William H. Rehnquist: We'll hear argument next in Number 96-1569, Daniel Bogan v. Janet Scott-Harris. Mr. Rothfeld.
Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court: I have two principal points to make this morning. The first is that State and regional legislators who are sued under section 1983 are entitled to absolute immunity if they acted in their legislative capacities. Local legislators who were sued under the statute should be entitled to that same absolute immunity if they acted in their legislative capacities. My second, and closely related point, is that--
Stephen G. Breyer: I can't hear you very well. I can't hear you at all.
Charles A. Rothfeld: --Sorry, Your Honor. My second and closely related point is that public officials at all levels of Government, regional officials, State officials, and local officials, do act legislatively, and therefore are entitled to absolute immunity when they propose legislation, vote for legislation, and enact legislation. Now, the facts--
Stephen G. Breyer: Are you going to at some point address the court of appeals' reason for address... for your losing, which I didn't hear in either of the first two points, because I thought the court of appeals accepted both of those points.
Charles A. Rothfeld: --Well, the court of appeals did accept that there is absolute immunity for actions that are taken in a legislative capacity, and we agree with the court of appeals' decision on that point, a decision that I add was endorsed by every circuit. I think... I will address the second point subsumed within my suggestion that legislators necessarily act legislatively when they propose legislation, enact legislation, which is what they did here. There was a dispute in the court of appeals as to whether the legislation here was legislative in character within the meaning of the immunity doctrine, and I will get to that point. As I say, the facts that underlie this are simply stated. Respondent was the Director of the Department of Health and Human Services of the City of Fall River, Massachusetts. The mayor of Fall River proposed a budget which eliminated a number of city positions--
Sandra Day O'Connor: Well, I think we've read the facts. Can we get on to the issue?
Charles A. Rothfeld: --Certainly, Your Honor. The reason I was touching on them simply is because I think they provide some useful context for the legal issue, but turning directly to I think what's the first underlying issue in this case, are legislators, local legislators entitled to absolute immunity--
John Paul Stevens: On that issue, would you tell me your view of what the status of the common law was at the time of the enactment of the statute and, secondly, what the general rule was in the courts of appeals before our decision in Tahoe?
Charles A. Rothfeld: --As to the first, I think the law, the common law was clearly settled in the 19th Century. I think that it was the established rule, unchallenged, that local legislators were entitled to absolute immunity for their legislative actions, for actions of the sort in this case. We have searched diligently. We have not found a single 19th Century decision holding legislators liable for discretionary acts related to the enactment of legislation, and respondent has not cited such a case. That statement of the law was reflected in the leading 19th Century treatises, for example, Cooley's Treatise on Torts, Dillon's Treatise on Municipal Corporations, which were written shortly after the enactment of section 1983. Just to give you an example of a characteristic statement, Cooley in his Treatise on Torts, written in 1880, says that so far as... and I'm quoting here from Cooley. So far as legislative officers are concerned, their rightful exemption from liability is very plain. Legislatures have complete discretion in the area of legislation, and it is not consistent with this that their members should be called to account for their acts and neglects. This is also true... and again continuing to quote Cooley, this is also true of inferior legislative bodies such as boards of supervisors, county commissioners, city councils, and the like. Again, we have searched diligently. We have not found a single 19th Century treatise which states a contrary rule, and I don't believe that respondent has cited one either. There was a single exception to this rule of absolute immunity recognized in the 19th Century, and that was for so-called ministerial acts. There was a body of authority holding that local legislators could be called to account for failing to perform ministerial duties that were imposed by State law or by court order. That was a very narrow and precisely defined doctrine. It applied only when there was an imperative, nondiscretionary, mandatory, and precise duty, as I say imposed either by State law or by--
John Paul Stevens: Was that true of the slander cases, too?
Charles A. Rothfeld: --I'm sorry, Your Honor.
John Paul Stevens: Was that true of the slander cases, too?
Charles A. Rothfeld: Well, I think that... we have searched also and have not found a single slander case against a member of a local legislative body for statements relating to their legislative actions. Respondent in her brief cites a number of decisions which we addressed in our reply brief, and I think that in fact none of them involve such statements by local legislators, and it was until quite recently, it may still be the common law rule, prevailing common law rule that local legislators have immunity in defamation suits for those actions. But the important point for present purposes is that in the 19th Century so far as we've been able to determine there were no such suits, and so I think it's quite clear... returning to the ministerial point, it's quite clear that the actions here, the actions of petitioners in this case, would not have been regarded remotely as ministerial in the 19th Century, and respondent does not contend otherwise. And so I think it is fair to say that the Congress that enacted section 1983 would have regarded as remarkable the suggestion that any legislator at any level of Government could be held liable for actions of the sort in this case. A Member of Congress in 1871 who looked at the background of common law would have seen that an absolute rule of liability prevailed.
William H. Rehnquist: Precisely what was the act done here? I perhaps am not as familiar with the record as Justice O'Connor is.
Charles A. Rothfeld: Well, I think the acts that are at the center of respondent's case are proposing an ordinance, voting for the... supporting the ordinance at committee, voting for the ordinance, and then the mayor's act in signing the ordinance.
William H. Rehnquist: And what did the ordinance provide?
Charles A. Rothfeld: The ordinance eliminated a Department of Health and Human Services of the City of Fall River.
Stephen G. Breyer: I thought that what... the particular action they're talking about is section 22 of the ordinance, which reads, by striking out the following in section 16-239 the words, Administrator of Health and Human Services--
Charles A. Rothfeld: Well--
Stephen G. Breyer: --right, and there's a jury finding, I take it, that those words that I've just quoted are in this ordinance because the defendant's stated reason was wrong. It wasn't their real reason. The real reason those words find their way into this ordinance is because they wanted the defendant to take action against the plaintiff on the basis of her speech. I mean, those--
Charles A. Rothfeld: --That is--
Stephen G. Breyer: --are jury findings, right, so don't we have to take those as the facts?
Charles A. Rothfeld: --Yes, at this point, certainly, Justice Breyer we do not take issue with the jury's determination. The issues of fact were sharply disputed at trial, but certainly for present purposes we accept the jury's determination that there was a wrongful motivation that lay behind that--
Stephen G. Breyer: Now, my... of course, my question would be... and I want you to continue with the Chief Justice's answer, but the question arising out of those facts for me is, why are those legislative acts? Why, in these circumstances, aren't these particular words, and given the way they found their way into this bill and that they concerned one person and the removal of that one person from her job, why aren't those words in these circumstances an administrative action, which is what the court of appeals found?
Charles A. Rothfeld: --Right. If I may, Justice Breyer, I'll respond to the Chief Justice's question and finish with my response to Justice Stevens, and then turn to that, which is the second half of the argument. The ordinance as a whole, the ordinance that was enacted, eliminated the Department of Health and Human Services. As Justice Breyer has indicated, an aspect of that was eliminating the position of Director of the Department, which was the position that was filled by respondent, and so her allegation, which was accepted by the jury, is that the motivation for enacting that ordinance, and that portion of the ordinance, was to eliminate her position, and eliminate her as a city employee.
Ruth Bader Ginsburg: Any other aspect? I thought that was the whole thing. The Department was just created so that this other... divisions were consolidated so... I don't understand the aspect part of your answer. I thought the only thing they had to do to get rid of the Department was to get rid of the person who headed it.
Charles A. Rothfeld: Right. Well, I... they actually, as a consequence of eliminating the Director of the Department of Health and Human Services there were consequences that followed from that for the organization of the city government. There were other city officials who, under the ordinance creating the Department, reported to the Director, and so eliminating the position of the Director required various other steps to be taken. Now, I think that--
Ruth Bader Ginsburg: But the only legislative thing, whether we call it ultimately legislative or administrative, there was only one action, and that was to end the position of head of HHS, no other legislation.
