Earl Warren: Utah Construction & Mining Company. Mr. Johnson.
Gardiner Johnson: Mr. Chief Justice, may it please the Court. The contract which is the subject of this litigation was signed on March the 19th, 1953 between Utah Construction Company as it was then known and the United States Atomic Energy Commission, Idaho Operations Office. The amount of the original contract was $4,583,000 approximately. Because of many change orders involved, the eventual amount paid was substantially more than that. The total amount of the claim which is involved in this litigation is approximately $1.5 million. I would point out to the Court, for informational purposes only that the work involved was completed on January the 7th of 1955. The contract, a particular government contract, is the usual United States Standard Form Number 23 and as was developed in another case yesterday and at the time we thought over enthusiastically the particular article of the contract which is the center of this controversy is Article 15 generally known as the Standard Government Dispute Clause. So that as far as the denomination of the contract is concerned and particularly the disputes clause, they are standard that there is nothing -- there is and there was nothing standard, nothing routine, nothing orthodox about the work that was involved without becoming involved in course and the craftsman employed by Utah Construction Company now Utah Construction & Mining Company were out on the flat plains of Idaho attempting to construct this structure. And when in this litigation and in the claims, we talked about walls. We are not talking about the conventional walls of a building, we are talking about and speaking of interior walls of solid concrete, 5 feet in thickness. And the exterior walls were from 7 to 10 feet in thickness. When we speak of windows, one of the claims involves shield windows so-called. We are not speaking of traditional windows, we are speaking of specially designed blocks of glass 7 feet by 5 in dimensions, 5 feet thick, and one section of which weighed 3500 pounds. So that as I say, there was nothing orthodox or routine about the nature of the construction, and that of course is reflected in the complexity of the claims. With respect to our petition, which is -- and our claim which is actually currently were subject to this litigation, I think it needs to be pointed out as it has not been done up to this moment that our petition as filed in the Court of Claims and which is set forth in the record of page 1. Our petition sets forth as our legal effort one single cause of action for breach of contract. In behalf of our client, the contractor we are seeking unliquidated damages for a breach of contract by the United States Government arising out of government caused delays. But the point that I desire to emphasize because it's the very basis of the problem, is that we have filed in the Court of Claims pursuant to statutory authority, as we must, a cause of action for our breach of contract. The questions here involved them. The claims are breached -- the claim is breach of contract. We file this under a statutory proceeding, a statutory authority, the so-called Tucker Act which provides that claims founded upon expressed or employed contract are enforceable against the United States Government because of the waiver of sovereign immunity which is contained in the Tucker Act. That's congressional statute vest in the United States Court of Claims exclusive jurisdiction to determine the claims against the Government arising out of contract except for those under $10,000. I would assume so that the contractor involved who had the small claim, would not have to journey to Washington, Congress in its wisdom provided that he might try his claim in the local District Court of the United States. About our claim, one more very important thing needs to be made clear at the very start. This action is a direct and an independent act application to the United States Court of Claims pursuant to the statutory authority. We are not here seeking a review. This is in no sense an appeal from an administrative body's decision. We applied directly and independently on our breach of contract theory and there is no review here involved. I emphasize this because we feel that much if not all of the Government's argument both in the briefs and as expressed yesterday is beside the point because they speak of our claim as if it is a matter of appeal or review which it is not.
Speaker: May I ask you a question?
Gardiner Johnson: Yes Mr.--
Speaker: (Inaudible)
Gardiner Johnson: My answer to that Your Honor, I hope is direct. If the claim were strictly within the contract and nothing more, I feel the Bianchi decision as expressed, well, I may not agree with that in all respects. I would be compelled to say that I think that would be binding but that is not our situation at all. As I will point out, as I proceed, that every stage of the administrative proceeding from the very beginning when the contracting officer made this decision, when the government counsel filed their pleadings, when the appeals were rendered its decisions, they precluded us from introducing evidence which they said related to breach of contract. We endeavored at the hearing to put in such evidence because we were attempting at the time, as I think any contractor does, when you are before an appeals board, you are hoping to get a prompt and a fair settlement, and to get on with new work. And so your basic effort is to get into the record to get before the Court every item, every dollar of claim that you can. And we tried confessedly to make no apology for it. We attempted to get everything that was even remotely borderline as being -- as you point out within the scope of the disputes clause. But by formal documents filed by the attorneys for the Government, by rulings on evidence, during the hearings and by their decisions, we were foreclosed.
Speaker: Did you (Inaudible)
Gardiner Johnson: I think I can, Your Honor. Very clearly the one that is known as the aggre -- concrete aggregates claim which we among ourselves refer to as the dirty aggregates claim that was -- as denominated by everyone who considered it, it was referred to by the government representatives as a breach of warranty. And therefore quite clearly we think that entire claim was without the normal scope of the disputes clause similarly on the one which is denominated as the Pier Drilling. There were aspects of that, very substantial aspects of that which were ruled at all levels to be beyond the normal scope of the disputes clause and in the nature of breach of contract and that both of those are very substantial claims so that there can be no question in our case. We think there has not been at any level, administratively or otherwise, that our petition before the Court of Claims does not in fact involve true breach of contract and items which concededly are beyond the scope of the disputes clause. And as I've indicated to the Court, this is no academic position that we take. We --
Byron R. White: Why do you say that the (Inaudible)
Gardiner Johnson: Because there --
Byron R. White: (Inaudible)
Gardiner Johnson: Yes, Your Honor and well -- and one other point which I think one of your questions yesterday developed that nowhere in the contract, Standard Form 23 in any of the sections, and I'm thinking now specifically of Article 9, the so-called delay damages clause, but nowhere in the contract is there any provision by which when you alleged that the Government has delayed you and thereby damaged you, nowhere is there any provision for a substitute compensatory relief item, either by what --
Byron R. White: Because certainly some of the -- some of the -- some of the claims you couldn't make within the contract and get compensation for it, there wasn't compensation, they would be breaches of contract.
Gardiner Johnson: I would say that --
Byron R. White: Because, if this not -- we just can't say it any blanket way that breach of contract claims aren't -- within the disputes clause.
Gardiner Johnson: An item --
Byron R. White: You just say that there is some that are and some that aren't.
Gardiner Johnson: Well, I would express it this way, Your Honor that there are claims which are so distinctly breach of contract.
Byron R. White: You mean they're really they're not compensable under other sections of the contract.
Gardiner Johnson: That is right.
Byron R. White: And that's -- but that doesn't -- that's really what you're saying. It isn't a breach of contract that distinguishes so -- this class of claim. The fact that you get that -- that there's no mechanism under the contract for you to get any compensation.
Gardiner Johnson: Your statement of the basis of it is correct. In the nomenclature of the decisions down through the years including those in this case, it has been expressed in terms of breach of contract.
Byron R. White: And so you'd have to go somewhere else anyway to have the matter finally settled.
Gardiner Johnson: That is correct. But as was pointed out or raised by one of your questions yesterday, there are other reasons why you -- why a contractor has to proceed under certain clauses of the contract even though he feels that his claim may really be breach of contract and we did it here. We obtained administrative -- a very variable relief in extensions of time. We were able successfully to obtain administratively extensions of time which completely eliminated any liquidated damages which were about to be assessed against the company. We also obtained enough extensions that the money which had been retained, the retained percentage under the contract was released and we got that. What we could not get -- we were proceeding as if -- you have to under Article 9 to get the extensions. But they would not give us any monetary damages because it simply is not provided and under the normal procedure which was existent then and still is you have to go to the Court of Claims. Now that raises the very basic issue here and I'm going to depart what I think would be -- from what I think would be a normal presentation to raise immediately so that the Court might understand our future -- our following points in proper context. We want to point out what we believe to be and I think I expressed the -- in this respect, the feeling of the government contract bar of the nation, a staggering proportions of the Government's proposal in this case. It's expressed, I think at page 49 of their brief, they say in some of the administrative practice like the decisions of the Court of Claims does not preclude on application of the Bianchi decision to require administrative submission of factual disputes underlying claims against the Government for breach of contract. And that was expressed yesterday by counsel for the Government when he said that the disputes clause, I think I am quoting almost verbatim as I noted it down, "The disputes clause makes the agency the trier of all of the facts that may arise." The grotesqueness though if the position is that they stopped there, both the brief and the argument and the important thing of course would be on the practical application. They stopped there. They do not suggest that the agency or the Administrative Board has any jurisdiction to make determinations or to grant relief. In fact they concede and it was conceded in an answer to a question yesterday that you still -- we would still have to file in the Court of Claims our petition but then it stagnates and it would have -- it would happen under their theory to every petition, it then stops and you go back. How? I don't know. To whom? They haven't told you but they say you go back to the agency and they determine the facts. But clearly we think they would create of these agency boards plainly legal units. They would receive all the information. They would literally become receptacles for information because the issues would not be delineated. There would be no power to act on relevancy. They would simply receive the facts. That is what their briefs said and that's what --
Byron R. White: That they would find them, they would find the fact.
