Warren E. Burger: We will hear arguments next in 74-1396, Michelin Tire Corp. against Wages. Mr. May, you may proceed whenever you are ready.
Earle B. May, Jr.: Mr. Chief Justice and may it please the Court. This is a case which involves the Import Clause of the Federal Constitution and the proper interpretation and application of that clause to imported tires and tubes. The sole issue is whether tires imported without packaging and held for the sale by the importer in his warehouse, in the original form in which imported are immune from local ad valorem taxes by reason of the Import Clause. The Trial Court upheld the importer’s claim of immunity with respect to both tires and tubes. The Supreme Court of Georgia affirmed with respect to the tubes, but reversed with respect of the tires, notwithstanding the fact that both the tire and the tubes are handled precisely in the same manner while in the importer’s warehouse.
William H. Rehnquist: And the state has taken no cross-petition from the decision adverse to it in the Supreme Court of Georgia?
Earle B. May, Jr.: That is correct, Mr. Justice Rehnquist, except the state is not actually the party, it is the local Gwinnett County tax officials who imposed the taxes, of course, pursuant to Georgia constitutional provisions, but the State of Georgia, as such, is not a party.
William H. Rehnquist: I suppose your argument that you suggested a moment ago that the Supreme Court of Georgia’s decision is wrong because it has treated differently two things that are alike, would not necessarily win for you here. Maybe it was wrong in ruling that the tube boxes were not taxable?
Earle B. May, Jr.: That could well be, Your Honor, but it is our position contrary to what you just said that we do think that if the result of Georgia Supreme Court decision is to accord less immunity to an unpackaged import then that accorded to a packaged import, that it is wrong because the constitutional prohibition is to command immunity for all imports, whether packaged or unpackaged.
William H. Rehnquist: But you have got to make your comparison with some authoritative decision on the liability for a packaged import. The Supreme Court of Georgia may have been wrong to the extent that it decided against the assessor?
Earle B. May, Jr.: Well, we submit there are numerous decisions of this Court which clearly recognized tax immunity for packaged imports, if the Court please. The facts of their brief, may it please the Court, the importer is a New York corporation that is engaged in the business of importing and distributing wholesale tires and tubes that are manufactured outside the United States and as a part of its business, it operates a distribution warehouse in Gwinnett County, Georgia. The tires are --
Warren E. Burger: Would these tubes fit any other tires than Michelin Tires?
Earle B. May, Jr.: If Your Honor please, I do not believe that answer is in the record and I do not honestly know. I believe the answer would be no, Mr. Chief Justice, but I cannot answer that precisely.
Harry A. Blackmun: Well, I take it, we are not concerned with the tubes in this case, are we?
Earle B. May, Jr.: That is correct, Mr. Justice Blackmun, except to the extent that our argument that the decision of the Georgia Court accords unequal treatment to packaged and unpackaged imports. To that extent, the Court might be concerned with it, but there was no cross-petition filed by the tax officials.
Harry A. Blackmun: I suppose if you lose here, your client can start packaging its tires than you have something?
Earle B. May, Jr.: Well, that would be one way under the present decision of the Georgia Supreme Court, that our client could avoid taxation by putting each tire in a separate package so long as the package was not broken and the tire would -- if the Georgia Supreme Court is to be consistent, would be immune from taxation.
Potter Stewart: Or another way would be to separate them by style and size at the point of origin?
Earle B. May, Jr.: Yes, sir.
Potter Stewart: In Nova Scotia or France?
Earle B. May, Jr.: Or France, yes sir. The facts show that no sales are made to retail customers, all sale to be made to wholesale and on all such imported tires and tubes the importer has paid to the United States the 4% import duty. The tires are imported without packaging and are never altered or modified in any way from the original form in which they were imported. Now, the Supreme Court of Georgia, may it please the Court, expressly recognized at page A7 of the Appendix to the petition for certiorari that the individual tires are not treated or altered in any manner, but they, nevertheless, deny immunity upon the ground, as shown at page A18 of the Appendix to the petition for certiorari, that the tires had lost their status as imports when they were segregated by size and style and stacked in the importer’s warehouse with other similar imported tires of the same size and style and it is this decision, may it please the Court, which is presently here for review and we believe the decision is erroneous and our contentions are based primarily upon four facts. Number one, the original form had not been changed. Number two, the tires were still in the flow of import distribution and had not reached the point of final destination as they had in Youngstown, Mr. Justice Stewart. The right to sell which has never been seriously challenged until now, the importer’s right to sell, and four, the unequal treatment accorded to unpackaged imports as compared with packaged imports as we were just discussing with Justice Rehnquist. First, it is undisputed, Your Honors, that the tires were imported without packaging and at all times remained property of the importer in his warehouse, in the original form in which imported. And, in 1827 this Court held in Brown versus Maryland in Chief Justice Marshall’s landmark decision that where these things imported, if it would please the Court, remains the property of the importer in his warehouse in the original form or package in which it was imported and “a tax upon it is to plainly a duty on imports to escape the prohibition in the constitution. References to the term “original form” are found in many subsequent decisions of this Court. And we suggest that the plain and natural meaning of those words is that where an article is imported without packaging, holding such an article in its unaltered original form in which imported, is equivalent to holding a packaged import in the original package in which it was imported, and that is the meaning that has been given to these words by the Courts of New York, Florida, and North Carolina and those decisions are cited in our brief and, in our judgment, was the meaning intended by Chief Justice Marshall. Here, the Georgia Court ignored and disregarded the words “original form” completely. They treated them as being completely meaningless and that is precisely what the tax officials in this case are asking this Court to do. And, we suggest respectfully that the Court has not done so for nearly 150 years and no persuasive reason has been or can be advanced for doing so at this time. The second factor that we rely upon is what we call the final destination factor. It is undisputed that the tires are still in the flow of import distribution, have not reached their final destination, the importation journey has not definitely ended nor have the tires been irrevocably committed to the use for which they were imported --
Warren E. Burger: You are not suggesting that the journey would not be ended until they were put on an automobile, would you?
Earle B. May, Jr.: No --
Warren E. Burger: Where do you think the journey would end?
Earle B. May, Jr.: The journey would end, Mr. Chief Justice, in my opinion, at the point at which the tires had reached a retail selling type operation where they were to be sold at retail for local consumption at the point of final destination.
Harry A. Blackmun: Maybe that is another way that your client can avoid the taxes to ship directly to the retailer from France or Nova Scotia? It might take a little doing, but I suppose it could be done.
Earle B. May, Jr.: I suppose it could, Mr. Justice Blackmun. We have not explored that possibility at this point. But I say that, Mr. Chief Justice, because, one, as we all know one of the important reasons for the inclusion of the Import Clause in the Federal Constitution was a desire of the framers to prevent taxation by a seaboard state with their great ports of entry of imported goods flowing through to inland states and that was plainly stated in Brown versus Maryland and this Court reaffirmed it in the 1959 Youngstown decision where the Court said the constitutional design was to immunize imports from taxation by the importing states and all others.
William H. Rehnquist: Of course, Brown against Maryland was the tax requirement of a license on someone who sold imports, it was not a general ad valorem property?
Earle B. May, Jr.: That is correct, Your Honor, but the arguments that a general ad valorem non-discriminatory ad valorem tax is not prohibited by the Import Clause had been consistently rejected by this Court for more than 100 years.
William H. Rehnquist: What do you make of the case of May against New Orleans?
Earle B. May, Jr.: I think May versus New Orleans, Mr. Justice Rehnquist, was purely an original packaged case. I think it is premised totally upon original package. The Court held that the wooden creates in which the boxes were contained were the original package and when they were broken, the importer lost his immunity.
William H. Rehnquist: You do not think then that -- do you pronounce it Gwin-nett or Gwinnett?
Earle B. May, Jr.: Gwinnett, Your Honor.
William H. Rehnquist: You do not think that Gwinnett County is entitled to any sort of pro rata contribution from your client for the fire protection or the police protection that it provides for your client’s warehouse, even though it gets pro rata contributions from other people who get exactly the same services?
Earle B. May, Jr.: May I answer that in two ways, Mr. Justice Rehnquist.
William H. Rehnquist: In as many ways as you want?
