Warren E. Burger: -- Overmyer against Frick Company, Mr. Brown, you may proceed whenever you are ready.
Russell Morton Brown: Thank you. Mr. Chief Justice and may it please the Court. This case brings up for consideration a judgment rendered in the Ohio State Court on a promissory note which contained a provision for confession of judgment. This is the note, commonly known as cognovit note by which the maker of the note agrees that if there is any default in payment of an installment or in the principal of the note, that he appoints any attorney in the state to enter an appearance, waive notice and service of process and confess judgment for the amount demanded. Appointment of this attorney has been made by the holder of the note, the adverse body to the maker of the note. In the case that borrower, it appears that the party have a contract whereby the respondent, holder of the note, wants to install a cold storage, a refrigerating plant in very large warehouse and the original contract was for some $230,000.00 for $223,000.00. The payment of $94,000.00 was made and a note in the amount of $130,000.00 was executed to cover the balance. This was to be paid in monthly payments of some 16 months and it contained this provision that we are considering here, the cognovit provision, that is any attorney might be designated by the holder of the note to enter an appearance and confess judgment. Now --
Speaker: Contract is made in Ohio, was it?
Russell Morton Brown: Yes, Your Honor, it was.
Speaker: And there is no question that the applicable state laws are the Ohio Laws?
Russell Morton Brown: That would be correct, yes sir. Now after the installation was completed, the equipment was put in operation. It was to be automatically controlled to produce a temperature or 10 degrees below zero and it functioned for a little while and then died of heart failure. The warehouse company lost some ice cream and very nearly lost a large quantity of turkeys, but they were salvaged and they called on the supplier to remedy the defect and they tried, it was unsuccessful and they had to maintain a staff of people to watch the machinery and keep it going and keep it controlled. And so the purchaser notified them that he would not make payment unless they could put in good order and refused to go forward with the scheduled payments. And when that happened, they proceeded to take judgment, the attorney who confessed judgment for the defendant, the petitioner here, was completely unknown to the defendant, never communicated with the defendant, was obviously selected by the holder of the note and paid by the holder of the note and he simply entered an appearance and confessed judgment waiving notice and service. Then under Ohio procedure, notice was given, that there is a judgment against you and the defendant engaged counsel in an attempt to set it aside. They filed a motion for new trial, filed a motion to stay execution and a motion to vacate the judgment. Setting forth that it was ended without notice and that they wanted a trial and tendered as sworn answer showing the difficulties with the equipment and the problems that had risen and also attached a course action which alleged to claims in excess of the amount demanded on the note as damages due to the malfunctioning of the equipment. The trial court declined to entertain the course action and simply affirmed the judgment and refused to --
Potter Stewart: Could the Court do that without any hearing at all?
Russell Morton Brown: Yes, Your Honor. There was some discussion as to whether it should or should not, but it did not go into the merits.
Potter Stewart: There was little oral argument but no --
Russell Morton Brown: Yes. No witnesses. No, nothing of that kind. Thereafter, an appeal was taken to Court of Appeals and the constitutional question was set forth. The Court of Appeals simply said, this is a matter of discretion and it would not be offset. They then asked the Ohio Supreme Court to review the matter on constitutional grounds, Federal and State and the Ohio Supreme Court on its own motion dismissed the appeal saying that there is no constitutional question involved. We then filed this petition for certiorari and the Court granted it. Now, we say there are three objections here really. First and foremost and most important is the question of in personam jurisdiction and I have to dredge up from our law school days the case of Pennoyer against Neff in which this Court very clearly set forth the rule that unless there is jurisdiction in personam there can be no judgment in personam and there certainly was no jurisdiction here. In the first place, it has established that in personam of jurisdiction was rest upon service of process within the jurisdiction or a voluntary appearance and submission to the Court. Now, there is no argument that service was made in this case because it was expressly waived, but they rest the entire judgment on appearance by this attorney who was unknown to the defendant, who was selected by the advisory and paid by him for the sole and only purpose of coming into Court and confessing judgment. It might be different, if he communicated with the defendant and said if you got any defense, you got any case, the right thing you want me to do. He did not do anything. He just confessed the judgment and that was all. Now, we take it as a fundamental that a lawyer who owes an obligation to a client to represent his interests, that he cannot go in there and throw his client into the hands of the other side without even communicating. For example, I can conceive of a situation where there is note and I am not saying that happens in this case, the note might be signed by somebody other than the person whose name is on there or it might have been signed under circumstances that he might validly object to. For example, there might some misrepresentation of fraud in the inducement and inducing him to sign.
Warren E. Burger: That would be subject to collateral attack, would it not?
Russell Morton Brown: It possibly would, Your Honor, but in Ohio you have a judgment against you. You have lien on all the real estate and in Ohio, the statute and the case law and we noted it in our brief here and the statute is set forth, the burden of proof is on the person who moves to set it aside, that is upon the defendant and he must show that he has a valid defense. That is what the statute says. In other words, there is a shifting of the burden of proof from the plaintiff to the defendant to overcome this, whereas as a matter of fact, if the case were tried in good order and in accordance with usual standards, the burden of proof would rest upon the plaintiff to make out his case. In this kind of situation he might not be able to make out a case, but for the promissory note with the cognovit provision. At any rate it is clear, that this confession or this appearance by this attorney should not be permitted to stand and we have referred in the brief to Canon 6 of the American Bar Association which we have set out verbatim and which says, in so many words that an attorney owes the kind of obligation to his client to disclose any conflict of interest, to disclose any possible basis upon which the client might object to his representation. He owes single-minded loyalty to his client and the Canon even says that it is unprofessional for an attorney to accept an obligation where he may be obligated to carry water on both shoulders. It is his duty to contend for that, it is his duty to contend for that which duty to another client requires him to oppose. Clearly that happened in this case. The lawyer who was engaged by the plaintiff below, the respondent here has only an obligation to the advisory of his client. And he goes into Court only for the purpose of throwing his client to the wolves, not for the purpose of representing him, but for the purpose of betraying him. Now, that is strong language, but that is the obvious and inevitable construction that must be placed upon his undertaking. He goes in there only to confess judgment against his client and I cannot get by the fact that he does so without ever talking to his client.
Warren E. Burger: Would you think the situation is different Mr. Brown if the debtor had designated a trustee just distinguished for he might be lawyer or might not be a lawyer, trustee as is done under the practice of trust notes in real estate transactions often –-
Russell Morton Brown: In that event Your Honor --
Warren E. Burger: Is there any difference?
Russell Morton Brown: I beg your pardon?
Warren E. Burger: Would you think that would be different?
Russell Morton Brown: I would think it would be materially different on the facts because the trustee under a trust note is held as I understand Your Honor to represent both parties. He is not a partisan. He can never take action against the maker of the trust note.
Warren E. Burger: But he can confess judgment?
Russell Morton Brown: Ordinarily Your Honor, I am not familiar with the situation where the trustee is authorized to do more than all of the property in trust and that the request of the debtor offer it for sale.
Warren E. Burger: But I suppose it varies from state to state, but in some places he has the -- he has given a power of Attorney to confess judgment in the event of his own independent determination of the default?
Russell Morton Brown: If that should happen, Your Honor and assuming the fact as you state them I would say, Mr. Chief Justice that he is under an obligation certainly to give notice to the debtor of what he proposes to do and what is being done and give the debtor an opportunity to be heard before his rights are concluded and represented in the judgment. In that event, Your Honor, though the trustee is really not engaging to be Attorney for one of the parties, but presumably to represent both parties to the trust transaction. We have that in the District of Columbia as a general practice, as I am sure, Your Honor is well aware and the trustee commonly says that disinterested third party holding the note for the benefit of both parties and with an obligation to advertise or give notice upon a default.
Warren E. Burger: It is always I suppose invariably, is it true selected by the creditor?
Russell Morton Brown: That is almost always the case, yes Your Honor. But his obligation has been held by the Courts to run to both parties to the trust transaction. At any rate, it is our conclusion that because there was no service of process and there was no voluntary appearance by an attorney in the sense in which we members of the bar would like to look upon attorneys as obligated to represent a client truthfully and honorably and fairly, there was no jurisdiction in personam within the meaning of decisions cited in our brief by this Court holding that such jurisdiction in personam is a vital prerequisite to a judgment in personam. Now, point number two, brings us to this Ohio Statute which authorizes this kind of confession and it is our position that the Ohio Statute is unconstitutional when it is measured against the Due Process Clause of the Fourteenth Amendment.
Byron R. White: When was this context been raised in the state courts?
Russell Morton Brown: If Your Honor please, Mr. Justice White, this contention of no notice was raises when the --
Byron R. White: I understand that, what about the Federal question raised, has been presented as Federal question?
Russell Morton Brown: If Your Honor please I would say the first time that due process language was used was in the Court of Appeals and it was raised there then again in the Supreme Court of the State.
