, look, only at the time necessary to complete the administrative steps. If States are to be permitted to incorporate these hearings--
John Paul Stevens: May I just ask a question?
Timothy T. Coates: --Certainly.
John Paul Stevens: Did you say that most arraignments are conducted within 36 hours?
Timothy T. Coates: No. Well, no, they are not conducted within 36 hours. No, they are not.
William H. Rehnquist: You said they were conducted within 2 court days.
Timothy T. Coates: Within the 2 court day period, but not within 36 consecutive hours.
William H. Rehnquist: Within the 2 court day--
Timothy T. Coates: It happens in some cases. It happens... generally if someone is arrested on a warrant and then arraigned, they may be arraigned faster because there is less paperwork to do with them.
John Paul Stevens: --Just looking at the universe of warrantless arrests--
Timothy T. Coates: Yes.
John Paul Stevens: --most of those are not... the arraignment is not normally conducted within 36 hours?
Timothy T. Coates: That is correct.
John Paul Stevens: So they are asking that in most cases the time of the probable cause hearing be delayed beyond 36 hours?
Timothy T. Coates: In most of them they are. The time of arraignment would be 2 court days, essentially.
William H. Rehnquist: Thank you, Mr.... excuse me. Thank you, Mr. Coates. The case is submitted.


Samuel I. Rosenman: -- by the Bartell station. And we were discussing the irrelevance of all of the secrecy involved in so far as any antitrust laws are concerned. I want to repeat that the main complaint here, what the plaintiff is expressing a grievance about is that, we did go to Bartell's to buy his station rather than to come to him to pay six times as much at Poller station and that what he is complaining of is an antitrust violation, is the fact that we cancelled, that we cancelled our affiliation agreement with him in accordance with the very terms of the contract which he signed, giving us the right to cancel that affiliation on six months notice. Now, I wish to take up the irrelevance, so far as antitrust laws are concerned of the purchase of the equipment of Mr. Poller about which Mr. Wolf spent considerable time yesterday. After we had brought Bartell's and Mr. Poller realized that he would have to continue as unaffiliated station, he came to New York. This is conceded and a discussion arose about the purchase of his equipment. I wish to emphasize the fact that it was not the purchase of his station. A station consists of physical assets plus a license, a studio, some broadcasting facilities, usually in the form of a teller. The important thing was the license and we had brought from Bartell's, his license and equipment, his station and everything that went with it. And although he's attempted to inject some questions of fact with the respect of his purchase of the equipment, we are going on the assumption as we have all through here Your Honors that the plaintiff's version of the facts is the correct one. And he claims that when he came to New York, we knew that he would come to New York and that we knew that he would offer us his equipment. Now, the fact is that so far as antitrust laws are concerned and by that I mean, Section 1 or Section 2 of the Sherman Act. The circumstances surrounding the purchase of this equipment are wholly immaterial. In our view, the equipment purchased had nothing to do with the injury to Mr. Poller and it had nothing to do with the violation of the antitrust laws and that the purchased equipment is irrelevant to both. You will recall that Mr. Poller raises his claim on the fact that his station was worth $2 million and you will recall that he claims to have had a perspective purchaser in the form of a Mr. Storer who was willing to pay him the $2 million. But, it is conceded that that offer or that proposal or that suggestion of $2 million included of course, the continued affiliation to CBS because Mr. Storer or any purchaser buying that station would want to have some kind of assurance that this affiliation would continue so that when we were being asked, or it was suggested or we had to contemplate the purchase of Mr. Poller's station for $2 million rather than purchasing Bartell's, we would be in effect buying back our own affiliation. Although, under our contractual relationship with Mr. Poller, we had the absolute right to terminate within six months, so that in addition to paying six times as much as we would have to Bartell's, we would in effect be buying back our own affiliation from him when in fact, we have the right to cancel it on a six months notice. The reason I say that the equipment purchase was irrelevant to his claim of injury was that if we have not voided, if we have merely continued with Bartell's, Mr. Poller would have been a half a million dollars poorer because we paid him that for his equipment. And if we hadn't paid it to him, he would have suffered substantially greater injury. Now, there wasn't any inadequacy of equipment in the market. There's no claim here that there was any restraint in the business of television equipment. There wasn't anything unique about this equipment. As a matter of fact, on page 20 of the record, appears a statement in the complaint by Mr. Poller to the effect that we were in a position, CBS was in a position adequately to equip WOKY, that's Bartell's, and to transfer its programs to that station, so that it isn't even claimed that there's any restraint here with the respect to television station equipment. So that, it can have no effect at all upon the question as to whether the antitrust laws were violated.
