William H. Rehnquist: We'll hear argument first this morning in No. 90-29, James C. Pledger v. Daniel Medlock, and 90-38, Daniel Medlock v. James C. Pleasure... Pledger, I'm sorry. Mr. Keadle.
William E. Keadle: Mr. Chief Justice... Mr. Chief Justice, and may it please the Court: Arkansas law provides for gross receipts tax of general applicability to sales of all tangible personal property in Arkansas in certain services. The law also provides for certain enumerated exceptions, one being an exception for sale of newspapers. The... since 1987 the tax has been applied to sale of cable television services, and in 1989 the gross receipts tax law was amended to add to the sales tax the service of descrambling of satellite services provided to home dish owners. The same general gross receipts tax is applied to many businesses, like cable TV service, that being home video rentals, books, magazines, admission to sporting events. The respondents in this case, who are the petitioners in 90-39, have challenged the Arkansas tax because an exemption, as is extended to newspapers, is not also extended to the sale of cable television service, citing that there is a similarity between the two services. The law does not in fact violate the First Amendment for the reason that cable television service is a distinguishable medium from the newspapers. The State is not arguing that cable television is not entitled to some First Amendment protection. It's just that the ability to tax one of the medium, one of the media is not necessarily binding the State to tax the other medium in the same way. The tax involved does not single out the press, nor is it content based. The taxpayer would have you believe that it should be compared to newspapers to be actually a group within the press that is being singled out for special treatment.
William H. Rehnquist: The Supreme Court of Arkansas, Mr. Keadle, said that the tax was invalid insofar as it applied to cable TV operators but did not extend to satellite dish operators?
William E. Keadle: Yes, Mr. Chief Justice, that's correct.
William H. Rehnquist: And you're appealing--
William E. Keadle: That is the issue that the State is appealing.
William H. Rehnquist: --You're appealing that ruling? And then you're defending the ruling of the Supreme Court of Arkansas when it held that it was not invalid to distinguish between cable operators and newspapers?
William E. Keadle: Yes, Your Honor.
Byron R. White: Is the satellite issue still in the case?
William E. Keadle: Well, Your Honor, the--
Byron R. White: The law has been amended?
William E. Keadle: --Yes, it has. After the... approximately 11 days after the trial court made its ruling--
Byron R. White: I see.
William E. Keadle: --upholding the tax, the law was changed. Now, this was before--
Byron R. White: But you would still like to argue that it was not invalid prior to amendment?
William E. Keadle: --Yes, Your Honor. It seems--
Byron R. White: Okay.
William E. Keadle: --somehow inconsistent, but the basis of our argument is--
Byron R. White: The legislature might go back, if you want.
William E. Keadle: --Well, that could well happen, but, Your Honor, we are arguing that the tax as it stood in 1987 was constitutional due to the fact that, although evidence was presented that these two media provided similar types of services, that there was a difference in the two media that would justify the different, different tax treatment.
Harry A. Blackmun: How much is involved in that interim period, between 1987 and 1989?
William E. Keadle: Between 1987 and 1989, at the time the taxes were escrowed in the case it was approximately $6.2 million. At present, after the Arkansas Supreme Court ruled in the case, the respondents went back into court and asked that the escrow account be reestablished. Instead an agreement was reached between the parties whereby the State would reserve an amount in one of its refund accounts to compensate for the $6.2 million plus accumulated interest. I believe now it stands at somewhere around $8.1 to $8.5 million.
William H. Rehnquist: And if this Court were to reverse the Supreme Court of Arkansas and say that the statute in effect before the legislative amendment went into effect was constitutional, the State would recover some money, then?
William E. Keadle: Well, Your Honor, it is not a true escrow in that sense. There is not... it's more rather that the State would not have to make that refund out of its existing refund accounts.
William H. Rehnquist: Oh, I see. So that, that is the tangible dispute, whether the State has to refund taxes that it collected?
William E. Keadle: Yes, Your Honor. On one hand there will be a refund of taxes collected prior to the 1989 change, and in the other instance the tax is ongoing. There will be a request for refund of that money, too. As I had stated before, there is really no First Amendment violation in terms of treating two like entities differently for tax purposes--
Anthony M. Kennedy: Well, is that because they don't compete?
William E. Keadle: --Well, Your Honor, in some sense they do compete for viewer dollars, consumer dollars. It's more of a fact that physically they are different services. In the cable situation you have a process--
Anthony M. Kennedy: Well, I suppose we can tell when... you can read a newspaper, and you watch a television screen. They're dissimilar in that... in that respect. But for purposes of our determining the scope of the First Amendment, can't we say that these media are in competition? I take it cable offers a wide variety of news broadcasts in Arkansas, including 24-hour news, I suppose, on some channels?
William E. Keadle: --Your Honor, I think it's clear that in fact evidence presented at the trial showed that many of the types of programs that cable offered were indeed similar to those provided by newspaper. But the difference here is in the physical make up of the two services and how does this burden on the Government to--
Anthony M. Kennedy: Well, but didn't the Arkansas Supreme Court say that there was no competition between the two, or am I wrong about that? I thought the Arkansas Supreme Court said well, we... they're not really competing in the same way.
William E. Keadle: --That is between cable and newspaper?
Anthony M. Kennedy: Yes.
William E. Keadle: Yes. That statement was made, and that is what is at issue here.
Anthony M. Kennedy: Was that based on some factual findings?
William E. Keadle: Well, I think it was more a review of past cases of this Court that had not necessarily made the distinction between cable and newspapers as being competing interests, even though, even though the evidence presented was they are similar types of programs. They are still different... different entities. The tax involved in this case--
Antonin Scalia: Mr. Keadle, what, what is your theory of the law? Do you acknowledge that it is contrary to the First Amendment to tax differentially two media that are in competition with one another? That the test is whether they are competing, and if they are competing, you cannot tax one differently from the other? Is that a--
William E. Keadle: --Your Honor, I don't think the basis--
Antonin Scalia: --proposition you accept?
William E. Keadle: --No, I don't believe it's whether the two are competing necessarily. That may be a factor in the determination, but--
Antonin Scalia: Well, what is it?
William E. Keadle: --other aspects have to be looked at.
Antonin Scalia: Oh, I see. Well, what is the criterion, if it's not that? I mean, that one I understand. What is it if it's not that?
William E. Keadle: Well, the criterion that the State is arguing and that we're looking at is the type of burden that is placed on the Government by the two types of services. In your newspaper situation you don't have certain aspects that you have in cable, like the stringing of the cable along the public rights-of-way on wires, underground, the basic interference with the Government function, and also--
Antonin Scalia: Well, that's a difference between the two, and there are a lot of other differences between the two. So I... is what you're saying is that, as with any other tax, a rational basis distinction between the two is enough to support a differential tax?
William E. Keadle: --Yes, Your Honor. When we are dealing with a tax that is not content based or does not... and where the similarity between the two comes into play is when you're not dealing with two similar enough entities to make that distinction, then you do use the rational basis test.
Antonin Scalia: So it's just the same test that applies to all taxation? There has to be a rational basis between the two, you say, so long as you're not discriminating on a subject matter basis?
William E. Keadle: That's correct, and I believe this Court's decision in another Arkansas case, the Writer's Project case--
Antonin Scalia: Yes, but what about a tax on ink and typesetting?
William E. Keadle: --Your Honor, I believe this Court has also stated that an effect on a newspaper, that particular... that particular example in the Minneapolis Star case, that when you examine it and see that the effect is had only on a few members of the press, in that case a small group, a use tax on publishers, rather that it was shown--
Antonin Scalia: Yeah, but surely there was a rational basis to distinguish publishers from other people. I mean, they're different from other people in a lot of ways. They put different burdens on the State's economy, and so forth. Wasn't there a rational basis there to distinguish between? I mean, I want to tax ink, and I don't want to tax non-ink. Ink is different from non-ink.
William E. Keadle: --Your Honor, I believe there was a rational basis there--
Antonin Scalia: But we struck it down anyway.
William E. Keadle: --The Court struck it down because the tax in effect targeted a small group within one entity.
Antonin Scalia: In other words a group within an entity that was competing with each other. So we're right back where you say we aren't.
William E. Keadle: Well, in effect it was the same entity.
Antonin Scalia: Pardon?
William E. Keadle: It was the same entity, as opposed to competing entities.
Antonin Scalia: The same as opposed to competing? The same in what sense?
William E. Keadle: The same in the sense that--
Antonin Scalia: They're different newspapers.
William E. Keadle: --the tax was on publishers. Yes, they're different newspapers, but they are newspapers. They are a member of the print media, and the distinction we're making here is they're two different types of media. They are competing, but the differences are physical.
Antonin Scalia: So in one-half of the case it depends on whether scrambled television systems are really the same media as unscrambled television systems, is that's your criterion, right? That's the question before us, whether they are like two different newspapers or not?
William E. Keadle: Well, Your Honor, I believe in that situation you can actually distinguish between the satellite service and the cable TV service in that... in that basically the way the program is received in the home, in one instance, satellite service, can be distinguished from cable. Cable, again, uses public ways and performs a type of intrusion on the Government, while the... in the satellite dish situation the signal is beamed directly into the home and there is not, there is not a basis to distinguish on in that instance. The--
John Paul Stevens: May I ask, don't the newspapers use public property to sell their newspapers?
William E. Keadle: --Yes, Your Honor, to some extent that is true.
John Paul Stevens: Then how... what happens to your distinction?
William E. Keadle: Well, I believe the distinction is still there. A look at other types of Government protection afforded to cable, cable service, such as franchises, rate regulation--
John Paul Stevens: Of course they pay for the franchises, don't they?
William E. Keadle: --Well, Your Honor, it's true there is some payment for the franchise, but I don't think it's clear also that that is necessarily full compensation for that service.