Byron R. White: Did the Supreme Court or the Court of Appeals or the Supreme Court deal with this at all?
Russell Morton Brown: Yes, Your Honor they did. The Court of Appeals did not specifically treat of it, but it was raised. They said that the matter of the proceedings in the trial court were a matter of discretion in that they would not set aside the judgment. When it went to the Supreme Court of the State of Ohio, that Court sua sponte dismissed the appeal saying there is no constitutional, no substantial constitutional question involved. Now, we have referred to cases and decisions of this Court which required the Court to give notice and an opportunity to be heard. These are fundamental requisites that have been dealt with by this Court from the beginning of the Republic. The Fifth Amendment with the Due Process Clause as been in the constitution from the very beginning and the Fourteenth Amendment Due Process Clause is materially different. We have cited the authorities in our brief and we feel that the Court's decisions speak very well for themselves and for the rule for which we were contending. There is one point that I need to make here and that is this. The waiver that we are dealing with here is the waiver that it is embodied in the contract. It is a waiver, the right to notice and an opportunity to be heard. And it is a waiver before there is any controversy. We feel at that is a very, very important and crucial. We make no point of the fact that a person who served this process can certainly waive it here. He can waive any rights that he has, but at that point, he knows what a controversy is. He knows what the consequences will be and he knows what he is doing.
Warren E. Burger: Would it satisfy the due process in your view of this particular case if the creditor had given notice by mail, actual notice that he intended to exercise the powers given under the cognovit note?
Russell Morton Brown: I believe it would, Your Honor, yes sir. I think, as I read some of the Court’s decisions that actual notice will measure up to the constitutional provision. It need not take any particular form. As long as the individual has a reasonable notice and an opportunity to come in and present his defense that is all that is required, provided of course, Your Honor that the court, the trial court would entertain the defense and of this, I have serious doubts in Ohio because the courts out there are have from the time in memorial given effect to this cognovit provisions and I am inclined to believe that even though the defendant had come in here, the court would hold him to that confession of judgment. I am not in the position to say that they would because I am not an Ohio Lawyer, but that appears to be the situation, Your Honor.
Thurgood Marshall: Would he not end up with two lawyers?
Russell Morton Brown: Well --
Thurgood Marshall: One lawyer will confess the judgment and the other lawyer put in the defense?
Russell Morton Brown: Well, Mr. Justice Marshall --
Thurgood Marshall: How do you get around that?
Russell Morton Brown: Mr. Justice Marshall, it is my opinion that unless a party to litigation himself engages counsel, that is not his lawyer, so he only would have one lawyer. He would certainly disown the lawyer selected by the other side. We have set forth in the brief, cases in which this has happened in the other Courts. Fortunately, I must confess, very extensive research has not disclosed the great volume of case law in the subject because lawyers are generally very careful not to appear in a case where there is a conflict of interest. All of our training is to be faithful and the loyal to one client to look out to his interest. And in the Glasser case which we have cited in the brief, this Court invalidated the conviction because counsel for the petitioner who is one of several defendants also represented other defendants in the case below where there was a possibility of conflict. They were on the same side, but there was a possibility of conflict in the Court, in very clear language announced the doctrine that there must be no conflict of interest in a lawyer’s undertaking when he appears in Court. Now that Glasser case is typical of many that we have cited and we have discussed at length. The cases were, for example, in the Indiana Court a proceeding was brought against a non-resident and appearance was entered by a non-resident employee of the defendant who sent an answer to counsel for the plaintiff in the Indiana and they entered a confession of judgment. Indiana Court threw it out saying, public policy prohibits this, a matter of serious public policy prohibits a party from representing both sides in the litigation and the defendant in the case cannot be represented by counsel for the plaintiff. Now, that is exactly what happens in the case at Bar. There is one more point I would like to touch upon briefly and that is the waiver point. The other side says, well, he waived his constitutional rights. It does not seems sensible to say, that when you sign a contract, you equate even the right the performance of the contract and that is what this argument goes to. In other words, you may waive rights when you know what those rights are. But --
Byron R. White: But no one suggested that he waived the right to recover for breach of warranty. All it suggested is that he waived his right to present this as a defense to collection of the note. No one suggested he could not sue the breach for warranty?
Russell Morton Brown: That is correct, Mr. Justice White. The point comes up this way though, if you please sir. When the defendant is sued on his note, he has a valid defense to the note. For example, that there was no performance by the other side.
Byron R. White: I understand.
Russell Morton Brown: And he should not be permitted to recover. Now, under the Ohio Practice that is under attack here, they go in and get a judgment. This judgment is subject to immediate execution and it could result in tying up the bank account; it constitutes a lien automatically under Ohio --
Byron R. White: But you do not suggest that he is precluded from filing his own suit for breach of warranty?
Russell Morton Brown: No sir. Ohio law --
Byron R. White: And he is in no different position than if there had been a negotiation of the note and a holder in due course sued him? Do you think he had have a defense for breach of warranty?
Russell Morton Brown: If the note where in the hands of the holder in of course I am inclined to think the holder it could recover. Yes, Your Honor.
Byron R. White: Yes, and then he just has to sue for breach of warranty?
Russell Morton Brown: He would have to proceed against the holder of the -- against to payee of the note.
Byron R. White: Yes.
Russell Morton Brown: The original holder for breach of warranty. However, in this case, You Honor, we do not have that situation at all.
Byron R. White: Well then, this note never was negotiated and then given back to the maker when it was the default.
Russell Morton Brown: Not to my knowledge, Your Honor. No sir. At any rate that the note -- action on the note was more quite --
Byron R. White: (Inaudible)
Russell Morton Brown: And I do not believe, Your Honor that it ever was in any other hands.
Byron R. White: You just say, it is unconstitutional to waive in advance the right to present a defense in an action on the note?
Russell Morton Brown: Yes, Your Honor. In other words, we have referred here to a Wisconsin case in which they required that any insurance company coming into the state had to waive the right to remove a case from a State Court to Federal Court. This Court passed on it and says, we will not stand for a waiver of fundamental rights and that is the position. Now, after we came up here with this case, the State of Ohio amended its statute and we set that forth on page 23 of the brief. It says, the note must contain this language. One; by signing this paper you give up your right to notice and court trial. If you do not pay on time, a court judgment may be taken against you without your prior knowledge and the powers of a court then can be used to collect from you or your employer, regardless, of any claims you may have against the creditor whether for returned goods, for the goods, failure on his part to comply with the agreement or any other course. Now --
Byron R. White: So, this would be unconstitutional if the note said that he waives his right to present a defense in an action on the note, but not his right to file and independent suit for breach of warrant?
Russell Morton Brown: I believe so, Your Honor. I believe anything that strips him of notice and an opportunity to be heard before judgment is unconstitutional under the authorities of this case.
Speaker: I would like to present that in this particular case there was some intervening litigation in the Federal District Court in the Southern District of New York, did you mention that? Has that got anything to do with it?
Russell Morton Brown: I do not believe so, Your Honor. It was an attempt to stay the proceedings in Ohio. The Court refused to interfere with the proceedings in Ohio and that is all that happen.
Speaker: Did the Federal Court consider the -- the federal court consider the merits of your claim of breach of warranty?
Russell Morton Brown: I would say no. There was no hearing on the merits. There were no witnesses, there were no testimony taken. The Court simply declined the stay the Ohio proceedings and very properly so I am sure, Your Honor. I was not a party to that litigation.
Speaker: Alright.
Warren E. Burger: Thank you,Mr. Brown. Mr. Harvey.
Gregory M. Harvey: Mr. Chief Justice and may it please the Court. The facts in the record in this case conclusively refute each of the constitutional contentions which have just been advanced and by that, I refer to both the facts as to what happened between Frick and Overmyer over a period of several years prior to Overmyer’s default on the second installment note and the facts as to what subsequently occurred, first in the District Court in New York and what occurred in the State Courts in Ohio. Now, I think I should start, just by making reference to what actually happened in the Federal District Court in New York. The opinion of Judge Mansfield is set forth in full in the appendix at page 81. I think that is instructive reading. It is true that no witnesses appeared in the New York proceeding, but that is because Overmyer chose to present no witnesses. At page 81 through 83 in the record, Overmyer presented no witnesses. The matter is gone into preceding the opinion in the affidavits of New York counsel who handled the matter, which established in Judge Mansfield’s opinion that there was no merit to Overmyer’s position. I think that is merely one example of how the record has not accurately been stated in the briefs for the petitioners.
Speaker: How does -- who is Nixon?
Gregory M. Harvey: Nixon is an Overmyer affiliate, Your Honor, which was the construction company for whom Frick performed the subcontract. So Nixon is Overmyer for the purposes. Now, I think to proceed chronologically –-
William J. Brennan, Jr.: The facts are still pending and that apparently is an action for damages, I gather based on breaching of the contract?
Gregory M. Harvey: Yes it is, Your Honor.