Speaker: (Inaudible)
Samuel I. Rosenman: Page 20 of the record, the first full paragraph and the second full paragraph under 13, Roman numeral 13. And there can be no questions of that. There was plenty of equipment at the market. Hundreds of TV stations were being equipped. There's no restraint at all in the question of equipment and this is wholly immaterial, not only to his injury but to the question as to whether the antitrust laws were violated. Now, after Mr. Storer had a cheque for a half-a-million dollars, after Mr. Poller had our cheque for a half-a-million dollars in his pocket. He began to ruminate as to whether he had some cause of action against us. And it took him18 months to find a cause of action or what he thinks as a cause of action. And after 18 months, he started this antitrust action against us, claiming damages, three-fold and damages were $2 million which he claimed was the value of the station, minus the $50,000 which he had received which was the value that he put upon the Bartell's equipment, and he multiplies that by three.
Earl Warren: Well, then he deducted the $500,000 also?
Samuel I. Rosenman: Yes sir, like -- sorry, in fact $500,000.
Earl Warren: Yes.
Samuel I. Rosenman: Plus $50,000 as the value the second-hand equipment and he multiplied the difference of a million 450 by three. And this is the action which he decided to bring against us, 18 months after the close of this transaction. And although his grievance is solely that we refused to deal with him and canceled his affiliation agreement, he has hung onto this claim, a mass of antitrust theories which it is our contention of which it is our contention, none can be sustained even assuming the facts that Mr. Poller recites as the basis of antitrust. And we have to consider of course, was Section 2 violated, what Section 1 violated. And turning to Section 2 and in all of this consideration taking the facts alleged by Mr. Poller to be true, the first thing we have to do to see whether Section 2 was violated, whether as Judge Whittaker asked, what is the relevant market here? What market was monopolized? And although in the course of this litigation on its way up to this bench, there have been changes in what the claimed relevant market is. We have it fixed in this Court at least that the claim is that the relevant market which we monopolized was the UHF market in Milwaukee because he says there were formally two UHF stations. And now, after we had bought Bartell's and Poller had quit broadcasting, there was only one. Now, it seems quite clear that the very definition urged by Poller as to what the relevant market here is, defeats his very claim because it is a matter of which the court can take judicial notice, and it has been taking judicial notice of in many cases in the Circuit Court. At this UHF station of CBS's in Milwaukee, was competing first with two VHF stations and ultimately with three. And if there is any validity to the test applied in the Cellophane and other cases to the effect that you must in a market consider competing goods readily acceptable substitutes. It is quite clear that there cannot be the relevant market of UHF because in Milwaukee, and wherever there was a UHF station, UHF was competing and competing on very disadvantageous terms with VHF. So that right in Milwaukee, persons who were listening to television had the choice of flipping their dial to look at two VHFs and later three VHFs or flipping the dial to the UHF station which CBS owned in Milwaukee, so that as a result, there was this intense competition between the one UHF station, which we were operating. And the two and then three VHF stations which were operating two of them with a network affiliation and one independently, so that as a matter of law, the relevant market could not have been UHF in Milwaukee. And if you try to find a relevant market in which it can reasonably be urged that CBS was a monopolist, such market cannot be found and in our brief, we discussed one after the other because wherever you go in the United States to look at television, you find intense competition among the three networks and in addition to the three networks, you'll find a number of independent television stations. So that although, we may have in the United States a triopoly of the three networks in competition with each other, and in competition with independent television stations. We do not have the situation which is contemplated in Section 2 of a monopoly in any market. Take for example, the relevant market of all television, of all television in Milwaukee, obviously there was competition there. Take the possible relevant market of television nationally, there was obviously fierce competition and there has been an always “will be” between the three networks. The Federal Communications Commission is very sensitive about this. And under the present set up of its regulations, I venture the