John Paul Stevens: But isn't it true the newspapers don't pay anything for the newsstands on public property?
William E. Keadle: That's true, Your Honor, and that may... and the distinction there may well be more of a basis upon how administratively easy it is to collect the tax from newspapers as opposed to cable. I believe the evidence in the case shows that the collection of tax from, or the collection of revenues for the satellite service was actually to some extent being conducted by the cable operators themselves. It does not appear at any fee. I think this becomes important when you look at the fact that the Arkansas legislature changed the law before the Arkansas Supreme Court ruled that these were similar.
John Paul Stevens: Yeah, but administration of a sales tax on newspapers probably isn't any harder than sales tax on candy bars, is it?
William E. Keadle: Your Honor, that may well be true. I know that that is a distinction the Court has brought out at times, specifically, I believe, your concurring opinion in the Minneapolis Star case, that based a distinction that there is at least some administrative inconvenience in collecting the tax of newspapers. Admittedly, maybe it's similar to others, but that distinction has been made.
Byron R. White: In Arkansas, what do... what public property does the... do the cable companies use?
William E. Keadle: Well, in effect they use both, both the wires, the wires and underground conduits. They make use of the public streets to lay these... lay these wires. And that not only... not only causes problems necessarily in traffic and other means, but there is actually a physical use of phone wires--
Byron R. White: Do they use telephone poles?
William E. Keadle: --Yes. Yes, they do. I think in Arkansas both methods of using the above ground poles and underground conduits are used.
Sandra Day O'Connor: Did the Arkansas Supreme Court find that cable television pays a franchise fee for the use of the public right-of-way?
William E. Keadle: Your Honor, I believe that--
Sandra Day O'Connor: I thought that was included in their findings?
William E. Keadle: --Your Honor, that was indeed mentioned in the findings, but I would submit that that finding is not completely correct, given the fact that this Court in the Preferred Communications case has at least sent that case back down for more evidence on how that fee is collected and how it is used.
Sandra Day O'Connor: So you don't support the opinion of the court below on that point, is that it?
William E. Keadle: Your Honor, I believe that the evidence that we have can allow us to make a decision without necessarily addressing that portion. I would have to say that I do recognize that there is a franchise fee paid and what it goes to. But that it's not necessarily a full compensation for the intrusion of the public rights-of-way. I believe the Arkansas Supreme Court said that the fact that there was a franchise fee fully satisfied the problem. Therefore they rejected the public rights-of-way argument.
Antonin Scalia: Mr. Keadle, I suppose the State of Arkansas can impose a tax on candy and not impose a tax on ice cream if it wanted to, couldn't it?
William E. Keadle: Your Honor, I would think so.
Antonin Scalia: And you wouldn't have to show that candy used public facilities or the public streets more than ice cream or anything of that sort?
William E. Keadle: No, Your Honor, I think--
Antonin Scalia: You'd just come up here and you'd say candy is different from ice cream, right?
William E. Keadle: --Well, Your Honor, the--
Antonin Scalia: So why... what you're saying today is that cable is different from scrambled... un... you know--
William E. Keadle: --Well, the difference in the two examples, one being the candy and the other being the difference between cable and newspaper and cable and scrambled satellite services is to what extent the respondents' First Amendment rights are being violated.
Antonin Scalia: --Well, I understand, but what I don't get from you, what I don't understand is what your theory is. Do you acknowledge that in order to make a distinction between two media, a State must show a compelling State interest? Do you acknowledge that?
William E. Keadle: No, Your Honor, I do not.
Antonin Scalia: Well, if it's not a compelling State interest that has to be shown, what must be shown beyond what has to be shown in the candy and ice cream illustration? Anything other than the two things are different and we chose to tax... choose to tax the one and not the other?
William E. Keadle: Your Honor, I believe on one hand this Court has recognized that the need for the State to raise revenue is a rational basis for making any decision to tax a certain subject.
Byron R. White: Well, on that instance I suppose you could have taxed the press and exempted cable?
William E. Keadle: Yes, Your Honor. I submit that we would very well probably be up here trying to make another distinction, but I believe that the cases indicate that we could, we could make that distinction and reverse around.
Sandra Day O'Connor: I thought there was language in some of our opinions that when a tax is placed on the media in what appears to be some discriminatory fashion, that the State has to come up with a strong State interest for making that differential tax.
William E. Keadle: Well, Your Honor, that--
Sandra Day O'Connor: Is that right, that there's some heightened scrutiny when the First Amendment is involved?
William E. Keadle: --Well, Your Honor, that does bring to mind the O'Brien case that in effect stated that the interest should be... should be important or substantial. That may well indicate that a higher level of scrutiny should be used. I believe it goes to--
Sandra Day O'Connor: How about Arkansas Writers and Minneapolis Star? You don't think that those cases indicated that some form of heightened scrutiny was being employed?
William E. Keadle: --Yes, Your Honor, I feel that that was suggested in a case where, as in Arkansas, that, that interest was needed to justify a content based discrimination. In this instance the tax is levied on all cable operators, regardless of the content of what they provide.
Byron R. White: But it's also a State sales tax, isn't it?
William E. Keadle: Yes, Your Honor, it's applied to--
Byron R. White: That applies not just to the press, I mean not just to the media--
William E. Keadle: --Oh, it applies to all similarly situated businesses.
Byron R. White: --Yes.
William E. Keadle: The newspaper, in effect, is part of a limited number of exemptions.
Byron R. White: Exactly.
William E. Keadle: And the fact that--
Byron R. White: So the real issue is whether you can distinguish between one form of communication and another?
William E. Keadle: --Yes, Your Honor, I feel it's very clear here that not only is that content based--
Sandra Day O'Connor: Now, sales of newspapers and magazines sold by subscription are exempt?
William E. Keadle: --Yes, Your Honor.
Sandra Day O'Connor: And cable services are generally sold by subscription, I take it?
William E. Keadle: Yes, Your Honor, that is correct, too.
Anthony M. Kennedy: Could the State tax magazine subscriptions and not newspapers?
William E. Keadle: Your Honor, I believe that that would be within the State's province to do, again subject to a challenge on why it was done.
Anthony M. Kennedy: On the grounds that we say they're different?
William E. Keadle: Well, that would be the first argument. Yes, they are different. I think a further look would have to be made at, again, if there is any legislative history as to why--
Anthony M. Kennedy: Suppose we show... suppose it is shown that they compete for the same consumer dollar? I'm not sure you can make that showing, but suppose that showing were made in a particular case?
William E. Keadle: --Your Honor, I don't--
Anthony M. Kennedy: Would that have a bearing on whether or not they are different, or is that just something we don't look to?
William E. Keadle: --Your Honor--
Anthony M. Kennedy: We look to some metaphysical difference between newspapers and magazines, and metaphysical difference is fairly easy to establish, I suppose.
William E. Keadle: --Your Honor, I think that would have a bearing on the matter, again. I think on a case-by-case basis we'd have to look at, look at other considerations. I do not think that the fact that they compete for the same dollar alone would be, would be enough.
Byron R. White: What's the... in the cases, what is the standard that has been applied that, sustaining the right of localities to license cable operators but to exempt newspapers from license? Just a rational basis?
William E. Keadle: Your Honor, I believe that in effect is a higher point, too, when you're looking at a regulatory... well, in fact taxation, too, is a regulatory form of restriction. But that type of restriction more goes to the absolute restriction of a media to speak at all, as opposed to a tax exemption which might have some burden, but the message is going to be conveyed as long as the tax is not content based. Mr. Chief Justice, I'd like to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Keadle. Mr. Sayre, we'll hear from you.
Eugene G. Sayre: Thank you, Mr. Chief Justice, and may it please the Court: I would like to first state the theory of the case on behalf of the operators and subscribers to summarize the relief that we seek and then to discuss the merits of the case. First, the theory is, as enunciated in this Court's Minneapolis Star case, that if we have a differential of taxation between different forms of the media, then, even though the Court said that it does not in essence make such a compelling force on the speaker that it totally keeps them from speaking at the time, that that presence and the threat of future differential taxation is such that it puts a burden on the State to show a higher or the compelling interest. And in this particular case we believe that the taxpayers and the cable operators have sufficiently established that the method of delivering news information and entertainment by the cable electronic message is exactly the same as that that is delivered in the print, either newspapers or magazines, and in fact the trial court stated that our witnesses referred to this as an electronic magazine. Now the method, or the relief that we're seeking is a reversal of the latter part of the decision and an affirmance of the first part. As Mr. Keadle said, the Arkansas Supreme... legislature amended the law because we had established at the trial in this case that the direct broadcast satellite, or the scrambled services, were not being taxed and were delivering exactly the same type of information, news and entertainment, virtually identical, to the cable that was taxed, that for that 2-year period the tax was unconstitutional under this Court's Minneapolis Star and Arkansas Writer's Project rationale. However, we have never had an opportunity in the second stage of the case to present any evidence to attack that, because it was after the trial court's decision. We believe if this Court will accept the broader approach that we have suggested, and that is that print and the cable are similar, sufficiently similar, that the same tax should be applied to the same or they are unconstitutional without a compelling interest being shown by the State, then you should reverse the Arkansas Supreme Court on the approval of the second or amended law. However, even if you find that only the electronic media is similar and that we should narrow the approach or the look to those particular entities, we have submitted the affidavits in the petition for rehearing simply to establish that there is a factual difference. The Supreme Court of Arkansas noted twice in the opinion that the Act 769 was not before the trial court, and did not pass upon it. And therefore we submit that even if the Court should narrow the limitation of the view in this case, that we should be entitled on remand... the Court should vacate and we should be entitled on remand to present evidence on the amended statute either in this case on remand or in another case without the threat of collateral estoppel or res judicata being raised.
