Warren E. Burger: We'll hear arguments next in Lockheed Aircraft against United States. Mr. Gardner, I think you may proceed whenever you're ready now.
Warner W. Gardner: Mr. Chief Justice, and may it please the Court: This case involves the crash of a C-5A aircraft which was delivered to the Air Force by Lockheed in September of 1970. In March of 1975 the plane was stationed at the Travis Air Force Base in California. On March the 16th it was cannibalized and two tie rods were removed for the benefit of another plane. Eight days later the tie rods... other tie rods were replaced. At the time the rigging of the lock which held the aft cargo ramp was not fully rigged. On April the 1st the plane left Travis, went to Georgia where it picked up 50 tones of howitzers. From there it went to Saigon with some trans-Pacific way stops and arrived at noon on April the 5th, 1975. That was one or two days before the final fall of Saigon. Within a space of three hours the howitzers were unloaded and 301 passengers somehow put aboard the plane, most of whom were Vietnamese orphans. Shortly after takeoff the locking mechanism on the door to the aft cargo ramp gave way. The ramp fell, severing the control lines of the plane. In an unsuccessful effort to regain the Saigon airport it crashed with heavy loss of life and injury to almost all of those who survived. Several hundred product liability suits were filed against Lockheed. They were consolidated by the Multidistrict Panel in the District of Columbia courts here. In each case Lockheed joined the Unites States as third party defendant. After extensive discovery, the United States and Lockheed produced an agreed statement of material facts and further agreed between themselves upon a percentage division of any recovery. That last agreement reserved, however, the rights of the United States under the so-called exclusive liability provisions of the Federal Employees' Compensation Act in respect of civilian government employees. There were about 33 suits filed involving civilian government employees. This is the lead case. The case was filed by Mr. Thomas as administrator of the estate of a deceased civilian government employee. He was paid an award under the Federal Employees' Compensation Act and brought suit against Lockheed on product liability. That suit has been settled with the agreement of the United States. There remains open only the claim of the United States to immunity or absence of liability because of the provisions of Section 8116(c) of Title V. That exclusive liability provision is printed at page 2 of the blue brief. The Government insists that its plain words provide that the Government should be liable to no one in respect of an employee covered by the Employees' Compensation Act. We would be inclined to agree with the Government if the statute stopped at the fifth line as we have printed it. It would then read: "The liability of the United States or an instrumentality under this subchapter with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality. " If there came at that point a period, as I have indicated, we think the Government would be right. Instead, the statute goes on for another eight lines, all of which would seem to be surplussage in the Government reading. Moreover, those eight lines themselves contain a second, inexplicable redundancy under the Government's reading. If suit is barred by all persons, why ever did the Congress enumerate the employee, his legal representative, spouse, dependents, next of kin?
William H. Rehnquist: Well, Mr. Gardner, isn't that a fairly rational drafting of a sentence that starts with the noun "liability" and then is talking about the liability... what liability, the liability to, and then starting in the sixth line, to the employee, his legal representative--
Warner W. Gardner: Yes, sir, I think it's an entirely rational statute. I think this has three times been so read by this Court. It is barring the liability of the employee and those who claim through the employee because of the injury or death. The Government in its reading would exclude the limiting clauses which I have summarized as saying those who claim through the employee. In the Government's reading all they need is to bar liability with respect to the death to any person, period. If, as I insist, this is surplussage, it is important to note that it did not arise because of hasty drafting on the floor just prior to enactment of the statute. It has deliberately been enacted by four legislatures, all using virtually identical words: the New York Legislature in 1922 when it passed its Workmen's Compensation Act; the Federal Longshoremen and Harbor Workers' Act of 1927 when they copied virtually intact the words from the New York statute; the Congress again in 1949 when this act was passed; and again in 1966 when Title V was codified. I would think the government should have some explanation for what by its reading must be a pervasive and persistent addiction to surplussage over a period of 60 years by four legislatures.
William H. Rehnquist: --Well, as you read the statute I take it you don't find any of that surplussage.
Warner W. Gardner: No, sir.
William H. Rehnquist: And would you say that the term "any other person otherwise entitled to recover damages from the United States. " that appears in, I think, the seventh and eighth lines, would you say that covered an individual or corporation like Lockheed in this case?
Warner W. Gardner: No, sir.
William H. Rehnquist: Why not?
Warner W. Gardner: I would say that under the very familiar principles of ejusdem generis that coverall phrase is intended to refer to others of the same class. For example, the draftsmen in looking to those who might be claiming through the employee could not know what varieties of persons under one state law or another would have that right. For one of many examples one can take the guardian ad lidem for a minor dependent. Obviously, to be safe you would want a coverall clause. This Court has three times approached this language with consistent results, a consistency not shown by the Government. In the Ryan case, Ryan against Pan-Atlantic Steamship Company in the 350th United States, the Court quoted these provisions in their almost identical form as they appeared in the Longshoremen and Harbor Workers' Act and said: "The obvious purpose of this provision is to make the employer's compensation liability exclusive to anyone claiming under or through such employee. " --that limiting phrase was repeated twice at page 129 of the 350th United States. That interpretation was adopted at the urging of the Government. Seven years later this Court considered Weyerhaeuser Steamship Company against the United States. This time the words were those in this statute, the Federal Employees' Compensation Act. Mr. Justice Stewart, writing for a unanimous Court, turned to these words and said that the Government's contention as to their plain meaning was not at all plain. This time the Government was containing... contending that plainly the provision barred any third party claim over. He referred to the principle of ejusdem generis in reaching that conclusion. He went on to examine the legislative history, and he found that that history was clear, that the remedy of the Compensation Act was made exclusive for the government employees and their representatives or dependents, and that there was no evidence, I quote, "no evidence whatever that Congress was concerned with the rights of unrelated third parties. " Again this Court in Federal Marine Terminals against Burnside Terminal... Burnside Shipping Company six years later in the 394th United States similarly... similarly read the provisions as stating that there was no quid pro quo for third persons, and the statute was not to be thought to extend to them. Quote, "On the contrary, as emphasized in Ryan, the Act is concerned only with the rights and obligations as between the stevedore... stevedoring contractor and the employee or his representative. " If the Court will forgive me, I will need a bit of water before I attack long words. We see no occasion to retrace the legislative history which was covered in Justice Stewart's opinion in the Weyerhaeuser case. We have printed the committee reports which are the sole explanation of these exclusive liability provisions. We do note, however, that in that statute, statutory history, the Court said that the statute was drawn from the Longshoremen Workers... Longshoremen and Harbor Workers' Act and from the New York statute in 1922. In 1938, 11 years before this enactment, the New York Court of Appeals had decided the Westchester Lighting case. There an employee of the development company was asphyxiated when another employee broke the gas main of the lighting company. The employee received an award, then obtained a judgment against the lighting company which claimed over for tort indemnity against the development company. The Court of Appeals allowed the claim, stating that the lighting company sued for its own injury and not for the injury to the deceased employee. By 1949 when this statute was enacted, the New York rule had become firmly established. It had been applied in a number of the lower New York cases once again by the Court of Appeals of New York. The lower Federal courts addressing the same words in the Longshoremen's Act had by a large majority allowed the claim, typically in reliance upon the Westchester reasoning. The Government has not seen fit to address the impact of the New York rule upon this case. If it did, so far as I could tell it would be forced to urge upon this Court that neither the members of Congress nor the Congressional committees or the staff or the committees or the lawyers at the Federal Security Agency, which drafted this statute by copying the provisions of the New York statute, had any idea how the New York statute had been interpreted. It seems to us most improbable. I'd like to return for a moment to the merits of the Weyerhaeuser case. There an Army dredge collided with the Weyerhaeuser liner off the coast of Oregon. A civilian government employee was aboard the dredge, and after receiving award under the Compensation Act brought suit against Weyerhaeuser and received a judgment. The Admiralty Court found both vessels at fault and divided damages. Weyerhaeuser presented in its bill the payment made to the government employee. This Court sustained Weyerhaeuser's position unanimously. I find no way to distinguish in terms of Section 8116(c) the admiralty claim for damages and the tort indemnity claim for restitution. The Government's principal distinction as I read their discussion is that Weyerhaeuser dealt with an admiralty rule, that of divided damages, of ancient vintage and well established. Well, so, too, tort indemnity is a remedy long established, found in decisions of this Court for more than a century past.
William H. Rehnquist: Mr. Gardner, what in your case is the analog to the Public Vessels Act in Weyerhaeuser... the Federal Tort Claims Act?
Warner W. Gardner: Yes, sir.
Sandra Day O'Connor: Mr. Gardner, are you going to touch on the independent duty and derivative?