opinion that it is impossible to get a monopoly the way the FCC runs a statute, a monopoly of any particular station, in any particular market in the United States. And if we were a monopolist in Milwaukee, I repeat that we were the only monopolist in the history of the administration of the antitrust laws, which was forced out of business by its competitors. What kind of a monopolist is that? Because, we had to give up the ghost after four years of operation to our competitors and to say that in spite of that, during these four years of struggle, we were a monopolist, seems to make a mockery of Section 2. Now, turning to Section 1, the question of an unreasonable restrain, the contention there as I take it is, that there was a restraint and a restraint only in Milwaukee because of the reduction of the number of stations. We have urged and the court below has found that there was no restraint and that this what happened in Milwaukee was only an extension or perhaps a repetition of what has happened in so many areas in which the rule of United States against Colgate has been applied to the effect and in the absence of any horizontal arrangements or conspiracies with others or concerted the refusals to sell such as in the Times-Picayune case or Parke-Davis case and in the absence of those circumstances. Every man has the right to pick the customers with whom he will do business, and this has been perhaps typified most strongly in the automobile cases in which automobile manufacturers picked an exclusive agent in certain territories to sell their own cars. And it has been held time again and those cases have come to this Court and it has been held time and again that although there is a great disparity of bargaining power between General Motors for example and its exclusive dealers, that although there is this great disparity of power, that is not tantamount to a violation of the antitrust laws and that there is no unreasonable restraint involved if a dealership is terminated within the meaning of Section 1. And the Congress agrees of course with this because Your Honors will recall that when complaints were filed with the Congress, with the respect to the sometimes cruel methods which automobile manufacturers used with their dealers, and when it was firmly established as a principle of law, that no remedy could be found pursuant to the antitrust laws that the Congress passed the statute known as the “Dealer's Day in Court Act” under which, the dealers were given some protection from the superior bargaining power of the manufacturers. But, the point is that that action was taken by Congress as it said to supplement the antitrust laws because the antitrust laws did not cover that situation. Now, the Colgate rule has been applied to broadcast in a case which came up from the Circuit Court and in which certiorari was denied by this Court. It was held in Federal Broadcasting against ABC, that the rule that a man can deal with the customer that he picks can be applied to the selection of an affiliate. And this is quite natural because in many ways, the affiliation contract is very similar to the dealer cases because what CBS does when it comes for example to WTOP here in Washington is to say, “We would like to present our programs through you, and we will pay you a certain amount per hour if you will present our programs in your locality and it does that with some 200 stations through the United States.” Now, what happened here was that although, we had that affiliation with Mr. Poller that we had the right under the Colgate rule without violating Section 1 to say to Mr. Poller, “We have decided to terminate your agreement which was our right on the contract and to make a new affiliation agreement with someone else or to buy a station.” And so far as the antitrust laws are concerned, it made no difference to Poller. There was no greater impact upon Poller whether we merely switched his affiliation or whether we terminated his affiliation and bought a station. So that the restraint which is alleged here namely that in some way CBS was responsible for reducing the number of stations in Milwaukee cannot be sustained and is refuted by Mr. Poller's allegations himself. I read to Your Honors yesterday from his complaint in which he said that an unaffiliated UHF station could not survive in a mixed market. This was the basis of his complaint. And we accept that for purposes -- certainly for purposes of summary judgment. We accept that and we say that therefore the fact that the number of markets, the number of outlets, the number of UHF stations in Milwaukee rather was reduced from two to one, was a matter of inevitability according to his own allegations.
Charles E. Whittaker: May I ask you sir? Then in that view does not this whole case come down to the question whether in the circumstances alleged, you had the right unilaterally to terminate the affiliation agreement?