Charles A. Rothfeld: --That's right. For present purposes I think we can assume that. There was an ordinance which eliminated the Department and the principal consequence of that was eliminating the position of Director of the Department, although I... there were these other subsidiary things that had to be taken care of when that was done. Reserving just for a moment the question of whether that that kind of... and it's clear it was an ordinance. It was enacted by the city council. It was signed by the mayor. It was recorded in the official ordinance books of the city. Reserving for the moment whether that legislation is legislative in character, Justice Stevens asked about the status of absolute immunity prior to the Court's decision in Lake Country Estates. I think that there were a number of courts, and their decisions are cited by respondent, prior to that decision which recognized only qualified immunity under section 1983 for local legislators. I think that an examination of those decisions shows that they did not... I think did not benefit from the Court's subsequent decisions setting out the nature of the immunity inquiry under section 1983. For example, they did not look at all at the common law history that prevailed in the 19th Century, which the Court has said is the paramount indicium here, and it's interesting that one of the decisions cited by respondents was written by then Judge Potter Stewart on the Sixth Circuit, indicating that only qualified immunity prevailed. Then Justice Stewart I think changed his view, because he joined Justice Powell's dissenting opinion in Owen v. City of Independence, which stated expressly that members of city councils are entitled to absolute immunity, and so I think that the law has... this Court's immunity doctrine has been clarified and sharpened and every court of appeals has now concluded that an absolute rule of immunity is the appropriate one. I should just add parenthetically that the common law history, which I think is quite compelling, is confirmed by looking at the considerations of policy that the Court has identified--
Ruth Bader Ginsburg: Before you get to policy, the scope of this absolute immunity, is it the same as speech or debate immunity for Members of Congress, or is it different for a State legislature, a regional lawmaking body, a municipal lawmaking body? Is the nature of the absolute immunity the same as we go down the ladder from Federal to municipal?
Charles A. Rothfeld: --I think, Your Honor, the nature of the immunity is the same. The Court has described the test for legislative immunity at least as for regional and State legislators in Lake Country Estates and in Tenney using exactly the same terms as it has used in the Speech and Debate Clause cases. Indeed, the Court has cited the Tenney holding as the nature... as the test for Speech and Debate Clause immunity, and so I think that the immunity is identical in substance.
Ruth Bader Ginsburg: Even for a county that has just a single commissioner who is both the executive and the legislat--
Charles A. Rothfeld: Well, I think that that raises the difficult problem of application. Let me say just preliminary that obviously this case is not in that mold. Here we have classic legislation. We have a multi-member representative body responsible for lawmaking in the jurisdiction that passes laws that are signed by the executive, so we don't face that problem. I think that the unusual forms of local government, and you suggest one, present a more difficult case, but I think that if the single Member is acting legislatively by promulgating a law, promulgating an ordinance, that the same type of immunity would apply. After all, the same polices that the Court identified in Lake Country Estates and in Tenney as necessitating legislative immunity because of the fear that prospective liability will distort legislative decisionmaking, because of the fear that it will lead to distracting and burdensome litigation, because of the fear that it ultimately would discourage people from public service, all of those considerations apply to all types of municipal--
John Paul Stevens: --May I interrupt you with just a... I know you want to get to Justice Breyer's question, but do your comments about local legislators have the same impact on the mayor? You mentioned they had to be signed by the executive, and it seems to me at least arguably the... it might not be the same rule. Is there any enlightenment you can shed on that?
Charles A. Rothfeld: --Well, I think, Your Honor, that as the Court has said repeatedly, the question is not the branch in which the local official or a public official serves, or the, you know, the source of their salary, or their title, so in Butz v. Economu an executive official was entitled to judicial immunity because he exercised judicial functions. In the Supreme Court of Virginia v. Consumers Union case, judges were entitled to legislative immunity because they were--
John Paul Stevens: Yes, but I'm not talking about when the mayor cast his vote, but when he signed the--
Charles A. Rothfeld: --Well, and I think that what the mayor did here was clearly legislative in character. The two... the acts that he did, proposing the legislation and signing the legislation, are essential elements of the legislative process of enacting the law, and the Court in the Federal context has described the President's power to veto or to sign legislation as legislative in character. The Court has said that that is an explicit exception to the separation of powers and the Constitution, and so in cases like Buckley v. Valeo and others that we cite in our briefs, the Court has expressly said that power is a law-making legislative power. That is the very power that was exercised by the mayor in this case, and so I think that as a functional matter it was legislative, directed to the enactment of a law, and therefore he is for those actions entitled to absolute legislative immunity, and again, all the considerations the Court identified in Tenney, Lake Country Estates, point to that sort of immunity in this case. Now, if that is correct, and if absolute immunity is the proper rule for local legislators, or local officials acting in a legislative capacity, the remaining question in this case is Justice Breyer's question, were the legislators here acting in a legislative way, and I would submit that the court of appeals' approach to that has a slightly Lewis Carrollish quality. There is no question that all of the actions taken by the defendants here, as I say, proposing the ordinance, supporting the ordinance in committee, voting for the ordinance, and signing the ordinance, were directed to the enactment of a municipal law, to an ordinance. Now, the court of appeals argument, the court of appeals holding in this case, which is endorsed by respondent, is that some legislation is essentially more legislative than others, that legislation does not have a legislative quality if the sponsors are motivated by specific facts, what the court of appeals called specific facts, or if the legislation is excessively narrow in scope, if it affects only a small number of identifiable persons.
William H. Rehnquist: --Well, the court of appeals used the term, administrate, but you describe the common law immunity as extending to everything except ministerial action, and I think the word administrative connotes a much broader exception than the term ministerial, doesn't it?
Charles A. Rothfeld: Well, absolutely. Clearly the court of appeals was not deriving its administrative exception from the common law. It had nothing to do with the ministerial exception, or perhaps the immunity that prevailed then. I think the court of appeals' view, and respondent's view, is that legislation which is, as I say, based on... in which the legislator's motivation is based on what the court called specific facts, or if the legislation is too narrow, that legislation is simply not legislative in character, even though it is a duly promulgated law. Now--
Ruth Bader Ginsburg: But maybe what they had in mind is if the mayor just said, you're discharged, that would be, quote, administrative, that's not legislative, and so maybe the court of appeals is saying, well, that's a nice way to get around liability for administrative acts. Don't say, you're fired. Get the city council to pass an ordinance that says she's fired.
Charles A. Rothfeld: --Well, a couple of points in response to that, Your Honor, which, I think that is a very important question that goes to the heart of respondent's argument. First of all, just as a matter of clarification as to what exactly went on here, the city council did not say, this individual is fired. The city council eliminated this position for all time, so that's a classic legislative action. It passed a law providing there no longer is this position in the city government. I think that that is identical to what would occur if, for example, Congress passed a law eliminating funding for the coming fiscal year for the Office of the Secretary of Health and Human Services. That--
Antonin Scalia: You wouldn't care if it were the opposite. I mean, as you define legislation, if the legislation said that the current incumbent of this office... assuming this is within the legislative power, you would still say that's okay, it's legislation.
Charles A. Rothfeld: --I would say that, although I--
Antonin Scalia: And you would say that if the mayor... if you accept the conclusion of Justice Ginsburg's question, this was a neat way around liability, you would say precisely--
Charles A. Rothfeld: --Well--
Antonin Scalia: --it is, that that's simply the law, that you're not liable for legislative action.
Charles A. Rothfeld: --As I say, there are a number of points to make in response to that. I think... first of all, that is our position, that if the legislative body passes a law, whatever it says, it is legislative in character. Now, there may be other constitutional defects in that law. It may be a bill of attainder. It may... I think in this case such a law would have been outside the city council's statutory authority under Massachusetts law and under its own city council, but I think it would be legislative in character, and if you look at--
Sandra Day O'Connor: What about the city itself being liable? I know that's dropped out of the case here as it comes to us, but can the city itself be liable for a... an ordinance that is racially motivated, for example?