Warner W. Gardner: I plan, if Your Honor will give me a minute or two to, in the vernacular, go to town on that one. It is to my mind something that deserves a great deal of comment, all of which should be adverse. Nothing in Section 8116(c) draws any distinction between admiralty and law, between divided damages and tort indemnity, nor indeed any distinction between the government employee who travels on an Army dredge in contrast to the one who travels on an Air Force plane. I come now to the independent duty basis of the decision below. The court's opinion seems to me to have been a quite remarkable one. It dutifully quoted the words of Section 8116(c) and never again referred to them. It made no reference to the legislative history of the provision. It paid no attention to the New York rule. It made no meaningful citation of the Weyerhaeuser case and none at all of the Ryan case. Instead, it said that for Lockheed to recover it must show an independent duty, independent, that is, of the claim of the employee, and that Lockheed had not shown a duty which was so independent. In my view the term "independent duty" does nothing but to generate what might be called a metaphysical fog which obscures the true issue in the case. The true issue must necessarily be what did the legislature enact. The term is, moreover, inevitably and inherently question-begging. Every third party claim will necessarily involve the death or the injury of the employee. That necessary ingredient to the action is in the but-for sense a cause of the action. The observe side of this elusive coin is that every third party claim also involve another ingredient: the injury to the third party inflicted when it is required to respond in judgment because of the negligence of the Government or the employer. I know of no way in which these interrelated duties could be said to be either independent or to be derivative. That's not entirely accurate. I know one way, which is to look to the judgment and then go back and describe the duty as independent or as derivative according to the result. The last thought which I would like to present to the Court relates to the policies which the Congress has uniformly followed in these exclusive liability provisions. It has never curtailed a right or a remedy without offering a compensating benefit called sometimes in the committee reports a quid pro quo. Thus, the employee, who is forbidden to bring suit against the Government in search of a jury verdict, is given a fast, fault-free, prompt award, which at least in the years close to the enactment of the provision is a generous one. The Government, stripped of its customary defenses, or the stevedoring employer in the other act of contributory negligence, assumption of risk and so on, gains a ceiling, a definite, assured limit to its liability. In 1972 the Congress amended the Longshoremen's Act in two respects. First, it eliminated the liability without fault of the vessel based on the unseaworthiness doctrine to the longshoremen. Having done that, and only because it did that, it went on to eliminate the claim over by the vessel against the stevedore on the ground that if the vessel was now liable only for its own negligence, there was no occasion to limit the claim over. The Government here asks the Court to do to the same words in this statute what the Congress was required to do to the same words in the Longshoremen's Act. It asks, moreover, that this Court act without the sensitivity to the equities of the third person held liable without fault which the Congress betrayed in the 1972 amendments. We suggest that the Government's request that you usurp the power to the Congress exercises more harshly than the Congress would should be denied.
Sandra Day O'Connor: Mr. Gardner, may I ask, even if we were to agree with you on your interpretation of the Section 8116(c), what would we do about determining whether there is a substantive right to indemnity under the D.C. law? Would the Court have to remand?
Warner W. Gardner: That has already been determined, Your Honor. The District Court found first that there was a substantive right to indemnity; second, that there was no bar found in 8116(c).
Sandra Day O'Connor: But, of course, the Court of Appeals didn't agree.
Warner W. Gardner: The Court of Appeals did not face that question. It was not appealed to it. The Court of Appeals did not touch the substantive right of indemnity. It was not presented to it by the Government's appeal. It said that absent an independent duty that indemnity was barred. If the bar of 8116(c) were eliminated, the unappealed judgment of the District Court on indemnity remains, it would not be necessary to remand to have that one determined.
Harry A. Blackmun: Mr. Gardner, if you lose this case, do you still have a claim under the Suits and Admiralty Act?
Warner W. Gardner: It's not worth very much, Your Honor. Under the Executive Jet decision--
Harry A. Blackmun: So you... you would not press it.
Warner W. Gardner: --We think it unlikely that we have an admiralty claim, but no one could be absolutely sure whether this vessel... this aircraft starting out from Saigon to the Philippines was discharging the traditional duties of a surface vessel. I would like to reserve what few minutes I have left, Your Honor.
Warren E. Burger: Very well. Ms. Corwin.
Carolyn F. Corwin: Mr. Chief Justice, and may it please the Court: The section that is at issue in this case is a portion of a major workers' compensation program. It was enacted by Congress in 1916, and it covers virtually all Federal civilian employees. Under the program, an employee who is injured on the job receives compensation, and that compensation occurs promptly, it occurs without regard to the fault of either the employer or the employee, and it occurs without litigation. It is an administrative scheme. Thus, in the present case the Federal employee, Ann Nash Bottorff, was aboard the C-5A when it crashed and who died in that crash, had survivors. Those survivors applied for death benefits under the Federal Employees Compensation Act. It was concluded that Ms. Bottorff was in the course of her duties at the time of the crash, and the survivors received death benefits. Benefits are paid out of the Employees' Compensation Fund within the Treasury Department. Benefits paid out at the present time are running around $1 billion per year. Payments to the employees under the Federal Employees' Compensation program essentially take the place of tort damages that an employee might otherwise be entitled to recover.
Harry A. Blackmun: Ms. Corwin, there were nine employees injured and who died in the crash, weren't there?
Carolyn F. Corwin: That is correct. There were civilians, there were civilian employees.
Harry A. Blackmun: Has the Government conceded liability as to those?
Carolyn F. Corwin: The Government has entered into agreements with Petitioner under which, as Petitioner's counsel indicated, there will be payment of a portion of the settlement liability. The payment of the compensation to the Federal employees who were a part of the group that died in the C-5A crash, as I said, takes the place of tort damages, and in essence what that creates is a ceiling for the Federal agency. The agency can look to a ceiling that allows it to avoid the uncertainty of potential tort damages. In addition, the agency can avoid the constant litigation that would arise if work-related injuries were always settled in the courts under the tort system. Now, this creates what has been referred to as a limited liability feature: a limit on the liability of the employer, in this case the federal agency. This is something that Congress was particularly concerned about in 1949. The legislative history does show that Congress was quite concerned about complaints from federal agencies. The agencies had found that they were facing suits by... facing suits concerning these work-related accidents. They saw that they were being opened to potential tort liability. They saw that they were facing litigation. They would be forced to expend time and resources on this litigation. Congress did mention frequently in the legislative history... and we've cited some of the portions in our brief on page 36... Congress expected that by enacting Section 8116(c) there would be an end to this sort of litigation; that agencies would be free to proceed with their business, that they would not be tied up in litigation, and that there would be savings that could in turn by applied as compensation for the employees. Virtually all workers' compensation programs include this sort of limited liability feature. And this Court on several occasions has acknowledged in the context of other compensation statutes that the limited liability feature creates a protective mantle for the employer, the federal agency in this case. Under the Longshoremen's statute this Court stated in Cooper Stevedoring that there was a protective mantle created by limited liability and that that mantle extended to third party claims against the employer which had arisen out of the claim of the employee against the third party based on the work-related injury.
William H. Rehnquist: Ms. Corwin, is there any weight of authority among state decisions interpreting state workmen's compensation laws as to whether the governmental employer would be liable in a situation like this or whether a private employer would be liable in a situation like this?
Carolyn F. Corwin: There is indeed authority to that effect, and I believe we've cited in our brief some of the summary discussion of that issue by Professor Larson.
William H. Rehnquist: Yeah. I asked you whether there was authority to the effect that the Government would be liable, and you said, I believe, that yes, there was a lot of authority that the Government would be liable. Is that what you meant to say?
Carolyn F. Corwin: No. I must have misunderstood your question. I did not mean to say that. The indication under the state laws governing private employers is that the employer is immune from this sort of third party suit; that in addition to the liability, limited liability vis-a-vis the employee or any dependents or whatever, in addition, any sort of third part suit of the sort that Petitioner is urging here also is barred. Now, Petitioner's counsel raised the New York law and suggested that we had not addressed the New York law. I believe we've indicated at least at one point in our brief that there is some question as to what the New York law in fact was at the time of passage in 1949 of this section. I think it's important to note that both the House and Senate reports on this legislation do not refer to the New York law; rather, the language that Congress used was state workmen's compensation laws in general have this sort of provision, referring to the exclusive liability provision. There is some mention of New York laws... Petitioner has referred to it in its brief... but that mention is in the hearings, and it is in the context of mentioning that this legislation is based on the Longshoremen's statute, the New York statute and other workers' compensation statutes.
William H. Rehnquist: These were the 1949 hearings, not the original enactment of the LHWCA.
Carolyn F. Corwin: That's correct. This is in 1949 when Congress was looking at this problem that the Federal agencies had brought up to it, and there was realization that in fact there were models for this sort of provision around, that states had it, that the Longshoremen's statute had it, and in fact that this was something that might fit the bill for the Federal agencies. Now, I suggest that New York was one among many and that if there was any model, perhaps it was the Longshoremen's statute, which as this Court has observed is very close to the language here. The New York situation in 1949 was simply not that clear. Petitioner's counsel has referred to the Westchester Lighting case in 1938. That case has been interpreted by the Second Circuit on several occasions as referring to a contractual sort of claim, not a tort claim of the type that Petitioner is urging, but rather... and this is where the independent duty language comes in... the Court used the term "independent duty" in the New York case, but the Second Circuit has interpreted that as a duty arising out of a contractual relationship between the lighting company and the landowner in that case. So it is not at all clear that anyone was contemplating New York law vis-a-vis tort indemnity of the sort the Petitioner is urging here. The Longshoremen's statute is not the only area that this Court has looked at with respect to the limited liability feature of a compensation scheme. The Court examined the military compensation scheme in Stencel Aero in 1977. This was a claim that was very similar to the one that's put forward here. It involved a contractor. It involved product liability. The Court examined several features of that case, and one of them was the limited liability feature of the military compensation statute. The Court again referred, as it had in the Longshoremen's case, to the protective mantle that is granted to an employer under a compensation statute, and it said that it's an essential feature of a compensation scheme such as the military compensation scheme that was before it, and I suggest such as the compensation scheme that applies to Federal civilian employees. The Court indicated that it would be a circumvention of that limited liability feature for the Court to permit the third party claim that was urged so strenuously in that case. That sort of reasoning applies to this statute as well... again, the limited liability feature in a workers' compensation scheme. In essence--
Sandra Day O'Connor: How do you overcome the Weyerhaeuser case, however?