Earle B. May, Jr.: I would point out, number one, that Gwinnett County does receive taxation from the Michelin Property which is the land and the buildings and the typewriters, desks, that type of property. Ad valorem tax is paid by my client to the county. No exemption is claimed. With respect to the other aspect of the question, my answer is no. I do not claim that Gwinnett County is entitled to tax my property which is an import so long as it remains an import and the reason I say that is because the constitution prohibits it and it is an absolute prohibition contained in the constitution and there is, but one exemption, and that is no state shall without the consent of Congress lay any tax upon an import except what may be absolutely necessary to inspect its --
William H. Rehnquist: I thought it said “impose or duties.” I did not --
Earle B. May, Jr.: Well it does, but that has been construed to include a general ad valorem tax. In Low versus Austin in 1872, the Court held that or California made that argument. California made the same argument again in 1946 in Richfield Oil and the Court, again, rejected it in an opinion by Mr. Justice Douglas where he said that it would entail substantial revision of the language of the Import Clause to substitute for the prohibition against any tax the words in a discriminatory text. And so, for those reasons, I respectfully answer Your Honor’s question by saying that no, I do not think my goods should be required to bear part of the expense of protecting the property. Coming back now, if I may, for a moment to the final destination factor, we submit that that is essential and vital to a determination of whether the tires are still in the flow of import distribution, and are therefore, still imports. The Georgia Court disregarded this fact and to do so is to lose sight of one of the underlying purposes of the Import Clause and the issue which really lies at the very heart of this case and that is, if it please the Court, whether the tires have retained their distinctive character as import. And I cannot think of a better case to demonstrate this than this Court’s decision in Youngstown, where the Court held that the ore and lumber there involved had lost their distinctive character as imports and in so doing, the Court gave major weight to two factors. One, the importation journey definitely had ended, and two, the articles had been irrevocably committed to use in manufacturing at the point of final destination. And we respectfully suggest to the Court that the same consideration should be given to the final destination factor here because here, in short contrast, if the Court please, to the facts in Youngstown, we have undisputed evidence which shows, first, the tires are imported for sale and sold only at wholesale. Two, they flow out from the importer’s warehouse to franchise dealers in six states in the original form in which imported. And three, it is such dealers who sell the tires at retail for local consumption at the point of final destination. And we respectfully submit that under those circumstances, while the tires are in the importer’s warehouse, they have neither completed their import journey nor have they been irrevocably committed to use it at the final point of destination. On the contrary, they are in the language of Chief Justice Tony, if I may be permitted to quote a brief statement, Mr. Chief Justice, “merely intransitive and on their way to the distant cities, villages, and country for which they are destined and where they are expected to be used and consumed and for the supply of which they were in truth imported.” That precise language from the license cases was quoted in the Youngstown decision, in 1959 and we submit, it is clearly applicable here and under these circumstances, the tires fall squarely within the underlying purposes of the Import Clause and clearly retain their status as imports. Moving along, our third factor, may it please the Court, is the importer’s right to sell its goods, free from local taxation. Again, we are referring to Brown versus Maryland. It plainly held that one who had imported goods for the purpose of selling them had, by payment of the import duty to the United States, acquired not only the right to bring the goods into the country, but also the right to sell the goods free from local taxation --
William H. Rehnquist: It did not hold that because --
Earle B. May, Jr.: -- in their original form or package.
William H. Rehnquist: It did not hold that because what it was dealing with was a license tax on who sought to solely sell imports. You can say that Justice Marshall said it in the opinion, but I do not believe there was a holding?
Earle B. May, Jr.: Well, I would not argue, Your Honor, that that may not have been the specific holding of Brown versus Maryland, but that certainly is the interpretation which has been placed upon that decision by this Court for almost 150 years.
William H. Rehnquist: Would you say that once an importer pays a duty exacted by the federal government no further tax burden of any sort may be placed on his sale of those goods that are imported? You would not go that far, would you?
Earle B. May, Jr.: I would with one exception, Mr. Justice Rehnquist, if the article which has been imported is still held by the importer in its original form or package in which imported. But if the importation process has ended and the article is being exposed to sell at retail for local consumption at the point of final destination, it may well be that when such a case comes before this Court, that the Court would hold, irrespective of the fact that it is still in original form, that it has lost its distinctive character as an import and become subject to --
William H. Rehnquist: Where do you distinguish between wholesale and retail? What is there in the Import Clause that leads to that conclusion?
Earle B. May, Jr.: Well, the Import Clause prohibits taxation upon any imports. The way the wholesale factor comes into it is that in a whole sale distribution process, the goods are still flowing through. They have not reached the point as Youngstown said, the importation has not definitely ended.
William H. Rehnquist: Can you not say the same that retail goods, they are still flowing. You do not know who the ultimate purchaser is going to be?
Earle B. May, Jr.: Well sir, that argument can be made, but I think it is logical to assume that there is no further flow through once a tire or any other imported article reaches a retail outlet which is selling to local customers. I can see there may be an instance where somebody from Alabama could come into Georgia at a retail tire store and buy a set of tires and they may wind up in Alabama, but I submit to Your Honor that that would be the exception rather than the rule.
Harry A. Blackmun: Mr. May, it is of no import, I suppose and I do not mean that as a pun either, but how much tax are we talking about here annually, roughly?
Earle B. May, Jr.: Your Honor, I will give my guesstimate. I think it is in the neighborhood of $10,000 per year. The counsel for the county could probably give a more accurate answer.
Harry A. Blackmun: Same principle whether it is $300 or (Inaudible)?
Earle B. May, Jr.: Yes, sir.
Lewis F. Powell, Jr.: Mr. May.
Earle B. May, Jr.: Yes, sir, Mr. Justice Powell.
Lewis F. Powell, Jr.: You are arguing your third point which as I understand it, is that the importer has the right to sell in this country. Does that suggest that if the wholesaler in Atlanta had been an American wholesaler, an American Corporation, and Michelin had sold these tires to it, that the clause would not apply?
Earle B. May, Jr.: If Michelin were the importer, do I understand --
Lewis F. Powell, Jr.: If Michelin is an exporter, Michelin in France --
Earle B. May, Jr.: Yes, sir.
Lewis F. Powell, Jr.: -- makes a contract to sell to a Georgia wholesaler, just take this warehouse. Assume that it was owned by a Georgia Corporation and everything else was the same, would the clause apply?
Earle B. May, Jr.: It would in my own judgment, Mr. Justice Powell, if the Georgia Corporation is deemed to be the importer because Chief Justice Marshall said the property, the thing imported, while remaining the property of the importer in his warehouse in the original form or package. So, if your question includes the Georgia Corporation, which you suggest as the importer and it is his warehouse and everything else is the same, yes, sir, my answer would be the clause would apply.
Lewis F. Powell, Jr.: So you are saying that there must be, in those circumstances, two sales. One from the manufacturer in France to the Georgia importer, then a second sale by the Georgia importer, say, to an American retailer?
Earle B. May, Jr.: Yes sir.
Lewis F. Powell, Jr.: While I have you interrupted, may I put this question. It may not be entirely relevant but I would be interested in your answer. Suppose these tires had been manufactured in Michigan by a US rubber company, for example, and shipped to a Georgia warehouse and handled precisely these tires were handled. Under the Commerce Clause, could Georgia validly have imposed a property tax?
Earle B. May, Jr.: I think they could, Mr. Justice Powell, provided that the goods that were at the transit had stopped --
Lewis F. Powell, Jr.: That is exactly the same?
Earle B. May, Jr.: Yes sir, but as you are obviously aware, this Court has again for 100 years made distinctions in the cases involving interstate commerce and imports, and of course, we all know the reasons for that because the Import Clause has an absolute prohibition, whereas the Commerce Clause is nothing but the power to regulate --
Thurgood Marshall: Mr. May, you put so much emphasis on retail. It does not really mean that much, does it? Would a wholesale not be in the same -- I mean, you transport them from here to the wholesaler in Michigan, say, 100 tires, when they get there, it is over, is it not?
Earle B. May, Jr.: No, sir, not under the facts in this record, Mr. Justice Marshall.
Thurgood Marshall: Well, they are wholesalers. For example, you and I know that fleets of cab and fleets of trucks buy tires wholesale, right?
Earle B. May, Jr.: Yes, sir.
Thurgood Marshall: So that they would not be covered?
Earle B. May, Jr.: Well, if they were bought from that warehouse, Mr. Justice Marshall, but there is no evidence in this record that anything --
Thurgood Marshall: I am not talking about this, but you keep emphasizing they are not liable until they go to retail and I am saying, could there not be a place where they could go liable and be a wholesale. I do not think it hurts your case (Inaudible)?
Earle B. May, Jr.: Yes, it is conceivable, Mr. Justice Marshall, that that could be true if the correct facts existed.
Thurgood Marshall: Right.
Potter Stewart: In other words, if they were sent out from this Gwinnett County warehouse to wholesalers or in six states, your case would be the same as if they were sent to retailers? That was my brother Marshall’s question.
Earle B. May, Jr.: Because there are still in the flow. Maybe I misunderstood Mr. Justice Marshall’s question. I think I have answered it. I agree with you. My final point, if the Court please, I think I did not finish the right to sell. It is unquestioned here that we pay the 4% import duty and we say that by so doing, we acquire the right not only to import the tires, but to sell them and until they are sold, they retain their status as imports. And the final factor is that unpackaged imports, in our judgment, should not be accorded a lesser degree of immunity than that which is generally recognized for packaged imports and that is precisely the result which the Georgia Supreme Court arrived at. And in so doing, we think that it violated long-standing and fundamental constitutional prohibitions because the intent and purpose of the Import Clause was to command a uniform degree of immunity for all imports whether packaged or unpackaged and unless we are to ignore that constitutional command, it cannot be successfully argued that unpackaged imports are entitled to less immunity than packaged imports. Mr. Chief Justice, I will reserve the balance of my time to respond to my opponents. Thank you.
Warren E. Burger: Very well. Mr. Stephens.