Byron R. White: Well, I see that in your brief you refer to cases since Minneapolis Star, and you say, these courts have held that unless there is some logical reason for distinguishing between different segments of the mass communications media, cable television services should enjoy the same First Amendment rights. Is that your standard... logical?
Eugene G. Sayre: Well, the... it's a compelling. The standard, if we're applying--
Byron R. White: You mean logical is at least compelling?
Eugene G. Sayre: --Well, what I'm... Mr. White, if I have stated... there is no logical distinction between the two inasmuch as they are transmitting and conveying to the public the same type of information. I think that there has to be a compelling interest shown on the State to show a differential between them, and that the reasons the State has offered here, the use of the public right-of-ways or the pervasiveness of television in the home, with regard to a... not a regulation of the entry or the access but with regard to the application of the tax is not logical.
William H. Rehnquist: Mr. Sayre, if you say that a compelling State interest is required in order to have a tax that distinguishes between types of media, you're going from what was the standard before Minneapolis Star, which was that any rational basis would support a tax distinction, you know, Lenhouse v.... and those cases, that that was where the latitude awarded to the Government was the greatest, to a situation where the Government can virtually never prevail. You say that's the import of Minneapolis Star?
Eugene G. Sayre: If there is a differential in taxation, Mr. Chief Justice, I would say that is probably the case. But we have attempted here to target or to limit our scope of review to those entities that are First Amendment speakers, that are members of what we refer to as the mass communications media, those that are transmitting as part of the press, either electronic or print.
William H. Rehnquist: Well why would it be so limited? We had a case involving nude dancing here yesterday, as to whether that was communicative. Now, would a State have to tax the bookstore that was presenting the nude dancing the same way it taxed other forms of communicative activity?
Eugene G. Sayre: We don't... I was going to say have that situation in this case, but I would say that that argument certainly could be made by the bookstore operator with regard to what he was selling to the public. We are not in anyway asking for the Court to make that broad a distinction in this case because what we have before you is what we consider virtually identical methods of transmission. The only difference is one is paper and one is electronic. Now in that particular--
Anthony M. Kennedy: What about telephone services? I take it now that if you dial, I don't know if it's 800 or 900, there are all sorts of information services, sports, news, and so forth, that you get on the telephone. Is that... does the State have to have a compelling interest before it can tax the telephone service company if it exempts your industry?
Eugene G. Sayre: --Justice Kennedy, I would say that, again, as the Chief Justice, that is an argument that the telephone companies could raise, whether it is--
Anthony M. Kennedy: Well, we have to write the opinion, and we want to know the consequences of the theory that you're advancing. Can you, can you answer this question?
Eugene G. Sayre: --The consequences would be--
Anthony M. Kennedy: It seems to me the consequences are they're engaged in dissemination of information and that they qualify for the exemption.
Eugene G. Sayre: --And they are... in the case of when they're acting other than a common carrier, and they are originating the information, they probably have that same constitutional right.
Anthony M. Kennedy: Because I can think of no case in which we... in which a State has been able to show a compelling interest, of course we have never asked them to do so, but I can't think of how a State could show a compelling interest to justify any tax exemption or any tax discrimination.
Eugene G. Sayre: The situation that I think, Mr. Kennedy, that this case presents is exactly the one that was left open in the Arkansas Writer's Project case, and that is that in the instance, in the first part, the 1987 to 1989 part of this case, that being when the direct broadcast satellite services were not taxed. We have exactly the same type of programming being delivered, and there is a differential between cable and between the satellite broadcast. This is the same type of situation that existed in Arkansas Writer's Project, where some magazines were taxed and other magazines were not taxed. After the amendment in 1989--
Antonin Scalia: That was on the basis of the subject matter of the magazines. You can certainly distinguish that case on that ground. This is not a subject matter distinction.
Eugene G. Sayre: --Then, Mr. Scalia, with regard to the part that was reserved in Justice Marshall's decision in that case, of whether or not the difference between... taxation between periodicals would be an additional basis... was reserved, and I think that is exactly what is presented in this case. We have a different type of periodical, be it electronic or be it print. We have a differential in taxation. And again we go back to the Minneapolis Star decision of this Court and the policy matter, the decision matter that there is a distinction being drawn between similar media, and as such that once we have established that we are providing the same type of information, and once we have established that we are being discriminated in the imposition of the tax, in this case a general tax and exactly the same tax that was in Arkansas Writer's, then the burden or proof on the strict scrutiny or heightened scrutiny switches to the State to show that it has some strong or compelling interest to be served by this differential in taxation. And we do not believe that the, the use of the right-of-ways or the pervasiveness of television are sufficient for tax purposes to sustain that.
Antonin Scalia: Does it constitute an unconstitutional discrimination that has to have a compelling justification if the type of tax at issue, although it's applied uniformly to anyone, is simply a tax that does not happen to fall on one of the media? Let's assume... well, a sales tax. Let's assume that most of the broadcasters in Arkansas don't sell their advertising locally, that the sales are made by the networks to nationwide advertisers and what not, so that the over-the-air broadcasters in Arkansas really don't make any sales to people. Now, would a uniform sales tax that applies to newspapers, cable owners, and everybody else, but that happens not to bite the over-the-air broadcaster because he is not selling anything in Arkansas, is that kind of a tax unconstitutional, too, because it has this--
Eugene G. Sayre: In the particular instance here, the sale, I mean, the sales tax is imposed as an excise tax on the sale.
Antonin Scalia: --No, I understand that--
Eugene G. Sayre: So I think that would be a distinction that would be drawn.
Antonin Scalia: --No, but I'm trying to test the breadth of the principle you're urging us to adopt. Is the principle that you have to treat all media equally, or is it just that you can't make an exemption from a particular tax for some media and not for others? But so long as you design your tax correctly so that it happens to hit some of them and not others, that's okay?
Eugene G. Sayre: I would think, in response, Mr. Scalia, that it would have to apply generally, and that is what this Court's admonitions in Minneapolis Star and Arkansas Writer's meant to say.
William H. Rehnquist: Mr. Sayre, the members of the Court should be addressed as Justice.
Eugene G. Sayre: Excuse me, Chief Justice. Justice Scalia. In that particular instance I think that the cable industry in Arkansas pays sales tax upon any purchases that it makes, in the same manner that the broadcast media or the print media pays a sales tax or a use tax upon tangible personal property. It is only in the instance... or all tangible personal property is subject to tax in our State. The... only certain enumerated services are subjected to tax, and you don't have the presumption that all services are taxed, as you would all property. And in this particular instance they have chosen only... the legislature has... to extend the tax to certain entities within the media and to exclude others. And we believe that there is no compelling interest, or any logical reason for that.
John Paul Stevens: But Mr. Sayre, I think... I'm really not sure you're answering Justice Scalia. Suppose you reversed the situation and said the tax applied to sales of all tangible property, and therefore newspapers are subject to tax, but cable would not be because they don't sell anything tangible. Would that be constitutional in your view?
Eugene G. Sayre: I do not believe it would, because I believe that the newspapers stand in the same strike that cable would.
John Paul Stevens: Thank you.
Eugene G. Sayre: The... this Court in the application of the First Amendment rights of the press and speech to cable TV treated it as a passive receiver in the 1960's and 1970's. But in 1979 this Court's decision in the Midwest Video case, the second Midwest Video case, you found that the FCC had gone beyond its jurisdiction. The result is that Congress acted in 1984 to establish a comprehensive policy for cable. In that, the hearings on that, or the report, there is a substantial amount of detail given or consideration given to the First Amendment rights of cable, and how both the cable operator and the cable subscribers' First Amendment rights should be protected and were trying to be protected by Congress in that act. In particular in Section 542(g), Congress states that there should be the ability to subject cable to general taxes, such as sales and income, and this type, but it said not in a discriminatory manner. And that is what we are objecting to here, is that the tax in Arkansas has been subjected in a discriminatory manner against cable and not against the similarly situated entities within this mass communications media.
Byron R. White: But the discrimination is not... there's no discrimination between cable and other retail businesses?
Eugene G. Sayre: No, there is not. It is part of the general tax that is imposed upon retail sales. The only difference is that it has not been extended to the sale of magazines by subscription, the sale of the newspapers--
Byron R. White: So I suppose the State, in your view, could solve the problem either way, by extending the tax or exempting cable?
Eugene G. Sayre: --That is correct. They could... they have either decision, either tax all media or tax no media.
Byron R. White: Would they need some kind of a compelling interest to include all of the media in the sales tax?
Eugene G. Sayre: No. Because this Court has ruled that... and we accept as a standard, that a tax of general application that is applied to all media would have to be borne. We're not trying to say that we're not subject to tax. We're simply saying we're not subject to tax in this discriminatory way in which the State has attempted to impose it here.
Byron R. White: And why should the exemption of the press be subject to... the exemption of newspapers be subject to a compelling interest if taxing all of the press would not require a compelling interest?
Eugene G. Sayre: Because of, as this Court stated in the Minneapolis Star case, it offers the incentive for the legislature to act as a carrot and a stick, to play one media off against the other, to offer if you change your viewpoint we'll take the tax off or we'll exempt you. That potential exists. And, as Justice O'Connor stated there, it's not just what the tax is being imposed here, but it's the... perhaps the promise or the potential for other differential taxes--
Byron R. White: Do you think the congressional decision to subject cable to licensing is constitutional?
Eugene G. Sayre: --With regard to the First Amendment, as when newspapers are not subjected to--
Byron R. White: No, no. Just generally.
Eugene G. Sayre: --Acting under the Commerce Clause, the Congress can generally exercise any power over--
Byron R. White: Oh, yeah, yeah.
Eugene G. Sayre: --So--
Byron R. White: How about is it constitutional... does the First Amendment interfere with that decision by Congress?