Carolyn F. Corwin: --I think that this Court in the Weyerhaeuser case was looking at a rather different situation than what we have in this case. The claim in Weyerhaeuser was not a tort, a purely tort claim. It was not even under the Tort Claims Act. It's not the sort we have here. Instead, it was an admiralty claim. The Court perceived... the Court described it in terms of an ancient rule that seemed to have governed rights and duties in the area of collisions in the maritime area. The Court also looked at the fact that it had decided the case long ago, long before the Federal Employees Compensation Act was even enacted initially in 1916. The Court in the preceding century had decided the Chatahoochee, another admiralty case involving the divided damages rule. And I think the Court was seeking to reconcile what it had before it in Weyerhaeuser with what it had decided in the past and... and had been on the books at the time the Compensation passed... Act was passed. Essentially, I think what the Court saw in Weyerhaeuser was something it viewed as analogous to the contractual indemnity provision that... or contractual... implied contractual indemnity in Ryan. The Court in Weyerhaeuser did turn to Ryan and said we don't find a contract here, but we find something that's very similar to the contract, and therefore, we think that Congress probably did not intend. We think this is more like Ryan which we've already said is not barred by the Longshoremen's equivalent provision. And I think the Court there simply was--
Sandra Day O'Connor: But the language used certainly is broad enough to have some implications here, wouldn't you agree?
Carolyn F. Corwin: --I think that the Court did make some statements about the language in Weyerhaeuser that do appear to be broad, but I think the language that you're referring to is not necessary to the Court's decision in that case, and I think in fact what the Court concluded was that the language simply was not enough to allow it to answer that question that was before it in Weyerhaeuser. The conclusion of the Court was that the language simply wasn't... it wasn't plain, and it had looked through the legislative history, and it didn't find a mention of third parties; and, therefore, it felt it ought to move on and consider these other features I've referred to... the ancient admiralty rule, the analogy to Ryan. I think that the Court was simply not faced with the sort of tort indemnity claim that we have here in which the liability alleged is basically a... the liability of a joint tort feaser. It is not based on some sort of contract. It is not based on some ancient admiralty rule. Rather, it is purely a tort claim.
Byron R. White: But wasn't the claim in Weyerhaeuser, didn't it arise out of the... out of... out of the injury or death of a crewman?
Carolyn F. Corwin: Indeed, the element of damages at issue in Weyerhaueser was in fact the amount that had been paid to an employee who had previously received compensation.
Byron R. White: And that's what... that's what the Court said could be claimed over.
Carolyn F. Corwin: Well, the Court was not necessarily talking about a claim over in that case. It was referring to a rule under the admiralty system in which the damages, all sorts of damages, were really put into one pot and then split in half. This was a way that apparently admiralty had had for a number of years of divying things up when two ships ran into each other, in essence. So it was not really what you'd call a contribution claim or an indemnity claim. It was this question of what you ought to do with all the damages, and the decision was yes, you could include this.
Byron R. White: But how did... how did the case get started in Weyerhaeuser?
Carolyn F. Corwin: Well, the case started essentially when the two ships ran into each other.
Byron R. White: Well, I know, but the lawsuit, what lawsuits, what lawsuit was brought?
Carolyn F. Corwin: I think there was a... my knowledge of admiralty is limited, but I believe that there was a... probably a limited... limitation on liability proceeding, and there was... the question at issue before the court was--
Byron R. White: Well, did the injured person get a judgment against the third party other than the employer?
Carolyn F. Corwin: --I believe there was a settlement. I believe there had been a suit by the employee that was settled.
Byron R. White: I guess the third party.
Carolyn F. Corwin: I beg your pardon?
Byron R. White: I guess the third party, third party--
Carolyn F. Corwin: That's correct.
Byron R. White: --In the sense somebody other than the employer.
Carolyn F. Corwin: That's correct. The employee had sued the third party and had recovered a settlement, not a judgment but a settlement. And the question was whether that $16,000 settlement ought to go into the pot.
Byron R. White: And did the third party bring in the Government in that suit or what?
Carolyn F. Corwin: I believe that the third party then in the separate proceeding involving how you ought to apportion the damages, including the property damages from the collision, then said we ought to put in this other element of damages as well.
Byron R. White: Well, so there was a claim over; please pay part of the damages that we've had to pay.
Carolyn F. Corwin: Well, I think that--
Byron R. White: That's what it was.
Carolyn F. Corwin: --One could argue that it is the same sort of thing, but I think this Court saw it in a somewhat different context, in the context of a proceeding that was really part of the rules and rights and liabilities of the individuals who were out there sailing around the ocean.
John Paul Stevens: Yes, but the... those rules survived the enactment of this statute. This statute didn't cut off the liability at the ceiling of the compensation program. And I'm wondering if the Government has at any time since that decision asked Congress to straighten it out, because I think you acknowledge in your brief that you think that decision was wrong.
Carolyn F. Corwin: I am not aware of any effort to try to overturn that sort of court-created admiralty rule. I'm not aware of any legislative effort.
John Paul Stevens: Well, in a sense it was an admiralty rule, but it was also construction of this very provision we have before us. They quote the same... Justice Stewart quotes the same language in--
Carolyn F. Corwin: It quotes the same language, but as I suggested, I think the conclusion was the language simply wasn't enough to answer the question before the Court concerning what you do with this divided damages rule.
John Paul Stevens: --What do you do with your opponent's argument that if the statute meant what you say it means, why don't you just stop after the word "instrumentality"? Why isn't the rest of the statute redundant?
Carolyn F. Corwin: Well, I think there are several answers to that question. First, I think it's strange to suggest that the first part of the statute in fact gives the Government exclusive liability, but then somehow the expansion and the explanation that follow take it away again. I'm not sure that that makes very much sense in terms of statutory construction.
John Paul Stevens: Well, it doesn't take it away. It just describes the area with which... in which the viability shall be exclusive as he reads it.
Carolyn F. Corwin: Well, Petitioner's counsel suggests that the first part in fact would grant exclusive liability, but the fact that it's been expanded upon in the latter part of the section somehow takes it away. I'm not sure that that's a proper reading. I think that that language, much of it was added in 1949, and there was no explanation of why there was an enumeration, but the language was very similar to what one finds in the Longshoremen statute and a number of state statutes. Not only New York. I believe places like Georgia and Minnesota and others had this same sort of enumeration.
John Paul Stevens: But to the extent that it's the same as the Longshoremen's Act doesn't the Ryan case cut against you?
Carolyn F. Corwin: No, I think not. Ryan very specifically turned on the implied contractual indemnity that the Court found in that case and that the Government urged on the Court to find; that really the focus was is there something other than tort liability here; can we look to the relationship between the parties in Ryan and find a service relationship, a contract to perform a duty and to perform it well, and can we read into that some sort of obligation to indemnify. The Court concluded in that case that yes, it could, and it specifically stated that it did not address the problem that Petitioner presents; that of this noncontractual indemnity, the purely tort-based indemnity. I think that this Court and the lower courts looking to this Court's decisions have been rather careful to distinguish that sort of contract, whether it be express or implied, from the kind of pure joint tortfeaser situation that we have here. Now, I don't know exactly why Congress chose the particular enumerations it did. It may well have been that the thought was to give some notice to individuals that would be affected by this act to be sure everybody understood just who was excluded. But I think that the addition of the rather very broad phrase "all other persons" or "anyone", as it was at that time, "anyone otherwise entitled to recover damages. " I think that is a broad phrase that one simply ought not to confine to some very small category. I'm not sure there is anything else to put into that category other than third parties.
John Paul Stevens: But even your emphasis on that language just... it might have been written "any liability to any person otherwise entitled to recover damages from the United States. " but it doesn't... there are a lot of ways you could have written your interpretation more briefly, I think.
Carolyn F. Corwin: Well, I agree there are many different ways. I think the general tone of the statute is a very broad one.
Speaker: Yeah.
Carolyn F. Corwin: I think when you look at the legislative history you don't find any expectation on the part of Congress that this limited liability feature is going to be somehow breached in particular cases. You don't have Congress giving any indication that its expectations about the savings of money to government, and particularly the savings in litigation having to be in court all the time over these thousands of work-related accidents, you don't find any indication that Congress thought sometimes this will be the case and sometimes not. Rather, the statements were we believe this is going to keep the agencies out of the courts. So I think you have to read the statutory language in light of that expectation. You have to read it in light of the expectation that under a compensation scheme the limited liability feature is going to be an effective one; that it ought not be circumvented, as the Court has suggested, by the third party claim. If it were, you would have the anomaly under which the mere fortuity of the involvement of a third party in an accident would break down the limited liability feature; that is, if you had the Government as the only party and individual tortfeaser that was one hundred percent negligent, under Congress' statute the Government... the Government's liability is confined to its compensation payment. However, if somehow you have a third party that comes into the picture, then suddenly that breaks down. If the Government is 75 percent negligent and someone else is 25 percent negligent, then you have no more limited liability.
William H. Rehnquist: Well, I don't understand the Petitioner's claim here to extend to a case where there is is simply joint tortfeasers, both the Government and somebody else both harm the employee. Isn't the Petitioner's claim predicated at least in part on some differing degree of responsibility?
Carolyn F. Corwin: I'm not sure there's any way to limit Petitioner's claim in that manner. The sort of allegation in the question presented is framed in terms of active negligence and secondary liability. I think it was Justice Black who pointed out in his dissent in Ryan that those are very slippery terms. You really can't quite tell what they mean.
William H. Rehnquist: Well, your impression then is that the Petitioner's claim would claim the same sort of right even if it were just simply two joint feasers, neither of whom would be entitled to contribution from the other at common law, by the law of the state?
Carolyn F. Corwin: I think that's correct. I don't see any way to really cut off this principle at some 50 percent level. And as I say, I'm not sure what active negligence means, but if it means more than 50 percent I'm not sure why this principle that breaks down the limited liability can apply on a 51 percent liability, but not on 49 percent liability. I don't see anything in the way that Petitioner has framed its argument in this case that really limits to something like an indemnity claim as opposed to a contribution claim. I think the courts have recognized that this sort of indemnity claim, not based on a contract but based on differing degrees of negligence, is really an extreme form of contribution. There is really not that much to differentiate it from any joint feaser claim.