Charles A. Rothfeld: --Well, the city certainly can be liable for unconstitutional actions, and I think that that--
Sandra Day O'Connor: But the legislators enacting it are not personally liable, is your view.
Charles A. Rothfeld: --Absolutely. Absolutely.
Sandra Day O'Connor: Whether it's at the city level or the State level.
Charles A. Rothfeld: That's true. Now, in fact, actually that points up a more compelling reason for immunity in the local context. If someone is aggrieved by that kind of statute at the State level they may have no remedy at all. They can't sue the legislature. It clearly is immune under Tenney v. Brandhove, and they can't sue the State.
Sandra Day O'Connor: But at the city level they can sue the city.
Charles A. Rothfeld: Precisely. At the city level they can sue the--
Stephen G. Breyer: Oh, but you can't sue the city if on its face... I mean, what I'm thinking about is there are many different forms of local government. In some, probably local councilors do all the hiring and firing, and think of the Court's cases like Rutan, et cetera, or the Court's cases you can't discriminate against members of the opposite political party. It would be very simple. Instead of the administrator of, let's call it a city beginning with C decides that we're going to fire 10,000 people who belong to a political party, the name of which begins with an R or a D, here's what we'll do, we simply run it through the city council. That's simple. We recommend an ordinance, simplest thing in the world, and therefore all those cases in which this Court has held you can't do this, or you can't do that administratively, all we'll have to do at the local level is run it through the city council, and instead of doing it, we just call it a recommendation.
Charles A. Rothfeld: --Well, let me make--
Stephen G. Breyer: That's the end of those cases, right?
Charles A. Rothfeld: --a couple of points in response to that. First of all, if, as you suggested in the first part of your question, the city council actually has powers to appoint and fire individuals--
Stephen G. Breyer: No, no, they'll do it by temporarily eliminating the position. I mean, we have a hiatus in the position, we rename it, and we hire a different person.
Charles A. Rothfeld: --Well, I think that--
Stephen G. Breyer: Or are you going to look through that subterfuge which, after all, takes the same form. It takes the form of legislation.
Charles A. Rothfeld: --Well, if... the question is, would such a thing be legislative in character. Look at what would happen--
Stephen G. Breyer: That's the question.
Charles A. Rothfeld: --What would happen if Congress passed... Congress passes laws all the time that are intended to and have the effect of affecting only one person. Even leaving private bills aside, tax exemptions that are aimed at one person, a law that says, Chrysler is hereby bailed out because that's in the public interest--
Stephen G. Breyer: Oh, no, but now, once you're down that track, once you admit an exception to the absolute rule of the form of legislation, then this looks like a pretty good case for that exception, doesn't it?
Charles A. Rothfeld: --Well, but--
Stephen G. Breyer: Because there are jury findings that this one person was really being dismissed in this way because of her speech.
Charles A. Rothfeld: --But I don't admit an exception for that. My point is that legislators at all levels, Congress, State legislators, regional legislatures, State... local legislatures always have had the power, the legislative authority to enact specific provisions that affect only an individual, that affect only a small number of people and they don't lose their legislative quality simply because they are of that nature, because--
William H. Rehnquist: That's why they put the Bill of Attainder Clause in the Constitution.
Charles A. Rothfeld: --Precisely. There would be no necessity for such a clause--
William H. Rehnquist: Then you're prepared to accept the way around all the cases that you can't discriminate on the basis of whatever, race, politics, or any other thing.
Charles A. Rothfeld: --Well--
Stephen G. Breyer: As long as it's run through the city council.
Charles A. Rothfeld: --So far as--
Stephen G. Breyer: No matter how egregious, it's home free.
Charles A. Rothfeld: --Well, two points, Your Honor. So far as--
Sandra Day O'Connor: Well, I thought you told me it isn't home free.
Charles A. Rothfeld: --Exactly.
Sandra Day O'Connor: The city can be liable.
Charles A. Rothfeld: Exactly.
Sandra Day O'Connor: Of course it isn't home free.
Charles A. Rothfeld: But my--
Sandra Day O'Connor: But the individual legislators probably have a perfect defense.
Charles A. Rothfeld: --My... that is precisely my point, stated better than I could do it.
Ruth Bader Ginsburg: But Mr. Rothfeld, you just told me that the... it's like the Speech or Debate Clause. How would you... if the city is the defendant, and your charge is this thing that looks neutral on its face, it's just a budgetary action, we eliminated a position, how do you prove motive except by questioning the people whose motives are tainted, and yet the Speech or Debate Clause says, shall not be questioned any place.
Charles A. Rothfeld: Well--
Ruth Bader Ginsburg: So I'm not comforted by your quick answer that yes, the city would be liable. You need to prove it, and you need to prove it through these actors.
Charles A. Rothfeld: --Well, I think... let me clarify my answer to you. I think I may have been confused. I think the scope of the immunity is identical to the Speech and Debate Clause. Now, whether or not an individual could be sued, could be called... an individual local legislator could be called to testify in a suit against a third party, clearly 1983 immunity would not preclude them from being called for that, so in that sense there is no section 1983 speech and debate equivalent immunity. Now, whether there is some Federal evidentiary privilege that would... could be asserted in such a circumstance has not been determined by this Court and is certainly not going to be decided by this case.
Ruth Bader Ginsburg: But at least it is an open question. It's not so clear that the city would... you'd have to answer that question.
Charles A. Rothfeld: The second part of my answer to your question, Justice Ginsburg, is that there are many ways of proving legislative motive that do not require individual testimony by--
Ruth Bader Ginsburg: Give me an example. Here, how would you prove that this city council passed this not because of a budget crunch but because they wanted to get rid of this woman?
Charles A. Rothfeld: --Well, I think in ways that respondent in this case did attempt to prove that. She showed, or attempted to show, that there had been altercations between herself and members of the city council or other city employees that were brought to the attention of the city council. She attempted to show that elimination of her position actually was a ruse, because the city ended up spending more money hiring replacements to do what she had been doing, and there are a wide range of circumstantial indicia. I think in the Equal Protection Clause area this Court has indicated Justice Stevens--
Ruth Bader Ginsburg: Do you think that the... that Judge Sowerby was wrong when he said, ah, but that's not enough, there's nine people on that council, and you tell me that two of them, you've got circumstantial proof with respect to two of them, you can't prove a claim against the city on that basis?
Charles A. Rothfeld: --Well, I think that the First Circuit suggested that the reason the case came out this way, perhaps, as to municipal liability is the manner in which it was litigated, that respondent made virtually no attempt to demonstrate by any means the motivations of these other members of the city council and, for example, one could imagine that a plaintiff in a case like this might try to show that there is an individual member of the council, like the chair of the Budget Committee, who is... as to whom everyone defers automatically, and that is essentially a de facto policymaker.
Antonin Scalia: You're not saying, I-- --Do you think have we achieved something for municipal government if we acknowledge your immunity for individual legislators but throw open suits against the city in all of these cases?
Charles A. Rothfeld: Well--
Antonin Scalia: I'm not comforted by your assurance that you can sue the city, because I'm... you know, most of the arguments you make in defense of your clients here it seems to me are makable just as well with respect to the city. I think it would be a very serious disruption of municipal governance if you could claim that legislation enacted and on its face valid was motivated for improper reasons.
Charles A. Rothfeld: --Well, that, I think, Your Honor, goes to the substantive nature of the constitutional violation that's being alleged, and it doesn't turn on the nature of municipal liability. I mean, the Court has crossed the bridge of municipal liability in Owen, holding that municipalities are liable for their unconstitutional acts. Now, if acts based on impermissible motivation are unconstitutional--
William H. Rehnquist: It also... but it's also limited by Monell, I take it, that perhaps an ordinance might be, but it would have to be a policy type of thing.