Eugene G. Sayre: --A number of courts have indicated that exclusive franchising, it does, because that there ought to be more than one speaker, that there's no reason... no logical or compelling reason to limit it. And I think that that is a valid distinction that should be made.
Byron R. White: Well, do you think Congress really needed to demonstrate a compelling interest to subject cable to licensing but not newspapers?
Eugene G. Sayre: But... well, Your Honor, I think they perhaps have shown the compelling interest, and that being the licensing of the franchises--
Byron R. White: What are they?
Eugene G. Sayre: --The licensing and franchising of the use of the public property.
Byron R. White: What is the compelling interest?
Eugene G. Sayre: The... again, the predominant use or continued use of the public right-of-ways in that instance is one that--
Byron R. White: But you don't think applying the sales tax can be justified as a... on that basis?
Eugene G. Sayre: --Not on that basis.
Byron R. White: Why not?
Eugene G. Sayre: Because there is... it has no logical connection with it. The franchise fee, the payment for the use of that right-of-way, does. And that's what cable pays, is a... that plus the pole rental is for the rental or the use of that public right-of-way. The sales tax is not directed. It does not compensate the State for that particular use, and that is exactly what the franchise fee does.
Antonin Scalia: Mr. Sayre, suppose a State says, suppose we come out the way you want and the State says gee, we can't tax these media differentially. What we'll do instead is we'll subsidize some of them and not subsidize others. Is that okay? Can you, can a State subsidize media differentially?
Eugene G. Sayre: The subsidation would probably bring into consideration this Court's decision in Reagan v. Taxpayers with Representation. It perhaps would lower the standard, but it is an instance in which it is not a direct effect upon the speaker's--
Antonin Scalia: It isn't? I mean, to give public money, let's say public broadcasting is, is an example where the Federal Government and maybe some States subsidize television and radio, but don't subsidize public newspapers. Is that unconstitutional? And if not, why not? I can't understand what's the difference between giving them a subsidy and declining to impose a tax. Is there any real difference?
Eugene G. Sayre: --Well, the... I think the real difference would be, in those particular instances of public television and public radio that are being funded, they, in the commercial sense that they could not attract enough to provide that type of programming and the access is one that the State is trying to get a broader and a further discussion of public issues of... and as the Court said, of Government, being those that are the most important.
Antonin Scalia: You're saying the State has a good reason. The State always has a good reason. It has a good reason for giving tax exemptions, too. It wants to foster cable, which is a useful medium for the State for emergencies and a lot of other things. Well... but you say there's a difference between subsidy and tax?
Eugene G. Sayre: Yes, I do.
Byron R. White: So it's all right for the municipalities in Arkansas to permit the use of sidewalks, public sidewalks, for news boxes without charge? Isn't that a subsidy?
Eugene G. Sayre: That would be a subsidy.
Byron R. White: And a permissible one?
Eugene G. Sayre: A permissible one, but I think that it's also one that they probably could charge a minimal amount to State for whatever use of the public right-of-way that's being made.
Byron R. White: But they don't. But they charge cable.
Eugene G. Sayre: They do.
Harry A. Blackmun: Mr. Sayre, in your response to one of Justice Scalia's inquiries, you spoke of Reagan against TWA... TWR.
Eugene G. Sayre: Yes.
Harry A. Blackmun: That case is mentioned by one or two of the amicus curiae. It isn't cited, as far as I can tell, in either your briefs or your opponent's briefs. Do you have any comment, further comment, about the Reagan case? Doesn't it give you some trouble?
Eugene G. Sayre: It would, Justice Blackmun, with the exception that again I think it deals with the entity... or the instance of a subsidy as opposed to the direct speaking. And here we have a tax being imposed upon the delivery of the message, as opposed to one that is, again, several levels down and a very minor amount of the subsidy that's being put in. It is not one in which the Government is subsidizing the entirety of the local programming. And also, I believe that this Court's longstanding determination that the veterans have specific or perhaps greater rights because of their service to the country is a distinguishing point in that case that is not presented in these cases. And--
Harry A. Blackmun: Well, the amici were certainly sufficiently concerned to try to spar that... the holding in that case, but evidently neither you nor your... opposing counsel was concerned about it.
Eugene G. Sayre: --I would simply say that this... what I have stated to distinguish it I believe is sufficient, that it is not in the same line as the Minneapolis Star or Arkansas Writer's Project type of case that is attacked... or, excuse me, review of the First Amendment application to the delivery of the... or direct delivery of the message.
Antonin Scalia: Mr. Sayre, could Arkansas exempt not-for-profit organizations from its sales tax? Not-for-profit newspapers, let's say, church newspapers and things of that--
Eugene G. Sayre: Well, it does.
Antonin Scalia: --It does?
Eugene G. Sayre: It does exempt not-for-profit organizations. Charitable organizations are exempt under the statute.
Antonin Scalia: Well, why is that all right?
Eugene G. Sayre: In the sense of... most of those aren't selling any type of newspaper. They're not... or, excuse me... any message. They're simply performing--
Antonin Scalia: Well, they're selling the newspaper, but what they get from it just covers their costs of production. But they are exacting a charge for it.
Eugene G. Sayre: --The basic principle for the exemption of any charitable organization is they're supplying a service or some need that the State would otherwise have to supply. And in this particular--
Antonin Scalia: That's a compelling State interest?
Eugene G. Sayre: --That would be a consideration of a compelling State interest, but that is what I'm stating is the reason that the courts in Arkansas at least have held that the tax-exempt or charitable organizations may be exempt from tax. Now, in the--
Antonin Scalia: Why doesn't that offend the principle of freedom of the press? I mean, the principle of freedom of the press is not to... is not meant to assure that everybody makes the same amount of profit. That's not what it's for.
Eugene G. Sayre: --That's correct.
Antonin Scalia: It's to ensure open discussion. What's the difference whether the discussion is by a not-for-profit organization or a profit organization?
Eugene G. Sayre: Well, in this particular instance I would say it would simply be the delivery of... if it's the message of, again, not a general interest but simply the charitable organization's organ of dissemination of information to its members or its supporters that is a confined and limited purpose, it perhaps is sufficient to rise to a compelling need. On the other hand, in Arkansas the municipalities that operate a cable system are required to impose the sales tax in the same manner that a private organization is required to. Now, the other courts that have considered this question, the State courts that have considered this question, have more broadly applied this Court's rationale in Minneapolis Star and Arkansas Writer's Project than has the Arkansas Supreme Court. The Arkansas Supreme Court stated that its only reason for not more broadly applying it with regard to the print and the cable entities was because it found no case of this Court that had required the same type of taxation. In the Oklahoma Broadcasters' case and the McGraw-Hill case in New York, the courts did apply broadly to both the print and the electronic media the same standards, and they said that again the burden, because of this policy decision of this Court, is upon the State to show a compelling interest, which it did not. And that is the test that we're urging this Court to apply in both the first and second parts of this case, to find that the print media and the cable media are similarly situated, delivering the same message, and therefore should be taxed in the same manner. And if they're not, if the State fails to show a compelling or substantial interest, then the tax must be stricken.
John Paul Stevens: May I ask you a question just running through my mind as a result of one the Chief Justice asked you? Supposing a State imposed an amusement tax on motion picture theaters, but did not impose a similar tax on your clients. Would that be valid?
Eugene G. Sayre: That would certainly be subject to question, and I think that the theater owners would have, with regard to their particular type of communication, a valid claim that there is a discrimination. This is what the Illinois court held in the satellite link case where cable was not taxed and the microwave services providing the same movies were taxed. And I would say that that would apply in the same manner.
John Paul Stevens: So tax on the... I'm talking about theaters exhibiting motion pictures.
Eugene G. Sayre: Theaters, yes.
John Paul Stevens: I see.
Eugene G. Sayre: But, Justice Stevens, in Arkansas the theaters are taxed and cable is taxed. What we're directing at is more the heart of the traditional press, that being the newspapers and our communication... C-Span--
John Paul Stevens: I understand, but I think your distinction... I mean your argument that the press and cable TV are similarly protected would apply equally to cable TV and motion picture theaters.
Eugene G. Sayre: --Yes.
John Paul Stevens: And you can think of no compelling interest, can you, for that distinction?
Eugene G. Sayre: No, I cannot. Again, the cross-ownership within the medias, the fact that magazine publishers, newspaper publishers also own broadcast stations and the cable entities, is another sign that these are all part of the same method of communication, the same manner of communication in the press. If you go into a newsroom of any of these entities you will find the same electronic computers, the same word processors. The only difference is the method of delivery of the final message, that being whether it is delivered on print on your doorstep or whether it comes through your television screen on cable or broadcast. If there are no further questions, I would release the rest of my time, Mr. Chief Justice.
William H. Rehnquist: Thank you, Mr. Sayre. Mr. Keadle, do you have rebuttal? You have 5 minutes left.
William E. Keadle: Thank you, Mr. Chief Justice, and may it please the Court: I would take exception to one of Mr. Sayre's statements made early on that the Arkansas General Assembly enacted this amendment to the tax because it was found that satellite television services and cable services were the same. There is nothing in the record, no legislative history to indicate that that was indeed the case, so I do not feel that we are left with that result. The trial court did not make that determination, and the Arkansas Supreme Court did not make that determination until after the law was changed. So--
Byron R. White: Well, arguably, I suppose the, changing the law made the exemption of newspapers even more difficult, because satellites don't use the... a satellite doesn't use... don't use the streets and put any burden on the public like the... like the cable operators do.
William E. Keadle: --Your Honor--
Byron R. White: And yet, and yet newspapers are exempt and satellite are not.
William E. Keadle: --Well, Justice White, I would suggest that there might well be another reason for the distinction at first between satellite and cable television service and the later addition to the tax--
Byron R. White: Well, what about between satellites and the newspapers?
