William H. Rehnquist: We'll hear argument first this morning in Number 96-1769, the Ohio Adult Parole Authority v. Woodard. Mr. Klatt.
William A. Klatt: Mr. Chief Justice, may it please the Court-- This case presents a challenge to Ohio's death penalty clemency procedures under the Due Process Clause of the Fourteenth Amendment and the SelfIncrimination Clause of the Fifth and Fourteenth Amendments. If I may, I'd like to address the due process challenge first. Fundamentally, respondent's due process challenge fails for two reasons. First, he has no constitutional or inherent right to clemency based upon this Court's decision in Connecticut Board of Pardons v. Dumschat. Second, Ohio's adoption of the clemency power and the procedures associated with it do not create a constitutional entitlement because the Governor's exercise of that power remains wholly discretionary.
Sandra Day O'Connor: Well, let me ask you something, Mr. Klatt. Suppose that the Governor... obviously an unlikely scenario, but suppose the Governor of Ohio, some future Governor, decided that he would grant clemency to... he would at least allow clemency hearings and consider clemency for white defendants but not black. No limit there on a policy like that, would you say, under the Constitution?
William A. Klatt: I believe there would be a limit under that--
Sandra Day O'Connor: So what we have to decide--
William A. Klatt: --There would be an equal--
Sandra Day O'Connor: --is, what are the limits, and how do we draw that line.
William A. Klatt: --Yes.
Sandra Day O'Connor: So you do concede that there would be some equal protection concerns, certainly, constitutionally imposed?
William A. Klatt: Yes, Your Honor, we do concede that, not rational basis equal protection, but certainly a suspect category, perhaps even a substantive due process problem in an outrageous circumstance.
William H. Rehnquist: The court of appeals here, as I understand it, based its ruling on the Due Process Clause, not the Equal Protection Clause, is that correct?
William A. Klatt: That is correct.
Antonin Scalia: I don't see... what difference would that make, what clause you're proceeding under?
William A. Klatt: Your Honor, I don't believe it would make a difference in terms of equal protection, rational basis and due process. I think the analysis would be essentially the same, although for slightly different reasons. Fundamentally, the Due Process Clause is not violated in this instance because there is no underlying life, liberty, or property interest that's at stake. That interest has been adequately safeguarded by the substantial protections that exist at the trial court level and certainly throughout the appeal process leading to the final conviction.
Ruth Bader Ginsburg: Mr. Klatt, are you then saying that what... there may be some process due, but whatever process due it has been allowed, or are you taking the position that due process, as distinguished from equal protection, your answer to Justice O'Connor, due process doesn't enter into it? The examples that, was it Judge Nelson gave, were due process examples. That is, arbitrary decisionmaking. She gave the example of a coin toss, or picking the straw out. So are you saying, suppose the parole board said, oh, we have better things to do with our time than read all this stuff, so we're going to toss a coin and every tenth or, say, every tenth applicant will get clemency?
William A. Klatt: Your Honor, our position is that fundamentally, because there is no underlying life, liberty, or property interest, that a Governor could make a clemency decision in an arbitrary manner. It's almost inherent in the concept of unfettered discretion. I don't think that would happen. There's no reason to believe that a Governor would act any less responsibly than a court would in exercising power, and in fact clemency by constitutional design was meant to be an unfettered power of the executive branch as a check on the judicial branch, so fundamentally our position--
Ruth Bader Ginsburg: So it could be totally arbitrary as long as it's not a denial, so you're saying there is an equal protection check but not a due process check, is that--
William A. Klatt: --Yes. Yes. That's exactly our position.
David H. Souter: --Then it does matter on your analysis that, although the State... although there is no... in your judgment, although there is no life interest to be protected, and although the State is not obligated to give any clemency consideration at all, it still does not matter on your analysis that the State has chosen to do it, that that does not implicate a due process concern.
William A. Klatt: It does not implicate it on these facts for the simple reason that Ohio, in enacting the power, did not in any way create standards or criteria that limit the discretion of the decisionmaker.
William H. Rehnquist: Well, that's certainly what Dumschat held, wasn't it?
William A. Klatt: That's exactly what Dumschat held, Your Honor, and it's a case that we rely very heavily on. We believe it's a case that is right on point in terms of the facts that are confronted with... that are confronted the Court in our case.
Anthony M. Kennedy: And the answer that the respondents give is that they say because this is a death penalty it is necessarily a part of the criminal process, and Dumschat was not. Is that how you understand their argument?
William A. Klatt: They, of course, make a number of arguments, Your Honor, but that is one of them, and I believe the argument is flawed for the simple reason that the Court in Dumschat, relying I think principally on the Greenholtz analysis, basically said that if the interest that was at issue... and in that case I admit it was a liberty interest, not a life interest, but I don't think that matters, because what the Court was saying is, if the interest that was at issue was contemplated and encompassed in the underlying conviction and sentence, that that interest has been adequately safeguarded, and--
Anthony M. Kennedy: Now, suppose... and I suppose it's not too unimaginable a hypothetical... that the clemency authorities said that you may not consult counsel in preparation for your clemency hearing.
William A. Klatt: --Well, I think that would... it sounds as if you're asking a straight right to counsel question.
Anthony M. Kennedy: Yes. That would probably be under just the Sixth Amendment, wouldn't it?
William A. Klatt: It would be I think just under the Sixth Amendment, which of course is not at issue in this case. In answer to your question, I believe there is no right to counsel constitutionally to... in the clemency process, so the State would not have to provide a counsel. Now, of course, Ohio does provide counsel in that process.
Anthony M. Kennedy: Well, but in my hypothetical he has a counsel but he's forbidden to consult the counsel in preparing his written submission to the clemency board.
William A. Klatt: I don't believe that would violate due process, because there is no underlying--
Anthony M. Kennedy: Well, would it violate any provision of the Constitution?
William A. Klatt: --It potentially could violate the Sixth Amendment. It potentially could.
Anthony M. Kennedy: Well, of course, now the Sixth Amendment is applicable to the States via the Fourteenth, and then you're right back into the question of having to have a life, liberty or property interest. I would assume it would be life here.
William A. Klatt: It certainly is a life interest here. In that hypothetical, denying counsel at all in the process certainly does not seem correct, but if there's no underlying life, liberty, or property interest I don't know how it would implicate a due process interest.
David H. Souter: Does it follow from your argument that there is no due process implication to the provision of direct appeals in criminal cases, no due process implication in providing the cert process that we do?
William A. Klatt: I don't believe that does follow, Your Honor. Clemency and that power is very distinct from the processes that involve the judicial processes.
David H. Souter: Oh, I will grant... I'll grant you that, but what I was picking up on was the statement you made ago in one of your answers, I guess, to Justice Kennedy, that the interest being protected had been protected in the underlying proceeding. And I thought your point was that when in the underlying criminal proceeding, for example, leading to conviction, these interests had been protected, and there was simply a constitutionally unnecessary further proceeding, whether it be appeal, or cert, or clemency in this case, that there was no application of due process to those superadded stages. Maybe I misunderstood your argument.
William A. Klatt: If I implied that, I misspoke. It's our position that Evitts, which, of course, is a case that is heavily relied upon by my opponent and relied upon by the Sixth Circuit below, is also correctly decided in the sense that due process certainly applies throughout the adjudicatory process, which would include the appeal process. How much--
David H. Souter: Right, but on your theory why shouldn't the due process stop at the conviction?
William A. Klatt: --Because the other processes are part of the system for adjudicating the guilt or innocence of the defendant. Clemency is not--
David H. Souter: So the adjudication's not final, in other words.
William A. Klatt: --Correct. Correct.
John Paul Stevens: Then under your position, as I understand it, a State could totally abolish appeal and say after the trial court proceedings are over whether or not the man will be sentenced or executed should be left entirely to the unbridled discretion of the Governor.
William A. Klatt: Yes.
John Paul Stevens: They could do that.
William A. Klatt: Yes.
William H. Rehnquist: That's certainly consistent with the reasoning in Evitts, is it not, that--
William A. Klatt: I believe--
William H. Rehnquist: --you can't block an appeal from an indigent if the State provides one, but the State under Durston v. King doesn't have to provide one.
William A. Klatt: --I believe that's correct, Your Honor. The--
Antonin Scalia: And if there's anything that seems harsh about that, I suppose it is the deprivation of the appeal, not the deprivation of additional procedures in the pardon.
William A. Klatt: --I would agree, Your Honor. I might add that the fundamental flaw, I believe, in the application of Evitts to this case, is that the lower court's decision was based upon a faulty premise, and that premise is, that faulty premise is that clemency is part of Ohio's system for the adjudication of the guilt or innocence of the defendant.
Anthony M. Kennedy: Well, we have said in cases such as the Herrera case, in talking about the finality of habeas corpus, that there is always clemency. We have made the link, to some extent, in our own writing.
William A. Klatt: Well, I would contend, Your Honor, that simply acknowledging the existence of a power of another branch of Government does not, in and of itself, make it part of the process, and in fact, as I mentioned earlier, as a matter of constitutional structure, clemency is one of the checks and balances that we believe exists, certainly under Ohio's constitution, that is an executive branch's check on the judicial system. And of course, the check on the clemency power itself is basically the electoral process.