Charles A. Rothfeld: --Well, that is certainly true. If I may--
Anthony M. Kennedy: What you're saying, I take it, or tell me if I'm correct, is that there may well be a constitutional wrong here. Legislators may well have violated their constitutional oath, but there's simply no remedy as against them.
Charles A. Rothfeld: --That is correct.
Stephen G. Breyer: But against the municipality, what bothers me... I don't know the answer to this. The... on your approach, you take legislation that's neutral on its face, and you hold the city liable if it's passed for an unconstitutional motive, which brings you into a very big problem of how you prove motive for individual legislators, how many, et cetera. That was what was... all right. Well then, isn't it easier just to segregate out those actions which are really administrative in nature for the municipality?
Charles A. Rothfeld: Well, I think--
Stephen G. Breyer: Or there's no liability? What is your view?
Charles A. Rothfeld: --If I can give you a short answer and then sit down, I think that it would be a very dangerous thing for public officials if it were possible to look behind the form of the legislation and say, well, maybe on the face of it this does not in terms appear unconstitutional, but there were facts in their minds which render it unconstitutional and therefore legislative immunity goes by the boards until we are able to establish the nature of their motivation. Once you've done that, immunity is swept off the books altogether, because you've had a trial and you've had discovery before immunity is determined, so--
John Paul Stevens: Well, what does Washington v. Davis require? I thought... I mean, what do we do with that?
Charles A. Rothfeld: --Well, I think that there are... as I suggest, there are means of getting at the motivation of the jurist... of the decisionmaking entity which do not require holding them liable, which is the only issue which is before the Court in this case. And if I may reserve the balance of my time, Your Honor.
William H. Rehnquist: Very well, Mr. Rothfeld. Mr. Schwartz.
Harvey A. Schwartz: Mr. Chief Justice, and may it please the Court: The jury found in this case that the mayor of the City of Fall River and the city council vice president came up with a scheme to punish Janet Scott-Harris because she exercised her constitutionally protected right to complain that she and other minority employees of the city were being called names such as the black nigger bitch, and that... because she attempted to bring disciplinary charges against the well-connected long-time city employee who made these statements. The mayor conceded at trial, he agreed with the trial judge that Ms. Scott-Harris' speech was constitutionally protected. Significantly, the mayor also conceded at trial that he had authority under Massachusetts law... in fact, the Massachusetts statute was marked as Exhibit 85... that he had authority on his own, without any action by the city council, to fire, to lay off, to remove Ms. Scott-Harris from city government. He had authority to put somebody else into her office. He had authority to have other people, the people who had reported to her report to the city manager. Everything that was done by this ordinance the mayor could have done administratively, on his own. Now, as the court of appeals noted--
William H. Rehnquist: What does that prove?
Harvey A. Schwartz: --That addresses two points. One point is whether this was a legislative act at all if it was an action that could have been done administratively.
William H. Rehnquist: Well, are you saying the two are mutually exclusive, and what's your authority for saying that?
Harvey A. Schwartz: I'm not saying that they're necessarily mutually exclusive, but if you apply the Court's functionality test, if you say, is the firing of one employee an administrative function or is that a legislative function--
William H. Rehnquist: And where does the Court's functionality test that you refer to, where does that come from?
Harvey A. Schwartz: --For example, in the Virginia supreme court case, Virginia Supreme Court v. Consumers Union. What the Court did in that case was say, we have different forms of immunity for different functions. We have absolute legislative immunity when State actors function in a legislative capacity. We have absolute judicial immunity when State actors function in a judicial capacity. We have qualified immunity when State actors function in an administrative or executive capacity.
Sandra Day O'Connor: Well, Mr. Schwartz, I used to serve in a State legislature, and I can remember in the State legislature, because of personal animosity sometimes a position would be eliminated by the legislators. They didn't like somebody who was holding some particular office in some agency, and the way around it, let's get rid of it, and they'd just legislate it out of existence. Now, were those State legislators entitled to absolute immunity, do you think, when they did that?
Harvey A. Schwartz: Well, I... under Tenney v. Brandhove, certainly they were.
Sandra Day O'Connor: I thought so, too. [Laughter] Let me ask you this. Is there any difference in the functions being carried out by these city council members in terms of enacting the legislation than what I've just described at the State level? I mean, it looks like the same sort of thing. Not that we're proud of it, or think it's good, and in fact it was... there was a bad motive here, but isn't it the same conduct, legislative conduct that we're dealing with?
Harvey A. Schwartz: If it's viewed in that light, Your Honor--
Sandra Day O'Connor: Yes.
Harvey A. Schwartz: --I suggest that if the mayor had eliminated the position it would have been legislative conduct. If the act... if the act of eliminating--
Sandra Day O'Connor: I don't see why. I mean, here we are dealing with the actual enactment of a city ordinance, presumably within the powers of the city. They didn't have to do it, but they could.
Harvey A. Schwartz: --Well, in actuality, Your Honor, the act that we're looking at here is not the act of the city council. It's the act of the mayor, who's the defendant who is before this Court, in submitting an ordinance to the city council, so--
Sandra Day O'Connor: And was he a member of it as well?
Harvey A. Schwartz: --No, he was not, so the question would be whether... what the jury found, the action of submitting an ordinance that would--
Ruth Bader Ginsburg: Isn't that part of the legislative process? I mean, the legislative process as described in this town was the mayor initiating the bill, and the council passes it, and the mayor signs it.
Harvey A. Schwartz: --Yes.
Speaker: And that's--
Harvey A. Schwartz: Yes.
Ruth Bader Ginsburg: --So it's all part of a legislative process.
Harvey A. Schwartz: Oh, yes. I agree with that.
Ruth Bader Ginsburg: You're not trying to say that every time the mayor proposes a bill and every time he signs it he's not acting in a legislative capacity.
Harvey A. Schwartz: Oh, no. No. I agree that he was acting in a legislative capacity, but I think it's important to focus on what the conduct was. His conduct was, rather than acting on his own, on his own authority, an action that he admitted he would not have even had qualified immunity for, he never filed a qualified immunity... asserted a qualified immunity defense, because the right not to be fired because of your speech was clearly established. So this was an action that he could have taken on his own. He would have had no immunity of any kind. Instead, he chose to submit this to the city council.
Antonin Scalia: Which is a lot harder. I mean, he has to get a whole bunch of other people to agree.
Harvey A. Schwartz: Yes.
Antonin Scalia: Right? I mean, you... it isn't as easy as rolling off a log, so that you can avoid liability just like that, by getting... you have to get it through the city council.
Harvey A. Schwartz: Well--
Antonin Scalia: And there might have been people on the city council who thought, why should we eliminate this Department, and maybe some of the people who passed it thought it was simply a good idea to eliminate the Department. Do we know what the motivations of the individual legislators on the city council were?
Harvey A. Schwartz: --Well, no, we don't. We don't.
Antonin Scalia: I mean, maybe some of them thought it was a good idea to get rid of the Department.
Harvey A. Schwartz: And for all we know the mayor was successful in hoodwinking the other members of the city council.
Anthony M. Kennedy: Well, the other point is, the Department is permanently abolished. If this... if you're going to reinstate it, there has to be a new law enacted by the council.
Harvey A. Schwartz: And I suggest that the appendix... the appendices list 150 cases in which local governments have come up with very creative ways of doing just that, as Justice Breyer pointed out, that these 150 cases show example after example of excessive creativity at the local level.
William H. Rehnquist: Well, what's the matter with that?
Harvey A. Schwartz: Well, the creativity is used to evade liability.