William E. Keadle: --Your Honor, I believe there's an even greater distinction--
Byron R. White: Well, they are different.
William E. Keadle: --They're quite different. In fact even more so than satellite and cable, due to the fact that satellite might be seen more as a retransmission, as maybe cable was looked at earlier, of other programming. There's not that original content--
Byron R. White: What has that got to... how is that relevant to taxation?
William E. Keadle: --I think the distinction is relevant due to the fact that there is some indication in the trial record that... or through testimony, that brought up the fact that the fees collected for this service were collected by the cable companies and then--
Byron R. White: In the State of Arkansas.
William E. Keadle: --In the State of Arkansas. Therefore it might have occurred to the General Assembly that here is an administrative... an administratively convenient way to collect taxes on these services where there may not have been any perception beforehand that it... that in fact maybe administration of a tax on this service, even if it was known about, would be feasible... would be economically feasible for the State. I would also take exception to Mr. Sayre's statement that perhaps this case should be send back on remand due to the fact that he did not have a chance to, to make an argument as to the distinction between cable and the newspaper because the act was passed prior to the trial court's decision. This in fact was the same argument he was making with regard to the 1987 act. There was some... was some evidence presented that there were similarities between satellite and cable television, but the thrust of the case seemed to be that the First Amendment violation occurred because they were treating cable differently from newspapers. There was not an appeal made to the Arkansas Supreme Court with regard to that part of the decision. Now I understand that the taxpayers in effect won the case, and they... the result is that there was an award of a refund. But I believe that the respondents had a full... full chance to argue this case, and in fact there is sufficient evidence to at least show that be made. In conclusion I would state that the Arkansas tax in both instances is not violative of the First Amendment due to the fact that it does not single out the press for special treatment, special tax treatment. It does not target what can be proved to be a small group within the press for that treatment. It is definitely not content based. Therefore a rational basis should be the only requirement of the State to justify this differing tax treatment. I might further address an argument that was made with regard to whether this tax exemption could be seen as a subsidy. I believe that if that were the test to be made, on one hand we could win based on the Writer's Project, Minneapolis Star line of cases. If we were to look to the dissent in Arkansas Writer's Project, you could very well see that this tax exemption to an otherwise generally applicable tax could--
William H. Rehnquist: Thank you, Mr. Keadle.
William E. Keadle: --Thank you, Chief Justice.
William H. Rehnquist: The case is submitted.


William H. Rehnquist: We will hear argument now in No. 85-1347, Pennsylvania against George F. Ritchie. Mr. Clark, you may begin whenever you are ready.
Edward Marcus Clark: Thank you, Mr. Chief Justice, and may it please the Court, this case is before you today on a writ of certiorari to the Supreme Court of Pennsylvania. The Commonwealth has contended in our brief that the Intermediate appellate court and the Supreme Court of Pennsylvania erroneously construed and misapplied two very important segments of the Sixth Amendment jurisprudence of this Court, and in the process effectively have dismantled a very elaborate statutory procedure erected to encourage more complete reporting of what has become a very shameful and often secret crime, the sexual abuse of children. Specifically, the court below erred, we contend, in concluding that the compulsory process and the confrontation clause invariably requires that a criminal defendant in a sexual offense case such as this must be given pretrial access to confidential records compiled by a child protective service agency notwithstanding the fact that the records were never used or employed by the prosecution at any stage of the proceeding. Before we address the merits of those contentions, Your Honors, I would request the Court's indulgence in view of the fact that the respondent here has interposed a challenge to this Court's jurisdiction under the so-called final judgment rule it Title 28, USC Section 1257. In view of that I would like to briefly summarize the factual and the history of this case in order to set the context for argument on that issue. Respondent was charged in a four-count information with rape, incest, involuntary deviant sexual intercourse, and corrupting the morals of children. The charging document alleged a course of conduct that spans some four years. The specific criminal episode giving rise to the charges, however, occurred in June of 1979. Prior to trial, respondent initiated discovery proceedings seeking, among other things, results or reports involving a medical examination counsel believed had taken place regarding the victim in this case. Subsequently he issued a subpoena to the Children and Youth Services Agency of Allegheny County seeking review and total access to their confidential records pertaining to the victim. The agency chose not to surrender those records to the respondent based on that subpoena, and as a result respondent's counsel, trial counsel filed a pleading called a motion for sanctions and a hearing was convened at the trial court level. At the hearing, respondent informed the trial court that he had to have access to these medical records in preparation for trial, and also that he was aware that there had been conversations between the complaining victim and a Children and Youth Services caseworker. In addition to those alerts, red flags for the court below, respondent's counsel also said that there is possible witnesses, witnesses not known to the defendant. There could be witnesses in those records that could be useful in my defense, matters that could be favorable to the defendant. Based on that presentation the trial court denied relief, denied access to these records, and characterized, I think correctly, the assertions or the offer of proof by respondent's trial counsel as too vague and nonspecific. Of course, as the Court is aware, respondent proceeded to trial, was convicted by a jury, and ultimately sentenced to a term of imprisonment. The intermediate appellate court of Pennsylvania, the Superior Court, without having considered or having access to the notes of testimony from that pretrial hearing, concluded that the procedures employed by the trial court below failed to protect the respondent's confrontation rights, his privileges there. A remand was ordered and the trial court was directed to review these records for purposes of determining whether or not there was a statement by the victim pertaining to abuse. So far so good as far as the commonwealth is concerned. But inexplicably the court determined that respondent's counsel must be given access to the entire file, unexpurgated, unexcised, to determine whether or not... in order to be able to present argument concerning relevancy.
William J. Brennan, Jr.: Incidentally, Mr. Clark, Act 1975 was amended, was it not?
Edward Marcus Clark: I am sorry, I am not familiar with that Act. Are you speaking of the final judgment rule, Your Honor?
William J. Brennan, Jr.: No, I am speaking of the statute under which access is or is not--
Edward Marcus Clark: Oh, under the federal rules, Your Honor.
William J. Brennan, Jr.: --Yes. The Pennsylvania statute.
Edward Marcus Clark: Oh, the Pennsylvania statute, yes, it was amended in 1982, Your Honor. Yes.
William J. Brennan, Jr.: And under the ordered remand would access be governed by the old or the amended statute?
Edward Marcus Clark: I presume it would be under the amended statute, Your Honor. The Commonwealth wouldn't have any problem with that. The Supreme Court reviewed this appellate decision.
Antonin Scalia: Well, you might if we thought that that was a basis for saying that the case is moot, that we now have a new statute in front of us.
Edward Marcus Clark: Well, I don't believe the case would be moot, Your Honor, in this regard. We have--
Antonin Scalia: Why don't you tell us why it wouldn't be.
Edward Marcus Clark: --We don't think that the amendments to the statute effectively have altered the basic ruling by the Pennsylvania Supreme Court, which is that invariably these confidential records must be given carte blanche to a criminal defendant in this case.
Antonin Scalia: The basic change in the statute as I understand it is that henceforth the prosecutor has access. Under the prior version even the prosecutor didn't have access to it. Now he has access, right?
Edward Marcus Clark: The prosecutor has access to reports which have been given by the Children and Youth Agency to the prosecutor. The prosecutor does not customarily, in my understanding of this law, has not delivered those files. That is not part of his investigatory tools, Your Honor. The regulations governing access by prosecutors in this case are very explicit in terms of the kinds of crimes which require their disclosure, the forms upon which the information that is given to the police department--
William H. Rehnquist: Well, if we reversed the judgment of the Supreme Court of Pennsylvania in this case the result would be that the conviction stands affirmed, wouldn't it?
Edward Marcus Clark: --Absolutely correct, Your Honor.
William H. Rehnquist: And certainly that I would think would prevent the case from being moot.
Edward Marcus Clark: I'm sorry, I don't understand. Your Honor is saying that this would moot the case?
William H. Rehnquist: No, it seems to me that would prevent the case from being moot.
Edward Marcus Clark: Oh, absolutely correct.
William H. Rehnquist: A decision here has some effect on the rights of the parties before us.
Edward Marcus Clark: Absolutely, Your Honor. Absolutely. I thank you for your assistance in that regard.
William H. Rehnquist: Even though you didn't recognize it at first. May I ask on a somewhat related question, is the respondent a fugitive?
Edward Marcus Clark: Not to my understanding, Your Honor.
John Paul Stevens: Because I notice the affidavit for in forma pauper is indicated he was unavailable and the lawyer didn't know where he was.
Edward Marcus Clark: I believe there is a subsequent communication with the Court, Your Honor, involving, I believe they found the respondent and he subsequently signed an affidavit attesting to his pauper status.
John Paul Stevens: I see. He is not incarcerated now?
Edward Marcus Clark: He is not incarcerated. The judgment of sentence was stayed pending direct appeal rights. We think that, not to belabor the obvious here in terms of the challenge to the final judgement rule, that the Sixth Amendment issues here have been finally litigated, certainly in the highest state court of Pennsylvania, and that there is no further review possible in our... Justice Scalia, I am sorry you are indicating your disagreement.
Antonin Scalia: Sure, you can get further review. The state can refuse on-remand to turn over these records as the Supreme Court has said it must do, whereupon either the conviction will be set aside and we would have a final appealable matter, or some contempt sanction would be imposed upon the prosecutor or whoever is in custody of those records, and Pennsylvania would then be able to decide this question again, I presume. I mean, what do you with United States versus Ryan, that whole line of cases?
Edward Marcus Clark: I think in United States versus Ryan, Your Honor, those cases involve the absolute refusal to divulge and to deliver certain materials. The Commonwealth is not in a position of arguing that kind of situation.