Sandra Day O'Connor: Well, Mr. Klatt, in Dumschat this Court's opinion said that unlike probation pardon and commutation decisions have not traditionally been the business of the courts and, as such, they're rarely subjects for judicial review. If we were to take the position that it is conceivable that wholly arbitrary action in the clemency procedure could be addressed under the Due Process Clause, how would you address the allegations that are made here? Would they survive that rare situation, or how would you address those challenges in this case, if there... if we left open the possibility that there could conceivably be a due process violation?
William A. Klatt: Well, I certainly would hope that you wouldn't, but I believe that Ohio's death penalty clemency procedure in this case would survive such scrutiny.
Sandra Day O'Connor: Are you going to address the allegations with any particularity or specificity in giving me that answer?
William A. Klatt: I'd be certainly happy to. Keep in mind here that this policy was enacted to address a problem, and the problem was that the Governor was confronted with clemency applications with very little information, oftentimes because counsel for the death row inmates would not seek stays until the very last minute. In fact, they had a situation where counsel for a death row inmate filed for the stay the day before the execution date with the district court judge. That judge denied the stay. The stay was subsequently granted later that day in the Sixth Circuit, but the Governor was quite upset that with practically no information he was confronted with a clemency situation, so they enact these procedures. The procedures are designed to be fair--
Anthony M. Kennedy: I didn't quite... was the stay application, a request for a stay--
William A. Klatt: --Of the execution--
Anthony M. Kennedy: --of the execution by the Governor, so that the--
William A. Klatt: --No.
Anthony M. Kennedy: --clemency process could take place, or it was just--
William A. Klatt: I'm sorry--
Anthony M. Kennedy: --a collateral... additional collateral attack on the conviction?
William A. Klatt: --It was a stay obtained in the Sixth Circuit, a stay of execution so that he could pursue Federal habeas. I'm sorry if I misspoke.
Stephen G. Breyer: The problem that I'm having is, this case is in an interlocutory posture, and so looking at the opinion, I thought perhaps the circuit has just held that the Due Process Clause could, in some conceivable circumstance, be violated, and can we say now that we could never even imagine a circumstance, so matter how bizarre or peculiar or unfair the system was, that it couldn't possibly be a violation no matter what, and the same, really, in a sense is true of the Fifth Amendment part. Is it... do we have to say that there's never a circumstance, even if the clemency board were to say, you have to confess to every crime ever, ever conceivable by any member of... you know, I mean think of the most bizarre circumstance you can. And now, if there is such a circumstance in which either of these clauses would apply, how can we say that you win, in this posture of the case?
William A. Klatt: Well, it's our position, Your Honor, and we are taking an absolute position, that with respect to due process there is no due process protections that apply here for the simple reason, as I stated earlier, that there is no underlying life, liberty, or property interest to--
Anthony M. Kennedy: I suppose we could put the same kind of questions if you were arguing about the executive power to appoint or to... in the Federal context to recognize a foreign nation. We don't like arbitrary government, but certain powers are committed to the executive.
William A. Klatt: --Some power, some delegation of power is absolute. The veto power. State--
Ruth Bader Ginsburg: Mr. Klatt, I thought that that was one of the arguments that you made, but in your first exchange with Justice O'Connor you said yes, there'd be an equal protection check, so I was thinking that your argument was kind of like a, what's labeled political question. This is committed to another branch of Government, totally executive, judiciary, hands off. But your immediate response was no, there is judicial review for constitutionality under the heading of equal protection, so I gathered from that answer that you weren't taking the answer that you are now giving, that this is just handsoff for the judiciary, it is entirely executive branch business.
William A. Klatt: --I may have misspoke. My point was that with respect to a due process analysis our position is absolute, because you could--
Ruth Bader Ginsburg: But if you're using the political question doctrine, that model, it isn't that as to one clause or as to another clause, it's even... it's a First Amendment violation, whatever. It simply is committed to another branch of Government.
William A. Klatt: --We're not going quite that far, because we have acknowledged that there might be some outrageous circumstance where there could be--
Antonin Scalia: What is outrageous? I mean, once you say equal protection, it seems to me you give... suppose the Governor has two applicants for pardon, they are identical in all their circumstances, and the Governor says, I grant one and I don't grant the other. Is that... you think we can intervene in that case?
William A. Klatt: --No.
Antonin Scalia: And if we can't intervene in that case, I suppose we can look to see if they are identical circumstances, so the ball game's over. You've gotten the whole matter into the court. I don't see how you can give away the Equal Protection Clause and achieve what you're seeking to achieve here. Well... go ahead. Answer Justice Scalia. If you consider it a question, answer it. [Laughter]
William A. Klatt: I'd be happy to respond--
Antonin Scalia: Don't you think that if you give away the Equal Protection Clause-- [Laughter]
William A. Klatt: --It's the position of the State of Ohio that since the clemency power comes from the constitution, at least the Ohio constitution, in Ohio, that it can't violate another expressed provision of the Constitution, and the only one I can think of would be a racebased decision. That seems inherently wrong--
Antonin Scalia: Why, because that is currently a very enraging thing, but why is that any more enraging than two identically qualified people, and the Governor says, I like this guy, you get it, you don't get it? Why is that any different?
William A. Klatt: --Well, even in Dumschat the Court seemed to indicate that you could deny clemency for any reason or no reason at all for any constitutionally permissible reason. If it's not a constitutionally permissible reason it might create a problem. Now, keep in mind, equal protection is not an issue that's currently before you, but if I understand, it's... it's a diff... hypothetical.
William H. Rehnquist: So, supposing the Governor has complete control over the use of the Ohio State stadium for the Ohio StateMichigan game, and he decides that only white people will be admitted for that game. Now, nobody has any sort of a protected liberty interest or property interest to go to that game at all, but nonetheless the Equal Protection Clause would apply to prevent that sort of discrimination, would it not?
William A. Klatt: I believe it would, and that's I think our essential point, and I don't think quite frankly from a practical standpoint it's that much of a concession. What is really a problem here is applying a due process analysis which would... at any level, which seems to totally open up the door.
Antonin Scalia: It's easy enough if you limit it to race alone, but once you say you're entitled to equal treatment, why isn't he entitled to come to the court and say, look, just last year somebody was pardoned who has, you know, exactly the same qual... or no better qualifications? Why doesn't... isn't that a denial of... is race the only basis for denial of equal protection?
William A. Klatt: Well, certainly, race is not the only basis, but the--
Sandra Day O'Connor: Well, I guess if it's a racebased discrimination we apply heightened scrutiny to it, and if it's not, you have a totally different standard, wouldn't you say? --then you agree the Governor could have a policy of pardoning all women and no men, or could he not? That also invokes heightened scrutiny of some sort, does it not?
William A. Klatt: --That would be intermediate scrutiny, which would be higher.
John Paul Stevens: We could review his pardoning power on such a challenge, you would agree.
William A. Klatt: That, I think, is a very close question. I think it would be--
John Paul Stevens: You want to have it both ways on almost every hypothetical. [Laughter] No, but Mr. Klatt, isn't your argument here that the Equal Protection Clause does not apply contingent upon the kind of protected interest analysis which is identical to the Due Process Clause?
William A. Klatt: --That's exactly it, Your Honor.
William H. Rehnquist: And your argument as I understood it was that once there has been a final adjudication through the appellate process which has resulted in a judgment that this individual should lose his life, that there is no life interest left for the Due Proces Clause to protect. Isn't that your argument, and that's why you take the absolutist position on due process?
William A. Klatt: Yes.
William H. Rehnquist: So that if we disagree with you on that, if we say, for example, well, clemency really is part of the adjudicatory process, or if we were to say, well, if you grant a clemency proceeding you've got to have some minimal process for it, you would lose, but at least you would lose because we were rejecting that absolutist analysis as being sufficient, but that's still consistent, I think, with your position on equal protection.
William A. Klatt: I believe that's correct, Your Honor.
Sandra Day O'Connor: Well, Mr. Klatt, you never have answered my question. Would you lose if we said there might be some extreme situation governed by the Due Process Clause? You've never addressed what the allegations are here. One is based on the Fifth Amendment, I believe, and one is based on the timing of the--
William A. Klatt: Correct, and I didn't--
Sandra Day O'Connor: --clemency hearing. Are you going to talk about the merits of the claims at all, or are we to end this argument without ever hearing whether you would lose in the event we don't adopt the absolutist position?
William A. Klatt: --I believe we would win even if there were some level of due process protection.
Speaker: Well, why?
William A. Klatt: And the reason is, is because here we had notice, and opportunity for an interview. Counsel could participate in terms of helping with the preparation of written materials that the applicant could submit if they wanted to, so you certainly had notice, opportunity for participation, an informal review process... the whole procedure was designed to be fair both to the inmate as well as to the public, as well as to the courts, and as well as to the prosecutor, so I believe the procedure is a fair one under any analysis. It is not, however, an adjudicatory process, and it is not an adversarial process, which is the very reason why counsel were not permitted at the interview, and counsel would not be permitted at the review itself, and we don't believe that that is in any way problematic, because there's no due process requirement under our argument that that applies, and it's--
Stephen G. Breyer: I take it part of his argument might be, though I'm not positive on this, is that the timing of this is really... there's no reason in the world under the... as far as clemency is concerned that you have to have the timing deadlines the way you do, and the way you do means that he has to incriminate himself completely at a time prior to the ultimate affirmation of his convictions, and you could move that easily so he didn't have to do that, but the way it stands, he might have to have a new trial, and then he'd be convicted out of his own mouth simply because of an unnecessary and arbitrary timing circumstance in the rules. I think there's something like that going on.