Byron R. White: Did... did... wasn't there a claim in the Court of Appeals and isn't there still here that the Government owes Lockheed because of some independent duty that... that the Government owes Lockheed?
Carolyn F. Corwin: We certainly read Lockheed's brief to suggest that they thought that was the case, and we pointed that out in our reply and got a firm denial. I'm not sure where we stand on independent duty.
Byron R. White: What did... the claim was made in the Court of Appeals, though, I take it.
Carolyn F. Corwin: Certainly the claim based on independent duty was made in the Court of Appeals based on some law that had arisen in the D.C. circuit.
Byron R. White: And was rejected by the Court of Appeals.
Carolyn F. Corwin: It was not... the concept was not rejected, but the Court of Appeals--
Byron R. White: Said there wasn't an independent duty.
Carolyn F. Corwin: --The Court of Appeals looked at the claims that were being made and said these just clearly aren't independent duties.
Byron R. White: These are indemnity... this is an indemnity.
Carolyn F. Corwin: These are things that are... and it specifically referred to the statutory language, although it picked the earlier version rather than the later version... it said these duties are on account of or, alternatively, because of injuries or death. There are simply not the sorts of independent duties that other courts have been talking about, and those are things like the Ryan implied contractual indemnity and perhaps this divided damages rule.
Byron R. White: So do you think... do you think we need deal at all with the independent duty? Do you think there's any claim here that the Government's liability rests on that?
Carolyn F. Corwin: I think that... I think not. I think Petitioner has suggested that it is not particularly interested in pressing that point, and I think that any independent duty as formulated by any other court is more a matter of contract and not this sort of pure indemnity claim. I believe Justice O'Connor asked Petitioner's counsel about this independent duty.
Byron R. White: Yes.
Carolyn F. Corwin: And I didn't hear any response that suggested that in fact they had prevailed on that or that they were pressing that here. So I don't think it's something that the Court needs to address.
John Paul Stevens: Am I correct in assuming that the original plaintiff has no interest whatsoever in the outcome of this dispute; that the recovery, the settlement recovery is precisely the same whether it's paid entirely by Lockheed or shared with the Government?
Carolyn F. Corwin: That is correct. I think the amount has been determined and possibly paid out. I'm not sure of that. The question here is simply should the Government be asked to take on part of that tort settlement. Now, Petitioner has referred to itself in the brief as a stranger to the compensation system; and we suggest that that's not really the case. The compensation systems have been around for a long time, and I think that Petitioner is well aware of them in the state context; in fact, probably takes advantage of this limited liability in the states where it is an employer. Petitioner is an experienced government contractor and is used to dealing with the government; in fact, could have anticipated that in this case the likeliest thing that could have happened would be the C-5A going down with a full complement of troops, military personnel; and under Stencel Aero this Court has said that there would be simply no chance of a third party claim in that case. So I think that Petitioner is complaining largely about the fact that the tort system allows a plaintiff to recover against single tortfeaser and sometimes another is not available to help share. And this is the sort of thing that can be foreseen and planned against, particularly by someone in Petitioner's situation. In sum, we urge that this Court protect the limited liability feature that we think Congress fully intended in 1949 to make clear to codify and incorporate into the act. Petitioner's interpretation, we urge, is one that would break down that limited liability feature and would be contrary to the sort of scheme that Congress set up. We urge the Court to reject that interpretation and to maintain what we believe to be the intent of Congress ever since 1949. Thank you.
Warren E. Burger: Do you have anything further, Mr. Gardner?
Warner W. Gardner: If I can indulge the Court's patience for about one and a half to two minutes, I have a comment or two I would like to make.
Warren E. Burger: You have four minutes remaining.
Warner W. Gardner: Maybe I can hand back a half a minute of a minute, sir. The Government continues to state that the concern of Congress for the expense and the cost of litigation indicates that they're right here. This Court said in Stewart, as we've, I think, demonstrated in our quotation as to the legislative history, Congress was concerned, but it was concerned with the cost and the expense of litigation brought by the Government employee. It never thought of the third person. The weight of authority in the state courts is a more complex inquiry than the Government has indicated. Professor Larson, their favorite employee or commentator, does not distinguish according to the terms of the statute. Of the 38 cases cited by him, 19 relate to states in which there is a broad and comprehensive elimination of liability. The remaining 19 are divided roughly 6 to 6 if one excludes the 7 state cases which were concerned with state tort indemnity or contribution law, not with the bar of the statute. We're left, I think, without any form of guidance if we look to the majority view of the states. But I don't believe we should. I think the New York statute, explicitly adopted by the Congress and firmly interpreted by 1949... the criticisms of the New York rule are those of the Second Circuit after 1949. At the time this statute was adopted there was not question. The tortfeaser point, whether or not we are claiming something like contribution, I think can be put aside. As Justice Stevens explained in the Northwest Airlines case, tort indemnity is like the ancient chancery remedy coming into play when there is an inadequacy of the legal remedy. And it could well be in that one state or another there would be difficulties with a joint tortfeaser contribution. But the principle of restitution which underlies tort indemnity now, as in the 13th and 14th centuries, is expected to fill the need. That was discussed very thoroughly in the New York and the Illinois cases which we've cited in our brief. One last thought on the Stencel case. The Government naturally seizes upon one of the three factors which the Court in the aggregate found sufficient to bar recovery over by the contractor. Those three factors were the preeminence of the Federal interest and the undesirability of subjecting it to state law in the conduct of military operations. The second factor was the compensation system which was in effect for the serviceman. The third fact is the overwhelming factor, in my view, is the fact you can neither discipline troops nor conduct wars in terms of tort litigation. I would suggest that the Brown case, decided after Feres, and the Brooks case cited before it dealing with ex-servicemen and dealing with off-duty servicemen and finding Feres inapplicable even though there was a compensation system suggests that the military discipline factor is the preeminent one. Thank you.
Warren E. Burger: Thank you, counsel. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10 a.m..


Warren E. Burger: We’ll resume arguments in Speight against Slaton. Mr. Smith, you may proceed whenever you’re ready.
Robert Eugene Smith: Mr. Chief Justice and may it please the Court. First of all, I think we left off with the Court addressing the question about or comment to the extent that this Court has from time to time allowed the State Supreme Court of the States so we can give a say in its construction to its statute. We suggest of course in this instance we think that the concept of the Circuit Judge Morgan was correct that this statute is sort of straightforward. It says that any place that sells an alleged obscene publication by the definition of the criminal law, that’s using the criminal law definition, is declared to be and shall be a public nuisance. Hence, the activity is clear that what they can do is one publication offered for sale could in fact, if it’s declared to be obscene, justify the closing the entire premises. That’s what the statute says. That’s what the statute gives them authority to do. Now, certainly we have a question of who won the race to the courthouse door. Well, obviously, in this context, we didn’t know and couldn’t know what’s in the mind of the prosecutor. He files a civil action in the state court. We of course, move right into federal court taking and trying to have an election of the jurisdictional forum in which we seek to litigate our rights and if we --
Warren E. Burger: Are you -- are you saying Mr. Smith that it is inconceivable that the state court would say that this statute, the state statute would pass constitutional muster for them as the state’s highest court only if it were construed and not to reach anything except to obscene materials. Haven’t state courts exercise that kind of a role before?
Robert Eugene Smith: Sir, they have not generally done so. There are some states of course which I pointed out in our brief that have done so but they are statutory weren't like the statute at bar here. The New Riviera Arts Theater case was -- didn’t have such a statute in their jurisprudence, hence, we have one here. There was such a statute as we indicated yesterday in the matter of presume limited which the state court construed to authorize the entire shuttering of the process and of course that’s what is here. We don’t have a statute saying that the sale of that article would be a public nuisance. This Court addressed itself to the question in Paris Adult Theater of whether or not a procedure could be employed whereby a film or a book or anything which might be declared to be obscene in civil proceeding could not further be shown and that’s of course now the law. But here they are going on a broader attack saying we’re going to shut the entire premises because of the one thing. Now, if the Court’s language in Heller and Roaden has significance in quoting Bantam Books and such that any law that necessary involves a prior restraint, comes to this Court bearing a heavy presumption against its validity and we’re talking about that kind of law in the context of this case. As I said and it’s the extreme to which the law certainly can be applied that is obvious and patently apparent. As I said before, if a department store which might offer for sale the book of Joy of Sex, if it prosecuted one or two week ago it didn’t say, okay they sold this book, hence the department store could be closed and everything there can be seized as contraband and destroyed.
Warren E. Burger: Hence the state court found that none of this material was obscene, none of those untoward offense would occur, would they?
Robert Eugene Smith: If it found just one item obscene, then everything will be declared. This is not a --
Warren E. Burger: Unless they gave it a narrowing construction?
Robert Eugene Smith: Unless they ultimately gave it a narrowing construction. But then the plain factual -- I mean the thing on its face absolutely says that the premises shall be constituted on public nuisance. It isn’t the publication, it would be nuisance, it’s the use of the premises would be a public nuisance. If it’s --
William J. Brennan, Jr.: Mr. Smith, I take it you have first to get over the hurdle whether all of those arguments should initially be addressed to the state agreements. Whether, in other words, the Younger principles are to apply --
Robert Eugene Smith: Yes, sir.
William J. Brennan, Jr.: -- in a situation like this.
Robert Eugene Smith: Of course we have taken the Younger case and this Court has said that in a criminal proceeding, that the concepts of comity and federalism and such would apply and that certainly that is the law as of today. This Court left open as the comments of the various writers of the opinion made clear that in a civil case, they would post to you -- would postpone the reaching of that question and of course the [Voice Overlap].
William J. Brennan, Jr.: But my question is, if the District Court erred in not deciding the constitutional questions you raise because as I understand it they did not decide the merits, they said no you have to go on Younger principles and submit those constitutional claims to the state tribunals, did they not?