Gardiner Johnson: Find them, yes, you are right. They would proceed --
Byron R. White: Well, of any -- of other instances in administrative practice where administrative agencies have power to determine facts and relative to money awards and absolutely no power to make -- give an enforceable reward?
Gardiner Johnson: I know of -- I know of no other proceeding Your Honor under government administrative law where one agency determines facts under one proceeding then you have to go over to another agency under another proceeding --
Byron R. White: What do you think about reparations award before the ICC?
Gardiner Johnson: Well, I would have to say that I'm not familiar enough with that to engage in a -- in an extended discussion. I am not aware as of now that the line is that clear cut but that is what would happen here. The Court of Claims alone would retain the jurisdiction because of the statutory to make the determinations and to provide the remedy. Now may I conjure up for a moment what would happen if this should be declared to be the law? The reason, the logic for providing a disputes clause and a -- an administrative hearing under a construction contract was to provide for the contractor first place to keep the job going, essential government work and the quid pro quo for that was that the contractor was given theoretically a prompt and expeditious, a speedy manner of receiving an equitable adjustment that that will disappear completely. This Court in its -- in your decision on the Bianchi case made reference to eliminating duplication, trying as far as possible to stop long grown-up proceedings which would be repetitive. This contention of the Government in our proceeding would make it absolutely necessary that these speedy expeditious administrative hearings be converted into very technical, very long-drawn-out trials. Because if you have the -- if a contractor or his counsel had the slightest hope of eventually recovering anything, you would be bound since this would be, as they express it, your only bite of the apple. You would be bound in every such proceeding to present all of your evidence including the details of the evidence on things that is complicated as the type of damages. And the method and the measure of damages which are involved in claims such as we present. And all of these necessarily would have to be done on the administrative agency because you would not yet have drawn for you by anybody with any authority the lines, the guidelines, the scope of the proceeding --
Speaker: (Inaudible)
Gardiner Johnson: No, Your Honor, I am decidedly not in --
Speaker: On your arguments (Inaudible)
Gardiner Johnson: But I think the answer to that is that that in your opinion in the Bianchi case, you were very careful. And the Court of Claims in its consideration of our case was exceedingly careful. Reference was made yesterday to the fact that that since your Bianchi decision, the Court of Claims has been gnawing at it. We did not find that to be true in our case. From the very outset, the Commissioner, Trial Commissioner Bernhardt said to us before we go into anything else, we want you to develop for us the application of the Bianchi decision. Immediately we pointed out to them the paragraphs in your Bianchi decision and we think these are the pertinent ones in which you said on these precise words, respondent Bianchi has not argued in this Court that the underlying controversy in the present suit is beyond the scope of the disputes clause in the contract but we do argue that here and I think there is no answer to it. You then went on and you said, and this was the Court -- your Court's conclusion, “We hold only, we hold only and in its consideration of matters within the scope of the disputes clause on the present case, the Court of Claims is confined to a review of the administrative record." As we read the decision and we do not mean to be presumptive but we have attempted to advise our clients and we advised both Commissioner Bernhardt and the Court of Claims of our interpretation. We felt that that plain language in your decision consciously and expressly drew the line between those disputes which were under the disputes clause and those which are beyond it.
Abe Fortas: Well, Mr. Johnson as I understand you, one of your principle claims here is a claim for damages due to delays attributable to the Government, is that right?
Gardiner Johnson: That is correct.
Abe Fortas: Now I assume that what you have in mind is that the Government was supposed to close all the contractors to deliver things to you that were essential to the progress of the installation. The Government was supposed to give you specifications and plans and that sort of thing which the Government did not perform adequately and that the Government unreasonably withheld approvals of various spaces of the project, that kind of thing, is that right?
Gardiner Johnson: That's right. It was much more aggravated than that.
Abe Fortas: I don't care, aggravated (Voice Overlap) --
Gardiner Johnson: But that is the general and that is --
Abe Fortas: -- principle, that's what you're talking about.
Gardiner Johnson: That is correct.
Abe Fortas: And now you're telling us that that type of controversy, that controversy is to whether the Government did or did not do that kind of thing is not under the disputes clause, is that correct?
Gardiner Johnson: That is correct Your Honor.
Abe Fortas: And the disputes clause says -- covers all disputes concerning questions of fact arising under this contract, is that right?
Gardiner Johnson: That is correct.
Abe Fortas: Now don't you have to establish that these questions that I've been putting to you do not involve disputes -- do not involve -- that these issues do not involve questions of fact arising under this contract in order to take it out of the disputes clause and therefore to take it out of Bianchi.
Gardiner Johnson: Yes, we have to do that Your Honor and that's exactly -- as we pointed out in our brief which we have filed with you, that is exactly what the government representatives determined for us at every stage of the administrative proceeding, the view which is expressed here in the brief and which was orally expressed yesterday is a complete and absolute repudiation of the position which the representatives of the United States Government took at every stage of the proceeding and so that we might not be in the position of quibbling. In the appendix to our brief, we printed for you a photographic copy of a motion which they made to dismiss, to request the dismissal of one of the very claims that we are talking about here and it --
Abe Fortas: Is beyond the jurisdiction of the administrator?
Gardiner Johnson: They said in that motion, everything that they now deny. They said the contractor's claim is a claim for damages, for breach of contract or breach of warranty. They're speaking of the aggregates claim. Secondly, the disputes clause of the subject contract limits the hearing examiner's jurisdiction to disputes concerning questions of fact arising under this contract. Third, a claim for damages for breach of contract or breach of warranty is not a dispute concerning a question of fact arising under the contract. And lastly, the contractor's claim may not be recognized as a claim for an equitable adjustment. Those are the contentions which (Voice Overlap) --
Abe Fortas: Well, you're not suggesting that statements in a motion to dismiss, the lack of a jurisdiction providing on this Court, are you?
Gardiner Johnson: No, Your Honor we are not, not at all. And as we pointed out in our brief, we cite that only as demonstrative of the Government position which was taken not only in this case but for more than 30 years since the disputes clause has been in effect. Not only the administrative factors of the Atomic Energy Advisory Committee or Board on Contract Appeals but practically all of the other governmental agencies held without any exception taken that position, that has been the administrative practice history. When this contract was entered into, that was the prevailing view. Counsel suggested yesterday that not until the Bianchi decision, had the Court of Claims ever expressed or as he used the term focused upon the arising under the contract distinction. We submit to this Court that any study of the decisions of the administrative practice as well of the Court of Claims will show that for 30 years they took the position expressed in that motion. And we referred you in our brief to the Contract Board's decision in one of our appeals, Appeal Number 91 in which the appeal board and its finding, and this is at page 9 of our brief, the Appeals Board in one of our claims said, “It is clear in the light of the Board's decision on the appeal of Clermont Construction Company that not only does the contractor's appeal on the issue of damages raise issues solely of law, but that this dispute is a -- as to a matter relating to and not one (Voice Overlap) --
Abe Fortas: What (Inaudible) -- what was the issue there?
