Warren E. Burger: We will hear arguments next in 74-6257, Gregg against Georgia. Mr. Harrison you may precede when you are ready.
G. Hughel Harrison: Mr. Chief Justice and may it please the Court. I am Hughel Harrison from Lawrenceville, Georgia and I represent Troy Leon Gregg who is now under two death sentences for murder. Originally he was tried on two murder charges plus two armed robbery cases. The Georgia Supreme Court on its review of the case, set aside the death penalties as to armed robbery and that the -- for two grounds. That the armed robbery had been used as a aggravating circumstance on the murder cases and that the death penalty was disproportionate for the punishment of this crime. Gregg was tried under a 1973 Law in Georgia that made some changes in our death penalty. It is interesting to note that only one offense and that of perjury was deleted. The general assembly provided for a bifurcated trial under which at the first phase, you would determine guilt or innocence and that only. Then that same jury was to consider the punishment that would be imposed and we submit that in this area, we still have some of the arbitrariness and the discretion and that we do not meet the Furman standard. In the 1973 law, there were ten enumerated statutory aggravating circumstances. Those are set out and I believe they are set out in the brief for the respondent in that the appendix was not printed on the appellant's -- petitioner's brief. Those are specified and referred to as the statutory aggravating circumstances. At this phase of the trial, the trial judge must determine which of those he will submit and in addition the jury, as I understand the law, can consider other aggravating circumstances to use the language as authorized by law. Nowhere does the statute make any definition of a mitigating circumstance. It is completely silent. Now, in this case when we proceed, with the senates in phase and after instructions and these instructions are required to be carried out with the jury and the jury make its finding and indicate what the aggravating circumstances are. This record reveals that, if I recall correctly, some three were submitted. The jury returned its verdict and made its recommendation of death which was binding upon the court when that recommendation is made, so the substantive change in our law. Before that the jury made its finding. If it made a recommendation of mercy then only life sentence could be imposed, and if it returned the verdict of guilty in these cases then it was the automatic death sentence. Now, then 73 law provide for an appeal. This is in addition to our review, a statutory review. This was in addition to the usual and normal appeal which was done in this case and it is submitted that, while this is desirable, it does not cure some of the discrepancies and arbitrariness of Furman. In this, the trial court is required to submit to the appellate court, his evaluation, shown on appendix B of the brief for the respondent. I would direct the Court's attention to this because it illustrates the effect of action in the trial court level on the appellate court. One of the issues in this case was, in this report says -- number seven on page 3B on the end, was an evidence of mitigating circumstances. The trial court says no. This removes from consideration, the evidence that was adduced in this case and where there was a written statement, exculpatory in nature taken at the time of the arrest. This removed and I submit removed it in the appellate level. It must be remembered that in this case and I think, I would apologize for going into the evidence to this point, but upon arrest in North Carolina, Gregg made a statement to the Georgia authorities when they questioned him about what had happened. It was exculpatory in nature and that he said there was a fight and he did it in self defense. There was evidence in the record, including the lip of one Sam Allan and some evidence as to some abrasions on the hands of one of the victims, but Gregg was carried from Asheville down Inter State 85, past the most direct route to Lawrenceville. Sometime before daybreak early in the morning in the presence of and after having been transported from Asheville to this area, with the District Attorney, the prosecuting officer in the back seat with and Gregg under handcuffs, the other passenger in that car being the Chief of the County Police of Gwinnet County and one of the detectives that, that in two hours turned around and proceeded back north to the scene and it is supposed to be that detective Barnett said that there was a restatement or reenactment of what happened. They also testified that the Chief of Police told Gregg that this is the way it happened, (Inaudible). Gregg is supposed to have said yes, but this record reveals that Gregg refused to sign a statement. Gregg denied it on the trial of the case, but this removes entirely we submit, any consideration of the mitigation -- mitigating circumstances. Now, where does that leave us? I objected strenuously, tied to keep this evidence out, notwithstanding this, on the trial of this case when it was charged, the effect of the charge in this case is to submit to this jury the question you either acquit him or you convict him. The lesser included defenses of manslaughter or even the statutory right of a jury to find and attempt, even if a crime was committed, affectively deprived the jury of any discretion, except you either find it as a murder or justifiable homicide, that is what the charge is in this case.