Robert Eugene Smith: Yes, sir that’s clear.
William J. Brennan, Jr.: Now, if we were to say they were wrong about that, would we then reach the merits of the constitutional claims or would we send them back to the District Court and say now you decide the merits?
Robert Eugene Smith: I think that’s what we’re probably have to --
William J. Brennan, Jr.: The latter?
Robert Eugene Smith: Yes, sir.
William J. Brennan, Jr.: So that really the issue we have to decide is this case that is here --
Robert Eugene Smith: Yes, sir.
William J. Brennan, Jr.: -- is whether you opt to take those constitutional claims to the state tribunals or you are entitled to have him heard by the District Court?
Robert Eugene Smith: That’s correct and of course the dramatic presentation or argument regarding the closing of an entire store is only made of course apparent to show that this is a matter of prior restraint obviously and that this is the way the state is going about it and the factual situation here. If we have to take the issue that in criminal cases, the criminal cases started, we cannot have any federal court intervention. We said, “Okay that’s one theory, that’s one rational of law,” then say now in civil cases, it can apply out of there, then we really don’t have anything left and the Civil Rights Act would almost be meaningless.
Warren E. Burger: You have nothing left except the state courts?
Robert Eugene Smith: Yes, sir. I am saying that the Civil Rights Act, the statute of Congress would be almost meaningless then if we were to be foreclosed the right to go into a federal court when a civil matter has been presented.
William H. Rehnquist: So if the meaning there is only in the sense that you couldn’t interrupt an already commenced a judicial proceeding. It would certainly have a lot of other users where that situation didn’t obtain?
Robert Eugene Smith: Yes, sir. But in the context of the case like this if we were first to file before there was any action on the part of the state then we’d be faced with the problem, is there a case in controversy. And if there’s no case in controversy, can we in fact go in and seek a declaratory judgment. So then what good is it to have Zwickler versus Koota that says that we have an election of forums or that election of forums to litigate federal constitutional rights should be allowed? So we are saying that if this Court were to say that in civil cases already commenced where of course of prosecution knows what it's going to do in advance that we are foreclosed from going to federal court to litigate our federal constitutional rights then I am saying statute of Congress that permits injunctive relief would almost be meaningless or at least --
Byron R. White: So that’s the same situation with respect to criminal state criminal proceeding?
Robert Eugene Smith: No, but I think this Court answered the questions there with regard to --
Byron R. White: And they answered that you said you couldn’t go into federal court if there was a pending proceeding, but it's the same kind of an argument, you’re making now was made then?
Robert Eugene Smith: Yes, and then you have of course the -- that is true except --
William J. Brennan, Jr.: I wonder Mr. Smith what really the considerations of federalism would underlay the Younger line of decisions in the criminal -- cases of pending criminal proceeding. And aren’t you really in the position where you have to argue that in respect to pending civil proceedings considerations of federalism are not as significant as they are whether pending criminal proceedings.
Robert Eugene Smith: Yes.
William J. Brennan, Jr.: And secondly I suppose, you’ve got to confront the holding below that this civil proceeding is in aid of the enforcement of the criminal statutes -- with state criminal statutes and in that sense this is not a pure civil proceeding, or sort of high bred quasi.
Robert Eugene Smith: I agree, but we take the position of course that it is not an aid in the enforcement of criminal law.
William J. Brennan, Jr.: That is purely civil?
Robert Eugene Smith: It’s purely civil, Your Honors because you do not have the seizure of film to use in a criminal case. None of this material needed to be seized to be used in any of the criminal cases. It’s just a shuttering of the premises because something was alleged to be obscene and of course we’re being deprived of the criminal burden of proof by the proceedings because it’s a single judge deciding whether or not he thinks an item in there was obscene. And if he thinks an item was obscene, the entire place is shuttered and we say that that makes a significant difference and federalism should not be the bar to us seeking our belief in the federal court in this regard.
William H. Rehnquist: If it were an action for a criminal nuisance prosecution with exactly the same result, you would clearly be barred by Younger, wouldn’t you?
Robert Eugene Smith: Yes, sir. But then again we wouldn’t have the concept of the potential of the irreparable harm. The irreparable harm being the potential for self-censorship, the potential for chilling of speech. One year he had -- if he’s had a business and he sold the publication which might be held by one judge to be obscene somewhere and that the entire business could be shuttered then there would be a chilling of speech which of course --
William H. Rehnquist: Then why wouldn’t you have the same chilling if you have exactly this Georgia Statute on the books that you have except it was a criminal statute rather than a civil one?
Robert Eugene Smith: Then we’d have all the attended protection that a criminal case would afford a litigant that is not present necessarily in the civil case. Whether it’s the burden of proof, the right of juries, things of this nature. So we say that this isn’t necessarily the same. So at least in a jury case where it is applicable in a criminal case, you -- if a community standard as this Court has indicated is to be determined whether it’s local or statewide at least the Court has said the jury is the representative of the community and can make that determination. You don’t have that with a judge who may necessarily justify in one publication may offend him subjectively and he -- or otherwise in applying the test of law, he might find it obscene and then says okay, fine. One publication we will shutter the entire premises. So I think it’s different. The criminal case is -- you can, if there’s a single criminal case now I think what this Court is said is, if there is a single criminal case you can defend your position in that case. However, suppose the Government brought multiple cases all across the country relating to the same old type of activity to the same parties, it might be that if the defendant in that situation could say that he thinks the Government is engaging in bad faith enforcing the law or harassment that he could go forward. But here we have as I said a shuttering; it’s completely independent of the criminal --
William H. Rehnquist: There’s no use at all that state can make of the result of this civil proceeding at any subsequent criminal prosecution?
Robert Eugene Smith: No, sir because they’re asking to destroy everything. There is no question or contention. There is no request that the material be delivered up to the sheriff and/or to the clerk of the Court for potential use in the criminal case as there was in the Paris Adult Theater concept or Walter’s, there’s a Walter’s case there where that concept has been held or in the Palaio versus McAuliffe case which was the rationale of the Fifth Circuit that the two judges in this Court in the case here bottomed themselves on, so we'd say no sir we don’t feel that there are.
Harry A. Blackmun: Isn’t that the -- one case was removed to federal court, was it not?
Robert Eugene Smith: The original case was removed.
Harry A. Blackmun: Is that still pending?
Robert Eugene Smith: No, sir.
Harry A. Blackmun: What’s happened to it?
Robert Eugene Smith: I think it was remanded back after the judges decided that they had decided to abstain or in essence settled --
Harry A. Blackmun: Then there was reference somewhere to a Sanders case argued to the Georgia Supreme Court, has that been decided?
Robert Eugene Smith: No, sir. It has not. It has not as of yesterday sir.
Harry A. Blackmun: I see.
Robert Eugene Smith: And of course, I think there’s circumstances even developed after this case had started that litigation was independent and --
Potter Stewart: One of your argument or at least are you making the alternative argument that even if the Younger doctrine applies to this case, that this case is within one of the exceptions recognized by Younger, is that the reason you keep telling us about the --
Robert Eugene Smith: Irreparable.
Potter Stewart: Irreparable? Well, before you can have an injunction anywhere in any Court at anytime quite a part from Younger or federalism or anything else, you have to show irreparable harm, don’t you?
Robert Eugene Smith: Yes, sir.
Potter Stewart: That’s just a basic equity concept before they can be an injunction. So that didn’t get you anywhere?
Robert Eugene Smith: Right, sir.
Potter Stewart: But are you telling us that this comes within one of the exceptions recognized by the Younger. Even assuming, that’s even assuming this were as where as my brother Rehnquist has suggested a criminal nuisance statute so that Younger would be clearly applicable. Are you arguing that this comes within one of the exceptions recognized in Younger that would allow an injunction by federal court of a state criminal proceeding?
Robert Eugene Smith: Yes sir, that is an alternative argument we have made.
Potter Stewart: I wondered why you were talking so much about the substantive merits of your claim and about prior restraint and I assumed that it’s only materiality could be -- could reflect that alternative argument?
Robert Eugene Smith: Yes, sir and of course the Court did not reach that issue because of the way they disposed of the case.
Potter Stewart: Right. I know but I am asking about your argument.
Robert Eugene Smith: Yes, sir that’s right and that’s one of the things we had hoped to demonstrate and tried to demonstrate in the court below. So, in summary as I said, our position is that Younger should not apply these civil cases. This Court has before it Lynch versus Snepp in which no action has been taken and I think it was relied upon by counsel in our case here in the brief. We say that this is a kind of situation that if this Court takes the language that any statute that involves itself a prior restraint bears a heavy presumption against its constitutional validity, this is the kind of case that should have allowed the determination.
Potter Stewart: Suppose that the question is quite so simple as you imply by your, just what you said in conclusion that Younger should not apply to civil cases, don’t you think possibly that it might apply to some civil cases but not to others?
Robert Eugene Smith: Yes, sir. I think, particularly it should --
Potter Stewart: I hear it’s a civil case in which the state, the state is the plaintiff. Normally when you think of civil cases, we think of cases between two private parties in a state or federal court. Here, the state is the plaintiff. The state is the plaintiff, which may make it different from other civil cases? As the state suggest it’s an aid of its criminal laws, but even if not an aid or its criminal laws, it’s sort of a quasi-criminal proceeding, is it not?
Robert Eugene Smith: No, we don’t.
Potter Stewart: And try to put somebody out of business because of his antisocial behavior, isn’t that it?
Robert Eugene Smith: Yes, sir.
Potter Stewart: So it pretty much reflex the same purpose that criminal laws reflect, does it not?
Robert Eugene Smith: Or punish the criminal law to finish it for the --
Potter Stewart: Right. Trying to stop somebody from doing something antisocial --
Robert Eugene Smith: Yes, sir.