Gardiner Johnson: I beg your pardon.
Abe Fortas: What was the issue though, its -- this is addressed, your brief doesn't say?
Gardiner Johnson: That particular proceeding Your Honor was one in which we were -- it was the one that we referred as modific -- Contract Modifications Number 17 to 22, and we are attempting to obtain in the first place an extension of time, and secondly, monetary damages.
Abe Fortas: Alright, but with respect to this matter of damages for delays chargeable to the Government --
Gardiner Johnson: Yes sir.
Abe Fortas: -- contracting officers do pass on those all the time, don't they? Kind of claim that you and I we're discussing, that that is typically the kind of claim that is centered and considered by the agencies themselves, Atomic Energy Commission, the military boards and so on.
Gardiner Johnson: Not the -- not Your Honor on claims of the type that we are raising in our petition.
Abe Fortas: I'm talking about this specific claim, damages for delays chargeable to the Government.
Gardiner Johnson: Oh, I think that is not correct. I have here the original decision which I picked out on my file on the Clermont case which the Board referred to. That came down in February 14th of 1955, some months before we went to the --
Abe Fortas: No, I'm not talking about that kind of claim. I'm talking about the kind of claim that this is subject to the colloquy between you and me a few minutes ago.
Gardiner Johnson: Yes.
Abe Fortas: In which you started of by saying is one of the important claims that you're making here --
Gardiner Johnson: Yes. I think --
Abe Fortas: And what I'm suggesting to you for comment -- your comment based on your knowledge of the literature, your experience is that that is typically the kind of claim on which the agencies themselves passed.
Gardiner Johnson: Well, as to the claims that I am referring to on which we are -- for which we are seeking recovery on this petition, there is no doubt, I think, that the Boards did not pass upon them as is indicated by the decision that I just referred to -- you to. They held that we were not entitled to a hearing. They did the same thing when the counsel objected at the administrative hearing the minute we would start presenting evidence which they thought related, which the Government thought related to a claim for breach of contract. They would interpose an objection and whereupon --
Abe Fortas: Did the -- my trouble with this, Mr. Johnson is that you keep talking about a claim for breach of contract.
Gardiner Johnson: Yes, Your Honor.
Abe Fortas: And it's hard for me to see any sort of a dispute that might arise. That isn't a claim for breach of contract. The question is the specifics of these specific claims even if you assume -- let's assume that there are some types of claims and breach of contract, let's say presenting pure questions of law. They might present the kind of an issue as to the applicability of Bianchi. But as you started your argument here this morning and describe these claims, it sounded to me as if -- while they are claims for breach of contract, there are also claims that are -- that present and are essentially questions of fact which arise under the contract in the sense of requiring interpretation of the obligations of each party and the performance or nonperformance by the Government.
Gardiner Johnson: And that's where we are denied due process of law because we were denied any hearing and have by the decisions been denied and the hearing as to the aspects of our claims which are clearly breach of contract.
Earl Warren: Mr. Jaffe.
Irving Jaffe: Mr. Chief Justice, may it please the Court. I do not understand Mr. Johnson saying that he was denied any hearing. He received a full and complete hearing on every one of these claims and every one of which incidentally was a place before the Board. And in each one, the Board of Appeals of a hearing examiner in one case said very clearly the jurisdiction of the Board is clear. That appears on the record, if Your Honor please with respect to every -- for -- the Pier Drilling claim on record page 80 or the window claim on record page 182, for the door claim on page 122. The Board of Contract Appeals had no doubt that they had cleared jurisdiction with respect to the concrete aggregate claim where the contracting officer did submit a motion to dismiss on basis that it was outside the jurisdiction. That motion was denied. The only part of the motion that was granted was that the appeal was untimely. The contract -- I did not say yesterday nor did the hearing examiner in that case say that this was a breach of warranty. What the contracting officer -- what the hearing examiner rather did say on page 74 of the record in the concrete aggregate claim was that if Utah is arguing that this is a breach of warranty, then it is beyond the jurisdiction of this proceeding. Then he went on to say, and said suffice it to say however, Utah rests its case upon the change conditions clause. And that was his holding and then that it was untimely. Incidentally, this argument or this dispute, the question that arises in connection with the application of the disputes clause is in my opinion largely a matter of semantics. When we speak of breach of warranty, we're not invoking any magic language. Every change condition which is in the contract is in one sense a breach of warranty. Everytime a contractor asks for a change order because something additional has been asked of him, there's a reformation of the contract, whenever the Government decides either for its convenience or otherwise that the contract ought to be terminated, there's a rescission of the contract. These words don't raise any magic legal theories that are outside the scope of the disputes clause or is not a proceeding or a situation which does not arise under the contract. The contractor here didn't think that it did. He presented everyone of this so-called breach of contract claims to the Board and the Board considered each one of them. And in each case, they had detailed, full, complete hearings except in the one where it was untimely. And even there, there was extensive argument. And even there, facts were found. And what are the facts that need to be found for this so-called breach of contract? The causes of delay, the fact of delay, whether it's the Government's fault, whether it's the contractor's fault, are these causes beyond the control of the contractor, are they within the control of the Government? These are the facts which underlie a so-called breach of contract for delays and those things are specifically committed by Article 9 of the contract which appears in our brief, on page -- bottom of page 4. What do they find out? What is committed to this contracting officer? It says that the contractor, if he's met with any delay, shall within 10 days from the beginning of that delay notify the contracting officer who shall ask of the causes of the delay is what he notifies him. And the contracting officer shall ascertain the facts and the extent of the delay. Then of course, they say he will extend the time not imposed the liquidated damages that the contract might provide for. Now the only suggestion that has been made and I see no rational basis for it, is that unless another clause of the contract says, there's no question that all of these are breaches whether it's -- the only thing is, is that is there were clause in the contract which says that the contracting officer shall make an equitable adjustment. Now, those are breaches that the Government has anticipated. They have occurred with such frequency that they anticipate those breaches and they therefore provide that an equitable adjustment shall be made. However, it's not this contract that authorizes the Government to pay. The Government has given the money and authorized to pay by the Appropriation Act. And yet this Court holds, as I believe it should, that every disputed question arising under this contract is one within the scope and the ages of this proceeding as I believe it is then the money will be paid out of the appropriations. The only reason it's not now is because judicially, not by contract, it has been said that there -- the -- that it's not within their power. That's not true. They pay these kinds of claims all the time. They paid Utah for a type of breach of contract claim. They paid them for general supervision, profit. Those are the things that go into the delay claims. On the concrete aggregate, they paid that. They paid every cent he asked for which included claims which were not excess cost. Now in this --
Byron R. White: Could I ask you --
Irving Jaffe: Yes, Mr. Justice --
Byron R. White: Mr. Jaffe, do you think it's essential in this case actually to face up to the question of whether or not -- whether or not the contracting officer must pass on the factual underpinning for claims which a contractor might make, which are not compensable under the contract in the sense that there is no remedy within the contract provided.
Irving Jaffe: Yes, Mr. Justice White, I do. I do because the parties agreed as clearly as I think that they could have that the trier of the facts would be the contracting officer or the head of the department or his delegate, the Court of Appeals. Now it is not this vacuum that Mr. Johnson --
Byron R. White: But the court don't agree on that at all.
Irving Jaffe: Well, they have in the disputes clause. That all disputed questions of fact concerning -- that is --
Byron R. White: That isn't --
Irving Jaffe: -- all disputes concerning the question of facts.
Byron R. White: That isn't my question. I understand that the kind of a reading you want to give to the disputes clause --
Irving Jaffe: Yes.
Byron R. White: -- and I understand that the other side doesn't agree with you at all.
Irving Jaffe: Yes.
Byron R. White: But there is within the -- there is a class of cases I suppose for which the contracting officer can give no remedy at all.