Warren E. Burger: So, it deprived him of an opportunity to find him not guilty to acquit him totally?
G. Hughel Harrison: No sir, certainly I think there is a --
Warren E. Burger: (Inaudible) factor is always there, is it not?
G. Hughel Harrison: Yes sir, Mr. Chief Justice, but also as a matter of right, I think a jury, at least in Georgia, has a right to convict of a lesser included offense, particularly in a capital case. That is true in most other felonies, but in the capital cases --
Warren E. Burger: You are (Inaudible) for another separate area apart from the Eighth Amendment argument, I take it?
G. Hughel Harrison: Not on necessity Your Honor, I think it comes back down to show that whether we use equal protection in this sense of what happened to Allen. There were two people who were involved in an incidence. Two people, one suffering the death sentence and one going away with ten years, for no reason, no explainable reason. Gregg, no prior record, he admitted he killed the people, but he said he did it in self defense. Jury rejected it and that apparently is in now it is still suffering the death penalty and he is under today, two of them. Your Honor, we submit that the 1973 law was an attempt to meet firmly and it has not done it. It still leads that discretion both in the prosecution. I submit to you, whether it is right or wrong and I would be the first to admit that some discretion must be vested in the prosecuting attorney, we must have it, but is that to be unlimited and is it to have the right to care with it, you live, you die.
Warren E. Burger: Do you take the position that the presence or existence of that discretion is fatal to the Eighth Amendment arguments, you go along with the arguments, in other words of Mr. Amsterdam and others?
G. Hughel Harrison: I would follow that argument Mr. Chief Justice and particularly to this point, that in the end result, whatever it might -- what process we might have to get to that, that here under this statute, the arbitrariness no guidelines. Your Honor, there is nothing in the statute of Georgia. A man can be indicted for murder and before that case is called for trial, the District Attorney can stand up with no reason and (Inaudible), that is the end of the case. The only limitation is it once it is submitted to a jury then he must have the approval to do it.
Warren E. Burger: But has no power over a (Inaudible)?
G. Hughel Harrison: Except Your Honor when it becomes really effective in the breast of the court for trial. Before that case is called for trial, the district attorney can just (Inaudible). He can determine when he calls it and if he were called. Now this is --
Warren E. Burger: Did the successor reinstate that to go ahead with the trial?
G. Hughel Harrison: Sir, I am sorry I did not understood you.
Warren E. Burger: The successor, suppose that county attorney and the prosecutor were removed then by the Governor or some of the process. (Voice Overlap) and for reelection could they proceed?
G. Hughel Harrison: Of course, there is that remedy to the ballot box, but had to precede the re-indict and I am sure the argument might be made, well, he does not indict, but for all practical purposes he does, because he attends upon the grand jury, he prepares the indictments and submits them. There is only Your Honor, only the individual discretion I submit to you. It is the only limitation on whether or not a District Attorney of what he does. Just as in this case and they could be no better illustration of it than in this case. Sam Allan who was with him and under any theory of Georgia law, he is just as guilty as Troy Leon Gregg. We have no excuse to use him as a state witness, no trade of --
Potter Stewart: He had testified, did he?
G. Hughel Harrison: No sir, his only appearance in this case was to be brought, adjunct to the courtroom for the purpose of identification, that was all.
Potter Stewart: Verifying him or his identifying your client?
G. Hughel Harrison: No sir, I believe it was for the purpose of an officer identifying Sam Allan if I recall it correctly on it.
Potter Stewart: My understanding was Allan did not testify?
G. Hughel Harrison: He did not. He was just brought to the edge of the courtroom for so he could be seen. So it was not necessary in the usual thing of turning state evidence is not apparent here. So this to me is a perfect illustration of it. Two people, equally Guilty on any theory of law, one with ten, 20 years and the other with the death penalty with no prior record. Now, Your Honors the 1973 Act has not intended at all and made no change in what happened beyond the appellate level, in the executive clemency. It is in the area of being in the Court with the prosecutor, with the jury and the Trial Judge, even in his instruction and I do not think we can avoid that in this instance and the uncertainty of what the jury is given to find insofar as aggravating circumstances. Mr. Justice Powell, you were asking about some of the broadness of the language that was contained in the North Carolina statute. The code section enumerating this ten, flip on 8A of appendix A, you see we start enumerating these aggravating circumstances.