Hosea Alexander Stephens, Jr.: Mr. Chief Justice and may it please the Court. Argument in behalf of the respondent, I respectfully submit, should begin by noting that the right of a state and its political subdivisions to levy non-discriminatory ad valorem taxes on property located within its boundaries is an inherent attribute of sovereignty. The constitution of Georgia so declares. Its taxation scheme expressly states that the property of non-residents shall not be taxed higher than that of residents. So, there is no contention here on the part of the petitioner that there has been any discrimination against the petitioner on the ground that it is a non-resident of Georgia rather than a resident. Now, the last term as is fully known to the members of the Court, in the National Cash Register case, there was a determination as to when American-made goods, possessing very unique qualities, unsuited for use except by some foreign nation, when they become exports and in this particular case, to some extent, the reverse side of the coin is before the Court and that is when foreign-made goods actually cease to be imports. Now, the Georgia Supreme Court, after cataloging numerous cases, concluded that, in the language of Mr. Justice Gunter, that the case has established a sort of two-hat approach to the import process and it depends on which hat the particular concern is wearing, whether that of an importer or that of a wholesaler. And certainly, the Supreme Court of Georgia spent some time analyzing Brown against Maryland and it is obvious that the Supreme Court of Georgia had no desire to ignore the holdings of that Court in that particular decision, but it did lay emphasis upon the factual aspect of this particular situation and while it is not a link to the record, it began with the first specific matter which is that Michelin owns a warehouse in Gwinnett County, Georgia on the north side of Atlanta, and utilizes a bonded warehouse in Clayton County, Georgia on the south side of Atlanta, thereby, a permanent distribution, a center has been set up in the Atlanta area. Bulk shipped lots of tires in closed in sea vans and over-the-road containers arrive at these warehouses at recurring intervals. The sea vans and over-the-road containers are opened, entries are made into it and the tires are placed on pallets. Each pallet with tires loaded on it, it is then moved into the warehouse. The tires are segregated by size and style, as was mentioned by Mr. Justice Blackmun. They are then stacked. Four stacks of five tires each on a pallet with a heavy cardboard comb put down between it and another pallet of three tires placed over. There is no question, but a new shipment is introduced into that warehouse with the residue of what has been left from previous shipment, and furthermore, that shipment arriving from France and shipments arriving from Nova Scotia are distinguishable only by the word “made in France” or “made in Canada” appearing on it. Then, the process of getting them out of the warehouse was developed. Orders received by Michelin in Gwinnett County, Georgia at its facility, they are on Highway I85, are filled from this -- I am going to use the word “co-mingled” inventory because I submit that is what it shows had occurred. They are shipped by common carrier, united parcel service, or a dealer.
Warren E. Burger: Does this record show whether the tires that were resting in the warehouse at the time of the arrival of the shipment were subjected to a tax, speaking of this record? You say they co-mingled. They had to co-mingle with something.
Hosea Alexander Stephens, Jr.: Yes, sir.
Warren E. Burger: Are those tires to which the current “imports” were added, were those tires subjected to a state tax?
Hosea Alexander Stephens, Jr.: No, sir. Those were imports. One thing developed in the course of the trial before Judge Peter in Gwinnett Superior Court and it was discovered that a small quantity of domestic-made tubes were left over from a previous year. As I remember, they figured a small amount of tax and paid it in the courtroom as part of the hearing. They realized that was not exempt. Previous imports were in the warehouse.
Warren E. Burger: Has your plan just begun to levy tax on these tires for the first time?
Hosea Alexander Stephens, Jr.: Yes sir, they were what is known as NOD assessments, and of course, as the record indicates at one point, there are approximately five other import firms located in the county. That is a byproduct of interstate highways, Your Honor, in north of Atlanta, four-lane highways on the either side, warehousing, so there are other import firms in the county.
William H. Rehnquist: How does Gwinnett County mechanically go about levying its tax in this case? Does the assessor come around once a year to every place?
Hosea Alexander Stephens, Jr.: Well, theoretically, Your Honor, all concerns are suppose like paying income taxes to voluntarily --
William H. Rehnquist: Self-assessment?
Hosea Alexander Stephens, Jr.: It is a self-assessment situation. If the investigator for the tax assessors concludes that maybe a return was due or not enough property was covered, he will go out and make an inspection on the premises and --
William H. Rehnquist: But it is as of a particular date each year?
Hosea Alexander Stephens, Jr.: Yes sir, January 1 of each year is the critical date for ad valorem tax purposes in Georgia. It is the position of the respondents, may it please the Court, that this matter is, in reality, controlled by May against New Orleans which has already been mentioned by Mr. Justice Rehnquist and discussed to some extent by the philosophy of Burke against Wells, that is the case in New York City in which an import firm established a wareroom and was vending in the original package articles imported from Ireland. And the State of New York, instead of issuing an ad valorem assessment on the property itself, issued an assessment on the capital of the company utilized in that particular process which was retained from the sales of the goods, but much of the language in that opinion indicates that if it had been an ad valorem assessment the result would have been the same because the Court in its opinion, went back to Brown versus Maryland, discussed when the Original Package Doctrine loses its force or validity, and placed the two in exactly the same context. Now, as to what an original package is, in our brief we have stressed a line of cases holding that if, as the Supreme Court of Georgia did, the sea van or over-the-road container concept is rejected as the original package that the aggregation of goods is a definition which emerged very early in jurisprudence in the Austin case from Tennessee and that the aggregation of goods where they are not individually wrapped, constitutes the original package. And, we rely upon EJ Stanton & Sons case from California in which it was referred to as invisible customer and that is some language to which the petitioner took strong exception in the petition for certiorari and in the briefs, but it merely illustrates the premise that an aggregation of goods or, as the Supreme Court of Ohio termed it, the commercial unit of importation, when that is broken, the package is broken. And in this particular case when Michelin established a distribution center in Gwinnett County, Georgia and even in Clayton County, Georgia, although they are not a party here, and on a regular sustained recurring basis just as in Burke against Wells in New York, on a week-to-week, day-to-day, month-to-month basis had goods available for shipment, received goods to replace those shipped, we submit, if the Court please, that that really is the end of the importation process and that the Supreme Court of Georgia correctly so determined.
Harry A. Blackmun: Mr. Stephens, is this, I ask as I always do in ignorance, is the fact situation here somewhat similar to what I have seen in photographs of ships coming into Baltimore loaded with VWs on decks and they are not wrapped. I do not know whether you have something in Savannah comparable to that, but do you think the State of Maryland could impose an ad valorem tax on those automobiles as they are taken off the ship and the warehoused there in Baltimore?
Hosea Alexander Stephens, Jr.: I believe that is --
Harry A. Blackmun: It seems to me that this is somewhat comparable to that?
Hosea Alexander Stephens, Jr.: I believe that was the holding of the Volkswagen Pacific case from California, Your Honor. That is referred to in the briefs. In that particular case, the facts were packaged automobile parts and completed VW and Porsche automobiles were being brought in by sea going vessels. And as I remember, and do not hold me to this because I have not read this case today, as I remember, the packaged auto parts were held exempt, but the automobiles had to have things done to them to get them ready and while the outward form or shape of the vehicle was not changed, it could no longer be in the original form because it would be the difference between being able to crank it up and drive it away and not crank it up and drive it away. I believe the California case has ruled only. As I remember, this Court declined a grant to certiorari in that particular case which I fully appreciate, is not very decisive. Now, as to the statement in Brown versus Maryland which has been urged by petitioner’s counsel here, in a footnote to our brief, we invite attention to an article by Professor Thomas Reed Powell. I was never so fortunate as to attend that university or be one of its students, but I have always regarded him as a very outstanding writer and his comment was that the language of Mr. Marshall, certainly was broad enough to include sale, or use, or breaking bulk and we submit when an import firm gets into the distribution business such as shown in the record in this case that the maintaining of the tires for inventory meet the test of use, as referred to as Youngstown and it certainly meets the test of Burke against Wells where they had a permanent wareroom in New York City and was vending from the original package. If the Court would bear with me, I would like to conclude with just one quote from May against New Orleans. “The goods imported, lost their distinctive character as imports and became a part of the general mass of the property of Louisiana and subject to local taxation as other property in that state the moment the boxes, cases, or bales in which they were shipped reached their destination for use or trade and were opened and the separate packages therein exposed to sale.” Now, we submit that the breaking of a bulk shipment of tires, the aggregation of goods, the commercial unit of importation or whatever it is and the exposing of the individual tires for sale, if that occurs, the import process has terminated and just as the Supreme Court of Georgia said, then the concern dawns the hat of a wholesaler. Thank you, Your Honor.
Warren E. Burger: Do you have anything further Mr. May?
Earle B. May, Jr.: Very briefly, Mr. Chief Justice, I would like to make two or three quick comments. Number one, in answer to your question that you posed to Mr. Stephens, the record shows that all tires in the warehouse were imported and none had sought to be taxed prior to the first taxable year here involved.
Warren E. Burger: I suppose that means no more than there is always a first time to levy a tax?