William J. Brennan, Jr.: And the lead just mentioned denied as (Inaudible) conjunctively, if the action still has it?
Gregory M. Harvey: Well, Your Honor I would have to go outside the record to answer that. I will do so, only if the Court requests me to.
William J. Brennan, Jr.: Is that pending?
Gregory M. Harvey: Now that action is not, but there is another action pending.
William J. Brennan, Jr.: But this was dismissed by agreement or what?
Gregory M. Harvey: I believe it was dismissed by agreement as to moot or dismissed by Overmyer as a matter of fact voluntarily, I am informed by my associate. I think we have to start chronologically from the beginning to establish briefly just what occurred prior to the litigation. It is very important to the case, both on the constitutional issues and because what happened between Frick and Overmyer was the basis for the Ohio Court’s decisions that Overmyer had no valid defense to the note, although it might well have a counter claim for breach of warranty to be asserted separately against Frick. Now, the first contract relevant to the case was the original construction subcontract which has been described for the installation of refrigeration machinery in a warehouse under construction in Toledo. The record before you, printed in the appendix, establishes that Overmyer consistently failed to make the progress payments which were required under that constructions subcontract. And Frick accordingly, after numerous demands for payment which were again printed in the appendix, Frick accordingly, stop to work and as to what is right under Ohio law recorded mechanic’s liens against the property in a total amount of 194,000 and some odd dollars. Those liens have never been challenged at any stage in this proceeding. Three months later, Frick, the respondent here agreed to an Overmyer proposal for extended terms of payment. Frick agreed to take 10% of the balance then due and owing in cash and the remainder in 12 monthly installments with interest at 6-1/2%. The effect of that was that instead of being paid in full in October 1966, as required by the original contract, Frick agreed to receive the final payment in February of 1968 and Overmyer accordingly executed the first installment note which is in the record at page 51, which contains no confession of judgment clause and which in language which appears in the middle of appendix page 52, expressly preserves Frick’s mechanic’s liens against the property. Frick agreed to forgo their enforcement so long is there is no default. Immediately after delivery by Overmyer to Frick of this first installment note, Frick completed the work, placed the system in operation, conducted a demonstration of the system and formally requested of Overmyer that it accepted the system. Overmyer did accept the system and the acceptance documents are also printed in the record at page 54. Now, under the subcontract and the subcontract is in the record, although not printed in the appendix, but under the subcontract, if Overmyer had been dissatisfied with the system, Overmyer was required to give written notice of the alleged deficiencies and Frick was required under the subcontract to correct those deficiencies to Overmyer’s satisfaction. I think this is very important because the original construction subcontract reserved to Overmyer’s engineer the final determination of whether the work done was in accordance with the specifications. On the other hand, however, the effect of Overmyer’s written acceptance which you see in the record at page 54 was to waive all claims except those which might be made under the continuing warranty provisions of the contract which are also in the appendix and Overmyer’s failure to specify in writing any deficiencies of course would have the same effect under the contract, but Overmyer did formally accept the work. Now, the next development in the relations between the two sides --
William J. Brennan, Jr.: Mr. Harvey, may I ask you?
Gregory M. Harvey: Yes Mr. Justice Brennan.
William J. Brennan, Jr.: Just one thing, I understood you say that, that as part of the agreement, the defective deal. Frick released mechanic’s lien?
Gregory M. Harvey: I am about to get to that. We are not to that stage chronologically.
William J. Brennan, Jr.: Yes, what I am trying to get through (Voice Overlap). What is the relation between that release and the cognovit note?
Gregory M. Harvey: Yes, that is exactly the stage at which I am. Overmyer desired to have the liens released, that is my point in the record at several points. Why they so desired is not clear, but it was apparently an urgent desire. I comment first on reasons for it. There were negotiations. There were exchanges of correspondence between general counsel for Overmyer and the counsel for Frick. Negotiations were conducted largely through lawyers on both sides. The result of those negotiations was the execution of the second installment note, which did three things very favorable to Overmyer. First, it extended the term time of payment for 21 months. So instead of getting the money in full in October 1966, which had then been extended to February 1968, Frick now agreed to wait till February of 1969. Second, the rate of interest was reduced by half point. Third, Frick agreed in the second note to release and Frick actually did release the three mechanic’s liens. I think that the text of the note is instructive in that. It appears at page 6 and 7 of the record. You will see on page 7 of the appendix that the two provisions follow immediately upon them and there is in the record, the affidavit of the Frick person responsible for the work to the effect, but in Frick’s mind the two were linked, that appears in the middle of page 32, Mr. Justice Brennan. In other words that Frick was willing to extend the time of payment so long as it could obtain security and the security which Frick desired was either the mechanic’s liens which it thought were adequate security or a bundle of other rights, including first the confession of judgment clause, second mortgages and I think that is it. That was the additional security, but it is clear from the record and another point, Mr. Justice Brennan also, I refer to Frick’s letter of October 10 reproduced in the record at page 49, the second numbered paragraph of that letter says, “In lieu of actual cash, Frick has indicated their willingness to accept $35,000.00,” I am just giving you the high points, “provided the balance can be evidenced by interest-bearing judgment note.”
Speaker: Well, what is this interest-bearing note?
Gregory M. Harvey: Well, the second installment note was an interest-bearing judgment note, a note containing a confession of judgment clause and bearing interest. The first installment note, however, was not a judgment note and Frick did not require so long as the mechanic’s liens continued on the record and a confession of judgment clause.
Potter Stewart: This final arrangement is reflected, I guess in the exchange of correspondence appearing on page 59 and 60, is it?
Gregory M. Harvey: Yes, it is.
Potter Stewart: Between Frick and Overmyer?
Gregory M. Harvey: And I am sorry to say that due to clerical error at some stage the letter at page 59 has been truncated. The last three paragraphs refer explicitly to a release of the mechanic’s liens and request that Frick make arrangements with its local counsel in Toledo to be able to have those released promptly and then that is referred to again in the letter on page 60.
Potter Stewart: Yes, I notice that.
Gregory M. Harvey: I think there is no doubt on the entire record and of course it is a small record before you.
William J. Brennan, Jr.: But I noticed, what you are saying is that really, the whole judgment note procedure that since they filed a consideration that when they negotiate it has bearing on the support the first note that substitutes this?
Gregory M. Harvey: That is correct and of course the first note was secured that it falls under the original contract.
William J. Brennan, Jr.: Well then but I do not think that they agreed to give judgment clause in lieu of and subsequently for what previously have been construed by mechanic’s liens?
Gregory M. Harvey: By three mechanic’s liens. Yes, it is plain as can be that that is what actually happened and I think skipping ahead in my argument somewhat that that creates what is a very unique situation, but the Court has passed on it before in the Shepherd case in 194 U.S. which I cite, it creates an estoppel situation. The mechanic’s liens were of record. They were regarded by Frick as entirely satisfactory security. Overmyer desired that they be released. Frick had no interest in obtaining Overmyer’s consent to this judgment note. Frick could have gotten his money earlier under the first installment note. Overmyer induced Frick to release the mechanic’s liens and take in consideration for that the confession of judgment clause. Both parties knew what they were doing and since if it involves any constitutional right at all it is merely a due process right for the protection of property rights and not individual freedom. That is estoppel situation and this Court should never reach the question of constitutionality. I think that is a decisive argument if in fact you ever get to that stage. Now, if I may take up the constitutional issue of voluntariness first because it follows from what I have just said. There is the estoppel argument. There is also the fact that is plainly not a contract of adhesion in the Hamingson or the Walker Furniture case from the District of Columbia Circuit. Compare the first note with the second note, it is plain that Frick does not require of its customers that they sign confession of judgment clauses. Also, this is not a case in which there has been a disparity of bargaining power on the two sides or in which a poor, poor in the economic sense individual of limited education, has been seduced into signing something the meaning of which he does not know.
William J. Brennan, Jr.: And I gather this was just the standard form (Inaudible) agreement –-
Gregory M. Harvey: They where made and type as best I can determine Mr. Justice Brennan, typed on the typewriter of general counsel for Overmyer and transmitted by him and insofar as the record shows prepared by general counsel for Overmyer and that maybe why, as a matter of fact the text of the confession clause is about the most favorable to the judgment debtor that I ever seen. And I am a Pennsylvania lawyer I would urge you to compare that confession clause on page 7 in the instant record with the typical Pennsylvanian notes which will be before you in an hour, compare them also with the typical Delaware note which appears at page 1353 in the Osmond decision that is in 327 F 2nd and you will see that this is a very limited form of power to confess judgment. I just like to make one other point, under voluntariness and that is this. The transaction, which resulted in the second installment note, was not priorly to the benefit of Overmyer insofar as the record shows. There was nothing of any substance and nothing of any value that Frick obtained from that transaction and I think that distinguishes it again perhaps from those retail cases in which it might be argued, I am sure, it will be argued, the consumer gets nothing for signing the confession of judgment clause, that is not the case here. Here Overmyer obtained a very tangible benefit, the release the liens.