Irving Jaffe: Well, I'm not -- I don't agree that he can't. I say that he can. And this is not a vacuum. He doesn't merely find facts and say, “Now, I don't know what to do with them.” He finds the facts, determines liability and fixes the amount. Now, what this Court says they do that under all disputes, they will be paid in the same manner that these claims are paid. The only possibility maybe that the appropriation has run out, that would be no different than a judgment in the Court of Claims or a judgment anywhere where the amount was over $100,000. The person who gets the judgment will have to wait for Congress to make the routine appropriation.
Byron R. White: Let me ask you -- let me ask you this. Is there any of these claims which was presented here, which was not specifically within one of the other clauses of the contract, do you --
Irving Jaffe: Well, they -- well, I can't answer that. I think that everything is within -- they've presented these claims administratively. They presented these claims including what he now calls breach of contract. He detailed the concrete aggregate claim of $109,356. That claim was presented. If he calls it a breach of contract --
Byron R. White: Yes, but nobody suggests that one has been adjudicated by anybody.
Irving Jaffe: Well, then the Pier Drilling -- the -- well, because it was untimely --
Byron R. White: No, I mean, (Inaudible) wasn't adjudicated by anybody --
Irving Jaffe: I know.
Byron R. White: -- not even the Commissioner before the Court of Claims.
Irving Jaffe: That was because it was untimely rather than because they said he had that jurisdiction --
Byron R. White: Well, alright, if there (Voice Overlap) -- there's nobody ever got to the merits of the claim
Irving Jaffe: Well, they can go back to the Board for the ascertainment of the question on the merits.
Byron R. White: I just want to know is that the concrete aggregate claim within one of the other clauses of the contract that the contractor could actually bring up an -- why did the Government object to presenting that evidence about that claim?
Irving Jaffe: Well, the -- you mean that the -- do you mean at the Court level?
Byron R. White: No, it's before the administrators.
Irving Jaffe: That he filed it a year and a half after the contract was over. That was the only reason. That was the only reason that was upheld. The contracting officer and of course statements of counsel on that evidence did bring in many of the grounds which were not sustained.
Byron R. White: Well, the word sustain but I just -- I'm not going to forget that the Government took that position and why did they, do you suppose because (Voice Overlap) --
Irving Jaffe: What it --
Byron R. White: Why did the Government state these other reasons for not taking up that claim before the administrator?
Irving Jaffe: You mean at the administrative level.
Byron R. White: Yes, that it was a kind of a claim that the administrator shouldn't be deciding at all.
Irving Jaffe: Well, the -- it wasn't -- as I said yesterday, it wasn't unusual.
Byron R. White: You don't think this is a -- that the Government's position before the administrator was consistent with 30 years in practice enough.
Irving Jaffe: It wasn't -- well, it was consistent in the sense that that position had been taken but it is not consistent in the sense that beneath the contractor and all the Boards, and all the administrators ever really decline taking of that very type of claim. And they would have heard it here, just as they've heard the Pier Drilling claim that he says was also of the same type. They heard the $83,000 claim he put in, in addition to the excess cost.
Byron R. White: Well, there isn't a single judge on the Court of Claims that agrees with you, isn't it?
Irving Jaffe: On that score, no, there is none. Thank you Your Honors.


Warren E. Burger: We will hear arguments first this morning in Smalis against Pennsylvania, and Ms. Chase, you may proceed whenever you are ready.
Norma Chase: Mr. Chief Justice, and if it please the Court: The issue in this case is the validity of Pennsylvania's rule permitting the Commonwealth to appeal an insufficiency determination made at the close of a timely rights case. The rule was established with very little discussion or analysis at a time when the Double Jeopardy Clause did not apply to the states. With this case it suddenly became a rule in season of a rationale. The defendants were charged each with two counts of murder and various lesser charges as a result of a fire in a restaurant-apartment building that they owned. The trial was non-jury. The case was largely circumstantial. At the close of the Commonwealth's case, the defendants challenged the sufficiency of the Commonwealth's evidence. They did this with a motion that we call a demurrer in Pennsylvania, a demurrer to the evidence. The issue raised by a demurrer to the evidence is the same as the issue raised by a Rule 29 motion in federal court. If it's true, is it enough. The court found that the evidence, even if true, was insufficient to establish beyond a reasonable doubt that either of the defendants set the fire.
Byron R. White: When did the court hold that?
Norma Chase: December of 1980.
Byron R. White: I know, but at what stage of the trial?
Norma Chase: The Commonwealth had rested, and the defendants demurred to the evidence.
Byron R. White: So, this was mid-trial?
Norma Chase: Yes, but the Commonwealth had rested. The court, however, denied demurrer with respect to involuntary manslaughter and various lesser charges involving a reckless state of mind. The District Attorney's office appealed the order sustaining the demurrer and asked that trial of the remaining charges be stayed depending the outcome of the appeal. The District Attorney's office also asked for reconsideration of the order sustaining the demurrer, and the Commonwealth presently finds it significant, as they indicate at footnote 11 at page 46 of their brief, that the defendants at that juncture joined in the Commonwealth's request that the ruling in favor of the defendants be reconsidered. We put our reasons on the record at the time. Defendants wanted so desperately to complete the trial on the involuntary manslaughter and the remaining charges that they were willing to suffer the reinstatement of the murder charges with all the risks that that entailed, so that they could complete the trial rather than have the trial interrupted for an appeal.
William H. Rehnquist: Ms. Chase, in Pennsylvania do you have to demur to the evidence at the close of the prosecution's case in order to later make a motion for judgment n.o.b. if the jury convicts you?
Norma Chase: My understanding is, you don't.
William H. Rehnquist: Because I was wondering, if the defendants were so anxious to have the trial completed, they could have foregone the demurrer to the evidence.
Norma Chase: That's true. They had lived in that courtroom for six weeks. They didn't want to be in there another six weeks putting in their defense, and they wanted to know, what charges did we already win on. It was just, basically, a matter of economy at that point.
Byron R. White: But, you demurred across the board?
Norma Chase: Yes, we were interested in weeding out anything that the--
Byron R. White: You were also interested in having a ruling on all of them, and you would like--
Norma Chase: --Naturally. We wanted to know where we stood with the court on all the charges, so that we should know what charges we should direct our defense to. On reconsideration the court reaffirmed its original order. The remaining charges were stayed over our objection pending the outcome of the appeal. Two and a half years later the Superior Court quashed the appeal on double jeopardy grounds and invalidated the Pennsylvania rule. They reconfirmed that decision on re-argument about a year later. About a year ago the Supreme Court of Pennsylvania reversed and remanded to the Superior Court for consideration of the merits of the Commonwealth appeal, and it was at that juncture that we asked for certiorari. The Commonwealth's position, as I understand it, is that since the trial judge made no decision with respect to credibility in ruling on the sufficiency of the evidence, his decision does not go to the factual elements of the crime. It's unrelated to factual guilt or innocence. Essentially, the Commonwealth looks at Scott, sees the words "factual guilt", and thinks that this Court is saying that there is another, unrelated kind of guilt. I can find no language in either Martin Linen or Scott that suggests that kind of distinction or that in any way suggests there has to be a credibility determination before there can be an acquittal, and I think Burks is clearly to the contrary.
Byron R. White: --What do they mean, a credibility determination?
Norma Chase: What they're saying is, since the judge did not determine whether the evidence presented on behalf of the Commonwealth was true, but assumed it to be true for purposes of deciding on the demurrer, his ruling was not an acquittal. It did not go to the merits of the case.
Byron R. White: You mean, even accepting all of it as true, a ruling that it wasn't enough was not an acquittal?
Norma Chase: That's the Commonwealth's position. I would submit also that this case presents a stronger case against allowing review than Martin Linen because in Martin Linen the defendant had been looking at retrial before the insufficiency decision was made, because the jury had been discharged without reaching a verdict. Martin Linen, I believe, also discloses a manifest necessity argument. There was clearly no mistrial here. I believe that the Commonwealth's argument that the defendants waived their double jeopardy rights by challenging the sufficiency of the evidence when they did is adequately answered by Sanabria. I would add that this case presents none of the quirks of the Sanabria case. There are no evidentiary rulings at issue here. This was basically a circumstantial case that the trial court found did not measure up to the standard of proof beyond a reasonable doubt.