Earle B. May, Jr.: Yes sir. Mr. Justice Blackmun, in answer to your question, there are photographs which are part of the original record in this case, color photographs showing the form in which the tires are in fact delivered to the importer’s warehouse in Gwinnett County, Georgia. Exhibits P2, 3, and 4 to the record of those photographs and finally, I would like to mention Burke versus Wells which Mr. Stephens mentioned, as we read it, is an income tax case. It was not a tax on imports and clearly is not applicable here. I would like to conclude, if I may Mr. Chief Justice, by saying that when you carefully consider all of the arguments raised by the tax officials, the result sought would require a substantial revision of the language of the import clause as well as the overruling of the entire Brown versus Maryland line of decisions. And we respectfully submit to the Court that it has consistently rejected all efforts to overrule Brown versus Maryland and expressly refused to undertake revision of the import clause in Richfield Oil in 1946. And for this reason, we suggest, that these arguments should not be urged before this Court, but before the only branch of government which has the power to consent to the state taxation of imports which is the Congress. As the Court recognized in HOOVEN & ALLISON, Congress has the power to lay down its own test for determining when immunity is and unless and until that body sees fit to do so, we respectfully urge the Court to continue to follow the test which it has consistently applied for almost 150 years. That test, in our judgment, is contained in the Brown versus Maryland lines of decisions. Those decisions reflect what we believe are a most thorough and careful consideration of what the framers intended when they originally adapted the Import Clause and we believe they are as sound today as they were when originally written. Accordingly, we respectfully urge, Mr. Chief Justice, that such decisions be followed in this case and the decision of the Georgia Court reversed. Thank you very much.
Warren E. Burger: Thank you, Gentlemen. The case is submitted.


William H. Rehnquist: We'll hear argument now in Number 96-5658, Cary Michael Lambrix v. Harry K. Singletary. Mr. Lawry.
Matthew C. Lawry: Mr. Chief Justice, and may it please the Court: Everybody agrees that the proceedings by which petitioner was sentenced to death violated the Eighth Amendment of the Constitution. Espinosa v. Florida so holds. The issue before the Court is whether the settled principles of Eighth Amendment law applied to the Florida system in 1992 in Espinosa were themselves compelled by existing precedent in 1986. That the--
William H. Rehnquist: Another way of appraising it is the way we phrased it in the Butler case, isn't it, Mr. Lawry, that could a reasonable jurist have decided otherwise?
Matthew C. Lawry: --Yes, Mr. Chief Justice, that is another way of phrasing it. That the Espinosa result was compelled in 1986 can be explained very briefly, in 30 seconds or less. As Stringer explains, as of 1985 an unadorned jury instruction on heinous, atrocious or cruel aggravating factor was unconstitutional. An uncorrected jury weighing of such a factor required resentencing. Moreover, jury weighing of such a factor could be corrected or cured only by harmless error analysis or by independent reweighing by a court that was untainted by the original error. Espinosa simply applied those settled principles to the Florida sentencing scheme. To elaborate somewhat on these points, I would like to describe in a bit more detail why the result in Espinosa was compelled by this Court's decisions in Proffitt, Godfrey, and Stringer.
David H. Souter: You... I don't want to interrupt the sequence that you want to follow, but are you going to address also Baldwin in Alabama, because Baldwin held in '85, I think-- --Five, yes. --that there was a question about just how intense the reweighing had to be if that were to supersede a jury error, and I would have supposed that that would be factored into the question of just how clearly anticipatable Espinosa was.
Matthew C. Lawry: Yes, sir. Yes, sir, I think it does factor in, if I can explain the way that I think it factors in. We have to start with Proffitt v. Florida in 1976, and in fact respondent has quoted one of the key passages from Proffitt in their brief at page 13. The Court was discussing whether the Florida sentencing scheme was basically constitutional, and it said that it was basically constitutional as long as adequate guidance was provided, and I'm quoting here, to those charged with the duty of recommending... that is, the jury... or imposing death sentences. So in Proffitt this Court recognized that the jury has sentencing authority and must be adequately guided, and I would see Baldwin as more or less a reminder that the Florida sentencing scheme does work in that way. It's different from Alabama, which at the time gave no real consideration to what the jury did.
David H. Souter: Well, that may... you know, that might be the better view, but isn't it also the case that one could reasonably read Baldwin as saying that it's not clear whether the subsequent act of the sentencing judge in the Florida scheme constituted an adequate reweighing even on the assumption... which, of course, we never really know under the Florida scheme... even on the assumption that that factor was found by the jury and was one of the bases for the jury's recommendation. Couldn't it reasonably have been argued that Baldwin had left that question open?
Matthew C. Lawry: Well, yes, I don't think that Baldwin... Baldwin itself decided that decision. I think that's--
David H. Souter: But didn't Baldwin signal that there was a real issue to this effect, and that issue, at least so far as the particular Florida scheme was concerned, did not get resolved until... or at least resolved in part until Espinosa came along?
Matthew C. Lawry: --No, I... well, I think that Baldwin itself does not decide the issue. I think that's correct. I think that the way to decide... because Baldwin was not looking at the Florida scheme.
Speaker: Right.
Matthew C. Lawry: The way to decide the issue is to look at how the Florida sentencing scheme actually works, applying this Court's settled principles, and if you look at the way that the Florida sentencing scheme works, you have to start with the Florida supreme court's 1975 decision in Tedder, and respondent virtually ignores Tedder in their brief because that's the only way that you can really seriously argue that the Florida jury does not have any sentencing authority. Proffitt says that the jury does have sentencing authority, that it has to be guided, and that's exactly what this Court picked up on in Espinosa.
David H. Souter: But the question, it seems to me, that you've got to wrestle with here under Teague is whether, assuming we were correct, and I happen to think we were insofar as evaluating the significance of the jury's function, you still have to wrestle with the question whether the subsequent act of the judge, who is presumed to know the Proffitt standard, in effect adequately supersedes what the jury had done, and I would have thought that that was the difficult question. And one reason why that was a question upon which people could reasonably disagree was that Baldwin had said we're not telling you yet just what kind of subsequent act or how intense or de novo a subsequent reweighing will be required, and I would have thought that was the sticking point under Teague.
Matthew C. Lawry: Well, I think that Stringer answers the question about what significance the trial court's actions have. Stringer says that as of 1985, in order to cure weighing error before a jury, it's necessary to either have harmless error review or independent reweighing.
William H. Rehnquist: But in Mississippi it was the jury that sentenced, wasn't it?
Matthew C. Lawry: It was the jury that sentenced, yes, and because the Florida jury has sentencing authority, the same result applies in Florida.
William H. Rehnquist: Yes, but the sentencing authority is divided in Florida, is it not, between the jury and the judge.
Matthew C. Lawry: Yes, it is.
William H. Rehnquist: In Mississippi it wasn't.
Matthew C. Lawry: That's true, yes.
Anthony M. Kennedy: I'm not sure how you read... you read Proffitt to say that the jury is the sentencer as well? Is that my interpretation of your argument thus far?
Matthew C. Lawry: Yes, I do read it in that fashion. In fact, it refers to sentencing authorities in the plural, and two or three times it talks about adequate guidance, adequate direction--
Anthony M. Kennedy: Well, but three or four times it says the trial judge is the sentencing authority, and so forth. I guess we can quarrel over the reading of it. I certainly don't think it's clearly to the effect that you state.
Matthew C. Lawry: --I think that it's clear from Proffitt that the sentencing authority is divided. Certainly the judge ultimately imposes the sentence.
Anthony M. Kennedy: It says the basic difference between the Florida system and the Georgia system is that in Florida the sentence is determined by the trial judge rather than by the jury, and there are like phrases... there are like phrases throughout the opinion.
Matthew C. Lawry: That's correct, but--
Sandra Day O'Connor: Counsel, Espinosa was a per curiam decision?
Matthew C. Lawry: --That's correct, yes.
Sandra Day O'Connor: Which lends, I suppose, a little support to your theory that this Court didn't think there was some wide division on the issue, or it might not have handled it as a per curiam.
Matthew C. Lawry: I think that's correct, and certainly nothing had changed in the law in the intervening period, and I think it was obvious to this Court in Espinosa that the Florida sentencing scheme in fact gives sentencing authority to the jury.
Anthony M. Kennedy: Well, we had heard that point in Soklar.
Matthew C. Lawry: That's correct, yes.
Anthony M. Kennedy: And I suppose one explanation for the per curiam is that the Court had heard the arguments on it in Soklar.
Matthew C. Lawry: Yes.
Sandra Day O'Connor: Does Florida law require the sentencing judge to place great weight on the recommendation of the jury?
Matthew C. Lawry: Exactly. That's what Florida law requires, and that's whether the jury's recommendation is life or death.
Ruth Bader Ginsburg: But Mr. Lawry, you also said that harmless error plays a part in this, and this trial judge did say that the facts speak for themselves. Doesn't that indicate that he reweighed without reference to the jury verdict? Isn't that a signal that what we're talking about is really academic?
Matthew C. Lawry: Well, no, Your Honor, I don't think so. I... first it's very difficult to determine exactly what the trial judge found when he said the facts speak for themselves, but even if it's assumed that the trial judge was finding that the facts fit within the Dixon limiting construction in Florida, which I don't think can be assumed, but even if we were to assume that, merely a finding by the judge that the facts... that he believes the facts fit within the aggravating circumstance doesn't mean that the jury necessarily would have. It's certainly not a finding of harmless error, because he doesn't recognize that there was any error, and it's also not any kind of independent reweighing, which is what Stringer would require, because the judge in his weighing process must give great weight to what the jury did, and what the jury did was tainted by the invalid instruction, so it's not possible for the trial court in Florida to cure the error because the trial court has to weigh the error. You can't cure the error by weighing it.
Ruth Bader Ginsburg: But if he said... this trial judge had said, now, I know what heinous, atrocious conduct is, and I find that that standard is met here, these facts speak for themselves, would that be... is that... would that be adequate then to amount to harmless error?