William A. Klatt: --I believe that's their argument.
Stephen G. Breyer: Well, what's the answer to that?
William A. Klatt: I think the answer is that there is a legitimate... it's not an unreasonable and arbitrary matter of timing. There's a very good reason for it, and the reason is that the Governor needs to be sure that he has the information necessary so that he can responsibly exercise the discretion that he has. We're talking about a very short time frame here. The rule says that if you're within 45 days of an execution date and it hasn't been stayed, that's when the interview process and the formal review process goes forward, so there is a legitimate State interest--
Anthony M. Kennedy: And in this case there was a delay in filing the habeas petition, I take it.
William A. Klatt: --There was, and the timing problem in this case was created essentially by the respondent themselves for not getting the stay in a timely way.
Anthony M. Kennedy: But suppose, just to test the theory and to take Justice Breyer's question a little bit further, a State had a parallel track. The minute the trial court proceedings were concluded the clemency proceedings started, and the Governor said, it's very important that you admit guilt, failure to admit guilt will be an inference against you, and this was a parallel process with the direct review. Any problems with that?
William A. Klatt: The further--
Anthony M. Kennedy: I know that's not your case, but we're just--
William A. Klatt: --That's obviously not our case, but I suppose that there is a line some place where timing seems to give rise to compulsion, and that might be a problem. I'm not sure that it exists in the hypothetical that you proposed, but it might, but certainly, given where the process was in this case, that does not seem to be problematic.
Antonin Scalia: --I assume that this answer is on the assumption that the Due Process Clause applies.
William A. Klatt: Yes.
Antonin Scalia: This is not your position in this litigation.
William A. Klatt: Absolutely not.
Antonin Scalia: You would say in this litigation it doesn't matter.
William A. Klatt: Yes. If I may, I'd like to reserve the remainder of my time, Your Honor.
William H. Rehnquist: Very well, Mr. Klatt. Ms. Shank, we'll hear from you.
S. Adele Shank: Mr. Chief Justice, and may it please the Court-- Respondent Eugene Woodard asks only that this Court find that within the parameters of the pleadings there may be some set of facts upon which he may prevail and that this case be remanded to determine whether such set of facts exists.
William H. Rehnquist: Well, we deal, Ms. Shank, don't we, with the facts that were alleged with respect to the Ohio parole, Ohio clemency process. I mean, it's not as if we could conjure up some hypothetical set of facts that weren't the standard Ohio clemency process.
S. Adele Shank: We are bound by what's in the pleadings and by the process as it appears in the record, Your Honor, and if I understand your question, I think you're asking if the Court can make a decision on those facts alone.
William H. Rehnquist: Well, the... I got the intimation, perhaps mistakenly, from your statement that if we could conceive of some clemency process somewhere that had some sort of provisions in it that would be so arbitrary we would say due process applies, we should bring that to bear on this case, but we're dealing with an established system of clemency in Ohio, are we not?
S. Adele Shank: And I agree, it has to be some process that you can conceive within the procedure that is present here, but I think there are many such conceivable fact situations that may or may not be able to be proved on remand.
Antonin Scalia: But I thought the remand was limited to whether the district court could find that the coercion to confess guilt was an unconstitutional condition.
S. Adele Shank: Your Honor, that--
Antonin Scalia: Wasn't that what the remand was limited to, or was it remanded for the district court to come up with any other due process violation?
S. Adele Shank: --Well, it was remanded with respect to both the Sixth Circuit's analysis of Evitts v. Lucey and the idea that clemency is, in fact, as it is, an integral part of Ohio's criminal justice system as well as on the Fifth Amendment issue. But, of course, because this is a case that was ruled on based on a motion to dismiss and therefore the pleadings, this Court comes to it as if it's de novo review, and so the Court can look within the pleadings as broadly as it chooses to, so any set of facts that the Court can conceive would be... that would allow due process to apply--
Sandra Day O'Connor: Well, I would assume we at least have to look at the facts alleged in this complaint, not some conceivable set of facts from somebody else.
S. Adele Shank: --Again, Justice O'Connor--
Speaker: Don't we?
S. Adele Shank: --Yes, absolutely.
Sandra Day O'Connor: Don't we look at this complaint?
S. Adele Shank: I do.
Sandra Day O'Connor: And this complaint says--
S. Adele Shank: Yes.
Sandra Day O'Connor: --Well, under Ohio's provisions here, which gives the convicted defendant an opportunity to ask for an interview but doesn't require it, you say that's a Fifth Amendment violation there, and it won't stand up. I assume we can address that, can't we, just head on.
S. Adele Shank: Certainly, Justice O'Connor, the Court can do anything as if on de novo review within the parameters of the pleadings.
Speaker: Well--
S. Adele Shank: And that is what I'm trying to say.
William H. Rehnquist: --But also we have to take it in the prism of the Sixth Circuit's analysis. I mean, if we disagree with the Sixth Circuit's analysis, the fact that the pleadings might have formed the basis for some other sort of analysis wouldn't have much to do with how we treated the opinion of the Sixth Circuit.
S. Adele Shank: Chief Justice Rehnquist, it's true that the Sixth Circuit's opinion surely should be informative and helpful to the Court.
Speaker: Yes.
S. Adele Shank: But it is my understanding that the Court can clearly look, as if on de novo review, at the pleadings and determine whether or not there are other problems or other aspects of this process that need to be considered in order to--
William H. Rehnquist: But what we granted review on was not the pleadings that were filed in the district court. It was the opinion of the Sixth Circuit, and if, for example, we should feel that the Sixth Circuit totally misapprehended our Dumschat opinion we would probably say so in an opinion.
S. Adele Shank: --And it could very well be that the Court would choose to remand for... to the Sixth Circuit for assessment in light of what it took to be a misunderstanding.
Anthony M. Kennedy: And we also would, and I think must examine the Sixth Circuit's holding that the selfincrimination aspect of the case presents a serious constitutional problem in that it's an unconstitutional condition on the imposition of the... on the Fifth Amendment.
S. Adele Shank: Certainly the Court may choose to do that. You are obviously not required to do so. We think that it is an unconstitutional condition, and I hope I haven't said anything to make you think I'm saying you should only address one issue. I'm not.
Anthony M. Kennedy: Well, but that's the best way for us to get into the case and that's, it seems to me, a quite problematic holding on the part of the court of appeals. Suppose the Governor says, I'm not interested in granting clemency to people that haven't confessed, that shows remorse. That's what I'm interested in. There's no problem with that, is there?
S. Adele Shank: Well, one of the things that I'd like to point out which--
Anthony M. Kennedy: You may disagree with it as a policy matter, but as a constitutional matter he has a complete right to say that, I should assume.
S. Adele Shank: --It's absolutely true that the Governor has complete discretion under Ohio's clemency processes. However, the Governor's executive discretionary decisionmaking authority truly is not at issue in this case. We are looking not at the end result, which is the decision made by the chief executive of the State, but rather at the procedures that are limiting the right to seek clemency. We're looking at the front end of a process. As this Court noted in Dumschat, there the Court found there was no due process interest in that end result, at least none that required an explanation of the reasons for a clemency decision.
William H. Rehnquist: It said none at all. Didn't the Dumschat opinion say that?
S. Adele Shank: The Court found that there were no due process liberty interests at that point.
Speaker: Yes.
S. Adele Shank: But the important point for us with regard to Dumschat is the fact that the Court noted in the final line of the opinion that Connecticut had a State right to clemency and there had been no breach of that right. Now, the Court went no further, but the fact that the Court recognized a difference between the end result of the executive discretionary decisionmaking process and a possible difference between that and the right to get your papers on the Governor's desk is what we are focusing on here. The other thing is that I think--
William H. Rehnquist: Well, let me read you a couple of sentences from Dumschat which strike me as being a little different than the way you interpret... the Court said we rejected the claim that a constitutional entitlement to release from a valid prison sentence exists independently of a right explicitly conferred by the State, and then it goes on to quote from Greenholtz. There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. Well, it seems to me that says that unless the State has created some sort of a liberty interest there isn't any. Justice Stevens in dissent, of course, felt differently.
S. Adele Shank: --Chief Justice Rehnquist, I agree with what you just read from Dumschat, and I think that what is important about it is that it does focus on the decision, and that's what this Court said there isn't an interest in. At the end of this process, as Justice Ginsburg noted, we are moving into the executive discretionary decisionmaking process, and there, the Court is right, but we are not looking at that end of it, and we're not looking at what the decision is. We are looking at the right to apply for clemency and get to the point where we get a decision, and I think Ohio--
Antonin Scalia: This is... I don't understand this. This is sort of a right to the process with nothing at the end of it?