Samuel I. Rosenman: We think it does sir. We think that that is the fundamental question whether we had the right under our contract to terminate this affiliation, whether we had the right to pick our own customers as we have in every market.
Charles E. Whittaker: For the allegation is that without the affiliation, the station could not succeed.
Samuel I. Rosenman: That's right. This is the allegation of the complaint sir and is the basis of Mr. Poller's action and we accept that for purposes of summary judgment. But, if it be not true, if it be not true, still CBS cannot be blamed for the reduction from two to one because it was up to Mr. Poller to continue in business if he wanted to, and Mr. Poller made the choice not to continue in business. He had the equipment. He had all of Bartell's equipment which we gave him. He had our check for half-a-million dollars. He could've continued operating the same as Bartell's did. Bartell's operated for some time in competition with VHF so that CBS cannot be blamed for that reduction. Either it was inevitable as Poller claims because we had terminated his affiliation or if it was not inevitable then it was Mr. Poller's decision to go out of business although he had all of the equipment which enabled him -- which would have enabled him to continue in business.
William J. Brennan, Jr.: Will tell this the original contract of purchase had a provision for location and something else, transmitter site, was it? Yeah.
Samuel I. Rosenman: Quite obviously, Mr. Poller didn't want to assume the obligations of that lease. Now, whether this meant that he had in his mind not to continue in business in spite of his representation that he would, we do not know. But irrespective of that, we were giving him the opportunity to continue in business. He apparently referred to assume that he couldn't compete as the alleged in this complaint.
William J. Brennan, Jr.: Does the record show the circumstances under which that deletion was made?
Samuel I. Rosenman: No sir.
William J. Brennan, Jr.: We know yet.
Samuel I. Rosenman: The record shows because it's in the moving affidavit here and not denied that he represented to the Commission on page 52 that he represented to the Commission that he was going to continue in business. Now, whether he wanted to continue in business in some other location and did not want this lease or whether he didn't want to assume the obligations right away of this lease, we do not know so far as this record is concerned. And I urge sir, that it's immaterial. He had the equipment. There's no allegation, there's no claim at all that studios were unavailable, that a place was unavailable for him to maintain a studio. He represented he was going to continue and we say that the fact that he didn't continue can be laid either to the inevitability of noncompetitive equality with VHF or with the fact that Poller just decided that he would keep our check and not continue in business.
William J. Brennan, Jr.: Well, it had been a trial develop that in fact the deletion was at the instance of CBS and not --
Samuel I. Rosenman: Assume that it was Mr. Justice Brennan. Let's assume that we said, let's take this out, what difference this is, although there is no evidence for that at all either in his affidavit or any place else. Let us assume that he could show that at trial. What difference would that make? He has taken the position that he never could compete with an unaffiliated UHF station. And as I say, if he's wrong he decided in any event that he wasn't going to compete and this decision was his, so that with either prong, it seems to me that he cannot legitimately and justifiably blame CBS for the fact that one UHF station went off the air. As a matter of fact --
Earl Warren: Judge Rosenman, it was either Mr. Wolf or you, I don't remember which said that it wasn't possible for the UMF to survive unless it did have an affiliation, which one was it?
Samuel I. Rosenman: Well it was neither of us. It was Mr. Wolf's client. It was the complaint which alleged that.
Earl Warren: Oh I, yes, I see.
Samuel I. Rosenman: What I read to Your Honors yesterday was from the complaint.
Earl Warren: I see.
Samuel I. Rosenman: And that is the foundation of his case and he says, “As soon as we terminated, the economic damage was done to him because the fact is and we knew it, that he could not compete with a nonaffiliated UHF station.”
Earl Warren: Is that a fact that should be determined, must be determined in the case?
Samuel I. Rosenman: Well, we're willing to take his statement. It's a fact --
Earl Warren: That he could not?
Samuel I. Rosenman: It's a fact that he alleges.
Earl Warren: Yes.