William H. Rehnquist: Well, but that's life. I mean, the Members of Congress will make statements on the floor of the House that they will not go out in public and make, because in one case they're protected by Speech and Debate, and you say, well, you know, why do they do that? Well, they prefer to do something in a way that gets the message across and avoids liability.
Harvey A. Schwartz: And the result of allowing conduct that a State official is empowered to do on his own, the result of allowing him to obtain immunity by running that exact same conduct through the city council is in effect to create a manual for violating constitutional rights.
Antonin Scalia: Gee, we do that in antitrust laws. I mean, Justice Breyer was bringing up antitrust in another situation. An action which an individual, if he took on his own, would impose serious antitrust liability, if he walks it over to the State legislature and gets a law passed, lobbies the legislature for the same result, it's perfectly okay, so it doesn't surprise me that you can launder some pretty bad stuff by running it through the legislature. We do it all the time.
Harvey A. Schwartz: I'm familiar with the Massachusetts legislature--
Antonin Scalia: Yes. [Laughter]
Harvey A. Schwartz: --and I certainly would not urge their pristine character upon this Court. But on the other hand, when it comes to constitutional violations, I don't think this Court should make it any easier to evade the Constitution, or to make it any easier to launder intentional, knowing violations of clearly established constitutional rights.
Stephen G. Breyer: Is it possible there's a distinction between the two defendants, one being a member of the city council and the other not, so that when, in fact, even if you have anything that... even if you were to say, whatever takes the form of an ordinance in a city council is legislation, you wouldn't necessarily have to say that as to the person who proposes to the city council an ordinance that takes the form of but does not in reality seem to amount to legislative rather than administrative action?
Harvey A. Schwartz: Yes, I would agree with that, Justice Breyer, that there certainly is a distinction between the two defendants, and if one looks at the form of the legislation, of the ordinance that was submitted as found by the jury, the form of that is, in other words, I propose the city council pass an ordinance that will remove Janet Scott-Harris from city government because of her constitutionally protected speech, I suggest that fits all of the elements of a bill of attainder. It's contended--
Ruth Bader Ginsburg: I'm sorry, but in your response to Justice Breyer I thought you contradicted what you had responded to me. I asked you about the mayor, wasn't he performing part of a legislative function when he proposes the bill, and they pass it, and he signs it, that's all part of a legislative process, and now you're trying to say, no, we remove the legislative stamp from the mayor but not the council member. Before, you were emphasizing it's the function that counts. It's a legislative process. It starts with initiating a bill, the bill passes, the bill gets signed. I thought maybe... maybe I didn't understand your answer correctly, but I thought you put a ring around that as the legislative process, initiation, passage, signature.
Harvey A. Schwartz: --Okay. I apologize if I haven't been clear. I certainly agree that step 1 of the legislative process is the submission of a proposed ordinance. On the other hand, when it comes to matters of proof, matters of motivation, it's certainly much easier to prove the motivation of the one individual who submits the ordinance than it is to prove the collective motivation of the entire body, and I suggest that that's just what--
Ruth Bader Ginsburg: In this case it might have been very easy, or just as easy, or even easier to prove, was it Roderick the--
Harvey A. Schwartz: --yes.
Ruth Bader Ginsburg: --as the mayor. So I don't see anything inherent about the mayor that makes it easier to prove when you have somebody right there on the city council who was a friend of the offender, the alleged offender.
Harvey A. Schwartz: Yes. The difficulty found by the court of appeals, however, was, although it was easy to prove the motivation of the mayor and Roderick, the court of appeals found that we weren't able to prove the collective motivation of the board, or of a sufficient number of members of the board. I would like to address the more underlying question of the common law basis for this absolute legislative immunity at the local level, because I suggest that the common law, as it was established in 1871, is nowhere near as clearly established as petitioner suggests. Every single case cited by petitioners, every single authority cited by petitioners relies on the discretionary ministerial doctrine, and petitioners say that the conduct at issue in this case was discretionary, therefore there's no liability. Petitioners also agree... and they cite an 1877 case, Jones v. Loving, at page 24 of their brief. They also agree that this discretionary ministerial doctrine applied equally to the municipality itself as it did to the municipal decisionmakers, and they're correct in that, that Jones v. Loving says that members of the legislative body are clothed with the immunity of the municipality. That immunity came from the discretionary ministerial doctrine. The immunity was the same for the municipality as it was for the municipality's decisionmakers. Now, in Owens v. City of Independence this Court relied quite heavily on the discretionary ministerial doctrine to find that there was no immunity of any kind for municipalities under section 1983. The Court said that there's no discretion to violate the Constitution, that the Constitution is mandatory, and that it is not a discretionary act to violate the Constitution. The question in this case was, as found by the jury, did the mayor have the discretion to submit an ordinance to remove Janet Scott-Harris from city government to punish her for her constitutionally protected speech? I suggest that that was not a discretionary act. Now, what's significant about Owen is that--
William H. Rehnquist: What are you trying... you're proposing the category of discretionary on the one hand as opposed to what?
Harvey A. Schwartz: --In the common law it was called ministerial. The term ministerial as we hear it implies a pretty menial task.
William H. Rehnquist: Yes, almost obligatory.
Harvey A. Schwartz: Yes, and ministerial as applied by the common law, ministerial as applied by this Court in the Amy and Farr cases, in... just a month before section 1983 was enacted, ministerial meant that there was no legal discretion to the decisionmakers. In Amy and Farr, the--
William H. Rehnquist: That they had to act that way.
Harvey A. Schwartz: --They had to act that way, or, conversely, that they were forbidden to act in a certain manner.
William H. Rehnquist: Well, I don't think you would ever refer to a situation where a person was forbidden to act as ministerial. Ministerial that you had an obligation, affirmative obligation to do something. To say that it was a ministerial act because you were forbidden to do it is a use of the word ministerial I've never heard.
Harvey A. Schwartz: Well, it was the way that the ministerial doctrine was applied by this Court in Owen v. City of Independence. This Court said that since there is no discretion to violate the Constitution, the discretionary ministerial doctrine would not provide immunity for an intentional violation of the Constitution. Now, what's significant about Owen is that, while the Court said that the discretionary ministerial doctrine was the equivalent of no immunity under section 1983, the dissenting justices said that the discretionary ministerial doctrine parallels quite closely the qualified immunity standard of this Court under Harlow v. Fitzgerald, and I suggest that that discretionary ministerial doctrine does parallel this Court's present qualified immunity doctrine. Under that doctrine, State officials have discretion... have immunity for their discretionary acts unless their discretionary act violates a clearly established legal duty. Under the discretionary ministerial doctrine as applied under common law, a local official had immunity for his discretionary acts unless his discretionary act violated a clearly established legal duty.
Antonin Scalia: Like libeling somebody?
Harvey A. Schwartz: Well, the libel cases are a separate line of cases, and--
Antonin Scalia: Well, it's clearly unlawful to libel somebody, and yet I don't know that you can sue legislators for libel.