Potter Stewart: -- which is different from many other sorts of civil cases, tort, contract cases, divorces cases, and so on.
Robert Eugene Smith: But then a lot of this cases, Your Honor if it’s a civil case involving litigants, private litigants who are not state officials or state action then we lose some of the rights under our Civil Rights Act there because there must be certainly some color under color statements --
Potter Stewart: Under state action in a court that permits racial restrictive covenant such as been held to be state action insofar as the Court permits libel, defamation verdicts that’s been held to be state action, New York Times and so on.
Robert Eugene Smith: Yes, sir.
Potter Stewart: So that’s not the whole answer. I am just suggesting that the answer may not be quite so simple as say, Younger applies to civil actions or it doesn’t apply to civil actions. It may apply to some, some kinds and not to other, wouldn’t you?
Robert Eugene Smith: Likewise, of course Younger is now seemingly saying that it always -- it almost always applies to criminal actions and of course I was making the other simplification with regard to civil actions.
Potter Stewart: Right.
Robert Eugene Smith: And that was merely the purpose. Thank you.
Warren E. Burger: It is somewhat analogous, is it not, to proceedings to impound and perhaps ultimately destroy contaminated food or contaminated drugs where there is no purely criminal procedure, but a forfeiture procedure?
Robert Eugene Smith: No, sir. I don’t think so. This Court, in the opinion of the Chief Justice indicated that material is not contraband until such time as there has been a judicial determination or at least an adversary hearing of some type after the seizure or before the seizure in a civil --
Warren E. Burger: Roughly we have said that in certain circumstances, it can be seized and impounded pending the determination of its -- in the case of food or drugs it’s contaminated or dangerous condition?
Robert Eugene Smith: Yes, but I think this Court said in the Heller-Roaden series of cases that when you are dealing with a civil forfeiture that perhaps quantity both [Voice Overlap]
Warren E. Burger: Because of the First Amendment implications and all?
Robert Eugene Smith: That’s correct.
Warren E. Burger: But I was speaking procedurally of the analogy. It’s analogous to some of the things that were mentioned in Fuentes-Shevin -- Fuentes against Shevin.
Robert Eugene Smith: Yes, sir.
Warren E. Burger: That in certain circumstances, speedy action is required by the state that isn’t pure civil procedure and it isn’t a pure, certainly is the criminal procedure.
Robert Eugene Smith: Now, of course, it is designed as to protect public from the material going out into the public and injurious to their health and --
Warren E. Burger: And that’s at least to whether it’s correct or not, that’s Georgia’s theory here, is it not?
Robert Eugene Smith: No, they are simply saying that if you sell -- well, of course we don’t know what the legislative theory is in passing the legislation except just to close the place down. It could be conceivably said to be that they feel that they should --
Warren E. Burger: The Court say -- the state courts might rationalize it?
Robert Eugene Smith: Yes, sir. But you take the situation of the drive-in theater that this Court dealt with in Raab versus State of Washington where there was out in the open and it was a constant repetitive kind of thing. Well, okay that may have First Amendment implications, but then again had they brought an nuisance action because of the continual showing of the kind of material that people were having it thrust upon them and I think they are in that kind of area. The state may have had the interest that would have justified perhaps going forward. But we say this is not that kind of interest. Thank you.
Warren E. Burger: Thank you Mr. Smith. Mr. Moran.
Thomas R. Moran: Mr. Chief Justice and may it please the Court. To start with, I’d like to tell the Court that the -- as my brother has told the Court that the Sanders case now before the Georgia Supreme Court has not been decided. It brought into question George Code annotated 26-2103 which is the statute that was certfully attacked here. There are other grounds the Court may not decide it on that particular statute, but I thought the Court would be interested in the DS before the Georgia Supreme Court. Now, in this case, may it please the Court the facts are not too complicated. We brought --
Harry A. Blackmun: Let me get that straight Mr. Moran, do you think it will bear on this case or do you think it will not bear on this case?
Thomas R. Moran: Your Honor, as far as the briefs are concerned, it will bear. I read the briefs and I know counsel in the other side. There were two issues. First of all it was closed on a nuisance theory based in part on the statute and then on a zoning statute, so the Supreme Court conceivably could go then and leave this issue alone.
Harry A. Blackmun: Well, if it bears on the case and if it comes down before this case is decided, will counsel --
Thomas R. Moran: Yes, Your Honor.
Harry A. Blackmun: -- bring it to our attention?
Thomas R. Moran: Yes, sir. Your Honor, may it please the Court, the facts in this case are essentially that in August of 1972, the state brought a nuisance action some two months after we had a mistrial on a criminal case. Nuisance action was brought against Camden Road Bookstore. The criminal case was against one man Chandler who we found out after we brought the civil action either lost its proprietary interest or something and Speight took over. Now, we set it down for rule hearing as a normal Georgia procedure in nuisance cases that was four days after the filing of the complaint. On the morning that we arrived for Court after the Court had cleared its calenders for a rule hearing, where we were served with removal after we announced strategy. At that time, we repaired to the federal court on the state court’s direction and we discussed the case, both counsel with Judge Moore (ph) who drew the case when we got over there, we sought over for a three-judge panel. Between the time that we could hear the removal action in 1983 Civil Rights Actions filed by appellants herein, they alleged that the Georgia statute 26-2101, which is our General Obscenity Statute and in that time pro Miller, it tracked Roth memoirs and it had been declared constitutional in the Fifth Circuit and was affirmed by this Court in Gable versus Jenkins. They attacked 26-2103 which is a nuisance statute that counsel has referred to. They attacked 26-2104 which makes any material which had been found to be obscene, contraband, that is after determination, therefore we could destroy it and they attacked the entire nuisance chapters. Now the District Court when we went over there did not reach the merits. They decided the case with abstention, comity and federalism and sent us back. That’s where we are at the present time. Now, it’s important to note that the rule then pending in the First Circuit as far as abstention and comity and what to do when a injunction or declaratory leave is asked against the state statute, was it federal intervention will not rest on label such as civil or criminal? It’s simply balancing of the competing interests. The doctrine arose out of the Poile (ph) Chandler case and that’s what the Court did in this case. They wanted the competing interest. They determined that this was a quasi-criminal case and similar to Poile. Therefore Younger versus Harris standard should apply, but I also found that this statute had never been construed by any state court. Therefore, abstention would be proper. Now --
Potter Stewart: Now, what’s this -- did you think the District Court saw as an abstention case or as a case that should be dismissed under Younger against Harris.
Thomas R. Moran: I thought they say --
Potter Stewart: The judge -- the prevailing opinion just simply dismisses and talks primarily by Younger, a concurring opinion towards about abstention and dissenting opinion talks a little about abstention. What do you think this case is about? Is it an abstention case or is it a dismissal by reason of Younger against Harris?
Thomas R. Moran: Your Honor, I think they’re both combined. I think there was a one sentence in the majority opinion that said that in this instance --
Potter Stewart: Well, there is no majority -- while yes there is because the concurring opinion toward them joined the opinion, yes.
Thomas R. Moran: In this particular case, the state courts has ruled under more of a reason why we ought to send it back. I don’t think they went into it in any great depths.
Potter Stewart: Because the Younger doctrine doesn’t have anything at all really to do with abstention, does it?
Thomas R. Moran: No, Your Honor.
Potter Stewart: It’s quite a separate doctrine, consent?
Thomas R. Moran: I think --
William J. Brennan, Jr.: Mr. Moran, haven’t you suggested that when the District Court abstains as distinguished from applying Younger, the District Court ought not dismiss, but hold the case where the substantial -- here there was dismissal?
Thomas R. Moran: Yes, Your Honor.
William J. Brennan, Jr.: And wouldn’t we suppose since the, I think our case has rather been explicit so that if you are abstaining, you hold case.
Thomas R. Moran: And the statute --
William J. Brennan, Jr.: And far here, what the District Court did here was dismiss on Younger ground?
Thomas R. Moran: Yes, sir. I totally agree, but I think there was some extension to back up their position that the state courts have enacted here. I know this 1980 -- I am sorry, 2284 does make us -- mandate the Court to hold for this time.
William J. Brennan, Jr.: Yes.
Thomas R. Moran: But this rule as far we are in competing interest and now the rule in the Fourth and the Seventh Circuits also. Lynch versus Snepp which is on appeal up here use that rule and so does Cousins versus Wigoda. Now, the First Circuit went one step further when they added the quasi-criminal concept and read competing interest in light of Younger versus Harris standards. Now this was left out --
William J. Brennan, Jr.: Mr. Moran, do you think that’s accurate description of the statute quasi-criminal?
Thomas R. Moran: Oh --
William J. Brennan, Jr.: I gather it’s in the -- is it a Section in the General Obscenity Statute?
Thomas R. Moran: Yes, Your Honor it’s in the criminal provisions. It’s the next statute codified under the Obscenity Standard.
William J. Brennan, Jr.: Well, as I understand it, it may be pursued independently without reference to any present or perspective criminal prosecution, can they not?
Thomas R. Moran: No, that’s what my understanding of the statute is, but you have to go back to 21 -- 26-2101 along the General Obscenity Statute and determine if it’s obscene, which is a criminal statute.
William J. Brennan, Jr.: Yes.
Thomas R. Moran: In other words, if they find obscene material, we could move in either two ways at the same time. We could hit criminally or civilly or we could hit it with both.
William J. Brennan, Jr.: Both.
Thomas R. Moran: Like Kinsley Books suggested Your Honor. Now --
Thurgood Marshall: That was a negative quasi-criminal. Just because you have a criminal remedy or civil remedy doesn’t make the civil remedy quasi-criminal, does it?