William H. Rehnquist: Ms. Chase, you say that you think Burks supports, in your position, that it is not necessary for the trial judge to admit a credibility determination in order for double jeopardy to apply, but didn't Burks amount to a conclusion that there was just not sufficient evidence to support a judgment of guilty?
Norma Chase: Yes. The Burks decision, as I understand it, did not turn on any credibility determination. There was a conclusion in Burks that no matter what evidence the court might believe, it still is not enough. No decision had been made in the Burks case as to credibility of witnesses, but the decision was still an acquittal. I note that there has been some disagreement within this Court as to whether every refinement of double jeopardy law as developed in federal cases applies lock, stock and barrel to the states. I would hope that however that debate ultimately turns out, the states will not be held to be free to avoid the finality of acquittals by calling acquittals something else when they're entered at the close of the Commonwealth's case, a stage well after when the defendant has been placed in jeopardy. I would hope also that the states are not going to be free to hold that a defendant waives his Double Jeopardy rights by asking to be acquitted. The rights involved here may not be quite as fundamental as the right not to be retried after a classic, traditional jury verdict of not guilty, but I would submit that they are certainly not peripheral or incidental to the purposes of the double jeopardy clause. As I indicated this morning--
Byron R. White: Well, suppose the trial is all over and there had been a conviction, but then there was a motion for n.o.b. or whatever the equivalent is, and the trial judge had then sustained it and said there wasn't enough evidence, "I don't care what the jury held, there just wasn't enough evidence. " And, then there's an appeal--
Norma Chase: --In that case the verdict--
Byron R. White: --and the judge--
Norma Chase: --may be reinstated without placing the defendant back into jeopardy.
Byron R. White: --That is really the point of this case, that it was midtrial and there had to be further proceedings?
Norma Chase: Correct, that's correct. In Wilson, what the defendant gets from the appellate court is, go directly to jail, do not pass go. These defendants would at least have to go back for resumption of the non-jury trial. But here we have a situation, since this trial is non-jury, the judge in holding essentially that a reasonable doubt existed as a matter of law, was necessarily saying that there was such a doubt in his own mind. At least, I've never heard a trial judge say, any reasonable person would have a doubt but this court has none.
William H. Rehnquist: Well, one might wonder how much in the practical world this sort of situation is going to arise, because it's hard to believe that the state is going to profit much by appealing from the sort of judgment you describe and get it reversal, only to come back and find he judge is the fact finder and he will surely feel, as a fact finder he will feel just as he did about the sufficiency of the evidence. And, in the jury case, the thing just isn't going to arise. You don't disband the jury and bring it back two years later.
Norma Chase: I would certainly hope not. I think the impact on different trial judges are going to be different, but there are situations in which allowing the prosecutor to walk back into court years later with an appellate opinion telling the judge how wrong he was in entertaining that doubt at the close of the prosecution's case, is going to put some pressure on the judge to convict. He can still acquit, but he has to find some other basis, and he's put in the position of having to justify an acquittal at that point.
Thurgood Marshall: Could the judge at that point acquit on the other charges under Pennsylvania law?
Norma Chase: The other charges?
Thurgood Marshall: Could he have added to what he said, "And I thereby acquit on these other charges? "
Norma Chase: If he had done that, under Pennsylvania law--
Thurgood Marshall: But can he? Can he do that under Pennsylvania law?
Norma Chase: --It's not proper, although it has been done. There have been cases where the judge has said, "I sustain demurrer and I find the defendant not guilty. "
Thurgood Marshall: Right.
Norma Chase: Appellate courts have said, the judge's decision was improper, but it bars review. If he uses the magic words "acquit" or "not guilty", the decision will not be reviewable. I would point out also that if this trial is resumed as the Commonwealth suggests, although the prosecutor doesn't get to re-do his case in chief, he doesn't become a bystander merely because he's rested. Pennsylvania law gives a party who has rested the right to re-open his case if additional evidence has come to light.
Speaker: At least, rebuttal.
Norma Chase: Yes. He also has the right to put in evidence in rebuttal, and he also has the right to cross examine and impeach defense witnesses, perhaps with the aid of whatever he has learned in the 5-year recess. And, I would submit that it is just not realistic to say that the risks of multiple prosecution are not presented by the resumption of a non-jury trial. It is a second crack, and it is offensive to the letter and the spirit of the Double Jeopardy Clause. Thank you.
John Paul Stevens: May I ask, before you... I'm not clear. What happens if the same judge is not available when you come back after a couple of years?
Norma Chase: That's never really been decided. Some of the older cases, when they sustained a demurrer in a non-jury trial, said, reversed with a procidendo, merely said reversed with a procidendo. More recently the practice has been simply to remand for a new trial. The Supreme Court of Pennsylvania did not accept the alternative of resuming the non-jury trial, apparently because they wanted to hang onto a rule that let the prosecutor appeal whether the trial was jury or non-jury. So, that's never really been determined. I'm aware of one case in which the non-jury trial was simply resumed on remand. To my knowledge there have been no appellate decisions concerning that procedure.
John Paul Stevens: Well, maybe I'm not remembering the facts. If it were a jury trial and you had to send it back and start over again, what would he do? He'd put in the same evidence again, is that what he'd do?
Norma Chase: It would be the same as a mistrial situation procedurally, because trial would just start from scratch.
John Paul Stevens: But you can't be sure the witnesses will testify in exactly... the evidence won't be exactly the same as it was the first time?
Norma Chase: Right, there's no certainty there.
John Paul Stevens: In fact, it-- --Some could be dead.
Norma Chase: Beg pardon?
Byron R. White: Some could be dead.
Norma Chase: That's true. I mean, obviously there are some risks to the prosecutor as well as the defense with multiple prosecutions. Thank you.
Warren E. Burger: Mr. Eberhardt.
Robert L. Eberhardt: Mr. Chief Justice, and may it please the Court: The matter before the Court raises an important question relating to the proper role of the Pennsylvania trial judge in deciding whether a criminal case shall proceed to verdict. In the Commonwealth's view, the trial judge in this case was not asked to sit in judgment, but rather was requested to determine that judgment could not be entered at all in this case. The motion made below by the respondents was reflective of Pennsylvania's desire for specificity and particularity when raising claims of sufficiency of the evidence, in the context of the legal standard to be applied in evaluating the evidence. Clearly, a trial judge has a separate function in determining whether or not there is sufficiency of evidence factually to determine guilt, as opposed to determining whether or not the law requires that the judgment be sought in a particular case. The Commonwealth is very aware of this Court's discussion with regard to the talismanic nature of particular words, and the Commonwealth doesn't want to rely on the word "demurrer" as providing any special significance in and of itself. However, the term "demurrer" is reflective of Pennsylvania's desire that was set forth in the case of Martin Linen Supply, that the federal system did not provide, that is, a restriction on the power of the trial judge to rule in midtrial, requests regarding the sufficiency of the evidence as a matter of law. Now, the question that has arisen with regard to what difference would occur before this trial judge on remand, I suggest to the Court that there is a different mental process that the Court would go through in determining whether, specifically as a matter of law, the Commonwealth prosecutor has established a case within the framework of the definition of the crime as opposed to whether or not the Commonwealth, the prosecutor, has established sufficient evidence to convince a finder of fact beyond a reasonable doubt of the crime, that the crime has been committed. There is a different mental process that I suggest is important to reflect and to be recognized in a system such as Pennsylvania's.
Warren E. Burger: Under Pennsylvania law, that stage is the judge sitting as the tryer alone, to decide whether, had there been a jury, he would have said there wasn't enough evidence to go to the jury?
Robert L. Eberhardt: Right.
Warren E. Burger: Is that the decision he makes?
Robert L. Eberhardt: That's the particular request that's made of the judge at that point in time.