Potter Stewart: The Appendix to the brief of respondent?
G. Hughel Harrison: Of respondent, yes. Number two the offense of murder, rape, armed robbery and kidnapping was committed while the offender was engaged in the commission of another capital felony of aggravated battery, or the offense of murder while is committed while the offender was engaged in the commission of burglary or arson in the first degree. This was given to this jury. Three was not given an then four was purported to be given and a comparison of this with what was actually given at leaves much to be desired, but the offender committed the offense of murder for himself or another for the purpose of receiving money are the thing of monetary value. Your Honors the only proof of the taking of the money, of any money was possibly that contained in the exculpatory statement taken in North Carolina and then they purported a transaction out in the early morning that Gregg denied. Seven, the offense of murder, rape, armed robbery, kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Aggravated battery under Georgia law that they could cover almost anything from the touching if it had intend to commit harm.
Harry A. Blackmun: Was this one covered in the instruction?
G. Hughel Harrison: This was given in the instructions Your Honor. Numbers two, four and seven were given and they were returned. Your Honor, I think it is important that here this Georgia statute sets and enumerates these ten and some reference has made as to this being the statutory aggravating circumstances, but in the introduction, there is no limitation on the aggravating circumstances otherwise authorized by law, court law or jurisdiction.
Warren E. Burger: Where?
G. Hughel Harrison: This is at the top of the page Mr. Chief Justice on the along B27, 25, 34
Warren E. Burger: Is that something you cannot follow?
G. Hughel Harrison: I think it is -- it creates the confusion of what I have if you are going to enumerate the statutory condition. Why go back and cover the whole code from A to Z as might be authorized by law and if we are going to do this, either we leave mitigating circumstances undefined anywhere. Now, is this uncertainty that permeates and we submit that the statute cannot meet the firm indecision. With that Your Honor, we submit that under this circumstances that in this case, we do not have to go to the ultimate question of the death penalty under Eight Amendment, even though we say that even there we question the sufficiency of proof to justify the taking of human life. Two wrongs do not make a right. Whatever a man has done, he pays his penalty and we submit the Court that there is a real Eight Amendment issue and that is not to be tested, but what a General Assembly thinks is to be tested by an interpretation of the constitution. I would submit that a more proper test and I submit that this Court has consistently held it when you take away a right that the burden not necessarily be upon the person accused. Traditionally the authority of an individual accused with a crime in this country to stand mute and be clothed with a protection of the constitution. He does not have to say I am not guilty. He does not have to say anything, but I am here and he does not have to say that. That the cloak of the constitution protects it and when we loose sight if this that the state in order to come to remove any facet of and particularly the life, the most precious thing he has that the state must prove it. I submit in conclusion Your Honor, that the Weems case and the Robinson case and really the Dulles case show that this Court can take and can consider any punishment imposable under the judicial system in this country today and you can place it in the ballots of does it meet the test of the Eight Amendment, without any apology to anyone, anywhere and that is where this comes down to. The bottom line is, is it justified or had the government proving that it is such a punishment, has it proven that there is such a deterrent that in 1976 that we will continue to impose the death penalty under such conditions when we do not know for sure.
Harry A. Blackmun: You cited among others that Dulles case, did you not?
G. Hughel Harrison: Yes sir.
Harry A. Blackmun: Because that has some language in it that is not very favorable to your side?
G. Hughel Harrison: Yes sir, but I believe the theory or the idea there of looking into the punishment is present Your Honor, Mr. Justice. With that your honors we would ask the Court to reverse this decision to follow the Furman line of cases and that these two death penalties on this young man be reversed. Thank you.
Warren E. Burger: Thank you Mr. Harrison. Mr. Davis.