Samuel I. Rosenman: And we're willing to take that statement that he could not compete and we say that if in spite of that statement that he could not compete, we still had the right to choose our customer that there was no obligation on our part to treat only with Poller, and nobody else because if that were the law, Poller himself would be in restraint of trade. If he said we could not go out and transfer our affiliation without buying a station for example that we had to keep our affiliation with Poller, even though our contract with Poller gave us the right to terminate. If he contends that in spite of that, we could not change the affiliation, then he really is acting in the restraint of trade saying that for all time, we have to continue our relations with Poller no matter what comes.
Earl Warren: Judge Rosenman, may ask this question? It might be one thing for CBS to change its affiliation from one station to another, might it not be another thing for CBS to grant an affiliation of this kind to a station and then induce the station to put in a good equipment and to have us find -- find a plant and give his good services that can for fear that their affiliation might be revoked if they didn't give good service. And then after that is done to have CBS come in and take it away from him for the purpose not of giving it to someone else who would render better service but for the purpose of taking it itself.
Samuel I. Rosenman: We think sir, that so far as Poller is concerned the private litigant here seeking to recover treble damages, there is no difference in the injury to him whether we buy a station or merely transfer the affiliation. There maybe some question for the Attorney General to rise about station ownership. This is something which Poller has nothing to do with. Poller's concern is solely, “Where is the impact upon me?” And Poller says, and it's true that the impact upon him, the treble damage seeker. And this Court has said that you cannot get the windfall of treble damages because they're restraints some place else, if there are restraints which we don't concede, but so far as Poller was concerned, he has argued and he still argues that his damage occurred when we terminated that affiliation agreement. And whatever happened afterwards is wholly immaterial. It made no difference to Poller whether we own the station to which we transferred the affiliation so to speak or whether we had left him and affiliated with one of the VHF stations. He says and we accept it the purposes of this judgment, summary judgment that the damage occurred -- the economic damaged occurred to Poller when his station affiliation was terminated.
Felix Frankfurter: I suggest that that the question is that – the suggestion of the Chief Justice's question is that there was no reasonable expectation that the affiliation would not be terminated.
Samuel I. Rosenman: That's right.
Felix Frankfurter: A certain step for taking in reliance upon that reasonable expectation. I think that's the thrust of the question what he said (Voice Overlap)
Samuel I. Rosenman: As I understood the Chief Justice, there were two things, first the ownership and then the affiliation in spite of the expectation assuming that there was this expectation. There was also Poller's testimony that he had signed this agreement giving us the six months right to terminate. And also the fact that he felt some trepidation about that, that he wanted some assurance from us that we would continue this affiliation. And we refused to give it to him for a number of reasons. In the first place, this was a trial period of six months. And the second place, this was a UHF station, which was untried to a great extent, and we had declined the change that six months termination. The question is did we have the right to carry out our contract in spite of the fact that he, in the face of a refusal on our part to do anything about extending it, was willing to invest in a studio. Now, right here in Washington, WTOP has built up a great station in the expectation. It only has a two years affiliation. It only has a two years affiliation with CBS and it can be terminated within six months of the termination date. It has a great station here in Washington. We have the right to terminate that affiliation with that --
Felix Frankfurter: For practical matter, how does the station like WTOP take against the unexpected if you please, termination?
Samuel I. Rosenman: I would say as a practical matter, it might perhaps get the affiliation of another network or it could operate as Channel 5 does in Washington without an affiliation and perhaps do very well because it has built up a great station. Poller refused to take that chance because it was a UHF station and he didn't want to go ahead. Now, Your Honors, this may appear as a cruel thing to do. I finished this one --
Earl Warren: Yes, finish your thought.
Samuel I. Rosenman: This may appear as a cruel thing to do. Only once in Mr. Wolf's argument that he state, in my opinion, an accurate statement of the antitrust law situation here and that was that the antitrust laws were not intended to take care of cruelty in business and this is true. Now, we don't admit that we were cruel. We claim that if there was a trial, we could show that there wasn't but take his statement as we must for summary judgment that this was a cruel thing for CBS to do, to pay $335,000 instead of two million, assume that, assume the truth of it. We've tried to assume the truth of everyone of his allegation. If this were cruel even if it weren't unethical, and even as Judge Washington said if it were unfair, still Section 1 and Section 2 of the antitrust laws neither of those is the remedy.