S. Adele Shank: --It's a right--
Antonin Scalia: Just a right to the process... I can understand, and I think Dumschat permits your claiming a right to the procedure which the State has accorded, so that if they violate their own procedures for clemency, yes, you would have some right to complain. But where their procedures give you no more than what you've received, you're asserting that you've been deprived of what? You say, I'm not being deprived of my liberty, but I'm just being deprived of something in the abstract that... I don't... I really don't understand--
S. Adele Shank: --Well, okay, Justice Scalia, we're actually presenting four different grounds, one of them being the fact that the State has created a liberty interest and a life interest in clemency in Ohio, and that is in the right to seek it, and the Ohio supreme court noted in Weaver v. State that clemency is the remedy that is available to individuals who are unable to achieve redress in the courts. They said in In re Kline that Ohio defendants who can't have a conviction overturned because it's beyond judicial process have a right to apply for clemency. On top of that--
Antonin Scalia: --Right, but... let me just clarify. You're not contending that Ohio violated any of its own laws pertaining to the clemency application. You're saying that something which they have in there shouldn't be there, or that something which they don't have should.
S. Adele Shank: --We are saying that this process violates that Statecreated right to seek clemency in that particular analysis.
William H. Rehnquist: The court of appeals disagreed with you on that point though, didn't it?
S. Adele Shank: The court of appeals--
William H. Rehnquist: Did it, or did it not?
S. Adele Shank: --They did not accept that position, but again, I would like to put forward, Your Honor, that we were on motions and pleadings, and the facts hadn't been fully explicated, so the court didn't have before it the full history and background--
William H. Rehnquist: Well, but presumably the court of appeals well knew that you... dealing with a complaint dismissed on motion you give it a generous construction. You say that's what we should do, and certainly I'm sure the court of appeals knew that.
S. Adele Shank: --Your Honor, I can tell you from reviewing the pleadings that the cases that I've just cited to you, In re Kline and Weaver v. State were not before the court, and very, very little--
William H. Rehnquist: You didn't argue that point to the court of appeals? Did--
S. Adele Shank: --Your Honor, the question of whether or not there was--
William H. Rehnquist: --I asked you a question, Ms. Shank.
S. Adele Shank: --I'm sorry, Your Honor.
William H. Rehnquist: I asked you, did you argue those cases that you just cited to the court of appeals?
S. Adele Shank: No, they were not included in the briefing at that point, Your Honor, but the issue was included, the question of whether there was a State right. But I think that the entire process has been truncated by the fact that it was... that the Court... it's here before the Court without sufficient fact development. That's why a remand is in order. Were the Court to send it back--
Ruth Bader Ginsburg: Ms. Shank, one of the problems is, it's always going to be facial because you took this case out of the Ohio system... true, it's an executive process, and you're taking it into the Federal court and you're saying now, what if, what if. We don't know what it would be. Are you taking the position that it is inevitable that this procedure that Ohio has would yield a violation of due process? Couldn't one say, well, it may work so that he is treated fairly. How can one say just on what we have here that applying these rules to his case would inevitably deny due process?
S. Adele Shank: --Justice Ginsburg, we agree with that. We think that it is possible that it could go back on remand. There could be full hearings, and there could be factual development that determined that in fact sufficient due process protections have been recognized, but--
Ruth Bader Ginsburg: But it had been... nothing has happened. You took... you got a stay and took it all into the Federal court, so we don't know how this State process would work because it didn't get off the ground.
S. Adele Shank: --That's correct. It--
Stephen G. Breyer: The analogy that I'm... sorry. Were you... answer Justice Ginsburg.
S. Adele Shank: --I was just going to say, it's correct we would... for this Court right now the determination has to be whether within the parameters of what's before it, that we might possibly prevail on a set of facts that could be established on remand, and so what you suggested earlier, that we could go back and find that what has been provided is sufficient, is a very real possibility. It's certainly not what we believe, but it is possible, and it could happen. So there's nothing in this case to say that we couldn't go back and find ourselves being told that due process parameters have already been satisfied.
Ruth Bader Ginsburg: Or will be.
S. Adele Shank: Or will be under the--
John Paul Stevens: May I go back to Dumschat for a second, because I didn't think you distinguished it in the same way that the court of appeals did. It seems to me one can reasonably say that the right to due process before liberty is taken away is exhausted once you're in jail, because your liberty's gone. But you're relying on the right to due process before life is taken away, and this man is still alive, so you have an argument for a protected interest in procedures until his life is taken away that just wasn't available in Dumschat because he was in jail.
S. Adele Shank: --That's correct. We do also present to the Court the fact that there is a Federal life interest protected by the Fourteenth Amendment that is independent of the other issues that we've presented, the other types of interests, and that that was not present in Dumschat, and that it independently is basis alone to allow this Court to make the decision that special... that this special proceeding for death penalty cases impacts that life interest and therefore distinguishes it from Dumschat.
David H. Souter: I think the State might argue this way in response to your argument about the life interest. I think the State might say, we agree that there is a life interest up to the time which may lawfully be set for execution under Ohio law, but that's not what's in question here. What's in question here is an opportunity to have life after the date which the law has already said at which it may be taken away, and because you have no life interest after that point... you litigated that on direct appeal and you lost... because you have no life interest after that point, and because that is the only life interest that could be served by clemency, there is no interest for Fourteenth... for due process analysis, to which process could apply and help you. What's your answer to that argument?
S. Adele Shank: Well, first that the life interest remains fully intact as long as a person is alive. I mean, the Fourteenth Amendment right to life that is protected is nothing more and as simple as the right to be alive and to continue to live, and a date does not determine when that right that is protected ends. The only thing that ends that right and its protection under the Constitution is actual death. So the life interest, unlike liberty, isn't diminished in increments. It's not diminished by having been placed into the prison, as is the liberty interest, and it can't be diminished in bits and pieces. It exists with all of its... in its fullblown state until the moment of death. And I think recently this Court recognized that in its... addressing the question of whether or not there was a right to assisted suicide. There the Court even cited the Ohio supreme court, saying that even condemned prisoners have the right to protection of law up until the last moment of life.
William H. Rehnquist: Well, all we held in the assisted suicide case was that there was no constitutional right to have the assistance of a physician if you wanted to commit suicide, wasn't it?
S. Adele Shank: That's correct.
Stephen G. Breyer: Can you think of any other analogies? I take it your basic argument is that the procedural part of this is something that the Ohio legislature itself has said is not within the Governor's exclusive power. They say the general assembly's authority to regulate the application process extends from the time just before the Governor reaches the decision, and you're talking about that time before, is that right?
S. Adele Shank: That's correct.
Stephen G. Breyer: And what I'm looking for, the only one with a very far analogy is like international airline applications, where the Courts won't review what the President's final decision is, but I've always thought they would review what used to be the Civil Aeronautics Board's preparation of the recommendation to the President. That's a pretty farout analogy, and I wonder if there are other instances you could think of where the congressionally regulated preparation of the application is certainly reviewable, but the final decision is not. You've looked into this, so I assume your answer is no, you can't.
S. Adele Shank: I have looked into it, and I think that there are some arguments about veto. I mean, that's a possibility, although there are different remedies, rather than going back to the--
Stephen G. Breyer: All right. Have you... the other question that I has is, is the particular problem here, which I couldn't quite figure out from the dates... I can't keep them quite in mind, but the particular problem is that the State says, prepare this 45 days before the execution is scheduled, but in the case of your client, he had to go to his hearing 6 months before, or 4 months before, because there was a stay that said the execution couldn't take place until January 18, '95, but they wanted to have the hearing on September 9, 1994, and you're objecting to the fact that they made him come to that hearing without a lawyer, and having to incriminate himself so soon. Could you explain that a little bit, how those work?
S. Adele Shank: --Sure. There are a number of factors involved in it. The time frame is that if you have not managed to get a stay when... within 45 days before the first scheduled execution date after the Ohio supreme court finishes direct appellate review, a hearing will be scheduled, and even if you get a subsequent stay... in this case the stay was actually granted on the 45th day, so it's one of those counting things. They decided that day did count for their purposes, and we would, of course--
Stephen G. Breyer: So your objection, then, precisely is you say, look, he can't have a lawyer, he has to incriminate himself, and all they have to do to avoid the problem and keep their time is, you say, do it 45 days before, but if there's been an extension of a stay, well, then it's 45 days before the real execution date, not the one that was just hypothetical. Is that the problem?
S. Adele Shank: --Well, the problem is more complicated than that because, of course, the petition... I mean, the respondent in this case, or the inmate in any case has an extremely limited control on that timing. You can file for a stay, but there are many exigencies that come up in the court system that sometimes it takes 2 months to get a stay, sometimes you're very lucky and you can get a stay within a week or 2 or 3 days, so you don't have control over the timing in this case no matter how it is handled. But part of the reason that this is so critical is that whenever this particular process kicks in it then negates the opportunity... well, I should say, negates the right to have a clemency application filed by the inmate and have it considered.
William H. Rehnquist: Ms. Shank, is there any rule in Ohio that you know of that would prevent your client in his interview with the clemency people from declining to answer a question because it might incriminate him?
S. Adele Shank: There's nothing in the procedure that says that that could not be done, although the procedure itself is, with regard to the interview is inherently coercive, counsel is specifically prohibited from being there, in this case we had 3 days' notice and counsel would not have had an opportunity--
William H. Rehnquist: But so far as you know there are no further sanctions... in fact, it's difficult to see what further sanction could be attached to someone who is condemned to death... would be attached if the... if your client simply said, I'm not going to answer that question?