Thomas R. Moran: I think in this instance it will because we are further in the end with the criminal statute. It simply another alternative penalty.
Thurgood Marshall: To the criminal statute or to the general peace and good order of Georgia?
Thomas R. Moran: I think to both. The criminal statute is the General Obscenity Statute.
Thurgood Marshall: Well, if I understand here, somebody can give you an obscene book and say you bought it and reaches department store and you can close the department store?
Thomas R. Moran: Now, the Courts can after jury trial.
Thurgood Marshall: Is that right?
Thomas R. Moran: Yes.
Thurgood Marshall: And there’d be no criminal proceedings at all?
Thomas R. Moran: Whether it need be criminal.
Thurgood Marshall: So how does it become quasi-criminal?
Thomas R. Moran: Just to --
Thurgood Marshall: Closing up the store is not going to jail?
Thomas R. Moran: No but if it be in the -- this question has come before. It came in before this Court in Gable versus Jenkins which was a position case where he was brought before the board and he was defrauded, if you want to use that term. In that case, the Georgia Courts had held that in Turney type procedures disbarment proceedings, the diversion cases that you use some of the criminal rules because it is quasi-criminal nature because it’s filthy. So that does have [Voice Overlap] particular --
Thurgood Marshall: If you find something contraband and you destroy it, and that’s quasi-criminal?
Thomas R. Moran: There would be into the rationale of Gable versus Jenkins, in our state it would be. I don’t -- there are no cases down in courtrooms that I know of --
Thurgood Marshall: It’s a good problem. [Laughter]
Thomas R. Moran: It is. Yes Your Honor.
Potter Stewart: I see if you have the alternative -- if I have the alternative as you suggest in your state, our proceeding by way of the criminal law and the criminal prosecution or this way it's just the absolute quasi-criminal. It’s like, an analogy is a federal antitrust laws. That the Federal Government can put you -- it has the option of a criminal prosecution or a civil action to enjoin the alleged wrongdoing and it doesn’t make the civil action quasi-criminal institute chosen just the opposite to pursue civilly.
Thomas R. Moran: Yes, sir on --
Potter Stewart: That’s why we are dealing mainly in semantics and perhaps it’s not important but I should think if you have the option of proceeding criminally or by this method is this is just by definition not criminal?
Thomas R. Moran: Well, that I -- we can put like the state court said, I mean the federal court said (Inaudible) stamp it, that’s it and I think as far as competing interest, what do you do to the state court machinery? When you intervene in a case like this, it is entirely different in a civil case. It's just like tax cases, you go in. The bureaucratic system is set up the move. The Court is set up, the prosecutors are moving, the law is being enforced and then you stop. I think that was a danger in interrupting our dual system to begin with. But you do embarrass the state proceedings. You prohibit as state prosecutor from going into his own court and finding out what the law is and then you shortcut the usual system about your state courts and other --
Potter Stewart: Well, the prosecution is not going into the Court to find out what the law is. He is going into the court that put the defendant out of business isn’t he?
Thomas R. Moran: Yes, sir. That’s exactly what I do. Now, we don’t -- this is the third fact, we don’t really know what the extent of the remedy in the statute is under nuisance because our general statute is a bond type of statute 72-301 at all when it deals with house of prostitution and every section refers back to the initial section on house of prostitution (Inaudible) issue. So in total Supreme Court rules, we don’t know whether -- in fact in my opinion under the Douglas case we couldn’t go in there and padlock it and destroy the material. It had to be only by injunction.
Speaker: After what?
Thomas R. Moran: It could only by injunction. The judge would have to write -- he couldn’t padlock and he couldn’t destroy forfeiture. He’d have to enjoin. That’s the Douglas case coming out of our state so that unless there’s a specific statute on it, you can’t forfeit and destroy. Here it’s only by injunction. You can’t close down its business. It’s a Superior Garden case.
Potter Stewart: Well what would be the effect of the injunction be?
Thomas R. Moran: The effect of injunction would probably be --
Potter Stewart: To close down his business, wouldn’t it?
Thomas R. Moran: It could be just telling you can’t sell anymore obscene books. It could be that to tell him that under -- you’d have to construe our Georgia Constitution with it.
Thurgood Marshall: Why can't you seize all the books and tell him that he can’t sell obscene books? I understand you seize all of these books, don’t you?
Thomas R. Moran: We pray to seize all of these books. No state action. At this point, we don’t know, construing the nuisance statutes which had never been construed in this particular point whether we would have gotten that relief or not.
Thurgood Marshall: Oh! I see.
Thomas R. Moran: In other words, in effect to the --
William J. Brennan, Jr.: Well, whatever relief you get Mr. Moran, I understand you to say is limited to injunctive relief?
Thomas R. Moran: Yes, sir. Under (Inaudible) as I read it.
Potter Stewart: Well, but as you also represented to us, nevertheless this is really very clear until your courts pick on the subject.
Thomas R. Moran: That’s true. It just says that if you sort of book, you are a nuisance and in fact, how do we bait you is not particularly clear at this time.
Potter Stewart: Is the point -- this was -- this legislation was enacted in 1971 I think, wasn't it?
Thomas R. Moran: Yes, Your Honor. It went into to effect and it was --
Potter Stewart: It seems to say so in the brief and it was -- what it did was to sort of tag itself on to incorporate much older legislation than it had to do with houses of prostitution, is that it?
Thomas R. Moran: Not exactly, Your Honor. It never mentions it. We run under the basic law that say a nuisance is anything that works toward any inconvenience to the public. And that’s -- that the Attorney General or I am sorry, the District Attorney in each particular judicial district can move that to abate them. That’s generally what we move.
Potter Stewart: Well, but 26-2101 is much more specific than that, isn’t it?
Thomas R. Moran: Yes, sir that’s the General Obscenity Statute.
Potter Stewart: What?
Thomas R. Moran: That’s the General Obscenity Statute.
Potter Stewart: And under which statutory provisions did you perceive?
Thomas R. Moran: 26-2103 and 72 --
Potter Stewart: Well, isn’t that any premises in violation of any of the provisions of this chapter shall constitute public nuisance?
Thomas R. Moran: Yes, sir.
Potter Stewart: Right? And what other one?
Thomas R. Moran: And 72, I think its 201 which is the General -- gives the District Attorney the power to go on abate nuisance --
Potter Stewart: Any nuisance which tends to the immediate annoyance of the citizens in general as a manifestly injurious to the public health and safety and so on?
Thomas R. Moran: Yes, sir and there were couple of more general statutes and that gives us the power to go --
Potter Stewart: And those were all the statute?
Thomas R. Moran: Yes, variable.
Potter Stewart: And generally, have been applied against house of the prostitution, right?
Thomas R. Moran: Yes, sir. Your Chapter 3 is the one that gives a forfeiture --
Potter Stewart: Chapter 72-3?
Thomas R. Moran: Yes, sir that gives the forfeiture and abatement proceedings in house of prostitution. You lock to place [Voice Overlap]
Potter Stewart: That is 72-302?
Thomas R. Moran: Yes, sir. And the rest of the Chapter always refers back to that initial paragraph.
Potter Stewart: Right, I see, I think see it.
Thomas R. Moran: Now, Your Honor, I think the rule on the Fifth Circuit is a good one. In equitable proceedings it’s discretionary with the Court then we have to have some discretion built into your rule that you’re going to use when you determine whether to take a case from the state court or you get in the position that this case court found that’s left in the Mitchum case where it had to construe Younger versus Harris and the Atlantic Coast Line case. Now, comity as the Court where I know is a judge-made rule which protects our dual system of justice. In this case, most of the decision of the lower court was based on comity and the Younger versus Harris doctrine. We’ve come to a point where 1983 is express exception to 2283 and the injunction statute. But in Mitchum, it’s clear that District Court has to go farther than that to determine that the basic principles of equity, comity, and federalism would be violated by taking jurisdiction. In this case, they found that simply because the state was acting. We had a statute which had not been construed by the federal court or by the state courts authoritatively. There had been no state action as yet. In other words, the plaintiff in the lower court below comes in and says, “He has filed a complaint against me.”
Thurgood Marshall: I thought the state did file this action?
Thomas R. Moran: It did but I mean --
Thurgood Marshall: Well, that’s state action, isn’t it?
Thomas R. Moran: Yes, sir. I am sorry sir, I slipped with the terms.
Thurgood Marshall: Yes.
Thomas R. Moran: But in other words, the state court had not acted yet. We don’t know exactly what is irreparable injury may be if there is any. And when he comes it, when he files the action he has rules so he has an adversary hearing before anything is picked up, nothing is seized. In fact, in this case, he ran out and bought on three different occasions alleged that this is representative of everything in store that every one in that store is either absolute or so commingled with other things that are not obscene is to make them indistinguishable. The judge would issue an interlocutory order and within 60 days, we have to go to trial before a jury. That’s the procedure we are moving on. Now, the procedure grew out of three basis, those are --  which this Court had, Poile, Walter versus Slaton. These were all adversary hearing procedures around 1969 where our Courts, we didn’t have any procedure for adversary hearings and our Court said they were all nuisances and we based the statute on that in past.
William J. Brennan, Jr.: Mr. Moran --
Thomas R. Moran: Yes, Your Honor.
William J. Brennan, Jr.: If we affirm and the federal claims are then remitted to the state proceeding and there decided adversely to the store whatever the name of it is and that’s affirmed in the Supreme Court of your state. Then I gather the only federal court that can hear or determine these federal claims would be this Court if we grant review of the Georgia Supreme Court. I take it, it might come up either by appeal or on certiorari. Whereas if you had succeeded in the criminal prosecution and that had been affirmed by your State Supreme Court, Mr. Speight could have gone in the federal habeas, could he not
Thomas R. Moran: ?Yes, sir.