G. Thomas Davis: Mr. Chief Justice and may it please the Court. I argue on behalf of the state of Georgia. Briefly at the beginning, I was to address a few of the comments made by Mr. Harrison as to the facts of this case. I do not wish to re-argue the case factually. The jury determined beyond a reasonable doubt that Mr. Gregg was guilty of two murders with malice or in the commission of an armed robbery. Mr. Harrison has intimated that another man involved in the crime for somehow arbitrarily and capriciously not sentenced to death, but given a sentence of ten years. Mr. Harrison has failed to point out that the other man Mr. Allan involved was 16 years of age and could not have been punished by death in Georgia. Additionally, there was no evidence to indicate that he had any prior knowledge of Mr. Greggs planning to kill this two men. In response to this Court's decision in Furman, the General Assembly of Georgia in 1973 enacted a new procedure, a new death statute procedure. In doing so they allowed controlled discretion. In complying with this Courts decision in Furman, they eliminated arbitrariness and capriciousness on the imposition as this Court had held was present. They eliminated that from the imposition of a death sentence. They did that in several ways. First, they set out ten aggravating circumstances by statute and as Mr. Harrison says, they are also provided any other aggravating circumstance allowed by law, otherwise allowed by law which simply means any other way in Georgia law, you could find an aggravating circumstance and that to my knowledge is only one other place and only one aggravating circumstance which would be a prior conviction, which is not included in the first statutory aggravating circumstance which provides for prior capital convictions and prior convictions of serious criminal assault brought. In other words, the District Attorney could present an aggravation and say a prior burglar, however, before death sentence can may imposed, the jury must determine beyond a reasonable doubt, the presence of one of the statutory aggravating circumstances. It is true that the general assembly did not define mitigating circumstances. They said mitigating circumstances as otherwise provided by law. Again, they are referring us back to the general Bifurcated Trial Act which allows that open to the defense counsel to permit him to present evidence of any factor which could legally be considered in mitigation not barred by the constitution rules of evidence and some other general rule. They provided in a very important part of the procedure for swift and immediate appellate review. This review was directed to include an examination of the record by the Supreme Court of Georgia, an examination of a trial report which is included, the trial report in this case by the trial judge is included in appendix B to respondent's brief, to determine the presence of any passion prejudice or any other arbitrary factor. Second, they were mandated by the general assembly of Georgia to determine whether the evidence in fact supported the aggravating circumstance found and third, to examine other cases, to determine whether the senates imposed in that particular case under review was disproportionate, to the senates imposed in other similar cases considering both the crime and the defendant. A third thing that the General Assembly did was to provide for a bifurcated trial procedure. They did not do this under this Senate's Act, but it was done before.
Potter Stewart: This was not a bifurcated preceding at the trial, was it?
G. Thomas Davis: Yes, Your Honor. First there was determination of guilt and non-guilt, second was the punishment.
Potter Stewart: With the judge instructing the jury at the second phase giving him for consideration three of the statutory aggravating circumstances and what if any mitigating circumstances and in his report to the appellate court, he said they were not
G. Thomas Davis: That is right. He indicated the -- there was not evidence submitted at the second phase of the trial in mitigation and that I think that is what he had intended by the Court and he saw none in the trial and chief.
Potter Stewart: Was anything proffered on behalf of the defendant?
G. Thomas Davis: There was nothing proffered, Your Honor. His charge to the jury on that point is in respondent's brief at page 15. He charged him so they could consider in a mitigating circumstances that they saw from the evidence.
Warren E. Burger: (Inaudible) said that there were two stages to, except the preceding that there are sometimes in Georgia which do not call for separate penalty preceding, is that true?
G. Thomas Davis: I am not aware of any Your Honor. In all felony cases the law provides for bifurcated trial.
Lewis F. Powell, Jr.: What issue is submitted to the jury in Georgia at the second trial?
G. Thomas Davis: Punishment.
Lewis F. Powell, Jr.: Simply that -- I have not read that instruction, what does it say in substance?
G. Thomas Davis: The instruction as I pointed out to the Court was just what the court charged in the mitigating factor. The statute requires that the trial court determine from the evidence presented what statutory aggravating circumstances are warranted. He then gives those in charge to the jury and any mitigating is presented, warranted by the evidence. They are also given to the jury in writing. The jury and of course argument -- counsel before he does this of course is the opportunity for counsel to present additional evidence of aggravation or of mitigation.
Lewis F. Powell, Jr.: In this case as I understand it, no evidence of mitigating circumstances was offered by the defendant?