Matthew C. Lawry: No, Your Honor, not without determining the effect of the error upon the jury, because the jury may not view the facts in the same light. They may not believe that the facts are unnecessarily tortuous. Unless you go to that step and say that the facts are... that the jury necessarily would have, or by some standard would have found that... the case unnecessarily tortuous, then you're not applying harmless error analysis, and--
Ruth Bader Ginsburg: Would it be harmless only if the judge disassociated himself from what the jury did and said, I'm looking at this de novo and here's how I come out?
Matthew C. Lawry: --Yes, that's right, and furthermore, in the Florida system the Florida supreme court's review, both what the trial court does is virtually controlled by the jury's recommendation. So is the Florida supreme court's review, because if a death sentence is imposed after a jury recommendation of death, the Florida supreme court does a normal form of deferential appellate review to see if the trial court's findings are supported by the evidence. If a death sentence is imposed after a jury recommendation of life, the Florida supreme court will affirm only if virtually no reasonable person could differ as to the appropriateness of the sentence. So that many, many times the Florida supreme court reverses the trial court's imposition of a death sentence after a jury recommendation of life when the trial court did not make any error. The trial court did not err in any of its findings, but the Florida supreme court nevertheless reverses and imposes life because of the jury's life recommendation.
Antonin Scalia: Mr. Lawry, there's also an issue of procedural bar in this case. Are you going to address that at all? I mean, as I understand it the Florida supreme court held in this litigation specifically that Lambrix did not raise the issue of the trial court's failure to include his special instruction on his direct appeal, and consequently Lambrix's Espinosa claim is procedurally barred. That's the last word of the Florida supreme court on that subject. Why is that not dispositive?
Matthew C. Lawry: Well, it's not dispositive for several reasons. First, in the initial round of post conviction proceedings there was what the district court found was a merits ruling on this claim, and so this was a second review after remand from the Eleventh Circuit. Now, whether that was... whether what the Florida supreme court did on its second look, whether that was an adequate and independent State bar, is a very complicated issue that's tied up with Florida rules and practice, and it's not been ruled on by any court, and so it's--
Sandra Day O'Connor: I thought it was ruled on by the Florida supreme court.
Matthew C. Lawry: --No... yes, Your Honor. I mean, it hasn't... whether that was an adequate and independent State bar has not been ruled on by any Federal court is what I should have said.
Antonin Scalia: Well, I find it hard to get around the statement by the supreme court of the State that the objection wasn't raised on appeal, and there is a procedural bar. That's what it said, and you say there's a later lower court opinion in the State which contradicts the supreme court statement that there was a procedural bar?
Matthew C. Lawry: No. There was... the claim was previously raised in the 3850 proceedings, and in those proceedings there was what the district court found amounted to a merits ruling, but--
Antonin Scalia: By a lower Florida court. The supreme court of Florida's ruling came after that, did it not?
Matthew C. Lawry: --It came... yes. It came after the case had gone to Federal habeas proceedings, proceeded to the Eleventh Circuit. The Eleventh Circuit then remanded because it wanted the State's views on the merits of the Espinosa claim.
Anthony M. Kennedy: Was the merits ruling in the State system in the... I forget the number that you... 38 something, the collateral proceeding.
Matthew C. Lawry: 3850, yes.
Anthony M. Kennedy: Was that by an intermediate appellate court?
Matthew C. Lawry: That was by... it was by the trial court, and it was not... it was not disturbed by what the Florida supreme court did on appeal, and--
Anthony M. Kennedy: So the argument is that that's an implied affirmance, or validation of the trial court's merits ruling even though it hasn't been raised on appeal to the Florida supreme court?
Matthew C. Lawry: --Well, it was raised on the 3850 appeal. The point--
Anthony M. Kennedy: But I thought Florida required that it be raised on direct review and that that's the problem.
Matthew C. Lawry: --Ordinarily it does, but there were several cases during this time period where claims were raised in 3850 proceedings. It happened in Glock, for example, also. The point that I'm trying to make is that--
Anthony M. Kennedy: But even in that proceeding the Florida supreme court didn't pass on it.
Matthew C. Lawry: --That's correct, but if the lower court has ruled on the merits and the appellate court does not disturb that, then under Ylst this Court will look back to the original ruling and say that's a merits--
Antonin Scalia: Even where the appellate court has previously said before the lower court went back to the merits, even where the appellate court has previously said this claim is procedurally barred? I mean, that's a different situation, it seems to me.
Matthew C. Lawry: --No, Your Honor. The court... the appellate court has to say that it's barred in the proceedings in the case that we're talking about, not a... a general rule that will apply a procedural bar doesn't have any effect unless it's actually applied in the case.
Antonin Scalia: Well, but the procedural bar arises from the original trial. If that is procedurally barred as a result of what was done at the original trial, the mere fact that you have different later proceedings certainly wouldn't alter the judgment of whether there's a procedural bar or not.
Matthew C. Lawry: No. The procedural bar goes away, though, if the State courts rule on the merits. What I'm trying to get at is that it's a very complex issue, the procedural bar here. It hasn't been ruled on... the adequacy hasn't been ruled on by any Federal court. It's really not included in the question presented, but even... and even if the Court thinks that the ruling was an adequate--
Antonin Scalia: You don't think the other issue is complex?
Matthew C. Lawry: --Pardon me?
Antonin Scalia: You don't think the other issue you were talking about is complex?
Matthew C. Lawry: The Teague issue? The Teague issue is--
Antonin Scalia: Yes. The merits issue.
Matthew C. Lawry: --Yes. I don't--
John Paul Stevens: I'd really like to hear your explanation in sort of an uninterrupted fashion if I could, because it's a rather difficult issue. Would you start over on why you don't think the procedural bar requires us to dismiss the... to rule against you?
Matthew C. Lawry: --Yes. The claim was raised in the 3850 State--
Speaker: Right.
Matthew C. Lawry: --post conviction proceeding.
Sandra Day O'Connor: What claim?
Matthew C. Lawry: The claim that the jury instructions were unduly vague and unconstitutional. It was denied on the merits by the State trial court. It was appealed to the Florida supreme court. The Florida supreme court did not pass on it. We went to Federal habeas. The Federal district court--
John Paul Stevens: Did they also not rule on the procedural bar issue at that time?
Matthew C. Lawry: --That's correct.
John Paul Stevens: Okay.
Matthew C. Lawry: The Federal district court said that all of the claims were ruled... were denied on the merits in State court, and therefore it reached the merits. The Eleventh Circuit--
John Paul Stevens: And did it also... and therefore there is no procedural bar?
Matthew C. Lawry: --Yes--
John Paul Stevens: Okay.
Matthew C. Lawry: --no procedural bar, and if any procedural bar had been applied it wouldn't have been adequate and independent. The Eleventh Circuit then remanded the case back to State court, where the State supreme court said that there was a bar. The case returned to the Eleventh Circuit. The Eleventh Circuit ruled only on Teague. So our argument is that there was no regularly applied bar, that the bar... or that the bar went away when the State courts ruled on the merits in the first instance. You can't go back after the fact. The State's bar may be nothing more than applying a rule that we're not going to consider the merits in a successive proceeding. And furthermore, even if there is... even if the Court thinks that there's an adequate and independent bar, there's also a cause in prejudice argument, because if we win on Teague, then it's clear that this law was dictated as of the time of the direct appeal, and so competent counsel should have raised it. The Eleventh Circuit hasn't ruled on any of this. The Eleventh Circuit is closer to State law and State practice than this Court is, and the appropriate disposition would be to remand to the Eleventh Circuit to let it figure out the procedural bar issues as well as any other issues remaining after this Court's disposition.
David H. Souter: If I may ask you this: the first even that you recounted was that the vagueness was raised in the trial court, I take it post trial, or pre-trial?
Matthew C. Lawry: Post trial.
David H. Souter: Post trial, all right, and then you said, it was appealed to the Georgia supreme court. When you... was the case appealed with that issue in it, when you say it was appealed? The Florida supreme court. Excuse me, the Florida supreme court.
Matthew C. Lawry: Yes. It was--
David H. Souter: It being the vagueness issue?
Matthew C. Lawry: --Right. Yes, Your Honor. It was raised... these proceedings were under death warrant. It was raised... in a recognized and sandtioned practice in Florida it was raised by filing a motion for stay of execution in the State supreme court and attaching all of the claims that were raised in the trial court and saying, these are the claims, please give us a stay.
David H. Souter: Specifically including this one?
Matthew C. Lawry: Yes.
John Paul Stevens: May I ask one other question, just to be sure... did the State in its opposition to your petition for certiorari argue procedural bar?
Matthew C. Lawry: Yes, Your Honor.
John Paul Stevens: It did. Okay. Counsel, how many other cases are there like this petitioner's case, Lambrix, in Florida that would have to be overturned if you are correct on the merits?
Matthew C. Lawry: Your Honor, I have no idea the answer to that question.
Sandra Day O'Connor: Are there many? Aren't you involved in public defender's work, generally? No? Yes?
Matthew C. Lawry: Yes. Yes, although no longer in Florida, but yes, there are probably quite a few cases in which one of the unduly vague instructions on heinous, atrocious, or cruel was given. There... whether they would all have to be overturned would depend on a number of things.