Harvey A. Schwartz: --Well, the common... the common law of libel at present in the majority of States is that for local legislators, it's a different form of immunity at the local level now and in the 19th Century. For local legislators, a local legislator was liable for libel if he acted maliciously. A member of the State legislature was not liable, had immunity in libel cases, whether or not he acted maliciously. I suggest the Massachusetts cases on this are pretty striking. Coffin v. Coffin was the one common law case relied upon by this Court in Tenney v. Brandhove, a libel action for statements made on the floor of the Massachusetts legislature. This Court relied upon Coffin for the position that the common law provided absolute immunity to members of the State legislature in a libel action regardless of whether they acted maliciously or not. Well, 20 years after Coffin v. Coffin, the same Massachusetts court, the Massachusetts supreme judicial court, in the same form of action, a slander action brought against a member of a town governing board, the Brookline Board of Selectmen, did not apply that same absolute legislative immunity at the local level, but instead the Massachusetts supreme judicial court said that at the local level, in a slander action, if the person, State local official acted maliciously or abused his office, he had no immunity. So under the libel cases the immunity rules under the tort law were different for members of the State legislature than they were for members of local legislative bodies. Prosser, Keeton, Harper, the Restatement of Torts all say that that is still the rule. They all state unequivocally that the absolute immunity in libel cases for members of State legislative bodies does not apply to municipal governing bodies. That's a clear distinction in the common law, and I suggest that that distinction in the common law imposing liability at the local level to local legislators that was not imposed at the State level, and also the discretional ministerial doctrine that imposed liability in some circumstances at the local level, where there would not be liability at the State level, shows that the common law distinguished between State legislators and local legislators, and because the common law distinguished between the immunity of local legislators and State legislators, petitioners haven't met their very heavy burden of proving--
Antonin Scalia: Do you have one case? I mean, your opposing counsel says that you have not come up with a single case where a State legislator was held liable... a municipal legislator was held liable.
Harvey A. Schwartz: --Well, Your Honor, I suggest that a decision whether or not to levy a general tax by a legislative body would clearly today be considered a legislative act. Only legislatures can levy taxes. This Court in the Amy and Farr cases found members of local governing boards personally liable out of their own pockets for their decisions not to levy a general tax.
Antonin Scalia: That was on the basis of the mandatory nondiscretionary act doctrine.
Harvey A. Schwartz: Yes.
Antonin Scalia: On that alone, which you don't contend it exists here.
Harvey A. Schwartz: Oh, I... but I do... I do contend that exists here. What I contend is that that mandatory nondiscretionary act doctrine is awfully similar to the qualified immunity doctrine, that where a law is clearly established, a legal right or a legal duty is clearly established, thou shalt not fire an employee because of her constitutionally protected speech, that any... when the mayor does that, he's going beyond his discretion.
Antonin Scalia: Well, if that's what you mean by a nondiscretionary act, every time a legislature is alleged to have violated the law, it will have been alleged to have violated the nondiscretionary act doctrine.
Harvey A. Schwartz: Well, what I--
Antonin Scalia: The law is the law is the law. If you're violating the law, you had no option but not to violate the law. I mean, you know, that just expands it to such a degree that there's nothing left of the liability.
Harvey A. Schwartz: --Well--
Antonin Scalia: Of the immunity.
Harvey A. Schwartz: --I'm not crafting this doctrine myself. I'm quoting from this Court's decision in Owen. I'm also quoting from the dissenting--
Ruth Bader Ginsburg: Was that a case about legislators' absolute liability?
Harvey A. Schwartz: --No. It was a case about the municipality, obviously, about the municipality's liability. However, petitioners agree that under the common law the municipality and the legislators had exactly the same liability and exactly the same immunities.
Stephen G. Breyer: What is the best authority for the proposition that you just made? You said the law of immunity has traditionally treated local legislators differently from State legislators, or you said something like that.
Harvey A. Schwartz: Yes.
Stephen G. Breyer: All right. Can you give me your best authority for that proposition?
Harvey A. Schwartz: The first authority would be that the discretionary ministerial doctrine did not apply at the State level.
Stephen G. Breyer: I mean... yes, but I want to read all this, so if you just tell me what the cases are, or where you got... or what part of your brief, even, has them listed.
Harvey A. Schwartz: Yes. The Amy and Farr cases.
Stephen G. Breyer: Amy? Okay.
Harvey A. Schwartz: Okay, that's--
Stephen G. Breyer: Give me... just give me enough of a clue.
Harvey A. Schwartz: --Yes.
Stephen G. Breyer: I can jot it down and read it later.
Harvey A. Schwartz: Well, my clue would be note 23--
Stephen G. Breyer: All right.
Harvey A. Schwartz: --at page 17.
Stephen G. Breyer: Fine.
Harvey A. Schwartz: As to whether or not the conduct at issue was legislative, or was not legislative, I would refer this Court to the Virginia Supreme Court case. In the Virginia Supreme Court case, this Court set a standard for what action of a legislative nature is. The standard that this Court set in the Virginia Supreme Court case was that legislation is a rule of general application, statutory in character, that acted not on particular parties, that did not arise out of a controversy, but instead out of a need to regulate conduct for the protection of all citizens. Now, if that is what a legislative act is, if that is what is protected in the Virginia Supreme Court case by absolute legislative immunity, what the jury found the mayor and the city council vice president did in this case does not come anywhere near those definitions. It was certainly not a rule of general application. What the jury found the mayor and the city council vice president did was a rule aimed at one particular individual.
Antonin Scalia: Well, its effect came down on one particular... they passed a law that eliminated the Department. The Department is no more. I mean, that had general applicability, certainly. It affects a lot of other people, I suppose. Other employees who used to be employees of that Department are no longer.
Harvey A. Schwartz: The evidence at trial was that there was only one employee of that Department.
Antonin Scalia: Okay. Well, it affects people who in the future would have been that one employee.
Harvey A. Schwartz: What the jury found--
Ruth Bader Ginsburg: Are private bills that affect only one person not legislation?
Harvey A. Schwartz: --Well, no. No, but the limitation on private bills that affect only one person is the rule against bills of attainder, and a piece of private legislation that benefits one individual is certainly not a bill of attainder. A private legislation that says, these three people may not be employed by the Federal Government, or no Federal funds may be used to pay the salaries of these three people, legislation that says no member of the Communist Party may serve as an official of a labor union--
Ruth Bader Ginsburg: Yes, but of course that's not what we have here. We have a position abolished.
Harvey A. Schwartz: --Yes, and there was one specific person who held that position, and--
William H. Rehnquist: Are you saying that a law saying that no member of the Communist Party may serve as an officer of the labor union is not legislation?
Harvey A. Schwartz: --I'm saying it's legislation, but I'm saying that in United States v. Brown this Court said that that was... constituted a bill of attainder, and it was not legitimate legislation.
William H. Rehnquist: So that there's a definition of legitimate legislation which is narrower, I take it, than the definition of legislation otherwise?
Harvey A. Schwartz: Well, yes, Your Honor.
Antonin Scalia: So all unconstitutional legislation you can be sued for, then. Are you saying if a Federal legislator passes... votes to pass an unconsti... a statute that is later found to be unconstitutional, he loses all of his immunity for that whole process because, although it seemed to be legislation, it wasn't really legislation?
Harvey A. Schwartz: No, I wouldn't say that, Your Honor.
Antonin Scalia: No, I don't think you would.
Harvey A. Schwartz: No. [Laughter]
Speaker: But why--
Harvey A. Schwartz: Your Honor, the Speech or Debate Clause has been interpreted to be absolute and all-inclusive. Basically, if it's done in Congress by Congress there's immunity. Applying that sort of broad immunity at the local level, where the executive and the legislative functions are merged, sometimes in many cases merged into one individual, if one were to say that everything done by the town governing board is legislative, to which there is immunity, there are going to be tens of thousands of municipalities in this country where everything done will be immune, but everything that's done by these governing boards, boards of selectmen in my home town, hiring of individual employees, firing of individual employees--
Sandra Day O'Connor: --But how about just talking about the enactment of local ordinances. Let's not talk about their action when they're doing something else, but let's talk about when they're enacting a local ordinance. That just seems quintessentially legislative activity to me.
Harvey A. Schwartz: --It depends on what the ordinance is. If the ordinance is, we will hire John Brown to be an elementary school teacher, it might say ordinance at the top of the piece of paper, but I don't know that that makes it an ordinance.