G. Thomas Davis: That is correct, Your Honor.
Potter Stewart: The jury in bringing in a verdict of recommending death or for bringing in the verdict of the death sentence must include or at least one of the statutory aggravating circumstances --
G. Thomas Davis: That is correct, Your Honor.
Potter Stewart: -- as found at least one in this sole state and identify which one --
G. Thomas Davis: In writing --
Potter Stewart: -- in writing --
G. Thomas Davis: -- beyond a reasonable doubt. I believe if I understood Mr. Harrison correctly stated that the jury returned or found three statutory aggravating circumstances in this case. My recollection is they found two. Three were submitted to them, they refused to find number 7. A number looking specifically now at the ten statutory aggravating circumstances in Georgia, they are set out at pages 28 and 29 of respondent's brief, a number of these aggravating circumstances have been attacked either by petitioner or amicus on behalf of petitioner as being overly broad, as being meaningless and I want to look at the few of those now. They attack number three, which says that the act of murder and armed robbery or kidnapping, knowingly creating a great risk of harm or death to anyone in a public place by means of a weapon and so on and endangering the lives of more than one person, that could fit many things, but to understand the Georgia of death statute, one must look at the bare wording of the statute in light of the refinements added by the Supreme Court of Georgia. The case of Marcus Wayne Chenault versus State, this was the statutory aggravating circumstance was found. What Mr. Chenault did was to avenues of bad discharge in Atlanta on a Sunday morning during a worship service. He sprayed the congregation with gunfire, killing two members of that congregation and if I recall correctly wounding others. Now, the jury had no difficulty in finding statutory aggravating circumstance number three. On the other hand and the Supreme Court of course had no difficulty in affirming it as being supported by the evidence, however, on the other hand in the case of Joe versus State, it was a case in which the defendant abducted a woman at gunpoint in a shopping center parking lot. The state sought aggravating circumstance number 3, the Supreme Court of Georgia said no. The evidence did not support it.
Warren E. Burger: (Inaudible)
G. Thomas Davis: They submitted evidence, the jury returned it in the Supreme Court of Georgia.
Warren E. Burger: The Supreme Court can review the specific decision of the jury?
G. Thomas Davis: Very definitely. That, and again the point I am attempting to make of course is that that the entire picture is not present when one looks at the bare wording of these aggravating circumstances. Under Georgia’s procedure of the Supreme Court play such a major role that to understand them one must view, the refinements added by the Supreme Court of Georgia. Another statutory aggravating circumstance, they attack as being meaningless and over broad is number seven which involves torture and depravity of mind. In the case of McCorquodale versus State where McCorquodale tortured a young woman for several hours by use of acid, fire, surgical scissors, kept her alive, it is amazing the woman lived as long as she did, finally breaking her limbs and stuffing her into a trunk. The jury found aggravating, statutory aggravating circumstance number seven. There was no problem in affirming that, that would be torture to anyone. Petitioner in brief or amicus, I may refer to petitioner, when I mean the legal defense fund submitted a brief in his behalf, cites the case of Floyd v. State as an obvious inappropriate use of statutory aggravating circumstance number seven, torture. Again, the question is overly broad, what is torture? In the case of Floyd, Floyd in of the home, forced the mother and the daughter who was present to march up and down stairs trying to force from them the location of money, separated them, threatened the mother with cutting fingers of the daughter, walked them together and knelt them down, put the gun to the daughter's head, kissed her goodbye and blew her brains out in her mother's presence and then turning to the mother, blew her brains out, laughing that she put up her hand to shield from the bullet, he thought that was humorous. The jury filed torture, aggravating circumstance number seven. They also attacked and interestingly so the aggravated battery. They cite the case of Mitchell versus State to support the misuse of that and I think one of the law professors they quote, makes the remark that aggravated battery could apply to any one in -- any one murdered that displays simply a base misunderstanding of Georgia law. Not so and it has never been used in the State, in that manner and again the misunderstanding is demonstrated by Mitchell v. State, they cited, to make the statement cited Mitchell v. State. The facts in Mitchell, Mitchell entered the grocery store, took the proprietor who was a middle age lady and her young son back to the cooler. He shoots the young son, he shoots the mother, he leaves. This one is in the course of a robbery, he leaves he thinks, he better return and make sure that his work is done well, he returns shoots again the son, shoots again twice more the mother. He killed the son, but he did not kill the mother, even though shot three times, once in the back, the shoulder and the head, she lived to testify against him at his trial. That was the aggravated battery present in Mitchell, not to the dead son.
Potter Stewart: This statute has been in effect since 1973, Mr. Davis?
G. Thomas Davis: Yes. Your Honor.
Potter Stewart: And that you happen to know how many death sentences have been imposed under it?