Warren E. Burger: Does this record reflect any challenge at any time to the validity of the liens that were --
Gregory M. Harvey: None whatsoever. In fact, it reflects quite to a contrary Mr. Chief Justice. At least an implicit recognition in the first installment note and that is set forth at page 52, an implicit recognition that the liens were valid and that Overmyer requested Frick forgo enforcement of the liens. I think I may comment there of course with that. A mechanic’s lien is a very, very severe weapon in the law. It is an equitable proceeding. There is no right to jury trial. It is in rem. It operates against the property. The property can be sold off by the sheriff and there are very few defenses which the Court recognized under mechanics –-
Warren E. Burger: Under the Ohio statute must the lienor give notice to the debtor at the time, he files the lien?
Gregory M. Harvey: Yes, and that was done and there is also a provision by which the debtor may give notice to the lien holder to proceed to enforcement and so that the question whether the lien is valid must be promptly resolved. So Overmyer had the right to test the liens if it desired, but it never did so.
Byron R. White: So that, there is judicial foreclosure of the mechanic’s lien?
Gregory M. Harvey: Oh yes, absolutely!
Byron R. White: And in that proceeding, breach of warranty could be raised to the defense?
Gregory M. Harvey: It could had been raised as a defense (Voice Overlap).
Byron R. White: And if it were found valid that would had been a judgment against the plaintiff to that extent?
Gregory M. Harvey: To that extent.
Byron R. White: And in the transaction, plaintiff retained his right to breach of warranty, Frick admitted those were not being made?
Gregory M. Harvey: Well, in this transaction and of course, bear in mind this transaction was negotiated two months after Overmyer had executed the unconditional acceptance, which appears at page 54 of the record.
Byron R. White: Let us assume instead of confessing judgment, the Frick had just sued on the note.
Gregory M. Harvey: Yes.
Byron R. White: And served Overmyer as they could have found them and Overmyer came in and presented a defense of breach of warranty.
Gregory M. Harvey: Yes.
Byron R. White: Now, that would have to been dealt with, would it not?
Gregory M. Harvey: It would have to have been dealt with under the --
Byron R. White: What is your then -- what is your explanation -- what is your constitutional ground for saying that the in the confession of judgment proceeding Overmyer was not entitled to notice and a hearing?
Gregory M. Harvey: Well, notice had been waived in the confession of judgment clause.
Byron R. White: So you --
Gregory M. Harvey: I think it is clear no direct --
Byron R. White: Right, strictly on the advance?
Gregory M. Harvey: No, I want to get to the hearing question. I am dealing just with notice. Now, also the record in this case establishes that the absence of notice in the sense of a notice we are going to proceed on the note, notice was of no detriment, lack of notice was of no detriment to Overmyer. The first notice which Frick, my client received that Overmyer intended to default on the note with the service upon it of an ex parte restraining order obtained in the Southern District of New York from Judge Frankel, restraining their entry of judgment on the note. Only at that point, did Frick know that it was not going to be paid that monthly installment.
Byron R. White: But it knew then that claims of breach of warranty were being presented?
Gregory M. Harvey: Well, it knew that there was going to be a claim raised as a defense to the note and the exact claim which is raised is set forth in the record. Yes, they knew at that point. But what proceed -- I think your question is answered by what happened in the Ohio Courts with respect to these defenses, which I think it is your question. Did Overmyer actually have a chance to assert its defenses which I think is where your question takes us and the record on that point is very clear. If you look at the text of the note, the note does only two things. It waives notice and it waives a prejudgment hearing. It certainly does not purport to waive a post judgment hearing. Some of the notes which will be before you later today do purport to that and do purport to waive the rights to appeal and various other things.
Byron R. White: Or any cause of action for breach of warranty?
Gregory M. Harvey: Right, or things like this and there are such notes I have seen them. This note does none of those things.
Byron R. White: Where in the appendix is the note itself?
Gregory M. Harvey: It is at page 6 and 7.
Byron R. White: Thank you.
Gregory M. Harvey: Now this note and it is page 7 is the only page, which is relevant. It is short. It is simple. It waives a prejudgment hearing, but it does not waive a post judgment hearing and this is what most important. The note does not waive any defenses whatsoever and what actually happened is that Overmyer presented its defenses to the Ohio Courts when it is said that there was only oral argument, the record is not being correctly stated to this Court. I urge you to have the original record, this thick brought before you to see how many papers were filed, how much factual material was presented to the Court by way of affidavits, how much informal testimony was delivered by Mr. Garrigan (ph), Attorney for Overmyer who came in --
Speaker: This was all in the motion to set aside?
Gregory M. Harvey: This is all on the motion to vacate. There were several hearings. A few excerpts merely from the hearings are included at pages 28 and 29, but I refer you the page 29, towards the end of the page where the Court expressly gives Overmyer. It says, “I want to give him a reasonable time to file whatever he wants to” and they filed a great deal of what they wanted to file and it is now in the record before this Court and it is our contention that Overmyer received a very full hearing and adjudication on its defenses.
Speaker: Well, what is your understanding to the basis of this issue?
Gregory M. Harvey: Alright, if I can answer that by starting first with the Ohio procedure and then I will give you the exact basis of the adjudication. The Ohio procedure on a motion to vacate requires that the trial court do two things. First --
Potter Stewart: Can you back up just a little bit?
Gregory M. Harvey: Yes, surely.
Potter Stewart: There is a time limitation within which such a motion must be filed, is there not?
Gregory M. Harvey: Not really, there used to be a distinction between filing in term and out of term of which the recent decisions really tend to overlook.
Potter Stewart: I have been away from that too long.
Gregory M. Harvey: Yes. In this case, however, it was filed in term immediately after and therefore it is the term distinction in this Court as in others is tending to become.
Potter Stewart: And going back before you go any further --
Gregory M. Harvey: Yes.
Potter Stewart: After there is a judgment by confession on cognovit note, is there any procedure for notifying the judgment to debtor?
Gregory M. Harvey: Yes, indeed. The Court must give notice and the notice went out in this case to five different Overmyer locations and so far as I am aware which received in all of them.
Potter Stewart: Notice by mail?
Gregory M. Harvey: Notice by mail, yes and the notice, the form of notice appears in the record here and the docket entries reflects the places to which a notice was sent, that is page 1 and 2, you will see sets forth all the places that notice was sent. Now, the Ohio Court’s have a two-step procedure which the trial court takes in passing on a motion to vacate. First, is to determine whether the judgment debtor has presented a valid defense and that is a question of examining the pleadings, that does not go to whether is meritorious or whether it will eventually prevail, that is just, has he pleaded a valid defense and then second since under the Ohio Procedure, you are not supposed to plead your evidence and it is a very special pleading system, under to the Ohio procedure you are not supposed to plead your evidence. The next step is to determine whether there is some evidence adduced by way of affidavit, testimony in Open Court, deposition or anything else by the judgment debtor which would avoid a directed verdict against him, if the matter went to trial, very similar to avoidance of summary judgment in the federal procedure, any show of an issue or fact. If that occurs, he presents a valid pleading and enough evidence in support of it to avoid judgment against him, then the Court has the duty, that is the phrase used, has the duty in the Ohio cases to open the judgment and a full trial is had in which there is a right to trial by jury if demanded, in which the burdens are the same as in a normal proceeding not started by confession of judgment and the result is the determination either that the judgment was good in which case it is confirmed and relates back or that the judgment is stricken.
Potter Stewart: You said, at which the burdens are the same?
Gregory M. Harvey: Yes.
Potter Stewart: And what do you mean by that?
Gregory M. Harvey: Well, I mean that the burden on Overmyer to present evidence and support of its affirmative defenses in that plenary proceeding following the opening of the judgment if that occurred, would be the same.
Potter Stewart: The same as (Voice Overlap)
Gregory M. Harvey: As in a normal trial (Voice Overlap)
Potter Stewart: As in no folder (Voice Overlap)
Gregory M. Harvey: Merely brought suit without attempting to confess judgment.
Potter Stewart: Alright.
Speaker: Including a possible judgment over on Court finding?
Gregory M. Harvey: Yes.
Speaker: Even though that exceeded the amount of the judgment. All of that could happen?
Gregory M. Harvey: All of that could happen, could still have happened in that proceeding if Overmyer chose to prosecute it there. They could have kept going, the answer could have -- the counterclaims could have been filed. They could have proceeded to a trial. They did not. Now, what the, and as my time is just about to expire, what that Court of Appeals held and I refer you to page 84 of the record, the motion for reconsideration, what the Court of Appeals held and unfortunately it is not in the appendix, but it is in the docket entries which are part of the record in this Court, the Court of Appeals said, “Finding that the defendant’s appellants failed to prove the existence of a valid defense; further finding there from that the answer and cross petition of defendant’s appellants constituted only a counterclaim to the petition on the judgment note” and they go on to hold that the judgment properly was not opened. The entire constitutional issue presented here, may it please the Court, depends upon Overmyer’s contention that it had a valid defense rather than a counterclaim, but the Ohio Courts for reasons which I think are not properly to be passed upon by this Court, but with which this Court would agree, if you have the factual background, the Ohio Courts found that there was no valid defense as a matter of the pleadings that there was a counterclaim.