Antonin Scalia: That is an interesting difference, but does it bear upon whether the decision is final or not? In Ryan you had an individual who refused to turn over records. The District Court said you must turn them over. The Court of Appeals said, yes, you must. And we said that the Court of Appeals should not have even entertained the Batter because it was not final until he steadfastly refused to turn them over and was held in contempt.
Edward Marcus Clark: That's correct, Your Honor. I understand that.
Antonin Scalia: Now, why was that not final and yet this is final?
Edward Marcus Clark: Well, the trial court here already had access to these records. The Children and Youth Services agency surrendered those records, as they have a practice of doing. In fact, one of the subparts of the confidentiality statute exempts courts of competent jurisdiction precisely to handle these kinds of controversies so that where--
Antonin Scalia: Have they been given to the attorney for the other side?
Edward Marcus Clark: --They have not been given to the attorney for the other side.
Antonin Scalia: Well, then, they haven't--
Edward Marcus Clark: They have not been ordered--
Antonin Scalia: --they haven't done what they have been ordered to do yet, nor have they categorically refused to do what they have been ordered to do. They want to litigate it first before they take their chances. And what we said in Ryan is, you have to take your chances. Go into contempt and then we will see whether you had to turn it over or not. Now, why should there be a different rule here?
Edward Marcus Clark: --I think beforehand it would be a requirement of the respondent here to request the state Supreme Court to enforce its mandate before we... the Children and Youth Services is not in sort of some kind of limbo contempt situation here because it hasn't delivered these files yet. We immediately appealed.
Antonin Scalia: There is no final action that has been taken against anybody. Nobody has been held in contempt. No defendant has been acquitted. Nothing final has happened.
Edward Marcus Clark: A defendant has been convicted, Your Honor-- --The Court has said if-- --and a Sixth Amendment issue has been authoritatively decided by a state court, arguably incorrectly, and as a result of that we have a situation where the state trial courts of Pennsylvania are routinely permitting criminal defendants to scavenge.
Antonin Scalia: This prosecution is still proceeding, isn't it? It is not over.
Edward Marcus Clark: I don't think it's over any more than the fact that as this Court did in South Dakota versus Neville where the State Supreme Court there had authoritatively adjudicated a federal constitutional issue and remanded the case to the trial court for further proceedings on another matter, and this Court determined that it still had Jurisdiction to decide the issue in view of the fact that no matter who prevailed at the trial court level, the issue would either be mooted or the state would be prevented from proceeding any further in the United States Supreme Court by virtue of the double jeopardy clause.
Antonin Scalia: As I understand it, the only way we can distinguish the next case where a litigant is ordered to turn over Information and he says that that order is incorrect, the only way we can turn down an appeal from that order without requiring him to take his chances and either lose the case or go into contempt, you say the distinction between that case and this one is what, that here... here what?
Edward Marcus Clark: Between Ryan and this case, Your Honor?
Antonin Scalia: Yes, that is essentially Ryan I was describing.
Edward Marcus Clark: In Ryan the defendant absolutely refused to disclose these, to surrender his--
Antonin Scalia: And here? And here the prosecution is absolutely refusing to do what is requested. Turn them over to the counsel for the other side.
Edward Marcus Clark: --The agency was directed to surrender those records initially to the trial court, Your Honor. Here, the order from the Supreme Court, yes.
Byron R. White: Well, isn't the--
Edward Marcus Clark: The Supreme Court has... I'm sorry.
Byron R. White: --It there is a refusal to turn them over won't the conviction be set aside?
Edward Marcus Clark: Presumably the prosecution would be dismissed at that point.
Byron R. White: I would suppose it would because if they are turned over and there is something in them that the defendant should have had during the trial, there is going to be a new trial.
Edward Marcus Clark: There will be a new trial.
William H. Rehnquist: Well, the Supreme Court of Pennsylvania has already ordered a new trial, hasn't it?
Edward Marcus Clark: The Supreme Court... no, it has ordered a remand, Your Honor, tot purposes of an evidentiary hearing to determine whether or not harmless error occurred.
Sandra Day O'Connor: But the court already has the records that are to be opened. Is that correct?
Edward Marcus Clark: The trial court at one time had custody of those records.
Sandra Day O'Connor: Well, does the trial court have them now?
Edward Marcus Clark: No, Your Honor.
Sandra Day O'Connor: Who has them now?
Edward Marcus Clark: Those records are with the Children and Youth Services Agency.
Sandra Day O'Connor: I see.
Edward Marcus Clark: That agency has not been ordered by the Court pending this appeal to surrender those records.
Byron R. White: That is the court that is going to look at them under this order.
Edward Marcus Clark: In a largely ceremonial sense, Your Honor.
Byron R. White: Well, I know, but who is going to determine whether or not there is something in the records that requires a new trial?
Edward Marcus Clark: Well, as I understand it from the Supreme Court's opinion, Your Honor, apparently trial counsel was to make that determination, a rather unusual--
Byron R. White: You mean the trial counsel will say, I found something in here that I think--
Edward Marcus Clark: --The trial counsel will second-guess the trial courts, the appellate courts.
Byron R. White: --He is going to have to argue with the trial court about it.
Edward Marcus Clark: Yes, Your Honor.
Byron R. White: And if the trial court agrees with them there is going to be a new trial.
Edward Marcus Clark: That's correct, Your Honor.
William J. Brennan, Jr.: xxx a new trial, will the prosecution under the amended statute want access to those records?
Edward Marcus Clark: Certainly, Your Honor, they would.
William J. Brennan, Jr.: They will?
Edward Marcus Clark: I should think so.
Byron R. White: If there is a new trial and he is acquitted, you will never be able to have this question raised in this case.
Edward Marcus Clark: It will never be raised here in this Court with that case, Your Honor. There is another aspect to this finality argument that we have, this finality theory that we have that the very harm that we seek to avoid here, the disclosure of those confidential records will happen as soon as that remand takes place. And in our view this is virtually an irretrievable loss if we are correct on our theory of the Sixth Amendment issue.
Antonin Scalia: I am sure counsel could have said that in Ryan, too. He could have said, Your Honor, my client is not going to take the chance of going into contempt. If you don't hear this appeal now he is going to turn this information over, and we said, you know, we are sorry, we don't sit here to review issues. We sit here to review final actions, and there is no final action in this Court, by this Court, so go away.
Edward Marcus Clark: It is not final in the sense, Your Honor, that there are further proceedings to come. That is absolutely correct. But this Court's line of cases beginning from Cox Broadcasting--
Byron R. White: But if you refuse, the conviction is going to be set aside.
Edward Marcus Clark: --That's correct, Your Honor. I am not sure that I can represent that a refusal to surrender these records is what is going to happen. Those records--
Antonin Scalia: If and when it is set aside we could review it then, right? You could then appeal the setting aside of it for these erroneous grounds, for these grounds that you assert are erroneous.
Edward Marcus Clark: --If... in the event there is a refusal?
Antonin Scalia: Right.
Edward Marcus Clark: Is that what you are saying, Your Honor?
Antonin Scalia: Right.
Edward Marcus Clark: I believe that the mandate of the Supreme Court of Pennsylvania is that Children and Youth Services will surrender their records to the trial court. Presumably if the trial court wants those records it will order them, as it may under the statute. When that occurs the trial court, as the opinion indicates, is expected to review these files to determine whether or not there would be anything in there that might have been helpful to the respondent in preparing his defense. Then the court is to surrender those records to the respondent so that he may do his second guessing evaluation of the trial court's exercise of discretion.
William H. Rehnquist: Mr. Clark, you might be well advised to move to the merits since you only have half an hour.
Edward Marcus Clark: Thank you very much, Your Honor. In returning to the merits, the Commonwealth would observe that the Supreme Court of Pennsylvania erred in three specific respects. It misconstrued or misapplied the application of the confrontation clause in the circumstances of this case. It erroneously concluded that counsel's otter at the pretrial proceeding was a sufficient preliminary demonstration of materiality so as to trigger, if there is a compulsory process issue here, that clause, and it incorrectly concluded, we believe, that the two clauses in effect have... cannot countenance the ex parte judicial review of these confidential records which the Commonwealth insists must occur. The privilege of confrontation is exclusively a trial right. The situation complained of here Involves a pretrial decision involving pretrial matters. Facially the confrontation clause is not applicable here. The Supreme Court of Pennsylvania relied on Davis v. Alaska as dispositive of the issue, falling to understand, I believe, that the constitutional error that this Court found in Davis v. Alaska was the restriction on the trial lawyer's attempt to cross examine a witness concerning his juvenile status, attempting to coax from him the fact that he might have suspect motives in testifying. This is an inapt analogy, we believe, to this case. It may very well be that the compulsory process clause provides perhaps more expansive privilege, and if it does it might be applicable here. Certainly the compulsory process clause is available to a criminal defendant in a pretrial context. Privileges guaranteed under that clause, we think, however, require a respondent, a defendant to identify with some particularity the witnesses or the evidence that he would seek to have the court compel for his use at trial. The respondent's litany of could be's does not meet that minimal test of materiality which this Court has discussed most recently in United States versus Valenzuela Bernal. There the Court determined that it is imperative upon the person seeking access to what apparently is information he cantor possibly know the contents of to make some plausible theory about how a witness might be used, what that witness might be capable or competent to describe, and so forth. Under this Court's discussion there, I believe, which is dispositive of the compulsory process clause issue before this Court, it cannot be doubted that the offer by the respondent was so vague, so generalized, so undirected that the trial count simply had no information upon which to exercise its discretion. I would hasten to assure the Court that the respondent was very well aware of the names of the caseworker who was involved in interviewing the child, the name of the doctor who treated or examined the victim, and that he very well could have sought the trial court's assistance in isolating statements made by either one of those parties that might be in that tile because those people would be competent to testify about some aspect presumably of the criminal defendant's preparation for trial.