Sandra Day O'Connor: On whether there's a procedural bar, perhaps?
Matthew C. Lawry: Yes. If there are no further--
Stephen G. Breyer: Would you like to say anything about the amicus brief's arguments? I thought they were pretty good... a pretty good brief.
Matthew C. Lawry: --Is there a particular point in there that concerns--
Stephen G. Breyer: No. I thought that their basic point was that as you go back to that period of time, the late eighties and so forth, it wasn't really clear the extent to which the Constitution required States to follow what one would have thought of as ordinary legal harmless error rules, and that perhaps all that was happening was that the judge was being told, you go look at this case where there's a HAC error, and you make up your own mind. We have to have a judge saying that this case is the kind of case that isn't cruel and unusual, heinous, aggravated or cruel on the ground that all murders are like that. There has to be something special about it. But as long as the judge has gone and looked at the facts and said there's something special about it, that's good enough.
Matthew C. Lawry: --Well, Your Honor, that contention is completely antithetical to Stringer v. Black. Stringer was a case that the Mississippi supreme court said would meet... was... would fall within the definition of heinous, atrocious, or cruel, it was an aggravated case, and this Court in Stringer said that as of 1985, it was compelled that the failure to do harmless error analysis or reweighing meant that the error had not been--
Stephen G. Breyer: Was Stringer decided after your case was tried or not? What's the timing there?
Matthew C. Lawry: --Stringer was decided in 1992, but it says--
Stephen G. Breyer: So then they'd say well, Stringer wasn't obvious, either.
Matthew C. Lawry: --But--
David H. Souter: How many members of the Court, by the way... in answering Justice Breyer's question, how many members of the Court concurred in the Stringer holding?
Matthew C. Lawry: --I believe it was six, Your Honor.
Stephen G. Breyer: Yes. I just knew Justice Souter didn't. [Laughter] I think he thought it wasn't obvious. I think he thought Clemons wasn't obvious. That's... and I'm just trying to get what I take perhaps wrongly to be the thrust of the amicus brief to see what--
Matthew C. Lawry: Well, I think that... yes, I think that the thrust of the amicus brief is that Stringer is wrongly decided, because Stringer says that the result was compelled as of 1985. So if there's no further questions, I'd like to save my remaining time for rebuttal.
William H. Rehnquist: --Very well, Mr. Lawry. Ms. Dittmar, we'll hear from you.
Carol M. Dittmar: Mr. Chief Justice, and may it please the Court: There are two fundamental reasons why this Court should affirm the opinion of the Eleventh Circuit in this case. The first issue is the Eleventh Circuit's conclusion that Teague v. Lane bars Espinosa review in a Federal habeas proceeding, and that conclusion is correct. The second reason is the procedural bar that exists, and I'd like to start by addressing the procedural bar. First--
Ruth Bader Ginsburg: Which the Eleventh Circuit didn't address, is that right?
Carol M. Dittmar: --That's correct. The Eleventh Circuit obeyed the command of treating retroactivity as a threshold issue and decided the case solely on Teague, so they did not address the State's procedural bar argument.
Anthony M. Kennedy: You raised it there, though?
Carol M. Dittmar: Yes, sir. It was raised there numerous times, including, even on a motion for rehearing.
John Paul Stevens: Was it also raised in the district court?
Carol M. Dittmar: Yes, it was.
John Paul Stevens: And it was ruled on there?
Carol M. Dittmar: Yes, it was. The district court... as to the Godfrey claim that had been raised back in the district court, the State argued at that time that there was a procedural bar based on several different reasons. One of the reasons, and this is in the joint appendix on pages 46 to 49 in the State's response, the primary reason was this was a direct appeal issue in the State of Florida, and it had not been raised in Mr. Lambrix's direct appeal. The next... the other argument put forth by the State at that time was that although it had been raised in the motion for post conviction relief, the trial judge in that motion did not decide the merits of that issue, and furthermore, when it went to the Florida supreme court, the Florida supreme court did not have that particular issue before it, because the Florida supreme court opinion from the appeal of the post conviction motion clearly says there are two issues before this Court. Both of them relate to the defendant's state of intoxication at the time of the crime. So that specific issue was not addressed in the post conviction appeal as well.
Anthony M. Kennedy: How does that square with--
Carol M. Dittmar: What the district court found?
Anthony M. Kennedy: --what the petitioner's counsel has told us that it was specifically included in the grounds that were presented in the collateral... in the appeal from the denial of collateral relief?
Carol M. Dittmar: Based on Florida procedure is how the district court reached that conclusion. What happened is, the Godfrey claim that was raised in post conviction... and this was a claim that the Florida supreme court had inconsistently interpreted this aggravating factor, and therefore the factor was invalid. That claim was raised in the post conviction motion for the first time, and the State responded at that time that it was a direct appeal issue. The circuit court judge, the trial judge in Florida, did not specifically address that issue. In his order he merely concluded that Mr. Lambrix was not entitled to relief. He does not say, based on the merits, or based on the procedural law in Florida. He just says his conclusion is Mr. Lambrix is not entitled to relief. That is what the Federal district judge in the habeas proceeding found to be a ruling on the merits, his conclusion. When that was appealed to the Florida supreme court, there is a particular statute... I'm sorry, a rule of procedure in Florida that when a post conviction motion is determined summarily by a trial judge without an evidentiary hearing, that what is... goes to the Florida supreme court or whatever the appellate court is, is simply the record that was before the lower court, and that there is no briefing or argument in that appeal. It's basically a review of what the trial judge had before him. If there is an evidentiary hearing held on the post conviction motion, it is treated as an ordinary appeal where the parties file briefs and orally argue the case, and then the court decides it. Because there had been no evidentiary hearing on the post conviction motion, the petitioner has argued to the Federal district court successfully that under the Florida rule that says everything goes up to the Florida supreme court, even though in this particular case there were briefs filed and there was oral argument held, that under the rule, you have to look at the entire record and not just what was argued in the briefs and argued to the court, and that's what the district court found when he found that there was a ruling on the merits by the trial judge, and that that ruling on the merits was undisturbed by the Florida supreme court. Therefore, he found that it was reviewed, and central to his holding... of course, this is prior to the time that the Espinosa claim went back and was found to be procedurally barred by the Florida supreme court. Central to the district court was the idea that no State court had ever specifically said this is procedurally barred. He was looking for that language in one of the State court opinions and he did not find it. Based on the lack of that statement, he said that there was a ruling on the merits. So the State has maintained consistently that this was a direct appeal issue that should have been raised in the direct appeal and it wasn't. This same issue in the Sochar case, this Court declined to address it, because it was procedurally barred in that case, and that was a direct review case, so you really can't come back on a collateral case on habeas review and address the procedurally barred issue that's the same issue that you didn't address earlier.
Sandra Day O'Connor: But we would have to decide this issue of Florida law here to conclude there is a procedural bar, is that right?
Carol M. Dittmar: Well, I think it's a very straightforward issue, though. I don't think it's as complicated as--
Sandra Day O'Connor: Even though the Eleventh Circuit hasn't addressed it?
Carol M. Dittmar: --Right, but the... we have the clear statement from the Florida supreme court applying the bar, and we don't have any State court decision ever even addressing the Federal question or addressing the merits of it, or even recognizing or acknowledging that this issue has ever been raised.
John Paul Stevens: But is it not correct that it could be a procedural bar but still... I mean, at least theoretically not be an independent and adequate State ground?
Carol M. Dittmar: Theoretically that argument could be made.
John Paul Stevens: It's unlikely, I understand, but at least it's theoretically possible--
Carol M. Dittmar: Correct.
John Paul Stevens: --on the grounds it's not consistently applied, or they waived it by addressing the merits later, or something like that. It's at least theoretically possible.
Carol M. Dittmar: Theoretically, but--
Ruth Bader Ginsburg: It should be an opportunity to show, though, that, if there's an allegation that the Florida court has not consistently applied, although they could have, this as a procedural bar.
Carol M. Dittmar: --That's true, but I don't think Mr. Lambrix can cite to you any cases where the Florida supreme court has not consistently applied the procedural bar that they applied in this case. I don't think they can find any cases where the Florida supreme court has not applied a procedural bar when the argument was not presented in the appeal, because that is--
John Paul Stevens: Why do you suppose the Eleventh Circuit didn't rule on it, if it's this clear?
Carol M. Dittmar: --I suppose--
John Paul Stevens: Because they know more about Florida law than we do. That much is clear.
Carol M. Dittmar: --Well, I think they were just satisfied with the Teague ruling, and they just didn't address the State's procedural bar argument at all, and I think that there are cases that say the threshold issue is retroactivity, and I think they felt like once that was resolved and they could thoroughly analyze that issue--
John Paul Stevens: Of course, if we agreed with you on the Teague issue you'd probably be happier with that disposition.
Carol M. Dittmar: --Well, either way I'd be happy, but the-- [Laughter] I think the Teague issue is standing out there. It's something that needs to be decided.
Sandra Day O'Connor: Do you know how many Florida convictions or sentences would have to be set aside if we were to agree with the petitioner on the merits?