William J. Brennan, Jr.: What was the significance of that? That the answer on cross petition has been only counterclaims?
Gregory M. Harvey: Because under Ohio Law, Mr. Justice Brennan, if it is only a counterclaim then that maybe litigated in the same proceeding and eventually there maybe judgment in favor of the judgment debtor against the judgment creditor in the amount of the counterclaims, but since it is only a counterclaim under Ohio Law, it is no defense to an obligation of the certainty of the second installment note which was a replacement for the first installment note --
William J. Brennan, Jr.: That is the base on the basis of this adjudication; they might have proceeded on the counterclaims if they chose to do?
Gregory M. Harvey: Absolutely, absolutely. They were not cut-off from proceeding on that. They had the full right to assert it. They have in fact asserted it in New York in another civil action and the matter is still open and still available to them.
William J. Brennan, Jr.: Now that counterclaim is still pending in Ohio or that was supposed to --
Gregory M. Harvey: No, it is now pending, may it please the Court, in the Southern District --
William J. Brennan, Jr.: What happened to the counterclaim in the Ohio Court, it got dismissed or not?
Gregory M. Harvey: Well, they have proceeded no further with the Ohio matter because it has been constantly on appeal, but they did assert the counterclaim in a separate civil action in New York filed December 20, 1968, an answer was filed within 20 days. There has been no action taken to prosecute that proceeding. No action whatsoever. Counterclaim was still open and available to them.
Warren E. Burger: Thank you, Mr. Harvey. Mr. Brown, you have five minutes left.
Russell Morton Brown: Thank you, Your Honor.
Warren E. Burger: You wish to take issue with any of the factual aspects emphasized by Mr. Harvey?
Russell Morton Brown: I do not believe so, Mr. Chief Justice. Our issue is on constitutional law and I would particularly ask the Court to have in mind two cases which we have cited in the brief. Armstrong against Manzo and Griffin against Griffin, particularly the latter which was decided by this Court in an opinion by Mr. Chief Justice Stone where the shifting of the verdict is the unconstitutional aspect of things. In the New York case, they imposed the burden to pay alimony without hearing. Brought it down here and filed suit on it and it was held by this Court, that the shifting of the verdict, the post judgment determination will not measure up to constitutional standards of due process.
William J. Brennan, Jr.: Mr. Brown?
Russell Morton Brown: Yes sir?
William J. Brennan, Jr.: Let me on what Mr. Harvey has been presenting to us (Inaudible). It does appear as though this whole arrangement was at arm’s length, both lawyers appearing for both and with an understanding, certainly on the part of the lawyers I would supposed, what the consequences were of this confession, of this judgment note? Can you really suggest that it was not a called a waiver, call it what you will, that there was not a complete understanding on the part of Overmyer of what they are getting into?
Russell Morton Brown: I think Mr. Chief --
William J. Brennan, Jr.: Because you are argued earlier that the arrangement affected by the lawyer was the breach of his professional responsibility and yet your client entered into this with his eyes open for a quid pro quo, the release of the mechanic's liens and all the rest of it all, knowing that this is precisely the way that the security has to be enforced, that it would be enforced?
Russell Morton Brown: If Your Honor please, Mr. Justice Brennan, that on its face appears to be the thrust of the fact. However, who would know at the time that the debtor would be held to pay for something he never got.
William J. Brennan, Jr.: I was not suggest to you that is your client must have known. That is the form of security that he gave Frick in substitution for what Frick had in the way of the security before that?
Russell Morton Brown: Now, that relates, Mr. Justice Brennan, to the merits that should be determined in the trial court.
William J. Brennan, Jr.: I know, but you are asking us to say that this procedure, the filing of this case is in unconstitutional. (Voice Overlap) back sort of thing because of --
Russell Morton Brown: Exactly! Precisely! That is the constitutional issue and it is our position --
William J. Brennan, Jr.: It is certainly not, now that you put yourself with your eyes open, is it, in that position, would you not either have waive to estoppel it or something based on that kind of fact situation?
Russell Morton Brown: Well, let me put it this way Mr. Justice Brennan. If it turned out that they had not installed the equipment at all or material part of it was omitted --
William J. Brennan, Jr.: I know, but that is not this case as I understand it.
Russell Morton Brown: No, it is not this case.
William J. Brennan, Jr.: It was the second note that was substituted for an earlier note that Frick had one form of security and they swapped it for this form of security and surely your client has to know in giving this form of security of what that man said?
Russell Morton Brown: We knew what it meant, Your Honor, and he had to pay this obligation, but I submit.
William J. Brennan, Jr.: I suggest he also knew that if he defaulted, it meant that Frick could do exactly what it did here?
Russell Morton Brown: And then it would go into Court and try to get a hearing on the valid defense it had on the merits, but it never got that. It is our position --
Byron R. White: (Inaudible) it just waived the particular proceeding or form which had presented claim, just could not present it, just waived his right to present the judgment in the form in which the judge -- presented was a claim?
Russell Morton Brown: In Manzo and in Griffin, this Court has held that that will not measure up to constitutional standard of due process. Now, let me just say one thing that Mr. Justice --
Byron R. White: Well, Manzo never waived his right to notice?
Russell Morton Brown: I beg your pardon?
Byron R. White: Manzo never or I do not know which one is the father (Voice Overlap) I do not know which one is the father?
Russell Morton Brown: No, he was the father, yes Your Honor.
Byron R. White: And Manzo never waive his right to -- at least in that case, he did not ever purport to?
Russell Morton Brown: Well, it was said in that case that he had forfeited his right because he had not kept in touch and supported the charge.
Byron R. White: That is a forfeiture, that is not a waiver.
Russell Morton Brown: Well, that is right, but the Court said that you cannot adjudicate these rights without notice and an opportunity to be heard.
Thurgood Marshall: Well, if you have not notice, why was this action filed in the Southern District?
Russell Morton Brown: This was to restrain them from going ahead.
Speaker: Yes, of course.
Russell Morton Brown: Where any action out there in Ohio --
Speaker: From realizing on the security which you had given. Is it the fact, you know Mr. Brown, Mr. Harvey suggested that your client’s lawyer. I know (Inaudible) actually drafted this agreement and actually drafted this form?
Russell Morton Brown: I am not informed and I would be inclined to think that that is immaterial, Your Honor.
Speaker: Well, think so too. (Voice Overlap)The lawyer was certainly there?
Russell Morton Brown: Yes, there is not question about that.
Speaker: (Voice Overlap)
Russell Morton Brown: They were represented by a counsel, but there is one factor I would like to emphasize if you please sir. And that is that this been as waiving in the beginning, before you know what the controversy is about, before you know anything about it, it simply does not conform to the decisions for this Court. Now, we have no quarrel with the fact that, for example, now as a judge you will be aware of course that all this information about the prior negotiations would not be admissible as fraud. These were merged in the notes. That is the contract on which they sue. They can bring up all this prior negotiation, it is merged. As a matter of evidentiary law, I would object at the trial and the Court would sustain that objection, I am sure. Nothing can modify the agreement between the party and that is where we stand here as you place it. Was this a constitutional agreement? Does it measure up to standards of due process? Notice and an opportunity to be heard? All that has been, it simply says he got consideration, same thing applies in the case of the little consumers. They got it something.
Warren E. Burger: I think it you have covered that.
Russell Morton Brown: Thank you, Your Honor.
Warren E. Burger: And your time is up now.
Russell Morton Brown: Thank you very much.
Warren E. Burger: Thank you Mr. Brown and Mr. Harvey. The case is submitted.


William H. Rehnquist: We'll hear argument now in Number 88-6677, Horace Butler v. Kenneth D. McKellar. Mr. Blume.