Antonin Scalia: Mr. Clark, what about Brady versus Maryland? That is not really a compulsory process case.
Edward Marcus Clark: No, Your Honor, that is a due process case.
Antonin Scalia: That doesn't require a specific description of what... in fact you often don't know what the prosecution or the government has, right?
Edward Marcus Clark: That's absolutely correct, Your Honor.
Antonin Scalia: And due process requires that if you ask the government for whatever exculpatory information it may have the government turn that over it that would be material. Why isn't that applicable?
Edward Marcus Clark: It could very well be, Your Honor, in this regard. Those files never having been in the possession of the Commonwealth, but having been in the possession of the trial court, it may very well be that the trial court could make that preliminary determination regarding whether or not there is exculpatory evidence in there, and I am not here today to attempt to say that where exculpatory evidence exists and where the Commonwealth as a law enforcement representative would have some access to that confidential material, that there wouldn't be any obligation of someone to determine whether or not there was exculpatory material.
Antonin Scalia: Your point is that the order here goes beyond Brady and it requires it all to be turned over whether in fact it is exculpatory material or not.
Edward Marcus Clark: That is absolutely right, Your Honor. What distinguishes this from Brady material, of course, is that it was never in the possession of the attorney for the Commonwealth, the prosecutor, and I think that is the essence of the Brady decision, because--
Harry A. Blackmun: Certainly under the amended statute the Brady case would become pertinent.
Edward Marcus Clark: --It certainly would, Your Honor, and I am quite... the Commonwealth is quite content to represent that we believe the trial court is in a very excellent position to make these discriminating choices between extraneous material and matter which is certainly dangerous.
John Paul Stevens: Mr. Clark, in this case to what extent did the trial judge actually examine the file?
Edward Marcus Clark: It is difficult to tell from reading the record, Your Honor, but it appears that I could imagine the trial judge, knowing him as I do, leafing through things. There is no way to demonstrate that from the record, however.
Byron R. White: Didn't the trial judge say he hadn't read those 50 pages?
Edward Marcus Clark: He said he hadn't read all 50 pages. I think the dialogue goes--
Byron R. White: Of the nonmedical record?
Edward Marcus Clark: --I believe the dialogue goes something like this, Your Honor. Respondent's counsel sought medical records. He says, there's medical records in there, I know there are, and the trial court apparently leafed through some material--
Byron R. White: He said there wasn't any.
Edward Marcus Clark: --and said, I don't see any medical records in there, and he apparently turned to the representative of the Child Protective Service Agency and said, are there any medical records in here that were representative? He said there were not. And that apparently concluded that inquiry.
John Paul Stevens: May I ask you if you think what the trial judge did was constitutionally sufficient?
Edward Marcus Clark: Absolutely, Your Honor, based on the proffer made by respondent's counsel.
John Paul Stevens: But he had no duty to look at the file?
Edward Marcus Clark: He had a duty to look in a file if he got a specific request for a specific kind of--
John Paul Stevens: Absent a specific request identifying particular material--
Edward Marcus Clark: --At that point no, Your Honor.
John Paul Stevens: --I see.
Edward Marcus Clark: At that point no.
Byron R. White: He wanted medical records.
Edward Marcus Clark: He wanted medical records. He looked for some evidence--
Byron R. White: And the judge said, there aren't any.
Edward Marcus Clark: --There aren't any. Apparently he was able to make that kind of a discriminating choice by leafing through how many ever pages there were in that record. And in that... I would... If there are no further questions by the Court i would like to reserve the balance of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Clark. We will hear from you now, Mr. Corbett.
John H. Corbett, Jr.: Mr. Chief Justice, and may it please the Court, this case provides an opportunity for this Court to reaffirm its concern for the integrity of the truthseeking function of state criminal trials. The Supreme Court of Pennsylvania has held in this case that the integrity of its criminal trials, the truthseeking function embodied in those trials is paramount to this privilege statute, a statute created under Pennsylvania law, and in doing so it did not render that statute unconstitutional. It did not declare that statute unconstitutional, but interpreted that statute and sent the case back to the trial court for determination of whether there is material in the CWS files, the Child Welfare Service files to determine further if that material, if relevant the suppression of that material was harmless beyond a reasonable doubt, and if a new trial was warranted. In doing so, the decision of the Supreme Court of Pennsylvania, we would state to this Court, is not a final decision under Section 1257. Certainly it does not fit the classic definition of finality because there are a number of things for the trial court to do other than simply to record a judgment. The trial court must hold an evidentiary hearing in camera to determine the relevancy at the material in the CWS files. It must determine if the suppression of such evidence was harmless beyond a reasonable doubt, and if necessary determine whether a new trial was warranted. Furthermore, this case does not present itself as a classic example of those kind of cases which this Court identified in Cox Broadcasting Company as being a final judgment for purposes of appeal to this Court. There are a number of things to be done in the lower court, and the issue that the district attorney of Allegheny County is presenting to this Court will not evade review. If the material goes back... if this case goes back to the trial court and a new trial is granted then the district attorney can then once more go through the various stages of appeal and bring this case to this Court.
Byron R. White: It seems to me the harm that the state statute or the state rule was designed to prevent, namely, the disclosure of these records, will... the harm will have been done. And what the state wants to do is to prevent access to these records insofar as the Constitution will permit, and if this case goes back the records will be turned over to counsel and harm will be done, and that is precisely what the state wants to prevent. It is sort of like a double jeopardy issue.
John H. Corbett, Jr.: Well, Your Honor, if I may, I have two responses to that. The first is that the district attorney is bringing a Sixth Amendment issue to this Court but it is not claiming a Sixth Amendment injury. It is in fact presenting sub silencio a Tenth Amendment issue for this Court to consider. And that is that by interpreting the Sixth Amendment claim in this fashion it is saying that the Supreme Court of Pennsylvania has applied excessive federal regulation to a state statute, and in that manner is attempting to bring this case to this Court under the rubric of a Sixth Amendment case when in fact the district attorney has not suffered a Sixth Amendment injury, and it is not the type--
William H. Rehnquist: Well, you agree, don't you, Mr. Corbett, that one of the bases of the Supreme Court of Pennsylvania's decision was its perception of how the Sixth Amendment should be applied.
John H. Corbett, Jr.: --Absolutely. Absolutely, but--
Byron R. White: xxx require turning over these materials to the defense attorney?
John H. Corbett, Jr.: --Yes, it did. That goes to the second... my second response to Justice White's question before, and that is, this disclosure of material in the CWS files is not such a great harm that this Court should be concerned with it. Under this state statute, the state statute that was in effect at the time this case went to trial, there were five classes of individuals who were entitled to gain access to this material--
Byron R. White: Well, do you think that is--
John H. Corbett, Jr.: --one of which--
Byron R. White: --Do you think that has much to do with finality, how great the harm is?
John H. Corbett, Jr.: --Yes, I think it does, whether or not the type of harm that the district attorney is propounding is irreparable I think is a concern that this Court must face here. What I am saying here is that this state statute gives access to five groups of individuals, which was later expanded to eleven groups of individuals, and under both statutes a court of competent jurisdiction pursuant to court order had access to this material, and I suggest that that is a classic subpoena order. Secondly, the Supreme Court of Pennsylvania remanded this case to the trial court with instructions that this material be reviewed in camera and that appropriate protective orders be imposed upon counsel for the dissemination of that material, so that this material is not going to be disseminated widely to the public.
Antonin Scalia: Mr. Corbett, isn't it true that the kind of damage you are responding to that Justice White suggested will always occur in any of our cases such as Ryan, where we have insisted that the individual who asserts a right, even a constitutional right not to disclose information which the court requires him to disclose nonetheless go into contempt before he can bring it up here? He either goes into contempt or else he turns it over. If he turns it over he produces exactly the result which the Constitution assertedly guarantees won't happen. So in that respect I would think your response would be the state is in no different situation from anyone who refuses to turn material over or says he will refuse. The refusal has to be evident before we intervene.
John H. Corbett, Jr.: Yes. Thank you, Justice Scalia.
Sandra Day O'Connor: Is there an exception in Ryan, though, when privileged information is in the hands of a third person?
John H. Corbett, Jr.: Well, that brings us to a difficulty with this case, and that is that the district attorney is really wearing two hats in bringing this case to this Court. The district attorney is wearing the hat of the privilege holder in withholding the Information and also as the litigator in a case and that they are Interested in maintaining the Judgment they have in their favor. I think the Court understands my argument on the finality issue. I would like to then move on to the substantive issue itself dealing with the--
William J. Brennan, Jr.: Mr. Corbett, before you do--
John H. Corbett, Jr.: --Yes, Your Honor.
William J. Brennan, Jr.: --is your client available now?
John H. Corbett, Jr.: Yes, Your Honor, he is, As Mr. Clark pointed out, we had some difficulty in locating this individual. He was not in any way a fugitive. We have supplied his affidavit to the Court. It is a matter of record. Moving on, then, to the confrontation and compulsory process issue itself, the facts in this case are extremely important in order for the Court to understand exactly what transpired, both during the pretrial hearing in chambers where the CWS records were discussed and also during the trial. The facts as adduced during these proceedings indicate that the complainant was the 13-year-old daughter of my client. The criminal charges arose out of an event that occurred on June 11th, 1979. This young girl was the only witness at trial to establish that any type of a crime had ever occurred. There was no other type of direct testimony, no other type of circumstantial evidence entered of any kind whatsoever that any crime had ever occurred. This girl indicated that these events had occurred three or four times a week for a period of four years. During her testimony at trial and also in the pretrial hearing defense counsel was able to point out that in September, the previous September of 1978 a representative of CWS had investigated the Ritchie home and that no criminal charges had been filed at that tame, no further action taken. It is significant for our purposes to point to that September of 1978 to indicate that we had in the home a representative of the state who apparently interviewed the members of the family, and no criminal charges arose from that incident. The complainant gave statements to that representative of CWS, and yet we were denied the opportunity to look at that material, to cross examine the complainant During the trial.