Carol M. Dittmar: Yes, ma'am. I would say less than a dozen cases, not necessarily set aside but at least considered in the habeas proceeding. Most of the cases in Florida where this has come up have either been decided since the time of Espinosa, and obviously at that point the Florida supreme court was well aware of the issue and they had consistently applied Espinosa to the cases that have come before them. It really only affects the cases prior to Espinosa that had already gone into Federal court, and there would have to be the preservation of error and, in fact, the Florida supreme court, if it was raised in the trial court, an issue, and argued on appeal, the Florida supreme court is granting collateral relief in those cases. So if it has not been procedurally barred, even though the conviction may be final in Florida, they can still get relief from the Florida supreme court without having to turn to the Federal court. There are--
William H. Rehnquist: Relief under Espinosa?
Carol M. Dittmar: --Yes, sir.
William H. Rehnquist: For cases that were tried before Espinosa was decided?
Carol M. Dittmar: Right. If they argued to the trial judge that the instruction was incorrect, and also argued that on appeal to the Florida supreme court, and those arguments were rejected at that time because Espinosa had not been decided, then the Florida supreme court is granting relief in those cases.
Sandra Day O'Connor: Well, that indicates maybe the procedural bar might be the best thing for this Court to consider first--
Carol M. Dittmar: In this case.
Sandra Day O'Connor: --as a preliminary matter.
Carol M. Dittmar: I think the procedural bar is an important threshold issue in this case. The--
Anthony M. Kennedy: When the lower-- --How many people on Florida's death row now were tried before Espinosa? Do you have any statistics to that effect?
Carol M. Dittmar: --I don't have any statistics to that effect. I... of the Federal habeas proceedings that I'm aware of that are now going on in the State of Florida, I would say there are less than a dozen cases where this is potentially an issue.
William H. Rehnquist: But I dare say there are more than a dozen case in Florida of people on death row who were tried before 1992, are there not?
Carol M. Dittmar: Certainly. Certainly there are more than a dozen.
Anthony M. Kennedy: I think you want to get to the Teague issue and should, but one more question on the procedural bar... one more question from me. When the circuit court says that Teague is a threshold issue, do they do this... do thy say this in the context where a procedural bar argument is presented? Do they say it's threshold even to a procedural bar?
Carol M. Dittmar: Well, actually, this Court has said it's a threshold issue.
Anthony M. Kennedy: Even to a procedural bar?
Carol M. Dittmar: I don't believe that specific circumstance has been addressed.
Antonin Scalia: I thought it was threshold to the merits. That's-- --I would think so. --what I understood it to mean.
Carol M. Dittmar: I think that that is how it is, but the cases... I think the cases where this Court has said that have not been cases where there was a procedural bar to consider or to decide whether a procedural bar takes priority over a Teague issue. I think that fundamentally the procedural bar is an issue that needs to be addressed as a threshold issue by any Federal court.
Ruth Bader Ginsburg: But it would be extraordinary for this Court to take it up in the first instance, when it hasn't been taken up in the lower Federal courts.
Carol M. Dittmar: Well, I don't think it would be that extraordinary. In Gray v. Netherland this Court found a procedural bar on the Brady claim, despite the fact that the circuit court in Gray had never reached the procedural argument on that claim. The district court in Gray had found a procedural bar on the Brady claim. The circuit court did not address it at all, and when Gray came up to this Court, this Court addressed the procedural bar that applied on that claim, so I don't think it's so unique that it can't be done, and I certainly don't think it's something that's beyond this Court's ability to do.
Stephen G. Breyer: What's the advantage to you as a prosecutor from that? It's... I mean, suppose we said you're right on the procedural bar. There are other cases in front of us, I think, that raise this same Espinosa retroactivity issue, and if that were so we'd have to take one of those, if there are, and then decide the same issue in that other case, and all we would have done with the two cases is simply decided on a matter unique to this case that the Eleventh Circuit's perfectly capable of deciding anyway. I mean, so how do you benefit from that, except you might have two arguments instead of one or something.
Carol M. Dittmar: Well, I think this Court can address both issues in this case. I don't think you're limited to only addressing one issue. The Eleventh Circuit applied the Teague bar, and I think that gives the Court reason to look at the Teague issue and to decide the Teague issue. I think that you can say that there are two reasons to affirm the Eleventh Circuit, and one of them is a procedural bar, and one of them is the Teague issue.
Anthony M. Kennedy: On the Teague issue, it... if... is the reading of Proffitt dispositive of the case? If we disagree with petitioner's counsel and say Proffitt was very, very clear that the judge is the sentencer, is that the end of the case?
Carol M. Dittmar: I think that is... a great deal of the case is Proffitt, but also the other sentencing opinions out of Florida that has come from this Court, including Spaziano, where you were looking at the constitutionality of the judge imposing a death sentence when the judge had recommended a life sentence. And in Spaziano you talk about how that jury recommendation is only advisory, and again you refer to Florida as a judge-sentencing State, and even up through the time of the Walton decision in Arizona, which was decided the same year that Espinosa was decided, this Court continuously refers to Florida as a judge-sentencing State.
John Paul Stevens: But Ms. Dittmar, may I just ask this question? Sometimes you put things in neat categories, either a judge State--
Carol M. Dittmar: Right.
John Paul Stevens: --or a jury State and so forth, and we use those labels, but is it not correct that as a matter of Florida law the verdict of the jury is a significant part of the procedure?
Carol M. Dittmar: It is an important part of the procedure.
John Paul Stevens: And it will have an impact presumptively on what the judge does?
Carol M. Dittmar: I think necessarily a life recommendation will have a graver impact on what the judge does than a death recommendation. The Florida supreme court in Tedder has said, you have to look at a life recommendation and find whether or not it was a reasonable... there was a reasonable basis to that recommendation. In--
John Paul Stevens: Therefore we should assume that if the jury had come in with a life recommendation here, if it... presumably a properly instructed jury might have done so, that would have an impact on the judge, some impact?
Carol M. Dittmar: --I think it would have had some impact on the judge.
Speaker: Right.
Carol M. Dittmar: The--
John Paul Stevens: And in fact the judge, as a matter of Florida law, would have had a duty to pay attention to what the jury had said.
Carol M. Dittmar: --Right. Well, as a matter of Florida law the judge still has to make his own independent determination.
John Paul Stevens: Right, I understand, but he doesn't do it as though there were no jury recommendation out there.
Carol M. Dittmar: That's correct. He has to take into account the jury recommendation, and I think particularly when the jury is recommending something that differs from his independent analysis of the situation, he has to consider it.
Antonin Scalia: So it's not really independent. I mean, these words don't make any sense. He makes his own independent determination, but he has to take into account the jury's determination--
Carol M. Dittmar: Well, I think he can--
Antonin Scalia: --if it disagrees with his independent determination.
Carol M. Dittmar: --I think he can make an independent determination first.
Antonin Scalia: Okay, but that won't suffice. He... his own independent determination may be overcome by the fact that the jury's determination to the contrary was a reasonable one. Is that right?
Carol M. Dittmar: In the situation where the jury has recommended life.
Antonin Scalia: Right. Well, it all... it says... great weight is the quote they use, that he's... in page 23 of your opponent's brief it says that, quoting Espinosa quoting Tedder, it says that the Florida law is that the judge has to give great weight to the jury's recommendation, whether of life or death, which are counsel's words. Now, is that right?
Carol M. Dittmar: Well, there are cases in Florida in dicta where there's been a death recommendation where the Florida supreme court has said a death recommendation is also entitled to the same deference. However, you don't have the same situation. If the judge... if the jury in Florida recommends a death sentence and the judge imposes a life sentence, then a life sentence is it, and that case is not reviewed by the Florida supreme court.
Stephen G. Breyer: Can you respond to... I have another question which I... I grant you, going through the... this is very... there's the Godfrey, and the--
Carol M. Dittmar: Right.
Stephen G. Breyer: --Thirty-eight different case names, and it's sort of like you have to figure out the professor writes ten million equations on the board and then he answers, well, it was obvious. I mean, the question is, how obvious is this? So in thinking about that, well, basically there is something working out here which is obvious from, like, Justinian or something, that if you have a jury and the jury decides whether a person's negligent or any other thing, and the jury's misinstructed, you get a new trial, unless the judge says that it was harmless, and it seems as if all these cases represent a working out of that principle and nothing else. And the only thing was, it wasn't clear for a while whether that basic hornbook principle is applicable through the Eighth Amendment to the States in death penalty cases, and by the late eighties it was clear that it was, and even if it wasn't clear that it was, Stringer says it was clear that it was, and that's the end of the matter, and therefore it's clear.
Carol M. Dittmar: But what was clear--
Stephen G. Breyer: Now, what I want is your response to that.
Carol M. Dittmar: --I don't think it's clear. [Laughter]
Stephen G. Breyer: What is your response to my oversimplified effort to make it clear?
Carol M. Dittmar: What is clear is that there is Eighth Amendment error if the jury waives an invalid factor, and under the cases prior to Espinosa, the validity of the factor turned on its application to the facts of a particular case and the way the factor had been interpreted by the State appellate court to give a narrowing definition of the factor. In Espinosa, the validity of the factor all of a sudden turned on the sufficiency of the jury recommendation, or the jury instruction, rather than how the factor was applied and whether it had been narrowed through appellate court decisions. That was a fundamental change new to Espinosa. That did not come from Godfrey, or Maynard or Stringer, or any of those other cases.