John H. Blume: Mr. Chief Justice, and may it please the Court: The question presented in this case is whether Arizona v. Roberson created a new rule of law for retroactivity purposes. The court of appeals held, with five judges dissenting from the denial of rehearing en banc, that although the facts of this case were not distinguishable from Roberson, that Roberson was not applicable because it was not the law at the time of Mr. Butler's trial in 1980. Since the court of appeals' decision, the law of retroactivity has changed somewhat. In Teague v. Lane, this Court held that new rules of criminal procedure do not apply to cases which are final on direct review at the time the new rule is established. However, common to all of this Court's retroactivity decisions, is the following principle which is dispositive to this case: when a decision of this Court had done nothing more than apply subtle precedent to a different fact situation, no real question arises as to retroactivity. Because Arizona v. Roberson was nothing more than a straightforward application of Edwards v. Arizona, to a slightly different set of facts, it applies retroactively. The first place to look, I believe, is the, this Court's decision in Roberson. In the first paragraph of the majority opinion, the Court stated that the Attorney General of Arizona asked us to craft an exception to the rule of Edwards for cases in which the police wish to interrogate an individual about charges which are unrelated to the crime for which the person initially invoked the right to counsel. This Court rejected, by a vote of six to two, the Attorney General's proffer distinction of Edwards, and the opinion clearly reveals that this Court believed that Roberson was directly within the logical compass of Edwards. Thus, as was true in Yates v. Aiken, another South Carolina retroactivity case decided by this Court two terms ago, this case does not involve a new rule of law.
Antonin Scalia: But every... every decision of ours is... almost every decision of ours is within the logical compass of another decision. I mean, we could have... if that is all we meant, we could have been a lot clearer in Teague, and we could have just said that it doesn't apply retroactively if it overrules an earlier line of cases, rather than just following the logic of that earlier line. We didn't say that. We said it has to be compelled by the earlier cases.
John H. Blume: The hard facts of Teague, of course, do involve a situation which would require overruling, and the language... however, of course, I think Teague must go beyond that. I agree with Justice Scalia, with you to that extent. However, the language of Teague, I believe, was that if the result is not dictated by prior precedent. Roberson certainly is dictated by the rule of Edwards, and in essence what the State of Arizona asked was this Court to craft an exception to the rule, not to extend the rule, but to create an exception, and this Court declined to do so. I think if this Court determines that any time there is an intellectually tenable distinction of one of your cases, that the resolution and rejection of that distinction creates a new rule, then you will in effect be skewing the constitutional balance, and putting a premium on the most grudging interpretation of everything this Court holds, rather than a more faithful interpretation.
Antonin Scalia: What... let's consider the rationality, the reason we sought to draw the line. The reason we sought to draw it, I thought, was that we came to the conclusion that the main purpose of habeas is to make sure that the state courts are behaving lawfully and doing their best, you know, to follow federal precedent. Now, you think they are behaving unlawfully whenever they would, let's say, reject... well, let's use the term exception, reject a perfectly plausible claim for an exception that they thought we might accept. Would that--
John H. Blume: I think the purpose underlying the rule is does the state have a legitimate, essentially reliance interest, in expecting that the decision will be different. If the definition of what is a new rule is drawn too narrowly, then essentially the states will have an incentive to offer whatever distinctions they have of any case, rather... that are beyond the hard facts of a particular holding, rather than applying the decision more faithfully. For example, Edwards contemplates that the police will conduct their behavior in conformity with it. If they don't, then we expect prosecutors will not offer those confessions, and if they do the state judges won't admit them. But, if any time a distinction is rejected that creates a new rule, then police, prosecutors and state judges have no incentive to apply this Court's decisions. Rather, prosecutors will offer the confession, the resulting confession and any distinctions they can offer in support of that. Now, those distinctions may prevail or may not in convincing a federal judge that Edwards is not controlling. But nevertheless, the state would win either way, for the rejection of the distinction would itself create a new rule and would deprive that person and everyone within that temporal cohort of the benefit of the rule. And that essentially is the Attorney General's argument here. That the State of Arizona... that the Arizona Attorney General, by litigating Roberson all the way to this Court, and losing and having its distinction rejected, should deprive everyone between Edwards and Roberson of the benefit of Edwards. And that doesn't seem to be a fair interpretation of what can be a new rule. Every member of this Court agreed in the opinions in either Teague or in Penry that Yates v. Aiken was a case which did not involve a new rule. Yates was a case decided two terms ago, and the question presented in Yates was whether Francis v. Franklin created a new rule, or rather was merely an application of Sandstrom v. Montana to a different set of facts. This case is very similar. Just as Francis merely applied Sandstrom, Roberson merely was an application of Edwards. Thus, because Roberson and Edwards are distinct... are not distinguishable, and because Roberson was within the logical compass of Edwards, the real question presented in this case is whether Edwards is applicable. Because Mr. Butler's case was on direct review at the time Edwards was decided, Edwards is clearly applicable, Roberson is clearly applicable, and the court of appeals decision was wrong. For these reasons, the decision of the court of appeals should be reversed. Unless the Court has any further questions, I will now turn the podium over to Mr. Zelenka.
William H. Rehnquist: --Thank you, Mr. Blume. We'll hear now from you, Mr. Zelenka.
Speaker: Mr. Chief Justice, and may it please the Court: The issue being presented before this Court is whether Arizona v. Roberson, a decision of this Court during the last term, has retroactive application under this Court's analysis in Teague v. Lane to a situation in which a confession was entered in 1980 and an appeal was raised that was resolved in 1982. It is our position that the decision of the Fourth Circuit Court of Appeals, when it concluded that Arizona v. Roberson should not be applied in this case, is well founded in the decisions of this particular Court. In the Fourth Circuit's decision, it stated that we are fully satisfied that Butler may not claim any retroactive benefit from Roberson. In their panel decision the court held that the interrogation was conducted in strict accordance with the established law in 1980, and there was no support in the record that there was any actual violation of his Fifth Amendment rights in 1980. The court found in its lower decision that it was undisputed at the time of the trial and all the way through the court that Butler twice evidences knowing consent to interrogation without the presence of counsel by signing his waiver with full understanding of his rights to counsel, particularly asserting that he did not want to have a lawyer represent him in these particular proceedings. Every--
Sandra Day O'Connor: Mr. Zelenka, what happened following the giving of Miranda warnings during the questioning on the assault arrest of--
Speaker: --There was... according to the record that is before this Court, there was a statement given at that particular time, according to the testimony--
Sandra Day O'Connor: --After the warnings, he did respond to questioning?
Speaker: --Yes. There was a statement given. Subsequent to that statement being given on August 31st, there was a bond hearing on the unrelated assault charge, at which time, and for the first time, we would submit, retained counsel appeared on his behalf. Later that evening, after, we would submit, there was a reasonable opportunity for Mr. Butler to have consulted with his counsel, at approximately 12:50 in the morning, which would be on September 1st, 1980, another interrogation began. At the outset of that interrogation, it is undisputed before this Court, we would submit, that Sergeant Frasier did give his Miranda warnings to Mr. Butler, first orally, then in writing. Mr. Butler then gave an initial statement in which he acknowledged some knowledge of the particular murder that he was charged with. It is important to note that at the outset of the interrogation, before the Miranda warnings were given, Sergeant Frasier particularly advised him that you are being charged now with the murder of Pamela Lane and that will be the focus of the particular inquiry in this case. During the Miranda warnings that were given after that information was given to him, on two occasions Mr. Butler advised him, when asked about his knowledge of his right to counsel, he asserted clearly, unequivocally, I do not want a lawyer. I do not want a lawyer in these particular matters. And then he chose to give his statement, his initial statement. When further information was revealed to him by Sergeant Frasier, after the initial statement was given, Miranda warnings were again presented to him, he waived his right to counsel, sustenance during the interrogation, again at that time, and entered a statement in which he admitted some significant involvement in this crime. Those statements--
Thurgood Marshall: The length of this is all early in the morning?
Speaker: --Yes, Sir. It occurred between the hours of 12:50 and--
Thurgood Marshall: Is there any explanation as to why it had to be done in the morning, at 3:00 in the morning?
Speaker: --There is no explanation in this particular record--
Thurgood Marshall: Am I free to draw my conclusion as to why?
Speaker: --The record... that was not a disputed part of the record before this Court. At the time of the suppression hearing there was an assertion made by Mr. Butler that he was lacking sleep. At that particular time that was a situation that was resolved against him, when he was advised in the language of the lower courts' conclusion was that he was not sleepy. He was provided with a number of breaks, and he was freely advised of his right to remain silent and chose not to do so throughout that period of interrogation. It is clear, they very possibly could have waited until morning. The law enforcement officers chose not to do so. Mr. Butler was aware of his right to remain silent; he did not need to involve himself in the interrogation process at that time, should he have chosen not to do so.
Thurgood Marshall: Did the officers work in teams or did they all stay the whole time?
Speaker: There... according to the record there were always two officers present at the time of the interrogation.
Thurgood Marshall: Not the same two though?
Speaker: Sergeant Frasier was consistent from the outset of the interrogation throughout. There was another officer; two other officers assisted in the drafting of the particular written statements that he gave.
Thurgood Marshall: So I can draw a conclusion that they had rest periods?
Speaker: There were three--
Thurgood Marshall: But I can't draw that for the defendant.
Speaker: --Certainly, it is clear in the record that there were at least three coffee breaks where donuts were given to the defendant, at which time no interrogation occurred and the defendant was free to take whatever choice he did on his rights to remain silent during that time period.