William H. Rehnquist: Well, are you contending, Mr. Corbett, that the Sixth Amendment right to confrontation confers something more than the right to examine a witness who is present in court and testifies?
John H. Corbett, Jr.: The Sixth Amendment right to confrontation, I think, gives the defendant the opportunity to develop the facts, to see where the truth lies, and does so by giving the... by giving the defense an effective opportunity to cross examine the witness.
William H. Rehnquist: And what Sixth Amendment case construing the confrontation clause of ours do you rely on for that proposition?
John H. Corbett, Jr.: I think quite frankly our strongest case here is Davis versus Alaska, where in its broadest sense the case may be read to state that a state may not deny its confrontation claim or confrontation obligations simply by alleging that the evidence that it wishes to withhold is privileged by... under state law.
William H. Rehnquist: But in Davis the effort was to interrogate the witness on the stand. They weren't seeking access to information which would enable them to interrogate the witness.
John H. Corbett, Jr.: They were... in Davis they Mere also looking to... they were looking to obtain facts from which they could cross examine the witness during the trial. Those facts existed in juvenile records. In this case we have--
William H. Rehnquist: But the effort was to examine the witness herself, wasn't it?
John H. Corbett, Jr.: --In this case, yes. In Davis.
William H. Rehnquist: Well, in Davis.
John H. Corbett, Jr.: Yes.
William H. Rehnquist: I mean, they weren't... were they seeking in Davis discovery of a lot of allegedly confidential records in order to enable them to prepare to examine the witness?
John H. Corbett, Jr.: No, they weren't. In Davis, Davis dealt with the possible basis of bias or prejudice of the witness in testifying in the manner in which he did.
William H. Rehnquist: Certainly our case of Delaware against Fensterer indicates that it is not the very broad view that you subscribe to for Davis that is controlling with us.
John H. Corbett, Jr.: That may be true. However, in Fenster you had a situation where the defense was able to bring in a witness to present facts on their own side of the case to show that the expert witness in that case called for the prosecution had no basis for such an opinion, that such an opinion was not recognized in the body of scientific knowledge. In this case the only source that the defense could point to to obtain those facts were contained in the CWS files.
William J. Brennan, Jr.: The statements in that file did you say included statements by the complaining witness? Or you don't know?
John H. Corbett, Jr.: We think they should. We don't know. There was--
William J. Brennan, Jr.: Was this anything like Jencks versus United States? They wanted statements of the government witnesses, in order to cross examine to show inconsistencies with the testimony?
John H. Corbett, Jr.: --I think it is very similar to Jencks, yes.
William J. Brennan, Jr.: Well, of course, Jencks was not a constitutional decision, though.
John H. Corbett, Jr.: Well, in this case I think that... I think that in order to cross examine this witness we have to be given access to that material. There is no other source for that kind of material. Certainly if it were not for this state statute those statements would be available to us. It is only but for this state statute--
William J. Brennan, Jr.: xxx Jencks rule?
John H. Corbett, Jr.: --No. No, Your Honor, it does not. This Court last term in Delaware versus Van Arsdall indicated that defendant shows a violation of his right of confrontation by showing that he has been prohibited from engaging in otherwise appropriate cross examination designed to show a prototypical form of bias on the part of a witness and thereby to expose to the jury facts from which the jury could appropriately draw inferences relating to the reliability of the witness. We are asking the Court that we have been denied the opportunity to look at those facts, to bring those facts before the trier of fact, here the jury, and have the jury--
William H. Rehnquist: But your claim is quite different than the one in Van Arsdall. In Van Arsdall Questions were asked to a witness on the stand and the trial judge said, no, the witness is not required to answer those questions. Here, no one prevented you from asking this witness any question you wanted to on the stand. Your complaint is, you want to do a lot of discovery work before you start asking questions.
John H. Corbett, Jr.: --Well, what I am complaining about is the fact that as in Davis the jury may very veil have thought that defense counsel's cross examination of the victim concerning this investigation in September of 1978 may have been a baseless ground of attack. Here me have a situation where the principal issue at trial was the credibility of two parties, the complainant and the defendant, and it may very well have tipped the scale for the jury to have heard a different version of the facts that the complainant gave on prior occasions. And in that respect I am saying that there lies the violation of the right to confrontation.
Sandra Day O'Connor: Well, Mr. Corbett, doesn't your claim fit a lot more easily under the compulsory process clause than the confrontation clause for right of access to information?
John H. Corbett, Jr.: I think this case presents... I think both the confrontation and the compulsory process Issues go hand in glove.
Sandra Day O'Connor: Well, I just don't see that you were denied confrontation. Conceivably there is some compulsory process problem, but I don't see that it fits very comfortably under the confrontation clause.
John H. Corbett, Jr.: Okay. If I may just point out one matter concerning that, on the... whether or not the defense has shown whether they have made out... whether the claim is material, whether or not the suppression of such evidence undermines confidence in the outcome of the case is the standard of materiality that this Court must wrestle with. Here we have more than a "plausible showing", as the Court indicated under--
Sandra Day O'Connor: How have you made a plausible showing to reveal the entire record as opposed to just verbatim inconsistent statements of the witness?
John H. Corbett, Jr.: --Well, we have the CWS files. The record indicates, the entire record indicates that the CWS files contain facts that the Commonwealth of Pennsylvania has gathered--
Sandra Day O'Connor: Is the judge, is the trial judge incompetent to make the determination of what is material?
John H. Corbett, Jr.: --No, I don't think it is a matter of declaring whether or not a trial judge is or is not incompetent. As we indicated in our brief in the case of Alderman v. United States, this Court indicated that it is enough for judges to judge, and in that case it is useful to have the defense, defense counsel participate in deciding whether or not material is useful to the defense. We have set forth in our brief several steps that one can go through in analyzing whether or not defense counsel should participate, one of which is whether or not the case is factually complex in itself. I suggest that when this type of criminal case arises where you have claims of abuse arising in a family relationship that is a quite complex factual determination, and a trial judge sitting... the best trial judge sitting as objectively as he possibly can, in looking at this material would or may very well overlook something that would have great significance to the defense. In looking at the privilege statute that is the bone of contention in this case, one of the classes of categories of individuals who have access to this information is a court of competent jurisdiction pursuant to court order. We argued in the state courts, and the Supreme Court of Pennsylvania agreed with us, that it would be absurd to suggest that a court is granted access to this file, and yet it is not free to use that material to assist in the truthseeking function of the criminal trials. In determining which remedy should be applied in looking at this material contained in the file, whether or not defense counsel should participate, we have set forth in our brief two alternate lines of cases looking at this particular situation. One was under the dicta of this Court in the case of United States versus Nixon, where the Court suggested that the case would be remanded back to the trial court in order to have the trial judge review this material in chambers with counsel present and counsel would then... or the trial judge would then have the benefit of counsel's advice on determining what information is relevant and material to the action. The second line of cases that we have outlined for the Court in our brief concerns those cases arising under the Freedom of Information Act. These cases arise under the various courts, federal courts of appeals, and in those situations the courts have required the party withholding the information to prepare affidavits indicating why the information should not be turned over to the opposing party, and also an affidavit to assist the judge, the trial Judge in reviewing the material. Both the affidavit and the material would then be sealed and... placed under seal for review by appellate courts. Since that procedure was not used in the present case and... we would submit to the Court that in the absence of such a procedure defense counsel must assist the trial judge in determining the materiality of this material in order to ensure the integrity of this truthseeking process. With no further questions, I would request the Court to affirm the judgment of the Supreme Court of Pennsylvania.
Byron R. White: Do you think Davis is the closest case to supporting you?
John H. Corbett, Jr.: I think Davis would be the closest case concerning the confrontation issue and possibly Washington versus Texas being the closest case on the compulsory process issue. Thank you, Your Honors.
William H. Rehnquist: Thank you, Mr. Corbett. Mr. Clark, do you have anything else you wish to say? You have four minutes remaining.
Edward Marcus Clark: Thank your Your Honor. Very briefly, I would like to address the figurehead role that the respondent's counsel seems to envision for the trial court. It is kind of an enfeebled referee or arbiter, which this Court has specifically declined to assign to the trial court judge in situations like that, and in the case of United States versus Mobles this Court clearly indicated its disfavor with the contention that the trial court should not be in the position of evaluating preliminarily these kinds of determinations.
Sandra Day O'Connor: Mr. Clark, may I just make one inquiry? Does the district attorney have the power to direct the Child Welfare Service not to turn over those records?
Edward Marcus Clark: Absolutely no, we do not have that power. I can't imagine the circumstances under which we would. We have the power to perhaps seek courts' assistance in getting material for ourselves which is due us under the statute, and with the Court's indulgence I would like to backtrack. I believe on a question that Justice Brennan asked regarding whether or not, if we went back on a remand, whether or not the proceeding would be decided under the immunity statute or under the old statute. I think in view of the fact that the amendments to the statute involve the new access to prosecutors and the issue before this Court is the access of defendant to those statutes, that more appropriately the proceedings should occur under the 1975 Act rather than the 1982 amendment. And in view of the fact that the scant proffer concerning materiality by the respondent, our lack of access initially to those records, and respondent's failure to follow up his request at the cross examination stage at trial, we believe that the integrity of the judgment and conviction here is best served by analyzing the case under the 1975 Act, Your honor. If there are no further questions from the Court the Commonwealth of Pennsylvania would ask this Court to reverse the Judgment of sentence below, rather, the judgment and order by the Supreme Court, and in effect affirm the trial court's decision.
William H. Rehnquist: Thank you, Mr. Clark. The case is submitted.