S. Adele Shank: --Well, they may draw an adverse inference from his silence, may view him as being uncooperative, and go--
William H. Rehnquist: But that wouldn't incriminate him.
S. Adele Shank: --Well, but it's part of what the problem is with the choice that he is facing. Incriminating him if he chose to speak and then those matters were used against him--
William H. Rehnquist: But that happens in civil proceedings all the time.
S. Adele Shank: --And it's possible, too, that it could be used to impeach him, and the silence itself could at least be attempted to be used for impeachment in subsequent criminal proceedings, so--
William H. Rehnquist: Well, by the time you get to clemency beggars can't be choosers.
S. Adele Shank: --Well, Your Honor, and I think that if clemency were to be handled at the end of the process instead of at this premature point where you have ongoing litigation and future litigation as a right still in front of you, that it might be possible that a procedure that set some time limits toward the end of the process would meet due process.
Antonin Scalia: Ms. Shank, it's not only capital defendants who apply for clemency, and it's quite possible to talk about the end of the process when you're dealing with a capital defendant who's lost, but what about other defendants? What's the end of the process? As long as they're in prison they can continue to find new reasons why the case should be reopened, and so forth and so on. What is the end of the process for someone who hasn't... you know, who hasn't been condemned to death?
S. Adele Shank: Well, for Ohio's purposes it's not relevant because they don't put these restrictions on noncapital defendants. These restrictions and these time frames, this mandatory, this forced clemency review at this early date is only applied in capital cases.
Antonin Scalia: Well, but in any of the other cases, whenever the hearing is held, wouldn't the prisoner have the same objection? You know, I'm going to be spending years in prison trying to figure out what went wrong in my trial, and I'm going to file collateral review applications, and by making me come in and confess, you're making it impossible for me to do that. Wouldn't every prisoner have that claim?
S. Adele Shank: Well, Justice Scalia, I think it's part of the problem with that process, is that if a prisoner initiates the clemency process, if he exercises that State right we've talked to you about seeking clemency, then he's made some choices about where he wants to go and the statements he's making. But when he is subjected to a forced process at a time when he is still in litigation, those considerations aren't available to him.
Antonin Scalia: I understand, but my... the point I'm making is, we can't solve the problem, as Justice Breyer suggests, by simply making sure that the proceeding here is held after the last habeas before the execution. The problem's going to exist in noncapital cases perpetually.
S. Adele Shank: Justice Scalia, I must say that if it was a forced process at some time I think that perhaps the hypothetical you're proposing would have application to noncapital cases, but that's not the situation in Ohio. Noncapital cases aren't subjected to that standard. They aren't forced into clemency review and, of course, we are dealing with the capital case here.
Ruth Bader Ginsburg: Suppose Ohio said, well, for capital cases we're going to have a simple proceeding. It's just the Governor and whatever trusted advisor, so we cut out all this process that you're complaining is inadequate. Would it be constitutional for Ohio to have such a system, just the Governor, who will consult with a trusted advisor?
S. Adele Shank: I think that at least under the parameters that we're dealing with in this case the answer would be yes, because the right to seek would not have been impaired. As long as the State doesn't erect a barrier to getting to the decisionmaker, I think that the clemency right to seek has been observed. Part of the problem we have here is that we have a process that keeps us--
Ruth Bader Ginsburg: So once you have a process, once you try to install something like this, it better be meticulously observed. Doesn't that give the signal that it's not very wise for a State to have these processes, that they ought to stick with just a simple, you ask the Governor, the Governor says no, that's it?
S. Adele Shank: --I don't think it has that meaning here, because the meticulous observation of rules comes from that line of cases, Meacham and the prison cases, Greenholtz, some of the cases that have been mentioned. But in those cases, the procedure did not erect a barrier either to getting to the final decisionmaker even in Dumschat, even in the prison cases, and it did not prevent the ultimate decisionmaker from making his decision. This process has to be complied with... I mean, the application process has to be complied with for the Governor to make a valid decision, and it's a forced process that once it's been engaged in, its initial timing denies a meaningful opportunity to be heard at a meaningful time and then precludes the right to seek when it is meaningful, because it becomes discretionary with the APA whether a subsequent application from the inmate will be considered for clemency. That is under paragraph G of the policy, which makes it forever, and then in the administrative code, 5120 1-1-15 puts a 2-year limit on it. At the moment I cannot tell you which of those the courts of Ohio will determine may or may not be the final time limit on how long they can withhold the clemency application from consideration. So I think that the process distinction here, and the reason we don't have to worry about the details, is that this is a process that keeps us from getting there. Those cases that address that kind of detailed parsing of the language are ones where you always were able to get there. I also think that in this case we have a situation where the process itself has created the kinds of parameters that this Court has recognized as creating a due process interest, a Statecreated liberty interest that deserves due process protection.
Anthony M. Kennedy: Do we have... it seems to me that the most forceful of your arguments is the unconstitutional condition argument on the selfincrimination privilege that he has in the criminal proceedings, and there we focus on the criminal side and say, he's losing something on the criminal side because you're coercing or compelling the abandonment of the privilege. What's your best case on that? Baxter doesn't work for you, really.
S. Adele Shank: Well--
Anthony M. Kennedy: And as sort of a followup to that, do we ultimately come back to the question whether or not there is a right to the clemency proceeding, so that we're back to the initial point.
S. Adele Shank: --You don't have to come back... I'll answer the last part first. You don't have to come back to there being a right to the clemency proceeding in order to reach the question whether or not this imposes an unconstitutional condition.
Anthony M. Kennedy: And what's the best case for that?
S. Adele Shank: I think that the best case for us is one that analyzes the rough proportionality or rational nexus that must exist between the condition that's being imposed and the policy it's supposed to implement, and that is Dolan v. City of Tigard, where this Court found that that was essential. The purpose, the stated purpose, the declared purpose by the Ohio supreme court and the Ohio constitutional debates for these legislative regulations on the application process, and they are legislative, not executive, is to ensure the quality of information that reaches the Government. When you put the person in the position of either being unable to participate because they have to exert their Fifth Amendment rights, or being in a coercive situation, then you have undermined the State's stated purpose for having these regulations.
William H. Rehnquist: Thank you, Ms. Shank. Mr. Klatt, you have 3 minutes remaining.
William A. Klatt: Thank you. One thing I'd like to make very clear is that there is nothing in Ohio's death penalty clemency procedures that compel the respondent to incriminate himself. The interview places no condition requiring the waiver of any constitutional right, and has no element of compulsion.
Anthony M. Kennedy: Suppose it was very clear that silence would be not only an adverse inference but would likely result in denial of clemency.
William A. Klatt: You might have compulsion under those circumstances. That's not the situation here.
Stephen G. Breyer: What if the... I don't know if she wants this argument, but the strongest point, I thought, going back to the complaint, would be a Mathews v. Eldridge point, that all she wants is you to postpone this hearing until it's 45 days before the real execution, and you won't do it. And the State's interest in not doing it... you know, not postponing it till the 45 days is real, is zero, her interest is... well, she loses her right, the client loses right to a lawyer and selfincrimination in a real practical way, very strong. The administrative ease is tremendous. All you have to do is say we're going to follow what the court does, and therefore this is a tremendously strong argument for... since it isn't even the Governor, it's the special board run by the legislature, for denial of due process. Now, I'm being quick about that, but I... so what's your... what... I got that out of the complaint... what's--
William A. Klatt: Well, I would respectfully disagree, that there is a very important, legitimate State interest in the timing of obtaining the information. Even if a stay would be obtained, the order--
Stephen G. Breyer: --Sure there is, but everybody else, everybody without a stay it's 45 days before, it's before the real execution, so what's your interest in getting that information 6 months before the execution, where all that's happened is that there's been a court order delaying it for 6 months.
William A. Klatt: --Well, if I understand your question, I don't know that the State would have an interest at that point--
Stephen G. Breyer: Here they ask... they pointed out, they enclose, attached to the complaint, the court order of Ohio making the execution date not 45 days after September 9, but sometime after the following January 18, and still the board, they say, wouldn't postpone the hearing. They wanted to have it on the 9th.
William A. Klatt: --That's correct. The simple fact that there is a time limit... in this instance it was 45 days, which seems to be a reasonable period of time... who knows when the stay might ultimately be obtained. It might never be obtained.
William H. Rehnquist: I suppose for Mathews v. Eldridge to apply there has to be some protected interest under the Due Process Clause in the first place.
William A. Klatt: Absolutely, and fundamentally--
William H. Rehnquist: Thank you, Mr. Klatt. I think you've answered the question. The case is submitted.


William H. Rehnquist: We'll hear argument now in Number 88-266, Oklahoma Tax Commission versus Jan Graham. Mr. Miley, you may proceed whenever you're ready.