Stephen G. Breyer: What does it say, when you have like a town meeting in New England, and every two hundredth resident is there, and you say, all right, now, this week we're going to buy pencils, and we're going to next week hire somebody, and all these little local actions, I never knew whether they're administrative or legislative or what they are, and I can't remember what the form would be. What does it say at the top of the page? Does it say, ordinance? I don't know what it says.
Harvey A. Schwartz: I'm--
Stephen G. Breyer: I mean, I know there are vast numbers of details that I think are run through selectmen, and--
Harvey A. Schwartz: --Oh, absolutely. We had a resounding debate at my local town meeting about whether we should spend 25 dollars to repair the radar gun because--
David H. Souter: --No, but the reason you were debating it was that the town had to appropriate money, which was a legislative act, isn't that the case?
Harvey A. Schwartz: --Well, not in that case.
David H. Souter: The person who spent the money, I presume, was the board of selectmen, and I assume they weren't acting as legislators when they spent the money.
Harvey A. Schwartz: Well, not in that case. The money had already been appropriated. It was whether the police chief should be forbidden from spending it for that purpose, which--
David H. Souter: Which is an amendment, I suppose, to the appropriation.
Harvey A. Schwartz: --Well--
David H. Souter: And that's legislative. Isn't that easy?
Harvey A. Schwartz: --Well, that would be legislative, but if that were done... if that were done by the board of selectmen, if the board of selectmen on their own said, let's not spend that 25 dollars to repair the radar gun, that would not be--
David H. Souter: Like any... like any executive official, the board of selectmen might decide not to use the authority that was given them, and when they make that decision I suppose that's an administrative or an executive decision, not a legislative one. But I mean, aren't those pretty garden variety examples of classifications that are fairly easy to make?
Harvey A. Schwartz: --Well, if one were to say that anything done by a legislative body is legislation, but anything done by an executive body is executive, that would certainly be a simple solution, but I don't know that that would address the realities of local government.
John Paul Stevens: Thank you, Mr. Schwartz.
Harvey A. Schwartz: Thank you.
John Paul Stevens: Mr. Rothfeld.
Charles A. Rothfeld: Thank you, Your Honor. I have a couple of points which I will endeavor to make quick. First of all, I think the easiest way to conceptualize the question of whether this is legislative action in this case is to... and perhaps it's built on Justice O'Connor's example from Arizona... is to imagine what would happen if this happened at the Federal level. If the President fired the Secretary of HHS, that would be an administrative act. If Congress passed a bill eliminating funding for the Office of the Secretary of HHS for the next fiscal year, everybody I think would acknowledge that would be a legislative act, and that the Members of Congress would be shielded by the Speech and Debate Clause if the incumbent Secretary of HHS sued them on a First Amendment theory. This case I think is identical to that.
Antonin Scalia: Or the President, if he proposed that legislation, which would be--
Charles A. Rothfeld: Or the President, if he proposed that legislation.
Antonin Scalia: --parallel.
Charles A. Rothfeld: Second, I think that the court of appeals and respondent acknowledge that if this facially neutral ordinance had been promulgated for proper reasons, for... purely for the purpose of saving money, it would, in fact, be legislative in character. Therefore, their test requires in every case of this sort that there be a... in that circumstance, absolute immunity would be proper, because it would be legislative in character. Their test requires that in every case of this sort there be an examination, therefore, into the legislative motive before an inquiry into immunity is conducted. That means that there has to be discovery and a trial before immunity is decided, and yet--
John Paul Stevens: Of course, isn't that true in any case in which the constitutional violation has an element of motive in it?
Charles A. Rothfeld: --Well, not if there's an absolute immunity rule for acts that are in the form of legislation, as we suggest. If, having passed a law that determines that it is legislative in character, then I think at that point absolute immunity applies, and there's no need for an inquiry into motive, otherwise immunity really becomes entirely meaningless, because in every case of this sort there will be a possibility to argue that we... there was a specific fact in the minds of the legislators, and I should be entitled, the plaintiff will say, to obtain discovery into those facts, and therefore immunity goes by the boards. The third point, relating to Owen, which was cited by respondent, I think Owen has no bearing in this case. The Court suggested, looking at the common law history in Owen, that the... there was a discretionary immunity for acts of municipalities because common law judges were unwilling to substitute their judgments, their discretionary judgments for municipal acts in areas of the municipalities' proper purview. The rationale for legislative immunity is quite distinct. The idea there is that legislators should not be... should not have distorted judgment because of fear of liability, and therefore any act... thank you, Your Honor.
John Paul Stevens: Thank you, Mr. Rothfeld. The case is submitted and taken under advisement.
Speaker: The honorable court is now adjourned until Monday next at ten o'clock.


Earl Warren: -- and Company petitioners versus United States. Mr. Rosenthal you may continue your argument.
Alan S. Rosenthal: Mr. Chief Justice, and may it please the Court. To briefly recapitulate, it’s the government’s position that the negligence sinking of a vessel which creates an obstruction to navigation violates both Section 10 and Section 15 of Rivers and Harbors Act. And under this Court’s decision in Republic Steel as well as under the settled principle reflected by this Court’s decision, for example in Texas Pacific Railway versus Rigsby, there is in personam liability on the part of these petitioners either -- they can be compelled by injunction to remove the vessel or the Unite States is required to remove it, they can be compelled to reimburse the government for removal expenses. And third that the petitioners cannot avoid a responsibility by relying on their abandonment of the vessel, that the Rivers and Harbors Act of 1899 particularly when viewed in context of its great design cannot be read as repealing the limitation of the Liability Act of 1851, which act as construed by this Court permits a ship owner to limit its liability to the value of its vessel and the cargo only in circumstances where there is no fault attributable to the ship owner. I might stress in that connection that quite apart from the matter of limitation of Liability Act some of the petitioners in this case are not ship owners at all. They were not the owners of the sunken vessel as one, at least one petitioner of each case that falls into that classification and the right of abandonment even if it existed where there has been thought would not be of any benefit to them. Now the --
Speaker: [Inaudible]
Alan S. Rosenthal: In one case Your Honor the petitioner was the owner of the boat which towed The Wycam 112. In the other case the Cargill, petitioner Cargill was the owner and operator of the mooring facility at which the two barges were located and one of the allegations of negligence or at least one of the allegations of negligence relates to negligent mooring. Now we -- on this aspect of the case I would close by simply pointing out again that as Judge Browning noted in his dissent in the Texmar case where he considered all of these cases upon which the petitioner has relied that none of them are in point. In contrast to that within a matter of two years after the passage of Rivers and Harbors Act in 1899, the Act was administratively construed by the Secretary of War as requiring in cases of fault, the ship owner to remove the vessel and that administrative interpretation now appears in the code of Federal regulations and is quoted in the government’s brief.
Speaker: Now they have a Bill in Congress now that deals with this specific -–
Alan S. Rosenthal: There are Bills Your Honor, but there is nothing in the legislative history such as it is of those Bills to suggest that the sponsors of that legislation felt that the existing law did not provide the remedies which the government urges flow from the Rivers and Harbors Act. The reason for the introduction of those Bills was the decision of the Ninth Circuit in the Texmar case three or four years ago and the legislation was intended to be a clarification. And at this juncture as I understand it with the question now before this Court, there is no further endeavor being made with respect to that legislation. We don’t think that the pendency of that legislation in recent years in any way reflects the view on the part of the Congress that the Rivers and Harbors Act itself does not, by implications under the doctrine of Republic Steel and Texas Pacific Railway against Rigsby provide the remedy which we urge here.
Abe Fortas: Is there an official statement that the legislation was intended to be only clarifying? Does it appear somewhere in legislation?