William J. Brennan, Jr.: And the local federal district court could have disagreed with your State Supreme Court, is it not?
Thomas R. Moran: Yes, sir.
William J. Brennan, Jr.: And you then would have had to come here via through the Court of Appeals and then to this Court?
Thomas R. Moran: Yes, sir.
William J. Brennan, Jr.: So that there is that difference, isn’t there between a criminal prosecution state and a state civil proceeding?
Thomas R. Moran: Yes, sir.
William J. Brennan, Jr.: And do you think that has any bearing on the application of Younger principles? Or I may add one other thing, I don’t know that Chapman decided, but I imagine there problems of res judicata on the 1983 proceeding if the civil proceeding comes out adversely to the Mr. Speight, aren’t there?
Thomas R. Moran: It could be.
Byron R. White: I gather that if he loses in the civil proceeding and that either he repeals or he doesn’t, but anyway the litigation is over in Alabama Courts, he can’t bring in 1982 suit. The issue has been decided against him.
Thomas R. Moran: Right.
Byron R. White: And his only resort is appeal or cert through the state system to hear.
Thomas R. Moran: But then he doesn’t run the forth the problem of going to jail that’s what we have.
Byron R. White: I understand that.
William J. Brennan, Jr.: What [Laughter Attempt] I am getting at is now we got plenty to do up here as probably could hear it of late and are we then to take on the ultimate determination of these federal claims from all 50 states?
Thomas R. Moran: Well, you have --
William J. Brennan, Jr.: We have the assistance on the criminal side at least the lower federal courts in federal habeas but we wouldn’t hear, would we? Why is it there something like the Englander which was an abstention problem a year ago?
William H. Rehnquist: I suppose we can always deny certiorari?
Thomas R. Moran: Yes.
William J. Brennan, Jr.: That’s just a problem and more often than not, we do deny certiorari for a lot of different reasons and the consequence then is that these federal claims are never heard in the federal forum.
Thomas R. Moran: No, sir but they are in the state forum and --
William J. Brennan, Jr.: Well, I agree, but [Laughter Attempt]
Thomas R. Moran: -- the state have to do with [Voice Overlap] this Court in federal court.
William J. Brennan, Jr.: I agree but as Mr. Smith suggested Zwickler versus Koota had something to say about the availability of the federal forum.
Thomas R. Moran: Yes, sir.
William J. Brennan, Jr.: It’s the unanimous decision of this Court and the meaning of the 1875 Amendments and so forth.
Thomas R. Moran: But there was no appendix in state court action.
William J. Brennan, Jr.: I know.
Thomas R. Moran: That’s another.
William J. Brennan, Jr.: But I am just -- my real question to you is don’t you think our determination whether or not Younger should be applied in the civil area or to take into account that the only federal forum available would be this Court?
Thomas R. Moran: Yes, sir it should well only interest.
William J. Brennan, Jr.: Where the difficulties of getting cert?
Thomas R. Moran: It should well only interest in it. I think it has to be with case by case basis just as this one is. Because especially if -- I am trying to think of the Justice who said it, but the Wisconsin case, when the statute comes to a federal court to be adjudicated is naked in essence. It has no construction applied if it had not been construed and they can’t construe a state statute so it either stands or falls in its face. And I doubt if they could construe in light of other revisions. I think we have constitutional provision. You’d have to construe the statute --
William J. Brennan, Jr.: Well, that that’s more in the abstention area I suggest than the Younger?
Thomas R. Moran: Yes, sir but I think that would bear in whether to apply Younger versus Harris standards just as the habeas corpus would bear on it. You got to have to weigh all the competing interests not just one of them.
Thurgood Marshall: But that’s not true. The statute does not need interpretation?
Thomas R. Moran: No, sir. That’s true that’s what --
Thurgood Marshall: Now what language in the statute needs interpretation?
Thomas R. Moran: Nuisance. I think what it means when it makes it a nuisance. How to abate it? You could have to construe it.
Thurgood Marshall: is there no decision in Georgia about a nuisance?
Thomas R. Moran: Not on this particular statute, no, sir. There decisions about beer houses --
Thurgood Marshall: My point was, is there any decision in Georgia on nuisance?
Thomas R. Moran: Yes, sir. Quite a few.
Thurgood Marshall: As to what is a nuisance?
Thomas R. Moran: Yes, sir.
Thurgood Marshall: I should hope so.
Thomas R. Moran: There are quite a few and how to abate.
Thurgood Marshall: So that’s -- that word is not vague.
Thomas R. Moran: No, sir it makes it a nuisance.
Thurgood Marshall: Well, what’s vague in the statute?
Thomas R. Moran: I don’t -- I think what is vague is not the statute on its face, but the remedy the statute provides in the state.
Thurgood Marshall: And the remedy is vague?
Thomas R. Moran: But how the statute -- how the nuisance seems to be abated after you determine it's a nuisance.
Thurgood Marshall: What did the statute say?
Thomas R. Moran: The statute says, “Use of any premises in violation of any provisions of this chapter, that’s the General Obscenity Statute, shall constitute a public nuisance.”
Thurgood Marshall: So, there’s nothing vague there?
Thomas R. Moran: No, sir. Not on the statute face. I don’t think there’s any vagueness.
Thurgood Marshall: Well, that’s -- is that what’s before us, the statute?
Thomas R. Moran: Yes, sir. And --
Thurgood Marshall: And that’s what you want interpreted by the Court, by the Georgia Supreme Court, the statute?
Thomas R. Moran: Yes, sir. I want the Georgia Supreme Court to interpret it.
Thurgood Marshall: And you say there’s nothing in the statute that’s vague?
Thomas R. Moran: No. Yes, sir on its face, there is nothing but as applied it could be.
Thurgood Marshall: It could be vague.
Thomas R. Moran: As applied.
Thurgood Marshall: Well, I imagine if you apply the statute to a gasoline station that wouldn’t apply, would that have made it vague?
Thomas R. Moran: No, sir not vague on its face. In the First Amendment area though, you still have to apply the doctrines of the abstention and comity. I know when the state court comes in and says and we come into a --
Thurgood Marshall: Have we got a prior restraint case where it was done by this Court?
Thomas R. Moran: I beg your pardon, Your Honor?
Thurgood Marshall: Do you have a prior restraint case where this Court did that?
Thomas R. Moran: I have one --
Thurgood Marshall: You agree this is a prior restraint case?
Thomas R. Moran: Yes. There is no prior restraint without judicial action, but it could be prior restraint, yes sir. That’s what --
Thurgood Marshall: That’s a prior restraint. It says if you are caught with an obscene book you might lose all business?
Thomas R. Moran: Yes, sir. Or in the future, it’s interpreted that way.
Thurgood Marshall: Well, I am not saying we did or did not but I want to know if you know of any case in which this Court where there has been an alleged obvious prior restraint, the Court had said we will yield to the state.
Thomas R. Moran: There is -- No, sir except in Mitchum versus Foster.
Potter Stewart: The Mitchum case had that sort of a background. Of course, that wasn’t the issue in that case?
Thomas R. Moran: No, the issue was whether to it bars on its face.
Potter Stewart: But it had the same kind of background as this case.
Thomas R. Moran: You mean the same background. He did say we have to go into --
Thurgood Marshall: I don’t think it necessarily it fills ones idea that but I was just wondering if there was one, I don’t think so.[Voice Overlap]
Thomas R. Moran: Unless there are any questions, I think I’ll leave the rest of the time.
Warren E. Burger: Very well. Mr. Smith, you have about three minutes left.
Robert Eugene Smith: Yes, sir. Incidentally, there was some discussion about Sanders and I wanted to tell the Court that as counsel was alluding to, there was a zoning problem in Sanders and that is to say that the City Council or the County Council of the DeKalb County said that no adult bookstores or theaters could be within 200 yards of a church, a school, a pool hall and things like that. So, it’s very conceivable in view of that absolute concept that Sanders could be decided on that issue and not reach the nuisance issue. It was not declared to be a nuisance. It just says a matter of zoning. No adult theater or bookstore can be placed within so many hundred yards of these various facilities.
Warren E. Burger: Per se in determination difference within 200 yards it’s determined to be --
Robert Eugene Smith: No, it’s not a nuisance sir. It just can’t have a license and if it you can’t have license here and its zone, you’re not just allowed to be operating here, right sir. And in -- further, under the Georgia provisions, the determination of the place of being as a nuisance does not entitle us to an automatic right of the supersedeas bond. In fact, in Sanders, I think he was closed approximately three weeks before the state judge gave him a $50,000.00 supersedeas bond to operate and finally --
Potter Stewart: What’s the situation here with respect to whether or not he is closed or open for business?
Robert Eugene Smith: He is open sir.
Potter Stewart: Why and how?
Robert Eugene Smith: He’s been open because there’s been no further action by the state court I suppose pending the decision of this Court.
Potter Stewart: Of course federal court --
Robert Eugene Smith: If federal court.
Potter Stewart: If federal court declined to enjoin the state proceedings but then what? Was the stay granted?
Robert Eugene Smith: No, sir, no stay has been granted. None was --
Potter Stewart: Then it's just suspending pending the termination of this litigation.
Robert Eugene Smith: And in this instance as we pointed out just to be sure that the Court understands. If the jury finds any of the publications brought by the prosecutions --
Potter Stewart: There is a jury trial here, is there?
Robert Eugene Smith: As to the issue of the obscenity of the publication. Then the judge will apply the law as it is written obliviously and shutter the premises. So the jury would not determine whether it was a nuisance, the jury would determine whether the material was obscene under the standards this Court has set forth. And incidentally, as the Court mentioned in Mitchum which is the case that we argued before the Court sometime ago, the Mitchum case is now being held by the District Court Judge waiting a decision in this case. Thank you.
Warren E. Burger: Thank you gentleman. The case is submitted.