David Allen Miley: Mr. Chief Justice, and may it please the Court: Today this Court is asked to decide whether an Indian tribe is answerable in state court for ignoring its obligation to collect and remit taxes to the State of Oklahoma despite this Court's sanction of state laws imposing such obligations. The Tax Commission brought this action in state district court to enjoin the Chickasaw Nation from operating a motel business until all taxes were collected and remitted to the state in compliance with state tax laws. The tribe removed this case to the federal court, and that court denied the state's motion to remand on the basis that a suit against an Indian tribe is a federal matter. After assuming jurisdiction, the federal court then dismissed the state's case holding that an Indian tribe cannot be sued without its consent under the Indian sovereignty doctrine. In affirming these decisions, the Tenth Circuit ruled that an Indian tribe enjoys absolute sovereign immunity within its territory and thereby foreclosed the state's right to have its valid taxes collected. The first question we ask this Court to consider is whether removal jurisdiction exists in this case. The state submits that federal removal jurisdiction does not exist because the state's lawsuit is not based on federal law to any extent, but only alleges violations of state law to which the Tax Commission requests relief provided by state law. The respondent urges that its status as an Indian tribe creates a federal cause of action that is properly removable. However, this Court has held in the Mescalero Apache Tribe opinion in 1973 that the federal government does not have exclusive jurisdiction over an Indian tribe for all purposes and that the encouragement for tribal economic development under the Indian Reorganization Act does not establish a tribal business as an arm of the government and, therefore, off reservation activity is within the reach of state law. But the heart of the matter is that the Tax Commission's complaint properly pleads a cause of action to collect state taxes which is based exclusively on state law, as it must be. The tribe may raise substantial federal questions in defense of the state's claim, but federal questions in a defensive argument cannot serve as a basis for federal removal jurisdiction. Under the well pleaded complaint rule, a federal statute or a substantial question of federal law must be the basis of the plaintiff's claim rather than a basis of the defendant's defense. And, therefore, this case should be remanded to the state district court. But beyond the issue of removal jurisdiction, this case concerns whether the Indian sovereignty doctrine bars the state's lawsuit.
William H. Rehnquist: I don't think... if this Court were to conclude that the case had been improperly removed from the state trial court to the Federal District Court, we wouldn't then get to the... the question of the sovereignty, would we?
David Allen Miley: You would not get to that question, and the state would have to decide if that was a proper defense to the state's actions. The state district court would have to determine if that was a valid defense so that once the removal issue is... is decided in the state's favor, we would not have to determine whether the state's case should be dismissed based on Indian sovereign immunity.
William H. Rehnquist: Well, the state court might have to make that decision.
David Allen Miley: The state court may have to make that decision, but the state court has already made that decision. In another case the state supreme court has ruled in the State ex rel. May versus Seneca-Cayuga Tribe... the Oklahoma Supreme Court ruled that the Indian sovereignty doctrine does not bar the state's lawsuit. So that if this case was remanded to the state court, the case would be tried on the merits.
William H. Rehnquist: And the tribe would have a right to appeal again through the state courts and eventually to this court--
David Allen Miley: That--
William H. Rehnquist: --on that point?
David Allen Miley: --That is correct. So that the Indian sovereignty doctrine at this point only comes into play if the state loses on the removal jurisdiction argument. And I feel that that is a fairly clear-cut argument in that the Indian tribe is not a part of the federal government. The activity is off-reservation, and I feel that under the Mescalero case and under Moe versus the Confederated Tribes cons... under the Moe decision and the Colville decision, I believe, whether... whether the business activity is on or off of a reservation, this court has ruled that the state does have a right to have its... its valid taxes collected.
John Paul Stevens: May I interrupt you? You said that this... this incident, this business is conducted off the reservation.
David Allen Miley: Yes.
John Paul Stevens: And the record in the case consists just of the complaint, doesn't it?
David Allen Miley: That is correct.
John Paul Stevens: And does the complaint allege that the... that the... this Murray... whatever it is... Sulphur, Oklahoma, is... is or is not within the reservation? I don't think the complaint says one way or another.
David Allen Miley: No. It... it alleges that the state laws were violated by this motel operation and sues the owners and operators of the motel.
John Paul Stevens: But what I mean is we cannot tell from the record whether the hotel is on the reservation or off the reservation, can we?
David Allen Miley: No, you cannot because... because that wasn't developed. No evidence was developed in the case.
John Paul Stevens: Not... no allegation even one way or the other? Don't we just have the complaint? That's the whole--
David Allen Miley: That alleges that taxes are owed.
John Paul Stevens: --Yeah.
David Allen Miley: Yes.
Byron R. White: Is there a reservation?
David Allen Miley: No, there's no reservations in Oklahoma, so... I believe that was... that has been briefed throughout the case because many times it is necessary to--
Byron R. White: This is one of the assimilated tribes, is it?
David Allen Miley: --Yes. We contend that is... that it is... the tribes in Oklahoma have been assimilated rather than operate under the reservation system.
Byron R. White: But isn't there any trust property, Indian trust property in Oklahoma?
David Allen Miley: Yes. This--
Byron R. White: Well, is this... is this... is this establishment on Indian trust property or not?
David Allen Miley: --It... well, it is not on an allotment as defined in Title 18 United States Code 1151(c) because the Indian title to this particular piece of land was extinguished, and it did go into non-Indian ownership. This tribe did purchase this particular motel property in 1972 and in 1985 under Title 25 U.S.C. Section 501, which allows transfer of lands acquired by tribes to the United States in trust for the benefit of the tribe, this land was placed in trust with the United States for the tribe's benefit. However, as this Court has ruled in the Mescalero opinion, the transfer in trust does not create Indian country which... which many of the cases involving the allocation of jurisdiction between the state and a tribe consists of so that... so that this piece of property, although it is held in trust, that statute did not create any broad exemptions from taxes or regulation that all other businesses throughout the state are subject to. Therefore... going on with my... I think I've fairly well said all I can about the... the removal question which... which may determine the outcome presently.
Anthony M. Kennedy: Let me ask you, counsel, do the tribes have the authority to waive their immunity from suit?
David Allen Miley: I believe they do have authority to waive immunity from suit.
Anthony M. Kennedy: Have we so helm or is there a case that establishes that?
David Allen Miley: I am not aware of a case that establishes their ability to waive, but they have not made a waiver in this case.
Anthony M. Kennedy: Was there a disposition at that time? Yes.
David Allen Miley: However, I don't think the waiver is necessary because their sovereignty does not extend that far, does not extend over the state's lawsuit.
Anthony M. Kennedy: Well, I recognize you claim, of courser they don't have immunity anyway, but they claim they do.
David Allen Miley: Yes.
Anthony M. Kennedy: But you also take a position that it can be waived if they do have it?
David Allen Miley: I... I'm assuming that it can be waive. I didn't... I believe they do have sovereign immunity over their internal relations such that tribal rites, say, a tribal member or a person wanting to establish tribal membership was denied for some reason. The tribe... that would be a relationship internal to the tribe, but they would have plenary authority over and a suit against the tribe on that issue may not be maintained because of the tribe's sovereign immunity. However, when the tribe operates a business in the... it... it steps outside the reach or that... their internal... their sphere of internal jurisdiction or internal relations and steps into the reach of state law so that the tribe may properly allege a cause of action against them to collect taxes when the tribe chooses to enter the business community. So that their sovereign immunity is not a question at that point. It is raised in defense, but I contend that it's not a valid defense.
Sandra Day O'Connor: Counsel, does the new Indian gaming Regulatory Act complete foreclose future efforts by Oklahoma to tax Indian bingo games?
David Allen Miley: I believe it does. It completely occupies the field, and the Tenth Circuit has also held that the State of Oklahoma cannot tax Indian bingo operations, And, therefore, we are--
Sandra Day O'Connor: But it's not retroactive, I take it?
David Allen Miley: --That it is not retroactive?
Sandra Day O'Connor: This new act? Does it cover your case so that this new act precludes this--
David Allen Miley: Well, this is a motel. This is a motel business. A bingo operation was... was operated there, plus a restaurant. However, the state sales tax applies against the rental of motel rooms. It applies against restaurant sales.
Sandra Day O'Connor: --The state isn't trying to tax any of the bingo operation?
David Allen Miley: No, not at this point. We did allege that taxes were owed on the bingo operation.
Sandra Day O'Connor: I thought that was part of the complaint.
David Allen Miley: That was part of the complaint and now that is foreclosed, so when we do reach the merits of this case, bingo sales will not be a part of the effort to tax in this case.
Antonin Scalia: Why is that?
David Allen Miley: Because of the new Indian Gaming Regulatory Act.
Antonin Scalia: Does that say that it's retroactive, that it applies retroactively?
David Allen Miley: Not it doesn't, but we have not collected any taxes from the bingo operations thus far, and the Tenth Circuit in the Creek Nation... Oklahoma Tax Commission versus the Creek Nation... held that we could not tax bingo sales. So--
Antonin Scalia: We have a line of decision that says you decide the case on the basis of current law, and that's the current law. But we have another line of decision that says that laws are not normally to be interpreted to be retroactive. And I'm just wondering which of the two lines you were using here.
David Allen Miley: --Well, I... I suppose I am interpreting the current law as it stands in that now we will not be able to assert that cause.
Antonin Scalia: You're not asserting. That's out of this case?