Warren E. Burger: Then, is the judge now in effect saying to the state, "If that's all you've got you haven't got anything? "
Robert L. Eberhardt: Right. The court is saying that, "With my understanding of the law and the legal definition of the crime, the evidence that you have presented does not support sufficiently the elements of the offense established by the legislative definition. " So, whether we're talking about a jury trial or non-jury trial with regard to the demurrer, the same standard is being requested of the court. However, Pennsylvania goes on in its rules to recognize that at a later stage after all the evidence has been introduced in the particular matter, that the trial judge is being asked to decide a different question. The judge is being asked in a non-jury situation for the equivalent of a verdict. Now, this Court has recognized that double jeopardy problems arise whenever there is a not guilty verdict entered by a jury. Clearly, that is the classic situation where there is an application of the Double Jeopardy Clause. What the Commonwealth is suggesting is that the Pennsylvania procedure here is not providing, at this stage in the trial, through demurrer, the equivalent of a not guilty verdict by a jury.
Byron R. White: But there was no disagreement, as I understand it, between the trial judge and the Supreme Court of Pennsylvania on what the elements of the crime were, no legal difference except with respect to the quantum of the evidence.
Robert L. Eberhardt: Well, we never got to argue the merits of the case below, Your Honor. The particular appeal that was taken in Superior Court, and the delays occasioned in this appellate process, were raised as a result of the appealability question.
Warren E. Burger: When you say you had no argument, you had no argument--
Robert L. Eberhardt: We had no opportunity beyond presenting it in a written brief, what the Commonwealth's argument was with regard to the--
Warren E. Burger: --At the close of the Government's case, do you mean?
Robert L. Eberhardt: --No, on appeal to the Superior Court of Pennsylvania.
Warren E. Burger: What occurred? What was the next step that occurred after the Government rested?
Robert L. Eberhardt: Well, in this particular case the Commonwealth rested, and demurrers were tendered by defense counsel as to all the charges before the Court. the Court granted certain ones and denied others.
Warren E. Burger: The Commonwealth... that was argued?
Robert L. Eberhardt: That was argued before the lower court. The Commonwealth found a Motion for Reconsideration which is permitted under Pennsylvania practice, that a trial court can reconsider any ruling within 30 days. The court entertained that Motion for Reconsideration. In fact, defense counsel requested that the court reconsider all its rulings with regard to the demurrer. Following the court's decision, the Commonwealth then filed an appeal to the Superior Court of Pennsylvania. Following that appeal a motion was made to quash the appeal. The motion was reserved for argument on the merits of the appeal. Following arguments on the merits, a panel of the Superior Court of Pennsylvania quashed the appeal. Then the Superior Court of Pennsylvania granted re-argument of that question and we argued again the appealability issue before the Superior Court en banc. At no time has a court beyond the trial court reviewed as yet the question of the sufficiency of the evidence.
William H. Rehnquist: Your suggestion, Mr. Eberhardt, is that when you're talking about a motion like this, the trial court may have a misunderstanding as to what elements are necessary for the crime, so that it's quite different from a credibility determination?
Robert L. Eberhardt: It's quite different from a credibility determination. What we're suggesting is, the court in measuring the sufficiency of the evidence as a framework within which it is operating, if that framework is improper or is too extensive in light of the Commonwealth's proffer of evidence, then the court has made an error of law that it uses to resolve the question of sufficiency of the evidence. The court is being asked, classically at common law under a demurrer, and under Pennsylvania practice, to make a legal measurement of the sufficiency of the evidence against a framework. If the Commonwealth cannot argue on appeal that the court used the improper framework in measuring the sufficiency of the evidence, then the Commonwealth would not have the right to appeal in Pennsylvania because Pennsylvania practice limits Commonwealth appeals to pure questions of law, from final orders.
Thurgood Marshall: Well, counsel, I'm sure I missed something, but is it true that this man is now convicted and sentenced without having an opportunity of defending--
Robert L. Eberhardt: No, no. There were two separate criminal episodes that were joined for trial, Justice Marshall. The one, arson, resulted in what we viewed as a homicide. That is the subject of this proceeding. A separate charge of arson was joined for trial, and when the demurrers were sustained to the homicide charges, the trial court proceeded in a non-jury fashion to adjudicate the defendant guilty of that separate arson. He has been convicted of that arson and is serving a sentence right now for that crime, that involving arson only.
Thurgood Marshall: --I understood you to say that after the judge ruled, that there was an immediate appeal by the State. I guess I misunderstood.
Robert L. Eberhardt: There was an appeal as to only those charges that were the subject of a grant of demurrer under Pennsylvania practice.
Thurgood Marshall: Then the trial took place and defense--
Robert L. Eberhardt: Defense presented their evidence. I don't know whether they rested or presented their evidence.
Byron R. White: --The trial didn't go ahead, did it?
Robert L. Eberhardt: The trial as to the separate arson proceeded, yes.
Thurgood Marshall: After the appeal?
Robert L. Eberhardt: After the appeal. There was a severance in effect granted of a separate arson based on a different building in a different part of Allegheny County, Pennsylvania, and that case proceeded separately to verdict. This proceeding, which involves homicide charges and causing catastrophe charges, was stayed by the trial court while the appeal process continued on those specific charges, those criminal informations.
Byron R. White: What did the Pennsylvania Supreme Court hold?
Robert L. Eberhardt: The Pennsylvania Supreme Court--
Byron R. White: You did argue there?
Robert L. Eberhardt: --Yes, we did. They did not decide the merits of the Commonwealth's appeal. The Court remanded that matter, the judgment of the Supreme Court of Pennsylvania was to remand the case to the Superior Court of Pennsylvania to consider the merits of the Commonwealth's appeal regarding the legal sufficiency of the evidence, so we have yet argue before an appellate court and have a decision with regard to the legal sufficiency of the evidence that was produced in the trial court. What the Supreme Court of Pennsylvania held was that the Superior Court had erred in its review of the demurrer, in viewing it as the same as a Motion for Judgment of Acquittal, and the Supreme Court particularly looked at its totality of practice and its history, which was an extensive history with regard to the demurrer being appealable in Pennsylvania, and it viewed it as pure question of law unlike... and compared it to the federal rule, Rule 29... unlike the federal rule which to a certain extent may not make the classic distinction that the Pennsylvania rule attempted to make. I might note also that the Pennsylvania rule, Rule 1124(a)-1 was promulgated by the Supreme Court after this Court's decision in Scott, aware of the Scott decision, aware of the Martin Linen decision. The Supreme Court through is rulemaking power, which is very broad, entered a decision that a structured rule should provide specifically for the demurrer as a separate item. The rest of Rule 1124 looks very much like the federal rule.
Byron R. White: Well, you say that you can only appeal on "legal" grounds in Superior... or you can only appeal on those grounds. So, what was your case before the Superior Court?
Robert L. Eberhardt: Our case before the Superior Court, essentially with regard to two of the crimes that were before the trial court, was the court had erred in deciding what degree of recklessness was contemplated to be required to be shown under Pennsylvania's definition of murder as a third degree--
Byron R. White: So, that's the only thing that was appealed?
Robert L. Eberhardt: --The only thing that was appealed--
Byron R. White: That's the only thing that is left, and so if... but if you lose those, under the Supreme Court's ruling, the case will go back for trial?
Robert L. Eberhardt: --The case will go back for trial.
Byron R. White: Because the Supreme Court said that the trial court's ruling was not a sufficient ruling on the evidence?
Robert L. Eberhardt: Was not a question of fact but was a pure question of law, a determination of legal sufficiency, the evidence on a stated standard.
Byron R. White: Which is a different question, a new appeal?
Robert L. Eberhardt: The question that we appealed to the Superior Court, whether the Court erred as a matter of law in ruling that the sufficiency of the evidence was not established based upon the elements of third degree murder and causing a catastrophe.
William H. Rehnquist: Well, won't it be exactly that question that is pending before the Superior Court of Pennsylvania, if the judgment of the Supreme Court of Pennsylvania is affirmed here?
Robert L. Eberhardt: That is exactly the question before the Superior Court, is the legal sufficiency of the evidence.