Ruth Bader Ginsburg: Then this Court should not have disposed or it summarily in a three-page per curiam opinion, because isn't it this Court's ordinary practice not to dispose of a case in that kind of summary way if it's doing something new? Isn't it the general practice here that we have full briefing and argument if we're doing something that's genuinely new?
Carol M. Dittmar: Well, I think, as the point was made earlier, there had been briefing on the issue in Sochar that the Court examined, but I don't think it's a fair conclusion to draw merely from a summary... the fact that it was a summary opinion in Espinosa to say we would never have made a new rule. I'm not sure that the Court fully--
Ruth Bader Ginsburg: I didn't say never, but a slight... there's a tilt in that direction at least that if the Court thinks this is clear enough that it doesn't have to set the case down for argument, doesn't need briefing beyond the cert petition and brief in opposition.
Carol M. Dittmar: --Well, you may have more of an opportunity to create a new rule in a summary disposition because you may not fully understand the implications of the decision.
Ruth Bader Ginsburg: Then that's a good reason not to dispose of it summarily if we don't fully understand the implications.
Carol M. Dittmar: That's true.
Sandra Day O'Connor: And then of course we might have-- --At least it's our stated practice, I assume you would acknowledge from prior decisions and the rules and the text writers on this subject, that at least the Court attempts not to break a lot of new ground on a per curiam.
Carol M. Dittmar: I'm not personally familiar with where that's stated, but I would certainly defer to that being stated somewhere.
John Paul Stevens: May I ask another question about the merits? Part of your submission, as I understand it, is that as a matter of State law the scope of the HAC factor was fairly... had already been narrowed--
Carol M. Dittmar: Right.
John Paul Stevens: --at the time of this trial.
Carol M. Dittmar: Right.
John Paul Stevens: But the one question I'm not clear on on that, why, then, did the judge give this instruction? Why didn't he give the instruction that you say he clearly should have given as a matter of State law?
Carol M. Dittmar: Well, he... I believe the judge did apply the narrow construction from the Florida supreme court. The facts of this case clearly support the narrow construction, and it was found by the trial judge--
John Paul Stevens: In other words, you say his instruction was adequate.
Carol M. Dittmar: --His construction, I'm sorry.
John Paul Stevens: No, I mean the instruction to the jury. Do you agree or disagree with your opponent that that was a valid instruction?
Carol M. Dittmar: Well, I believe that it was invalid under Espinosa.
John Paul Stevens: Right. Well, was it also invalid under Godfrey?
Carol M. Dittmar: I don't think so, if the facts of the case supported the narrow construction. What Godfrey said was, the Georgia supreme court... in finding the factor to apply in that case, the Georgia supreme court was applying an inconsistent application of the statute because the facts did not meet the narrow construction that the Georgia supreme court--
John Paul Stevens: You're saying in other words that if the facts of the case would have been heinous, atrocious, and cruel, it doesn't really matter what the jury... how the jury was instructed.
Carol M. Dittmar: --Right.
Speaker: I see.
Carol M. Dittmar: And I think under this Court's decision in Cabana v. Bullock, when you said a case which you had to determine at what point there had to be a finding of Enmund under a felony murder situation for the death penalty to be imposed, you said that finding could be made by the appellate court.
David H. Souter: No, but your... it seems to me that your argument and your response to Justice Stevens is to say that if there is sufficiency of the evidence to support the proper construction, the error was harmless, but we've rejected that. We have said very clearly that harmless error is not sufficiency of evidence. Isn't that correct?
Carol M. Dittmar: Well, that's true, but I think you have to look at, and especially in a habeas case, the extent to which the error could have injuriously affected the defendant.
David H. Souter: Well, that may be, but it's still not a sufficiency of evidence standard. One still looks to... in effect to the extent of the damage, whether one looks at it under the Brecht standard or a more... the more demanding standard.
Carol M. Dittmar: That's true, but I think before you get to the harmlessness you have to get to the fundamental question of where the error occurred.
David H. Souter: All right-- --But you don't stop there, right?
Carol M. Dittmar: You don't stop there.
Stephen G. Breyer: I want to go back for a second to my question, because looking at it as I was doing you'd say, look, all that Godfrey is, is it tells you what the basic error is. It's like making a misinstruction about negligence. And all Clemons is, it tells you, treat it like a negligence case. It gives you some rules, which are obvious rules, that if the jury makes a mistake because it was misinstructed on the Godfrey issue, like negligence or anything, then of course you have to have a new trial, unless the judge can say for one of three reasons that it made no difference. And all that Espinosa does is say, Florida, which is a little bit special, is really like a State where the jury decides it. And in case you had any doubt, Stringer makes clear this very basic rule, the rule from Justinian, is the rule. It was obvious, says Stringer. Now, that's a way. I know it's not the perfect way, and I know it's overlooking a lot of things, but if I were to look at the case that way, then I would say, yeah, Espinosa's pretty obvious, and this whole thing's obvious enough. So I want to get a direct response to that.
Carol M. Dittmar: The biggest leap in that analysis is when you say, Florida is like a jury sentencing situation.
Stephen G. Breyer: Ah, that's the biggest leap. Okay. It's at that point that then you look to Espinosa's quote of Tedder.
Carol M. Dittmar: Right.
Stephen G. Breyer: Then the question is, do you really have to give great weight to the jury, and if we read Tedder and went back and read the earlier Florida cases and thought, gee, it looks as if the judge really is giving weight to the jury and has to, then we would think this is pretty much like a negligence case, and everybody in Florida should have thought that it was.
Carol M. Dittmar: Except that--
Stephen G. Breyer: And then what would we look at to see the contrary?
Carol M. Dittmar: --Except that when you read Tedder, I don't think you're limited to Tedder itself. I think you need to read the Florida supreme court decisions that interpret Tedder and that say what they meant by Tedder, and the Florida supreme court has expressly come out and said in Tedder we did not elevate the jury to be a cosentencer in Florida. That was never our intent. The judge has a statutory duty to do an independent, de novo review of the aggravating and the mitigating factors, and the jury recommendation is just that, an advisory recommendation, and the Florida supreme court said that quite strongly in cases where the Eleventh Circuit had found a Caldwell error, a violation that the jury's role was minimized to the jury based on Florida's standard jury instructions. For those reasons, we would ask you to affirm the Eleventh Circuit's opinion. Thank you.
William H. Rehnquist: Thank you, Ms. Dittmar. Mr. Lawry, you have 3 minutes remaining.
Matthew C. Lawry: I'd like to briefly address the procedural bar issue. There's two important points about what happened in the trial court in the 3850 proceedings. The claim that was raised there was a Maynard claim that challenged the vagueness of the jury instructions as well as the Florida supreme court's review. Furthermore, the trial court denied the State's motion to dismiss, which was based on procedural grounds, so the clear implication of what the trial court did is that it was ruling on the merits of the claim. If there's no further questions, I have nothing additional.
Anthony M. Kennedy: Well, but the procedural bar is not just failure to raise it at the trial level, is it? It's failure to bring it to the attention of the supreme court, which brings us back to our earlier discussion.
Matthew C. Lawry: Right, but when a State court rules on the merits... the 3850 proceedings are after the trial. When a State court rules on the merits in any proceeding, that does away with the procedural bar. They... even though the court perhaps could have applied a procedural bar.
Sandra Day O'Connor: But that's a question of Florida law, I take it, requires interpretation of what the Florida law is in that regard.
Matthew C. Lawry: Yes, that's right.
Sandra Day O'Connor: And the Eleventh Circuit is more familiar with that than we.
Matthew C. Lawry: That's correct, and that's why we think the appropriate disposition is to remand after ruling in our favor on the Teague issue.
Stephen G. Breyer: The part about Espinosa which opposing counsel said was the least obvious was the part about what Florida State law is really like. That is, is the role of judge-jury there really like a judge-jury in a negligence case or some other, or does the judge really make a pretty independent decision? Now, what do you think we ought to read on that, just Tedder?
Matthew C. Lawry: Well, I would read Sochar and the cases cited in Sochar, because there are numerous kinds of jury error that the Florida supreme court has reviewed in death penalty cases... jury instruction error, improper evidence, improper argument. In none of those cases has the court said, oh, well, the jury has... there was error in front of the jury, but the judge did it, okay, so we don't have to concern ourselves with the jury. They've always said, look to see whether the error affected the jury, and that's exactly what should be done in this case, and that shows that it's not just a pure judge case--
Antonin Scalia: Mr. Lawry, can I come back to your response to Justice O'Connor? You say it's... the question of whether there's a procedural bar is a question of State law. If it was a question of State law we have the last word of the supreme court of Florida, which says that this claim is procedurally barred. Now, it seems to me that there is an issue whether that assertion by the Florida supreme court is sufficient to establish a procedural bar for Federal purposes, given that a lower Florida court had reached the merits in this other fashion and so forth, but it's clear, is it not, that the Florida supreme court believes this claim to be procedurally barred, as a matter of Florida law? Now, you know, they may be wrong as to whether they are... that is good enough to create a Federal bar, but don't we have the word of the Florida supreme court?
Matthew C. Lawry: --Yes, and a second opportunity, and then the question is whether that's adequate, independent, and whether there's cause and prejudice for any default. My time is up. Thank you.
William H. Rehnquist: Thank you, Mr. Lawry. The case is submitted.