Felix Frankfurter: Before you sit down, I'd like to ask a question that is more proper or more directed to Mr. Wolf. But he sat down before he had a chance to deal with it. Namely when I asked him about the statement by the trial court, that he assumed all of the fact in favor of the petitioner here, Mr. Wolf said as I compare to his -- my memory, and according to his answer that that's what he said but that is what he did. Now, may I ask you from your point of view, what is the justification for that statement?
Samuel I. Rosenman: We think that that statement is wholly justified that every material statement of fact alleged by the plaintiff has been conceded by us in our briefs in making this summary motion. Obviously, we couldn't make this motion for summary judgment unless we were willing and ready to do that and we do it. And when Your Honors come to read --
Felix Frankfurter: I mean you didn't -- you're saying you did it below.
Samuel I. Rosenman: We did it below, we do it here.
Felix Frankfurter: I know that but the plaintiff is to do it, it's below.
Samuel I. Rosenman: I think, but -- yes.
Felix Frankfurter: Of course you do it, it's below, if it's to be ineffective I think.
Samuel I. Rosenman: And we did that below Your Honors and we did it in a District Court.
Felix Frankfurter: I mean in the District Court.
Samuel I. Rosenman: That's right and we did it in the Circuit Court and we do it here. The thing that are important is distinguished between the material allegations of fact. For example, was there secrecy, did Holt know? Those things are immaterial. I haven't gone into those because my time has expired but we alleged that there was no reason --
Felix Frankfurter: No. Was there a controversy as to what was material and what was immaterial?
Samuel I. Rosenman: I think there is a controversy which is a matter of law as to whether its material for example, to pick one item, did Holt know when he went to Milwaukee that what he was going to do, if he were successful would hurt Poller? There maybe some dispute about that.
William J. Brennan, Jr.: Well, isn't that Judge Rosenman --
Samuel I. Rosenman: I don't think (Voice Overlap)
William J. Brennan, Jr.: I thought Mr. Holt would rather have the emphasis on the whole circumstances involving Holt's part in this as bearing on the issue whether there was or was not a conspiracy in violation of the antitrust law?
Samuel I. Rosenman: We're willing to assume that Holt did know. We assumed that.
William J. Brennan, Jr.: I see.
Samuel I. Rosenman: We assumed that Holt did know. We say that that's immaterial, so -- and has no meaning so far as the consideration of antitrust laws are concerned. So that wherever there is a dispute, we are willing to wave the dispute and have waved the dispute, and did below saying that the allegations that he alleges all of them, we assume are true. We urge that a great many of them had no materiality to the antitrust laws.
Felix Frankfurter: May I add some -- may I put it in a very concrete form with the question I put originally? I was saying that the summary judgment resulted from your concession that nothing that witnesses would be allowed to testify to as relevant at a time, nothing failed to be conceded by you, nothing that's really in the area of evidentiary testimony as against the significance to be drawing things, is that correct?
Samuel I. Rosenman: That is correct. That is correct sir and I think that must be, that must be the rule in every summary judgment motion and that is our position. As Your Honor, you asked me question if you want those figures I have them.
Earl Warren: Well, if you have them, you may state them there.
Samuel I. Rosenman: Your Honor, asked me to find the figures of UHF affiliation among with the three networks.
Earl Warren: Yes.
Samuel I. Rosenman: And I have found those figures as of November 10th. CBS has 23 UHF affiliates of which number 16 are in markets where all of the outlets are UHF and seven are mixed markets. NBC has 14 UHF affiliates of which nine are in an exclusively UHF market, and five are in mixed markets. ABC has 18 UHF affiliates of which 16 are in all UHF markets. They had 22 altogether of which 16 are in all UHF markets and six are in mixed markets.
Earl Warren: Thank you very much, Judge Rosenman. Mr. Wolf, your time has expired but would you take not more than two minutes please to respond to the same question that Justice Frankfurter asked.