William H. Rehnquist: And if the Superior Court decides in the defendant's favor but affirms the Court of Common Pleas, is that then the case is all over. If it reverses and says the trial judge was wrong in his understanding of the law, the case would go back?
Robert L. Eberhardt: The case will go back, in the Commonwealth's view, either way because the remaining charges on which demurrers were denied are still before the court.
Byron R. White: It seems to me that--
Robert L. Eberhardt: Misdemeanor charges.
Byron R. White: --Part of your arguments is that the issue of the... the double jeopardy issue, just isn't right for review here?
Robert L. Eberhardt: That's been raised by both our response to the certiorari petition by the Solicitor General's amicus brief and--
Byron R. White: Because if you lose in the Superior Court on remand, where you have argued that the judge misunderstood the legal requirements of the crimes?
Robert L. Eberhardt: --Right.
Byron R. White: The the question would, even under your view, be right, was the... is a retrial... can the trial go back for a continuation because... In spite of the trial judge's ruling on the sufficiency of the evidence?
Robert L. Eberhardt: Correct.
Byron R. White: Because you agree the trial judge ruled on the sufficiency of the evidence?
Robert L. Eberhardt: I agree that the trial judge determined the legal sufficiency of the evidence. He did not engage in--
Byron R. White: If he understood the crime correctly, then he did rule on the sufficiency of the evidence?
Robert L. Eberhardt: --Yes, he did. So that, the Superior Court would be presented with the question of whether the court, the trial court, properly ruled on the--
Byron R. White: Well, would you say that if you lose in the Superior Court, would you argue that the trial may continue despite the fact that then it will be clear that the trial judge, A, understood the elements of the crime and, B, ruled that the evidence was insufficient?
Robert L. Eberhardt: --I would argue that the matter would be remanded to the trial court for continuation of trial with regard to those remaining--
Byron R. White: You would say it could go forward despite the Double Jeopardy Clause?
Robert L. Eberhardt: --I would say, go forward on those charges which were not disposed of my demurrers, because there were two charges--
Byron R. White: What about the charges that were not disposed of by demurrer... that were disposed of by demurrer?
Robert L. Eberhardt: --The Superior Court decision would be a final decision, much like Burks recognized that there would be a final order.
Byron R. White: So, the State concedes that if a trial judge properly understood the elements of the crime in this case, his ruling was an acquittal to the extent that he sustained the demurrer?
Robert L. Eberhardt: Correct, but it's a legal question only as to--
Byron R. White: So, the State... the double jeopardy clause would forbid the continuation of the trial on those issues?
Robert L. Eberhardt: --I do not believe in this case that the Court ned go any further in determining whether an acquittal was actually entered in the case. What we are suggesting is that the determination by the Superior Court on our appeal will be determinative of the legal question which we had a right to appeal, and therefore our right to appeal would have been vindicated in the Superior Court, and if we lose in that matter, then the order of the trial court achieves finality and prevents, under the Double Jeopardy Clause, us from arguing that the court should continue on those charges on which a demurrer has been sustained.
Byron R. White: So, what you're saying is that the Supreme Court of Pennsylvania just told the Superior Court that it misunderstood what the State's appeal was about?
Robert L. Eberhardt: In essence, yes, in essence.
John Paul Stevens: May I ask one question. You say the misdemeanor charges remain undisposed of, but that the charges on the unrelated arson went forward and the man was convicted. Why would they go forward with some charges and not others that were not covered by the demurrer that was sustained? I don't understand.
Robert L. Eberhardt: Well, I believe that the trial court was desirous of allowing the Commonwealth its right of appeal on those charges that he had sustained a demurrer to.
John Paul Stevens: Right.
Robert L. Eberhardt: And yet, the other charges which were easily severable because they were a separate criminal episode--
John Paul Stevens: Well, even if they... the misdemeanor charges were not covered by the demurrer either, though, were they?
Robert L. Eberhardt: --No demurrer was sustained as to them. All I can suggest to the Court in that regard is that the trial court and the counsel below were concerned with the potential creation or another Double Jeopardy issue, when and if the trial court would proceed on other offenses which might be viewed as lesser included offenses or offenses for which there might be an additional bar that might be argued.
John Paul Stevens: I see, but if they are lesser included offenses, then if your opponent wins on the demurrer, those would as well... at least arguably would also be barred?
Robert L. Eberhardt: Possibly. I don't believe they are lesser included offenses. I think that was a misunderstanding in the court below, that they may... at the time of this proceedings there was some question in Pennsylvania whether involuntary manslaughter was a lesser included offense of murder. Subsequent decisions have established that it clearly is not.
John Paul Stevens: But your position, as I understand it, on the charges that were covered by the demurrer, is that, we don't yet know if that was an acquittal. If the trial judge turns out to be right it was an acquittal. If he's wrong it's not an acquittal.
Robert L. Eberhardt: That's basically our position, Your Honor.
Byron R. White: I take it your position is that in a trial... short of a jury, for that matter, you get into... the prosecution gets into an argument with the judge on what the elements of the crime are, and the trial judge says, "I disagree with you, Mr. Prosecutor. " "You have to prove A, B and C.. " And at the close of your case or the whole case he says, "The evidence is insufficient because you didn't prove C. " acquittal. Now, you say that the State may appeal that acquittal because the judge misunderstood the law?
Robert L. Eberhardt: Well, my position is, it's not an acquittal. To the extent that Martin Linen Supply--
Byron R. White: My example is not an acquittal.
Robert L. Eberhardt: --Well, I would make a distinction, Your Honor, between the motion that's made here, a demurrer, prior to... at the conclusion of the Commonwealth's presentation of its evidence, and a motion that's made at the conclusion of the presentation of all of the evidence. Now, in a non-jury situation I suggest that it may be difficult to separate at that point the distinction between the Court ruling as a matter of law and ruling as a matter of fact. It's not necessary for the Court in this case to reach that far. I think what we have here is a midtrial ruling before all of the evidence has been completed. Thank you, Mr. Chief Justice.
Warren E. Burger: Mr. Frey.
Mr. Andrew L. Frey: Thank you, Mr. Chief Justice, and may it please the Court: First of all, the issue that is before the Court today concerns only the ability of the courts to correct legally erroneous judgments of evidentiary insufficiency by the trial court. If the judgment is not legally wrong, that is, if the trial court was correct in finding the evidence insufficient, the appellate court will affirm, there will be no further trial type proceedings of the kind to which the Double Jeopardy Clause could apply. So, your decision on this case will affect only the class of cases in which the defendant has induced the trial court to make a legally erroneous decision.
John Paul Stevens: Well, that's not true, is it? Say, the decision is right but the prosecutor doesn't think it's right, therefore appeals--
Mr. Andrew L. Frey: We'll take an appeal but there's nothing--
John Paul Stevens: --so that the defendant at least has the burden of resisting an appeal that he would not otherwise have to resist?
Mr. Andrew L. Frey: --That is true, but I think this Court's jurisprudence makes it quite clear that nothing in the Double Jeopardy Clause makes the appeal itself, the burden of the appeal itself, prohibited and Wilson dealt with and disposed of that problem.
Byron R. White: Mr. Frey, I still don't understand what you mean, "legally insufficient", or "legal sufficiency". What do you mean?
Mr. Andrew L. Frey: Well, the question is, what... well, I think the trial court in a jury trial, for instance, can rule only on a question of law.
Byron R. White: Now, he says to himself, could any reasonable set of jurors find this evidence sufficient to find guilt beyond a reasonable doubt? Is that the kind of question you're talking about?
Mr. Andrew L. Frey: Yes. It's a legal determination.
Byron R. White: Do you think that his saying that at midtrial doesn't bar an appeal?
Mr. Andrew L. Frey: That is our position.
Thurgood Marshall: What happened if at the end of exactly what he said in this case, he said, "And I find him not guilty of any charge? "
Mr. Andrew L. Frey: Well, exactly... I think there is a legitimate question in this case as to whether what the judge said was an acquittal or not in the true sense, and I'd like to talk for a minute if I may about what constitutes--
Thurgood Marshall: When you don't agree, that it just would be extra words? He would have to have said something in front, before that.