G. Thomas Davis: By our records 55.
Potter Stewart: And how many of those, if any, have been set aside by Supreme Court of Georgia?
G. Thomas Davis: One has been completely set aside. There have been a number of cases were there where a number of death sentences imposed and they have set various ones of those aside. The case of Coley v. State is one of they completely vacated the death sentence on the grounds --
Potter Stewart: What do you mean completely compared to what? What do you mean by that?
G. Thomas Davis: For example compared to this case Gregg, Gregg was sentenced to four death sentences by the jury.
Potter Stewart: And they were two sentence, two death sentences, but let us talk then about people not how many sentences imposed on it. 1 out of 55 people who were convicted to death have been sentenced to death, one of those 55, their death sentence was reversed by the Supreme Court of Georgia, is that it?
G. Thomas Davis: That is correct.
Potter Stewart: And he got a new trial order or what happened to that case?
G. Thomas Davis: There would a new trial as to punishment. There would be of course (Voice Overlap) With no possibility of death sentence?
G. Thomas Davis: No possibility of the death sentence. Let me point out for clarity. When I used the figure 55, There had not been 55 cases in Supreme Court of Georgia. I was answering the question of how many death sentences were imposed. The Supreme Court of Georgia has decided 30, 30 or 31 cases.
Potter Stewart: That will involve the co-defendants today or what?
G. Thomas Davis: It depends on what stage of the process they are.
Potter Stewart: Some had not yet arrived at the Supreme Court, not been decided --
G. Thomas Davis: None have been decided. Some have been docketed, not decided and some, this 55 figure includes up to two weeks ago.
Potter Stewart: So there are as I understand your answer, 54 people now under sentence of death in Georgia, but some of whose convictions have not yet been reviewed on appeal.
G. Thomas Davis: That is correct, Your Honor. Looking -- leaving the statutory aggravating circumstances and going to the appellant review, In responding to this Court's decision in Furman, the General Assembly of course was faced with the problem of -- with having to remove arbitrariness or capriciousness in fact from their procedure. The General Assembly determined not to eliminate the Authority of the jury of the trial judge to bring to bare in a case, the community values and their first hand understanding of the facts in that particular case. They wanted to allow the Judge, the jury, the fact finder to tailor make the punishment to the defendant in that particular case, keeping in mind and reiterating the principle set down by this Court in Witherspoon and in McGautha and at the same time eliminating arbitrariness and capriciousness from the procedure and of course they did that with the statutory aggravating circumstances, but very importantly with the appellant review which mandates as I have stated earlier, the specific review by the Supreme Court of Georgia, for the presence of any arbitrariness factor. They enunciate passion, prejudice or any other according to statute arbitrary factor, the Court is to examine in detail the record, the trial report which is a number of pages law. In the trial report there are six questions which deal with whether race was in any way an issue in that case. Second of course the in-depth determination of whether the evidence supported the aggravating circumstance. Both of those of course look to the case itself to ensure fairness and non arbitrariness in that particular case. The third standard and the third thing mandated by the general assembly was to compare this case with the other cases and the statute says other similar cases considering defendant, considering crime and of course the Court has the power, if it finds any of that to vacate the death sentence. This is in addition of course to normal appellate review. That was the mechanism or at least a principle mechanism which was placed into the Georgia death penalty procedure to ensure non arbitrariness. But what does petitioner say to that? In brief, they point to two cases as being a prime example of arbitrariness on behalf of the Supreme Court of Georgia, they point to the case of Coley, Coley was a rape case, an escaped felon. He was robbing a store, abducted a woman right there and was apprehended. He was sentenced to death by the jury. The Supreme Court of Georgia vacated, just proportion of it. The case of Coker, an escaped felon, who goes out and enters a home, rapes a young woman who had given birth three before in the presence of her husband, abducts her and he is apprehended. He has sentenced to death. The Supreme Court of Georgia affirmed. What petitioner does not point out to the Court that Coker, the second case had brought convictions for rape and kidnapping, one instance. Another instance for rape, aggravated assault, another instance of rape and murder, a brutal murder of a young girl that he had raped, these factors were certified and submitted to the jury under statutory aggravating circumstance number one. I submit there is no arbitrariness there, that there is no lack of reason, there is no lack of justification. It would seem apparent to anyone of common human understanding, while