Alan S. Rosenthal: There is one committee report, I don’t think it uses the word clarification as such, but we think that the, we’ve cited in our brief the, this legislative history. We think that the thrust of it certainly is that the Congress, at least the sponsors of that legislation were very concerned about the construction which had been given the act in the Texmar case. And that as I suggested yesterday actually was the first case which had construed the act as being totally unavailable in the case of negligent ship owners. Now the Third Circuit in 1961 in United States versus Zubik held that a negligently sunk vessel was within Section 10 and that the government could obtain an injunction requiring removal. It's true that the Third Circuit in that case went on the hold that, where the government had removed the vessel it was limited to in rem remedies, but the Texmar was the first case which suggested that the -- a ship owner who violates the Rivers and Harbors Act not only by creating an obstruction but then by failing to fulfill his duty to remove can escape any responsibility by simply abandoning the vessel.
Potter Stewart: Well Mr. Rosenthal isn’t it true the earlier cases just didn’t deal with question about whether or not the sinking had resulted from negligence or not?
Alan S. Rosenthal: Your Honor in most of the earlier cases --
Potter Stewart: And now with the government is limited to the, to an in rem recovery?
Alan S. Rosenthal: The most of earlier cases Your Honor either did not involve abandonment or involve an innocent sinking. Now for example the Manhattan, which is the case upon which the petitioners place perhaps the greatest reliance, The Manhattan, a government vessel had sunk through the negligence of another and there was not question in the case. The Court’s determination makes abundantly clear that the sinking was of the government vessel insofar as the owner, the government was concerned was entirely without fault and the government endeavored to obtain from the tortfeasor, the cost incurred by the government in removing its own vessel and the Court said that since the government had not been responsible for removing it since it had the right of abandonment, therefore it could not recover this cost since it had no responsibility to remove in the first instance. Now not only was the Manhattan a sinking, an innocent sinking insofar as the ship owner was concerned, but in addition the Manhattan relied upon English cases which as we note in our brief make it clear that the right of abandonment is dependent upon the sinking being an innocent one.
Potter Stewart: The United Kingdom has a different statute, is it not?
Alan S. Rosenthal: United Kingdom Your Honor has a different statute that is quite true. They also in United Kingdom --
Potter Stewart: Question is here, the meaning of these statutes, here in the United States?
Alan S. Rosenthal: That’s correct.
Potter Stewart: Passed by our Congress?
Alan S. Rosenthal: That’s correct, that’s right. The English have a different statute but the English also I might –
Potter Stewart: Also the law is quite different, the United Kingdom dose not own the beds of the rivers in the England as I understand?
Alan S. Rosenthal: That if Your Honor pleases is true although we contend that United States has a definite proprietary interest in the waters of the navigable waters of the Untied States and that relates the our alternative contention which was not reached by the court below and that is that in addition to violating their statutory obligations the petitioners violated their long standing non-statutory obligations recognized by this Court as far back as the 12 Peters in the Mayor of the City of Georgetown against the Alexandria Canal Company. This is an obligation not to create an obstruction in a public or on a public highway and as this Court observed in the Georgetown case, they involved the Potomac river, navigable waters are public highways for the purposes of the docking and the Court held in that case that the individual who creates a public nuisance in a navigable water can be required to remove that nuisance. We require through the injunctive --
Hugo L. Black: Was it based on any statute?
Alan S. Rosenthal: No, Your Honor it was based upon a non-statutory obligation. Now we submit that in this case, the United States has a sufficient interest in the navigable waters of the United States. First it has a regulatory interest stemming from its constitutional power to regulate commerce over our waterways and second it has a proprietary interest not only because it is the guardian of the waters on behalf of the people who own those waters which this Court has said is the people of the United States but also because the United States is consistently making improvements in the navigable waters. The Mississippi in particular and this we believe is sufficient under the principles of such cases as San Jacinto Tin and Cotton against United States and In Re Debts for the United States without, even with a statute to assert the right --
Hugo L. Black: You mean under the common law, a court made liability?
Alan S. Rosenthal: That’s correct Your Honor and this we suggest is a recognized liability. Now in conclusion I would like to address myself very briefly to the point that was made by the amicus curiae in this brief and was reiterated yesterday by Mr. Ray and that is that the effect of an affirmance in this case would be to bankrupt many water carriers and we think that there is absolutely no basis for that suggestion at all. The fact to the matter is, as this appears in this record in this case, the standard protection and indemnity insurance form covers this kind of liability. Now in the case of substantial barges which are carrying chlorine gas, the premiums needless to say maybe high, but so I would suppose the premiums are quite high on commercial airlines. In the case of small fishing vessels where the risk is much less where the cost of removal would be much smaller presumably the premiums would be much lower. But we find it quite startling quite frankly that it is contended that this Court should hold that negligent ship owners should be insulated from the consequences of their negligence simply because if they are saddled with the consequences of that negligence it may occasion financial damage. I mean this is a consequence which anyone in any business must undertake and again insurance is very definitely available in this area. So for these reasons we respectfully submit that the judgment of the Court of Appeals for the Fifth Circuit should be affirmed either both on the grounds that there is an implicit right conferred by the Rivers and Harbors Act to recover the cost of removal or to obtain an injunction to require a mobile or on the ground that there is a long established common law obligation on the part of ship owners who create public nuisances in the nation's waterways which obligation can be enforced by the United States.
Byron R. White: What’s the position of the United States in respect to criminal liability in this situation?
Alan S. Rosenthal: Well Your Honor is –
Byron R. White: Knowing under Section 10 I suppose, I guess you rely on both 10 and 15 --
Alan S. Rosenthal: That’s right and --
Byron R. White: With the -- would you suggest that the that criminal liability would be just in this situation?
Alan S. Rosenthal: Yes where there has been a violation of Section 10 and 15 Criminal Liability would exist.
Byron R. White: Yeah but that doesn’t and but that doesn’t mean that negligence is required at all, is it?
Alan S. Rosenthal: It would be required--
Byron R. White: Your common law of liability, it depends on negligence I gather?
Alan S. Rosenthal: That’s correct.
Byron R. White: Statutory liability, your statutory liability argument does depend on --
Alan S. Rosenthal: Your Honor it, we’ll I’d know actually I think it maybe the -- in terms of a violation of the prohibition in Section 15 that probation is tied in terms to a voluntary or careless sinking.
Byron R. White: Or --
Alan S. Rosenthal: Or careless, now by voluntary we take it to mean intention, so that for the purposes of section, of that probation in Section 15 there would have to be either --
Byron R. White: You say -- you take it under 10 (2), don't you --
Alan S. Rosenthal: That’s correct.
Byron R. White: -- that this is an obstruction?
Alan S. Rosenthal: That’s right.
Byron R. White: And that hasn’t had any voluntary or careless?
Alan S. Rosenthal: Well Your Honor what would I suppose be involved there is would be the question if the issue arose to whether Section 10 applies to an innocent creation of a obstruction --
Byron R. White: Like sinking in a storm?
Alan S. Rosenthal: Yes whether the term create would, which is used in Section 10 would keep out of the ambit of Section 10 innocent sinking, it’s not what, it might be argued that one who creates, one whose vessel sinks without any fault at all on the part of the owner has not created an obstruction that the term creation would carry with it the implication it of being either some, of intentional act or some miss or malfeasance.
Byron R. White: It’s almost everything that Section 10 talks about expressly or things that obviously people do on purpose like they build it here or they drop something in a river and things like that. But do you still think it would cover, Section 10 covers a negligent or innocent.
Alan S. Rosenthal: I would -- well for the purpose of this case Your Honor we are not arguing that it covers innocent sinking. We say it very definitely it does cover negligent sinking. We say beyond question, he who threw his negligence creates an obstruction in the form of a sunken vessel and that’s exactly what we have here in the allegation --
Byron R. White: You would say that that triple liability lies in the situation?
Alan S. Rosenthal: That’s right although I would say that it’s very unlikely in the case of innocent sinking that criminal liability would be sought.