Mr. Andrew L. Frey: --I think if the Judge... I think what we are saying, it's not reviewable as to verdict of acquittal. That is a determination by the finder of fact that the defendant is not in fact guilty of the crime.
Thurgood Marshall: That's not what I--
Mr. Andrew L. Frey: Or not reviewable, whether it's right or wrong, okay. Now, the judge, however, performs a different function and in this case he did not purport to act and the Pennsylvania court did not treat him as acting as finder of fact when he granted the demurrer, but acting the same way he would if there had been a jury, and taking the case a way from the jury. Now, there is a sense in which it is an acquittal. That is, in Scott we were talking about pre-indictment delay claim, and the majority held that you could distinguish between that kind of claim which does not go at all, does not represent at all a finding of guilt or innocence, and the kind of claim that could represent an acquittal.
Sandra Day O'Connor: --Mr. Frey, it seems to me that your argument goes beyond that, what the State of Pennsylvania... it seemed to me the State of Pennsylvania was conceding that if the trial court had applied the correct standard in determining the evidence was insufficient, that that would constitute an acquittal for purposes of Double Jeopardy. And yet, you, I think, are arguing a broader rule, that any finding of insufficient evidence just falls outside Double Jeopardy?
Mr. Andrew L. Frey: That's why I wanted to talk about the different ways in which there could be findings of insufficient evidence. Justice White referred to one way, but before we get to that way, the judge might have a correct understanding of the elements of the offense, but the judge might decide that you can't convict the defendant on the basis of circumstantial evidence, for instance. Therefore, even though there was overwhelming circumstantial evidence of guilt, as to every element of the offense, the judge might enter an acquittal. That would be one kind of ruling. Now, that doesn't involve a misunderstanding of the offense that is in a sense an acquittal. I think we would argue that it should be reviewable. But, Justice White's example was a different kind. The judge may add to the offense an element which is not in fact or in law a part of that offense.
William H. Rehnquist: Let's get back just a minute, Mr. Frey, to your example about circumstantial evidence. You say that could be reviewable. Could it be reviewed by the Pennsylvania Superior Court, in this case, because the Pennsylvania rule was that you could convict on circumstantial evidence? Could it be reviewed by the Pennsylvania Superior Court saying, this was enough circumstantial evidence to go to the jury?
Mr. Andrew L. Frey: I think ultimately we would contend that either one of those conclusions would be reviewable. We think they are conclusions of law.
Sandra Day O'Connor: Do you think that's the same thing that the attorney for the State of Pennsylvania is arguing?
Mr. Andrew L. Frey: I'm not sure it is the same thing as they are arguing, but I think the important question is whether... I mean, I think there is an initial question that the Court has to grapple with, and that is, if this animal that we have is a determination by the judge that the defendant hasn't committed a crime, then can it ever be appealed and corrected, regardless of what is wrong as a legal matter with that determination. Because, there are suggestions, I think in Martin Linen and some suggestions in Scott that it couldn't be, and we are asking the Court to reconsider that question in terms of the policies of the Double Jeopardy Clause. We think that allowing an appeal in a situation where the defendant has induced the court to commit a legal error, has terminated the trial prior to a verdict by the fact finder to correct that error, has none of the... involves no semblance of the kind of oppressive practices that the Double Jeopardy Clause--
Byron R. White: I don't understand Pennsylvania to be asking us to reconsider any of our prior cases. The United States seems to be.
Mr. Andrew L. Frey: --Well, I think our reading of Martin Linen is that you would have to, because in our view--
Byron R. White: How about Scott?
Mr. Andrew L. Frey: --There's no problem with the holding in Scott, and indeed no problem... indeed, we suggest that the analysis of Scott, there is some language that's troublesome but the analysis of Scott is in fact quite inconsistent with--
Byron R. White: Martin Linen is right in your teeth, I think?
Mr. Andrew L. Frey: --That is our feeling, that's right. But, I think that Scott has undermined Martin Linen and I think it's appropriate for the Court to reconsider Martin Linen after Scott, and I'd like to talk about the Double Jeopardy policies that might be considered to justify what seems a quite arbitrary result that denies justice to the prosecution, which is to leave legally erroneous decisions, concededly legally erroneous because those are the only ones we are talking about, beyond review and correction. One policy is the finality of judgment, that is, not allowing the prosecution to improve its case when it has failed to persuade the first fact finder that has heard the case. That would be true where you have a verdict of acquittal. It's not true in this case because there has been no failure to persuade the fact finder in a case where the judge takes the case away from the jury, of guilt. Certainly there is the right to have the trial completed before the first tribunal that is empaneled, and that is the right that was considered and evaluated in Scott, and obviously the point here is that there would be no second trial necessary, no appearance before a second tribunal, if the defendant had not chosen to terminate the trial before verdict. The defendant who wants only one trial can allow the first trial to go to verdict, make his or her motions after verdict, get a judgment of acquittal at that point from the judge. It can then be appealed and either affirmed or reversed without the necessity for a second trial.
William H. Rehnquist: Can you make a motion for judgment n.o.b. under the Federal Rules if you haven't made a Rule 29 motion at the close of the evidence of the Government?
Mr. Andrew L. Frey: I am not sure what the answer--
William H. Rehnquist: Because otherwise, the statement you just made may not be correct. If you have to make a Rule 29 Motion in order to preserve your rights for Post-Verdict Motion--
Mr. Andrew L. Frey: --That would create a problem.
Sandra Day O'Connor: --And aren't there some states that have such a rule?
Mr. Andrew L. Frey: There may be, but I don't understand... that would be a non-constitutional rule, and it could presumably be corrected and if that were the obstacle, remove the constitutional problem here. It's not a rule that makes a lot of sense to me, but there may be some states that have it. Now, in Justice Brennan's dissent in Scott, he spoke of the burdens of retrial, the emotional strain, the expense, the risk of an erroneous conviction, the wearing down, and all these problems. These are very real problems, but you cannot distinguish this kind of case from a case in which there is a hung jury and a retrial with all those burdens, or a case in which a conviction is reversed and there is a retrial with all those burdens. In fact, if you think about it for a moment, when there is legal error injected by the prosecution or the Court over the objection of the defense that paints a verdict of guilty, the law is clear that that can be reversed and there can be a new trial.
John Paul Stevens: Mr. Frey, how do you distinguish a case in which a defendant objects to a whole category of evidence, he urges the court to keep it out and the judge erroneously excludes all the evidence, and then the jury returns a verdict of not guilty. It's based on legal error and it's the defendant's fault for having made what turns out to be an improper motion.
Mr. Andrew L. Frey: Well, there are two pieces to that. If the jury returns a verdict of not guilty, we are not arguing that that can be further reviewed, no matter what.
John Paul Stevens: Why not? What's the difference? Still, why wouldn't the defendant have waived his right by making a motion that caused the Court to--
Mr. Andrew L. Frey: Well, I think an argument could be made, and we have a footnote--
John Paul Stevens: --It seems to me its a logical extension of the argument you are making.
Mr. Andrew L. Frey: --Certainly, Justice Cardozo in Palco against Connecticut thought that would be a better system, but at least there we don't know what the jury has done. The prosecution has failed to convince the first fact finder, and the considerations that are identified in Green do apply. In this situation, none of those considerations have any application. Now, I should say a word in connection with your question about Sanabria, because Sanabria is a case where essentially that happened, that is, the evidence was suppressed. What was left was insufficient. The judge granted an acquittal. We have no problem with the correctness of Sanabria, because we couldn't appeal the evidentiary suppression rule. Because that was so, when the judge granted an acquittal, there was no evidence.
Warren E. Burger: I think you have responded to the questions, Mr. Frey. Your time is up. Do you have anything further?
Norma Chase: I have nothing further. Thank you.
Warren E. Burger: Thank you, counsel. The case is submitted.