David Allen Miley: Yes. Yes, it is out of this case right now. So, the... as far as the... these tribes' sovereign immunity, the state does recognize that the tribe does have a tribal government and can tax its own sales. However, these taxes do not displace or preempt the state taxes, but the state aria the tribe can tax the same transactions, but that really goes more to the... the merits of the case, but really the... what the point is is that the Indian sovereignty doctrine does not bar the state's suit because that doctrine has been adjusted to accommodate the state's legitimate interest in taxing its citizens, and I do not feel that this... the state's interest... I feel that the state's interest could be fulfilled by the tribe's Business enterprise, and the tribe could fulfill their interests in the economic development of their business because the state tax will not prevent the tribe from sustaining their economic development, just as it does not prevent all other businesses from making a profit in the state. But if the state cannot rely on the decisions of this Court which I feel recognize the state's right to have its taxes collected from its citizens, then the state's right to have this tribe collect the tax and remit it will be lost forever if the Tenth Circuit decision stands because the tribe has expressed that regardless of the merits of the case, they do not intend to collect the state's taxes, and if they can successfully avoid a lawsuit, by asserting sovereign immunity in a federal court, they do not feel compelled to... to abide by state law and collect the state's taxes. So that in that case, whole areas of state taxation will be put beyond the reach of state jurisdiction, and the state taxing system will necessarily be restructured by the Tenth Circuit's opinion in that regard because we will not be--
Sandra Day O'Connor: Well, that's not the issue before us, is it, the merits of whether--
David Allen Miley: --No, the merits... but the merits are bound up in the... the... the sovereign immunity of tribe, and I feel that if the state has its right... has a right, it must also have the ability to enforce that right against the tribe.
Sandra Day O'Connor: --I just don't see why we have to address that at all.
David Allen Miley: Well, you wouldn't have to address it if... if the defense of sovereign immunity is not a valid defense, because it would have to go back down for trial at that point. So that to... to conclude this argument, I... I think from reading the cases, the trend in this Court has been away from the idea of inherent Indian sovereignty and toward reliance on... on federal preemption or on infringement of tribal government. So that when state action is not... is not preempted or infringed, that the... the requirements under state tax laws may validly be imposed against the tribe and necessarily since taxes are... are enforced, are complied with voluntarily, but are enforced principally, the only... the only avenue we have to enforce is... is the state courts because, of course, the federal government does not enforce state laws. And without that... without enforcement we... we see that we cannot... if we cannot come to court to... to have our rights vindicated, then the state will have lost its... lost its rights. If the Court doesn't have any further questions.
William H. Rehnquist: Thank you, Mr. Miley. We'll hear now from you, Mr. Rabon.
Bob Rabon: Mr. Chief Justice, and may it please the Court: If I might, I would like to respond to a question that Justice Kennedy asked, I believe, regarding whether or not the tribe had waived its sovereign immunity or whether it can waive its sovereign immunity and whether or not this Court has held whether it can. The tribe here has not waived its sovereign immunity from suit. I know of no decision of this Court that holds that a tribe can waive its sovereign immunity absent some act of Congress.
Byron R. White: Nor that it can't.
Bob Rabon: Nor that it can't. I think there's... I don't recall the citation, but I think there's a Ninth Circuit court case that says that they can. I'm not sure about that, and don't have the citation.
Anthony M. Kennedy: Well, some of the cases are ones in which the tribe brings suit, and it's usually a concomitant of bringing suit that waivers implied to that extent, but if we assume that tribal immunity can be waived, then that issue is particularly speculative at this time, and it would seem to me to more like defense than an element of the complaint.
Bob Rabon: Well, we don't view it in that light. We see the... the fact that a complaint is filed in state court against an Indian tribe asserting the right to apply state tax laws, asserting coercive state civil jurisdiction, impliedly asserting an abrogation of sovereign immunity, we see those as affirmative matters and not necessarily matters that should be raised on... by defense.
Sandra Day O'Connor: Well, what if the suit... there were a state brought against a state anti the state wanted to assert 11th Amendment immunity? That's no more than a defense, isn't it? Wouldn't you have to get into federal court or to be removed into federal court? Wouldn't you have to have some other basis under federal law to get there other than the 11th immunity defense? Why isn't this exactly the same?
Bob Rabon: I think that the... I think that it would be incumbent upon the plaintiff in that case to allege... when you have a state as a party defendant--
Sandra Day O'Connor: Right.
Bob Rabon: --to allege the authority to... and that's happening in this case.
Sandra Day O'Connor: There's no case for that proposition that, I know of. Can you cite me one?
Bob Rabon: No, Your Honor.
William H. Rehnquist: The general rule surely is under the well pleaded complaint doctrine that the plaintiff sets forth its basis for recovery. And if that involves only state law, then it's not removable.
Bob Rabon: That is one test.
William H. Rehnquist: Well, what other test is there?
Bob Rabon: Well, in the case of Gulley versus First National Bank, the Court, Justice Cardoza, said that there were other criteria, standards for removal of Jurisdiction that you look to, such as the probable course of the trial, the real substance of the case. He said that while a suit to enforce a right or rights with origins under... with their origins in federal law may not necessarily be federal unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such law upon which the determination of which the result depends.
William H. Rehnquist: Well, Gulley was decided in 1936, and in cases as recently as our Caterpillar, which are maybe one or two years old, certainly we've talked and talked only really about the well pleaded complaint doctrine.
Bob Rabon: That assumes that the state can create a cause of action against an Indian tribe, and we don't think that they can. in Caterpillar--
William H. Rehnquist: Well, but the... under the well pleaded complaint doctrine, you don't decide on how good a cause of action a complaint states. That's for the court in which the plaintiff sues to decide. All you decide under the well pleaded complaint doctrine is whether there's something in the complaint that shows you that the plaintiff is relying on federal law to establish his case, And you... you're... this just doesn't meet that. You agree that if the well pleaded complaint rule governs here the Tenth Circuit was wrong, don't you?
Bob Rabon: --If the well pleaded complaint rule governs and... and the well pleaded complaint does not raise or present substantial federal questions, and I believe that's what he Court said in Franchise Tax Board and Caterpillar versus Williams.
William H. Rehnquist: Well, are you saying that the state's complaint here rested on federal law?
Bob Rabon: Yes. I say... I say that... I say that the state's... the very right to assert the claims that the state asserts are vested in... are bottomed in federal law.
William H. Rehnquist: And what federal law is that?
Bob Rabon: Federal common law.
William H. Rehnquist: But what is the substance of the federal law? What does the federal law that you're talking about say?
Bob Rabon: Well, in Oneida in the--
William H. Rehnquist: I mean tell me just what the summarize what the federal law say that you're talking about.
Bob Rabon: --Well, the power of Congress with regard to... with regard to whether or not an Indian tribe may be sued in the first instance is plenary.
William H. Rehnquist: Well, the power of Congress to legislate in that area undoubtedly is plenary, but this doesn't mean that whenever... whenever someone sues an Indian tribe in the state court and simply sets forth a state ground of action, the Oklahoma tax law that says you're liable for sales tax, it... it becomes removable to federal court.
Bob Rabon: Well, if the well pleaded complaint rule were to... were to apply in this particular case, we still submit that the case is completely preempted by... by federal law and the areas that are raised by... inherently in the complaint are completely preempted by federal law. We--
Antonin Scalia: The problem is--
Bob Rabon: --as I recall--
Antonin Scalia: --The problem is that it... that it isn't just the areas raised in the complaint that have to be preempted. I mean, the complaint may on its face suggest a particular defense. It has to be the claim that has to be a federal claim. And that's what I find it hard to see in this complaint. How is there a federal claim? The only federal claim you're suggesting is that well, the state claim would not exist if the federal congress chose to eliminate it. But, gee, you could say that about almost any state complaint. Congress could preempt almost any state action in the world. So, in a way, it's a condition to any state cause of action that Congress has chosen not to preempt it. But we don't say that every state cause of action is thereby a federal cause of action because it's only by the good will of Congress that the state action continues to exist. Why is that different from what you're arguing here?