Thurgood Marshall: Like go home?
Speaker: No, sir.
Thurgood Marshall: Whatever choice you made, like go home?
Speaker: No, sir, he was in custody, but he was free, based upon the Miranda warnings that were given to him on numerous occasions throughout that evening, to remain silent at any time. In fact, prior to the... the trip out to the crime scene, he was given the opportunity to determine whether in fact he wanted to leave or to stay... leave and return to the jail, or stay and assist them in going to the crime scene, and he clearly, again, made an unequivocal statement that he would go on at that time.
John Paul Stevens: Mr. Zelenka, it is clear, I mean, you do not dispute the fact, or do you, that this interrogation procedure violated the rule of Roberson, if Roberson had been in effect.
Speaker: We have raised in our second argument that Roberson would not be applicable to this situation because he never evidenced a right to have the assistance of counsel during his interrogation, during any interrogation or particular time period, and that counsel had been made available to him at the time of the bond hearing, and he made a decision as a result of those situations.
John Paul Stevens: Isn't it true that both the dissenting judges on the court of appeals and those in the majority all assumed, for purposes of their decision, that there was a violation of the Roberson rule?
Speaker: They assumed, for purposes of their decision, that Roberson would be applicable under the facts of the case, but they did not conclude, we would submit, with finality that in fact he would be entitled to relief under Roberson. That was an assumption for the purposes of this decision on whether Roberson--
John Paul Stevens: Did you in that court that this rule would not have been violated in any event?
Speaker: --Yes, we did.
John Paul Stevens: You did.
Speaker: On basically the same grounds that we have asserted in our second response, that it would not have applied. And the court, on the basis of the assumption that it presented, did not accept that, and we have raised that in our petition... opposition to the petition for certiorari, and we have raised that before this Court as our second argument. But we would submit that, under this Court's decision in Arizona v. Roberson, that the Teague requirements that this is a new rule, we submit, would be clearly applicable. This was the first time... not this, but the court's decision in Arizona v. Roberson, was in fact the first time that this Court had specifically addressed the Edwards situation to a situation where there were separate interrogations. In Arizona v. Roberson, it focused on two separate investigations at that time. The common element between these cases and this case was a continuous custody, but a significant difference was that in Arizona v. Roberson and in Edwards v. Arizona counsel was requested but was never permitted to discuss the matters with the accused under those situations. Whereas, in our situation, counsel was made available. Roberson was the first case to apply Edwards bright-line test by this Court to separate investigations. We would submit it is a new rule because Edwards itself concerned the same particular investigation. As the dissent in Roberson noted, the rule now would bar law enforcement officers from questioning suspects about an unrelated matter if in custody, and that he has requested counsel to assist in that particular interrogation. In the prior decisions of this Court, particularly Maine v. Moulton, the Court held, in footnote 16, that incriminating evidence from statements pertaining to other crimes as to which the Sixth Amendment, right to counsel, had not attached, are admissible in the trial on those particular offenses, even though that same information and the results of those types of interrogations or information would not be admissible in a trial on the original crime.
Anthony M. Kennedy: Was the defendant in custody in Maine v. Moulton?
Speaker: No, he was not. That was a--
Anthony M. Kennedy: He was in--
Speaker: --critical distinction that--
Anthony M. Kennedy: --He was in custody here.
Speaker: --He was in custody here throughout the period of time. In Moran v. Burbine, the Court again affirmed the Court's decision in Maine. But particularly noting how this matter would be considered a new rule was Justice Burger's... Chief Justice Burger's dissent in Maine v. Moulton, where he acknowledged in 1986 that until the day the prevailing view in the state and federal courts was that the case law up to that time, under Messiah and its successors, did not protect the defendant from the introduction of post-indictment statements deliberately elicited when the police undertook an investigation for separate crimes. We would submit that those types of understandings, that was presented throughout the United States by the state court jurisdictions, clearly revealed that when a separate investigation is involved, Arizona v. Roberson, as it applied the Edwards situation, created a new rule of criminal procedure that did not exist, we would submit, prior to the time Roberson was decided. Many state courts, we noted in our brief, have taken the position that, since Edwards and since Maine v. Moulton, have accepted the view that Edwards did not apply to separate investigations. Like Edwards before Roberson, we would submit, is a new rule of criminal procedure. Edwards v. Roberson is not a matter of a constitutional command, but, however, it is a court-made rule of procedure that, we would submit, do not require the application under the retroactivity principles of this Court. Here, in Edwards and in Roberson, it was developed to protect from police badgering. The constitutional issue... the current constitutional issue and the constitutional issue that was available to the defendant at the time of his trial in 1981, was whether he knows and understands his constitutional rights and is willing to waive them. In conclusion on this particular issue, since Roberson is a new guideline, it should not be applied to collateral review, since it does not fall within either the Teague exceptions or it did not create a new rule under those particular exceptions. As each state court that has addressed this issue has held, and the federal courts below, Butler made a knowing and voluntary statement without coercion, and he waived his Fifth Amendment right to the assistance of counsel during the interrogation in this particular case. The written and oral warnings were given. A clear and unequivocal waiver was made on the record, and no request for the assistance of counsel on the murder charge was ever done. Now, some nine years later, Butler seeks to have a technical change in the law applied, where the evidence is undisputed that he knowingly waived his right to the assistance of counsel. Habeas corpus relief, where a fundamentally fair trial was held and where the opportunity to litigate this issue at the time of the state trial was available to him, should not allow, where the truth-finding function was not tainted, to allow for him to have a new trial on these particular charges without the admission of this evidence which was proper under the law in 1980. In our second argument, we would submit that Edwards v. Arizona is factually and legally distinguishable from Butler's case because Butler never requested the assistance of counsel during any of his interrogations and, unlike Edwards and Roberson, and the counsel met with Mr. Butler prior to the interrogation that was done on this particular charge that resulted in the conviction. Particularly, we have noted that the Sixth Amendment right to counsel had attached on the assault charges; however, he never requested the assistance of counsel at any time during any interrogation which was protected by the Fifth Amendment. The critical fact is that Butler failed to request his assistance during any interrogation, and that counsel was made available to him for purposes of the bond hearing on the assault charge, where there was a reasonable opportunity to consult with counsel. The concerns of the Fifth Amendment right to have counsel's assistance during a custodial interrogation were satisfied, as we have asserted, when counsel was made available with a reasonable opportunity to meet with him during that time period. The record before this Court reveals that he did in fact meet with him at the time of the jail. We have raised a final issue for the first time in our brief before this Court concerning a state court bar. It was asserted the Edwards claim--
John Paul Stevens: May I ask one question about your second argument? Do you think the Miranda warnings were necessary under your view, if he had already had counsel tendered to him and never requested him, I suppose... would there have been... would it have been necessary to give the Miranda warning?
Speaker: --We would submit it would have been necessary to give the Miranda warnings on the separate investigation in this case, since he did have counsel at that particular time retained on the assault charge. The law enforcement--
John Paul Stevens: But it seemed to me... I thought the thrust of your argument was that since he already had a lawyer, that satisfied the constitutional obligation, and he didn't make a further request.
Speaker: --Under the Sixth Amendment, for the purposes of the assault charge, to assist him in the handling of the assault charge, that is correct. But not for the purposes of the murder charge that he was initially charged with at 12:50 in the morning, after the bond hearing had already been held, with Counsel Hill's presence at that particular bond hearing.
John Paul Stevens: May I also ask, at the time of the arrest, was he already a suspect on the... at the time of the arrest on the unrelated charge, was he already a suspect on the murder charge?
Speaker: The record does not reveal that he was already a suspect on the murder charge at that particular time.
John Paul Stevens: The record doesn't tell us that. It was the same group of officers in both instances?
Speaker: There was a common element in both of the investigating officers. The individual that interrogated him on the first charge, Sergeant Frasier, also interrogated him on the murder charge. There was that common element with both cases. The final issue we have raised in our brief before this Court for the first time is that there is a state procedural bar that could affect the outcome of this particular case.
Sandra Day O'Connor: Why did you never make that argument before, or make it in your response to the cert petition or at any other time?
Speaker: It's... it's unclear to me why we didn't make it before, Your Honor.
William H. Rehnquist: Are you familiar with our decision in Tuttle v. Oklahoma City, where we said that anything that might prevent us from getting to the questions presented must be raised in the opposition to certiorari or if, as long as it is not jurisdictional, be deemed waived?
Speaker: That is correct, I am... I am familiar with that. But I am raising it in this particular proceeding to give that information to the Court that there was a state bar. We are not totally relying upon that, but what it does evidence is, essentially--
William H. Rehnquist: But how, if... do you contend this would be jurisdictional? That... that it would actually prevent us from reaching the questions we took the case to reach?
Speaker: --No, sir, we do not.
William H. Rehnquist: Well, then, why are you not barred under our rule in the City of... Oklahoma City against Tuttle?