Morris Wolf: Whether that all of the facts were admitted?
Earl Warren: Exactly and so treated by the Court, isn't it the –-
Felix Frankfurter: Whether anything that you would be allowed to put through witness, not what the charge of the judgment be on what he testifies, whether in short, you will shut all from putting through witnesses what they are entitled to put through witnesses as against having been conceded by the defendant.
Morris Wolf: The lower court -- both the Lower Court and the Court of Appeals in the majority opinion said there was no conspiracy, there was no restraint of trade, and there was no monopoly. Now, we say there was a conspiracy and this is what Judge Washington said. There was a restraint of trade and we have a right as a matter of fact to have a jury so to state. The Lower Court and the Court of Appeals both assumed contrary to what Judge Rosenman now says he is willing to concede. They both assumed that there was not a conspiracy and that there was not a restraint of trade. Both of those, I admit, in our view are matters of fact which we have a right -- or have a jury as upon.
Felix Frankfurter: Did Judge Washington say that facts were shut off which if they had been unused, would have trade a legal conspiracy --
Morris Wolf: Judge Washington says --
Felix Frankfurter: -- would have made a legal establishing services?
Morris Wolf: Judge Washington says on Page 301 in my view Poller raises genuine issues of material fact as to whether there was a conspiracy against him in restraint of trade and the monopoly. The charges, he makes may of course appear ultimately without foundation. In fact that he has the right to say that.
Felix Frankfurter: It does not mean that from what was incontestable, factual territory, the Court drew one conclusion and he drew another.
Morris Wolf: Well, whether -- his view was that these were material facts --
Felix Frankfurter: Yes.
Morris Wolf: -- as to which the lower court, to which the majority opinion had reached a conclusion of fact with which he disagreed.
Felix Frankfurter: Are you saying that -- and I'm questioning, I'm not charging, I just want to know. Are you saying that in every case charging a conspiracy under the current law, in every case the matter must go to a jury?
Morris Wolf: Oh, well I'm not saying that in every case it must by all means when all of the evidence which the plaintiff can produce has been presented to a jury. I would readily say that a judge has a right to say there is not enough to go to a jury. But this is not that case. This is a summary judgment and all of our evidence never has been presented to anybody. That's the difference.
Felix Frankfurter: But is there -- are you saying that in the Sherman law case, a concession that the fact it testifies to by witnesses will be what the complaint sets forth as fact. Are you saying that that can't be?
Morris Wolf: Well if a request has been made for a proffer approach, at a trial and the plaintiff has proffered all of the evidence which he says it will be within his power to produce, I do not say that it would be outside of the possibility of proper court procedure for the trial court to say, “I don't think that's enough” but that isn't what has happened here. Our case has not been developed.
William J. Brennan, Jr.: Well, you -- you argued yesterday as I recall it Mr. Wolf --
Morris Wolf: I beg your pardon.
William J. Brennan, Jr.: You argued yesterday as I recall it but you are under no obligation to produce all your proofs in resisting the motion for summary judgment.
Morris Wolf: Well, certainly.
William J. Brennan, Jr.: Nor to examine all of the witnesses of the other side, nor to cross-examine all the witnesses.
Morris Wolf: Well, certainly not, this is a pretrial.
William J. Brennan, Jr.: Yes, but in face of that argument, aren't you really suggesting that at least in this kind of case or perhaps only in this particular case, summary judgment is not an appropriate procedure for its disposition.
Morris Wolf: I am -- I am suggesting that in no case where there are issues of fact is summary judgment a proper measure of determination by the trial court, by a lower court.
Charles E. Whittaker: Just any -- just any fact Mr. Wolf, do you mean just any fact? As I understand the rule, there must be a genuine issue of some materials.
Morris Wolf: Of course, of course.
Charles E. Whittaker: And here quite differently from a motion to dismiss which test the sufficiency as by the (Inaudible). The court on a motion for summary judgment has some power upon the pleadings affidavits and record on file to determine the materiality of some facts, doesn't he?