Bob Rabon: --We think that when you name an Indian tribe a federally recognized and protected Indian tribe and a state asserts the right to apply its... its laws and to... to assert coercive state civil jurisdiction over it, that the complaint inherently presents federal questions, substantial federal questions. The state cannot... I've said this before, but we just don't see how the state can create the right in itself to assert these claims. And in the Onelda case, the court said that you look to the underlying right, the underlying right asserted. In this case we believe that the petition inherently asserts the right to limit aspects of the Chickasaw Nation's sovereignty. In National Farmers Insurance Company versus Crow Tribe, the court said in that case where the complaint asserts the right to curtail or limit a tribe's or aspects of a tribe's sovereignty, that it arises out of federal law for purposes of 13... Section 1331. And, of course, the test for 1331 and the removal test under 1441 are the same. But, in any event, we contend that... that the complete preemption rule applies here because the... the... the Congress has completely dominated and indicated its intent to govern the field of tribal sovereign immunity and state civil jurisdiction. With regard to the area of state civil jurisdiction the Congress has allowed the states to have jurisdiction with great care and selectivity. In 1953 the... and incidentally, the Congress has shown that it knows how to grant the states civil jurisdiction. In 1953 an example would be Public Law 280 and its 1968 amendments. In Wold Engineering versus Three Tribes the... this Court described Public Law 280 as a comprehensive and detailed scheme, the primary expression of federal policy and that it preempts incompatible state action. Oklahoma is not a Public Law 280 state. Certainly the attempt by the Oklahoma Tax Commission to assert state court civil jurisdiction over an Indian tribe in that... in that state is incompatible with Public Law 280. Another example of... when Congress has allowed civil jurisdiction over Indian tribes is the Termination Acts of 1954, making certain tribes subject to the laws of the states at the time they terminated those tribes' federal status. Congress has also exhibited a... a... its domination in the area of whether or not tribal sovereign immunity is abrogated. It has shown that it will only abrogate tribal sovereign immunity, again, with great care and very infrequently. As it relates to the Chickasaw Nation, we know of only three times that it specifically has abrogated the Chickasaw Nation's sovereign immunity, and that would be in the Curtis Act of 1898... there was a limited abrogation there... the Five Tribes Act of 1906, where it allowed certain counterclaims and actions that were... that were pending where the tribes were... were plaintiffs. In Public law 93-195 in 1975 when the Choctaw and Chickasaw Nations and the Cherokee Nations were allowed to sue each other to determine the respective ownerships of the Arkansas River beds, as related to the Indian tribes generally, the Indian Civil Rights Act of 1968 allows for habeas corpus relief only. Recently in the Indian Gaming Regulatory Act of 1988 the Congress allowed certain actions arising out of the compacts that... that states and tribes might enter into to be the subject of suits against tribes. Moreover, Congress has reemphasized its commitment to tribal sovereign immunity in the Indian Self-determination Act of 1975 where it said that there was nothing in that act should be construed as affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by Indian tribes. Another federal area in which state law is completely displaced is the treaties that the United States government has entered into with the Chickasaw Nation. In 1832 the preamble of the... of that treaty with the Chickasaw Nation showed that the principal consideration for removal was to escape state laws which oppressed the Chickasaw Nation. In 1834 when the Chickasaw Nation finally did agree to remove, the principal consideration that the tribe advanced in that matter was, again, to escape state laws, and the federal government promised to protect them from inroads from the whites. In 1837 the Choc... the Chickasaws acquired their present reservation from the Choctaws. That treaty provided that the Chickasaws would hold that reservation on the same terms and conditions as the Choctaws held it. The Choctaws acquired that reservation under the Treaty to Dancing Rabbit Creek in 1830, and when they acquired those lands, the United States government promised them that they would not allow any state to pass laws for the tribe or its descendants. Here the state is clearly invoking its laws against the tribe.
Sandra Day O'Connor: Counsel, there is no reservation today, is there?
Bob Rabon: We take the position that the reservation boundaries in Oklahoma have, with the exception of two Indian tribes that we know of, have never been abolished by Congress. But even if they had been, Indian country within areas where the reservation boundaries had been abolished or the reservation has been diminished continues to be under federal and tribal jurisdiction. Finally, Oklahoma's Enabling Act conditioned its becoming a state on its disclaiming any jurisdiction to limit the rights of persons or property pertaining to the Indians of said territory. We think that the decisions of this Court, the active involvement of the Congress, and these treaty rights completely preempt the state law cause of action asserted by the State of Oklahoma here, and that this case was properly removed. Of course, the trial court dismissed this case because there was no affirmative showing of a waiver of the tribe's sovereign immunity, but... and we think that the court was correct. Perhaps it would have been more correctly decided had it determined what the state court's jurisdiction was for purposes of determining whether or not there was derivative jurisdiction that was necessary at the time this case was removed, prior to the 1986 amendment of the removal statute. And had it done that, we feel that it would have determined that the state court did not have jurisdiction and that dismissal, as was mandated by Lambert Run Coal Company versus Baltimore & Ohio Railroad mandated dismissal as opposed to remand. We think that under either theory the result was correct. We... I would like to take issue with... with one question that counsel... one statement that counsel made that... that it is the tribe's assertion that it does not have to collect any cigarette taxes in this case. You only have to look at the complaint. The complaint seeks... it makes no distinction between tribal members and non-tribal members. And as I understand the decision in Colville and Moe and Chamenuevi that this Court has only held that the tribes are required to collect those taxes as they relate to non-tribal members, certainly my client does not believe that it has a right to... to defy this Court's decision in that regard. But that's not what the state is asking for here. The state is asking for much broader relief. And as you see, as you read into their... read their... their briefs and the position that they've taken that no Indian tribe in Oklahoma has any immunities left.
Sandra Day O'Connor: Well, presumably the Oklahoma courts are competent to deal with that question, at least initially, and subject to ultimately being reviewed here?
Bob Rabon: Yes, and if this case was improperly removed and it is remanded back to the state court, the state court would get that opportunity. But we feel that... that because of the complete preemption doctrine that we had the prerogative and that to remove this case to federal court. Quite frankly we removed this case to federal court because of the case cited by the Tax Commission, which was decided only about three months before this case was pass... was filed, and that is May ex rel. Oklahoma Tax Commission versus Seneca-Cayuga Tribe, where the Oklahoma Supreme Court held that the state courts had the right to regulate bingo gaming on Indian country in Oklahoma--
Sandra Day O'Connor: Presumably the federal statute that's been enacted speaks to that question.
Bob Rabon: --The Court also held in that case that the tribe did not have sovereign immunity from suit in spite of the fact that there was nothing in the record that indicated that the tribe had waived sovereign immunity or that Congress has waived the tribe's sovereign immunity from suit. That case subsequently was sent back to the state court for trial and was enjoined by the Federal District Court in the Northern District of Oklahoma from proceeding further.
Harry A. Blackmun: Was there any appeal from that?
Bob Rabon: That case, I believe, is on appeal to the Tenth Circuit at this time.
Antonin Scalia: Well, I can understand why you wanted to be out of the Oklahoma state courts, but just because you see an opinion of the Oklahoma state courts that you don't like and you figure well, it's useless litigating... useless litigating here, that doesn't necessarily give you a right to go into federal court. I mean some--
Bob Rabon: No, I'm not... I'm not contending that. We continue to take the position that... that the issues presented when the state asserts the rights that it asserted here against an Indian tribe in state court inherently present substantial federal questions and are completely preempted.
Antonin Scalia: --It's a federal claim, is that what you're contending--
Bob Rabon: Yes.
Antonin Scalia: --that it is a federal claim, not the issues presented, but it is a federal claim that--
Bob Rabon: That the right, the--
Antonin Scalia: --Oklahoma was asserting a federal claim when it sought to collect state taxes is what you're telling us.
Bob Rabon: --It's asserting a federal claim to to assert its tax laws against the tribe is what I'm saying.
Antonin Scalia: I mean, what we said in Onelda, which... which you quote to us, is that it was a federal claim that was being asserted, and that's what you have to establish here, it seems to me, that the attempt to collect state taxes is a federal claim. That's a pretty hard thing to establish, I think.
Bob Rabon: In Onelda, I believe the Court found that the complaint only alleged a state law cause of action in ejectment, but that the underlying right to assert that... that cause of action had its origins in federal law.
Antonin Scalia: I think what we said is that enough has been said to indicate that the complaint in this case asserts a present right to possession under federal law. We found a federal claim being asserted there.
Bob Rabon: Perhaps... perhaps I've misinterpreted what the Court has said there, but the way I interpreted that decision was that in that case, in spite of the fact that the complaint only alleged a state law cause of action... and that's what the Court said there, that it only alleged a state law cause of action in ejectment... the underlying right to assert that was based on federal law.
Antonin Scalia: We said elsewhere accepting the premise of the Court of Appeals that the case was essentially a possessory action, we are of the view that the complaint asserted a current right to possession conferred by federal law, wholly independent of state law. Is that the case in which the complaint alleged a violation of the Non-Intercourse Act, the federal statute? That was the basis for-- --I believe that's correct. So, they're affirmatively relying on a federal statute.
Bob Rabon: Yes.
John Paul Stevens: But you don't have a parallel to that here, I don't think?
Bob Rabon: No, I don't. Except in that case the Court said that there was no federal statute which made New York's statutory or decisional law applicable to an Indian tribe and, therefore, the governing rule of law would be fashioned in the mode of the federal common law, as I understand. I think I have correctly quote that from the decision. But we still submit that... that anytime the state sues a federally recognized Indian tribe asserting these rights that it... that's been asserted here, that it... it raises issues that are completely preempted by federal law. I might... in closing, I would like to... to address one other statement that was made by... counsel cited to... to Mescalero Apache versus Jones. In that case sovereign immunity from suit was not at issue, and the tribe submitted itself to the jurisdiction of the court. If there are no further questions, I will conclude my argument at this time.
William H. Rehnquist: Thank you, Mr. Rabon. Mr. Miley, do you have rebuttal?
David Allen Miley: Thank you, Mr. Chief Justice. All I would want to say is to sum up that I believe the Caterpillar case is controlling on the well pleaded complaint rule, and this should dispose of the issues, but in the Mescalero case it was ruled there on... which was here on cert. from the state court of New Mexico... that the federal law... the federal government does not have exclusive jurisdiction over the tribe for all purposes and, therefore, the state's revenue laws can be properly applied against the tribal enterprise which is... and I believe that that case is controlling because it is indistinguishable in terms of the status of the land involved and the business being operated. And I would... if the Court has no other questions, I'm through.
William H. Rehnquist: Thank you, Mr. Miley. The case is submitted.