Speaker: We may very well be barred. I thought it was important to present this to the Court, to give them an understanding as to the way the Edwards v. Arizona claim had been raised throughout the state process. Because up until the time, we would submit, that the federal district court made the decision in the case, which did not find an Edwards violation, that was the first time that any court, on the basis of this particular record, had ever addressed the Edwards claim on the merit. It was not raised in the appeal before the South Carolina Supreme Court, so there was no state law conclusion on that. The first time it was raised was in the South Carolina post-conviction relief court, which was some two years after the Edwards violation. When it was raised there, they found it to be barred as a matter of state law. They chose not to appeal that, it was not raised in the federal habeas corpus petition, as raised... presented to the court, and it was, it was addressed essentially before the Fourth Circuit, and we did not raise it before the Fourth Circuit, and we did not raise it in our Respondent's opposition to certiorari. We recognize this Court's determination, but what I think this reflects to the Court is that the Edwards bar and the Arizona v. Roberson bar that presented to this Court, are not that clear when it comes to the presentation of this issue to the courts.
William H. Rehnquist: We take these cases, Mr. Zelenka, not to decide the facts of individual cases, where there was or was a violation of Roberson or Edwards, but to decide some issue of more general importance, such as whether or not Arizona against Roberson is... is to be given effect under Teague.
Speaker: That is correct, and I don't dispute this Court's authority, and proper authority, to do that particular fact. But we... what we are asserting, what we are presenting to this Court, is merely the belief that this supports our view that Arizona v. Roberson was in fact a new rule of constitutional criminal procedure that this Court evidenced in its decision during the last term. And that supports it because the defendant chose not to assert that strongly throughout the entire court process. That this time, that is the only reason that we are raising that particular issue before this Court. Unless this Court has any further questions on this matter, I will rest.
William H. Rehnquist: Thank you, Mr. Zelenka. Mr. Blume, do you have rebuttal?
John H. Blume: Very briefly, Mr. Chief Justice. The Attorney General raised several merits, arguments. I think it is important to note that although the Fourth Circuit saw no distinction between this case... in fact saw no distinction between this case and Roberson, the Attorney General did not cross-petition on the merits, and therefore I don't think this Court should entertain the merits of the case now. Finally, the only final point I would like to make is this case is much more--
John Paul Stevens: It is true... it is true that if we accepted that argument, it would support the judgment below, would it?
John H. Blume: --Yes, but I think that it's discretionary certainly with this Court whether it entertain the merits. I think under circumstances where the Attorney General did not cross-petition and the case came up on retroactivity, that the proper thing to do would be to reach the retroactivity issue, and anything else should be left to the lower courts. The final point is that this case is much more directly within the line of Edwards than even Roberson itself. While Roberson involved a different charge and different police officers, this case involved a different charge but the same police officers. So some of the concerns in the dissent in Roberson are not present here.
John Paul Stevens: [inaudible]
John H. Blume: Pardon me?
Byron R. White: Your position covers both situations, whether the, they were the same or the different police officers.
John H. Blume: Yes. I was just making the point that this is much more directly within the line of Edwards than even Roberson.
Byron R. White: Counsel, what if the Petitioner had been released on the assault charge, and while it was still pending, say two weeks later, he was picked up for questioning on the charge now before us. Would the police be entitled to question him after waiver of counsel?
John H. Blume: I think the break in custody would again... I think it would depend on the facts of the case. If the record indicated, for example, that the police released the individual to avoid Edwards, then that might be a... certainly a dispositive fact. It would depend on the facts of the particular case. A break in custody could, under some circumstances, I believe, take a case out from the bright-line rule.
Anthony M. Kennedy: Well, do you think police officers reasonably could rely on the fact that they could question him after giving him Miranda warning?
John H. Blume: On an individual who had been released?
Anthony M. Kennedy: Yes.
John H. Blume: I think it would depend, again, if the officers did it to avoid Edwards, that might be a source of some concern, and of course, that is not what happened here.
Anthony M. Kennedy: Well, let me just up the ante. Let's assume they didn't do it to avoid Edwards. They just have new information and a new charge. Could they interrogate him after a Miranda warning and a waiver?
John H. Blume: On different charges?
Anthony M. Kennedy: Yes.
John H. Blume: Edwards does seem to be, and Roberson, concerned with the pressures inherent in custodial, inherent in custodial interrogation, and thus a break could make a difference. So, yes, I think, yes.
Anthony M. Kennedy: All right. Now suppose we ruled that a break didn't make a difference. Would that be retroactive? Would it be barred by Teague?
John H. Blume: I... that situation could still, I think, be within the logical compass of Edwards under some circumstances.
Anthony M. Kennedy: You would have to say that, it seems to me, consistently with the argument you made. And that puts you in the position of saying that where the police reasonably could rely on the earlier state of the law, nevertheless, Teague does not apply to their conduct, and that seems to me completely contrary to what we were trying to accomplish in Teague. And I just point that out to show you that the logical compass argument that you make is too universal a principle for the decision of this case.
John H. Blume: Well, of course in this case, I don't think you can say that the states had any right to rely on an unarticulated exception to Edwards, which is essentially the Attorney General's position in this case.
Byron R. White: Articulated where?
John H. Blume: Unarticulated, not articulated, exception, which is the Attorney General's argument.
Byron R. White: But wasn't it... I... hadn't there been a lot of cases, some cases that said that Edwards doesn't apply to interrogation on different charges?
John H. Blume: Yes, there had been. I don't believe, Justice White, to the touchstone for whether a case creates a new rule can be whether there was a division of authority in the lower courts. The same was true in the Perry Francis situation. A number of courts had decided that mandatory rebuttable presumptions did not violate Sandstrom. Nevertheless, this Court held that Francis v. Franklin did not create a new rule, but rather was an application--
William H. Rehnquist: How do you go... how do you go about answering the Teague question, if you can't take... supposing the lower courts had lined up, you know, ten to two on this issue, saying that Edwards did not extend to the Roberson situation. Would that play no part at all in the Teague analysis?
John H. Blume: --I don't think, of course, this can be reduced to simple arithmetic, which side it acted... but more on, I think you would have to look behind it and say did the states have a legitimate reliance interest in relying on it.
William H. Rehnquist: But I'm not talking about state law enforcement people. I'm talking about, you know, state high courts, who are presumably interpreting claims to some sort of a Roberson doctrine before we ever got there, just applying Edwards. And supposing they had come out by a very large majority saying that there was no Roberson rule. Should this Court totally disregard that sort of a group of lower court decisions in applying Teague?
John H. Blume: I don't think it should be disregarded, but I don't think that can be dispositive, because what that would--
William H. Rehnquist: So, it's a factor.
John H. Blume: --It's a factor, yes, I believe it is a factor.
Byron R. White: xxx five to four as to whether this is, whether this is dictated by Edwards? It must not have been dictated by Edwards.
John H. Blume: Again, I think that question is answered implicitly in Yates. Francis v. Franklin was a five/four decision of this Court. Everyone agrees, every member of this Court agrees that... had agreed that Francis did not create a new rule. So I don't think, again, whether this Court was divided five/four, six/three, or whatever, or six/two, as in Roberson, is dispositive of whether a case creates a new rule.
Byron R. White: Well, didn't... wasn't... Teague talked about it being dictated by a prior decision, didn't it?
John H. Blume: Yes, the language of Teague--
Byron R. White: Dictated.
John H. Blume: --was dictated.
Byron R. White: Dictated, which is quite different, as others have pointed out, between... it is different than logical parameters, or... your... your standard is much different from the Teague standard.
John H. Blume: Well, Teague did not attempt to define the spectrum of what is or is not a new rule. It gave rather general guidance, I believe, as the opinions acknowledge. Both Teague and Penry, which adopted the Teague standard in capital cases... of course, we are trying to... attempting to flesh out how it applies in this case. And because, essentially, Roberson was nothing more than a rejection of the state's purported distinction of Edwards, that can't be a new rule.
John Paul Stevens: Do you think Teague was a new rule?
John H. Blume: It certainly was a surprise to many of us. [Laughter]
John Paul Stevens: What is it? Is it a... what was it? Was it a rule of statutory construction? What... where did the Teague rule come from? What kind of a rule is it? Is it a construction of a statute or what, the Teague rule?
John H. Blume: I think it has some statutory and some constitutional concerns, depending on the proceeding, but it is a rule which this Court... the retroactivity principle of this Court to determine when decisions apply to cases, final and direct review.
Antonin Scalia: You shouldn't be so surprised at that. Most of the rules that govern our habeas corpus jurisdiction are... are... court... court created, aren't they? I mean, the whole doctrine of when it is allowable and when it isn't. Aren't they almost all judicially constructed, and have altered considerably over the years?
John H. Blume: Yes, I think that is true. Thank you.
William H. Rehnquist: Thank you, Mr. Blume. The case is submitted.