Morris Wolf: Oh! No! I don't think so, I think it has the proper -- it has the duty and the right to determine the questions of law, which arise if there are no questions of fact, for example, in US against RCA. The court on summary judgment had a perfect right to determine whether it is a by FCC that it was alright to take away the Westinghouse Station was a matter of fact or a matter of law. That was purely a matter of law proper for determination on summary judgment. There was no question of fact involved there.
Charles E. Whittaker: Is that to say then that the motion for summary judgment serves only the office of the demurer?
Morris Wolf: That's what -- that's what I am saying. I am saying that the -- the summary judgment serves only the matter of determining whether there are nothing but issues of law. If there are nothing but issues of law, they are properly determinable on motion for summary judgment. If there are questions of facts, they are determinable on the summary judgment.
Hugo L. Black: May I have some question on that?
Morris Wolf: Yes.
Hugo L. Black: Both of you have kept constantly referring to questions of fact. Frequently, the parties will agree on the fact but they do not agree on the inferences to be drawn from the facts. I find running all through Judge Miller's opinion, inferences drawn from the facts as he saw them. For instance, he says that the equipment bought about by his own active investing too heavily in the equipment without having a firm network affiliation. He reaches that conclusion of inferences. He reaches a conclusion that if he thought that Bartell and Holt combined with CBS to accomplish a common purpose, it does not seem to us that the purpose was to restraint trade of commerce.
Morris Wolf: That's the most important of all.
Hugo L. Black: And several others, I'm calling your attention to this to find out if you are saying that even though both sides agree on what has actually occurred, you have a right to have the jury test on what inferences can be drawn from there, when there are two inferences either one of which might have been drawn.
Morris Wolf: Well, I certainly say Your Honor, that to say that it does not appear. It does not seem to West that the purpose was to restrain trade or commerce as obviously a question of fact which Judge Miller had no right --
Hugo L. Black: Somebody has too.
Morris Wolf: -- to decide.
Hugo L. Black: Somebody has to conclude from the facts that are introduced. So you're saying as I understand it, you are not required in a motion for summary judgment to go fully in your facts, show them all. But if there's enough facts there from which a jury could reason – if somebody must drawn an inference -- which affects the validity of the charge that's for the jury and not the judge under the motion for summary judgment.
Morris Wolf: Well, certainly unless and until all the facts have been developed, it's impossible for either the court or the jury to draw any inferences, it seems to me.
Felix Frankfurter: Mr. Holt, this court in these Sherman law cases, sometimes reversing, something affirming. In case of reversing concludes that something is or isn't a restraint of trade.
Morris Wolf: Yes, you're right.
Felix Frankfurter: Do you think we have to call in the jury to help us reach a conclusion?
Morris Wolf: Certainly not because you have the findings of the Lower Court on which to decide.
Felix Frankfurter: But what inferences are inevitably subject to controversy?
Hugo L. Black: The findings of the court if their proper finding, find -- on what are the inferences from the evidence, do they not?
Morris Wolf: Well, I think that we're really getting into a question, what is an inference, whether an inference is an ultimate finding of facts or whether it is a --
Hugo L. Black: I wasn't trying to get into that, I was just -- what has been stated, facts can be used in the rare lose fashion. Facts and many types of cases, knowing what the facts are, it does not constitute enough to decide the case, inferences must be drawn from those facts one way or the other.
Morris Wolf: Well when you say inferences, I don't know whether you mean conclusions of facts, you have the one thing --
Hugo L. Black: I don't want to get in to the difference between conclusions of facts and conclusions of law. You try a negligence case, same fact. Frequently, it said one inference could be drawn on another, inference could be drawn as for the jury, is that a antitrust --
Morris Wolf: Well of course, you leave to a jury the question to whether the inferences to be drawn from the facts that one of the negligence or not of negligence and I say the same thing here. The inference to be drawn -- should be drawn by the jury as to whether the purpose and effect of what was done was to restrain faith, that's my main point.
Earl Warren: Thank you Mr. Wolf.