Coker’s, death sentence was affirmed and Coley’s was vacated. If I understand the arguments of petitioner and the arguments made yesterday and earlier, what is being complained out under the Eight Amendment is arbitrariness in fact. Now, as I understand the case of Furman, it did not say that discretion was unconstitutional, but that arbitrariness or system which led to arbitrariness in fact are the wanton and freakish imposition of a death sentence was what was unconstitutional. If so and if that is the way I understand and I was listening to the way he used the word arbitrary, or arbitrariness and he said spared for no meaningful basis without rhyme or reason, without justification, no rational basis. If that is the standard, what has been shown about the of Georgia procedure? Has arbitrariness in fact been demonstrated to any degree? We maintain that what must be of avoided as is the wanton and freakish imposition, not that everyone who should get a death sentence under a system of justice or concept of justice, that a few escape or have they even shown any one escaping. It is interesting to note some footnotes in their brief where they try to bracket and compare cases in Georgia and say and one prime one is Gregg, this case, two cold blooded murders and an armed robbery, Gregg sentenced to death. They cite the case of Brandon v. State, two cold blooded murders and of course of an armed robbery, sentenced to life imprisonment by the jury, imprisonment by the jury. What they failed to note is that Brandon was fourteen years of age and I seriously ask this Court in considering those cases, in those briefs to look below the surface facts shown. In almost every case cited, you will see the circumstantial evidence appearing. You will see the felony murder appearing, not the malice murder, felony murder, confused evidence as to who was the perpetrator, the youth, the question about middle capacity, they appear in every case cited. The statutory aggravating circumstances in Georgia with the appellate review has led to a group of criminals who have committed horrible, veil, heinous crimes being sentenced to death.
John Paul Stevens: Mr. Attorney General, might I ask what your judgment is on the comparison between this group of 55, who now have received the death sentence as to the pre Furman experience under the statute, would you say that there are more or less death penalties than there were before? You have a judgment on it.
G. Thomas Davis: I really do not, Your Honor, I do not what to --
John Paul Stevens: I do not want you to state if you do not have a thought already in line and secondly could you tell us how many of the 55 are for rape and how many for murder, if you know?
G. Thomas Davis: Of the total 55, I could not say. Of those that have been docketed and have been decided by the court, there are three for rape, one of which is Coker I discussed with this prior, the other two was rape and kidnapping together, a woman who was staked out over five dead, they also had prior capital felony convictions, those are the only verdicts.
Potter Stewart: Any for robbery, I know for these robberies death sentences were set aside as an comparability basis and that would imply that there are no death sentences for robbery, although the statute does provide for it.
G. Thomas Davis: The statute provides it. Looking to fine line added by the Court, the Court had said that that a death sentence for armed robbery in Georgia, in other words, if you took the facts of Gregg, eliminated the two murders, that is disproportionate and a death sentence cannot be imposed, they are none in Georgia that are armed robbery without murder.
Potter Stewart: Did not quite say that it would, that under Georgia law it could never be imposed, no reason why it should, it said that?
G. Thomas Davis: Of course what the Court said would have to be considered in light of the facts present in Gregg and of course the same thing with the rape that was present in Coley. The General Assembly of Georgia of course determined that a death sentence is justified in Georgia and it is needed in Georgia, of course, for a number of reasons. For deterrents, specific deterrents and general deterrents, we have some of those under death sentence now, who are under life sentences for capital crimes, and committed more capital crimes on escape. So we have the problem with specific deterrents. The General Assembly of Georgia as matter of policy has determined that there is a general deterrence by the death penalty. We respectively submit that the constitution does not demand that the balance of fear weigh more heavily on the citizen than on the potential capital criminal. We think that petitioner has not demonstrated arbitrariness or capriciousness in Georgia statutory, what is happened under Georgia’s death penalty statute. As we understand Furman that is what was held to be unconstitutional. Thank you.
Warren E. Burger: Mr. Davis.


John G. Roberts, Jr.: We'll hear argument next in Central Virginia Community College versus Katz. Mr. Thro.
William E. Thro: Mr. Chief Justice, and may it please the Court-- This case involves a conflict between two constitutional values. On the one hand, Congress has the sovereign power to make laws which apply to everyone, including the States. On the other hand, the States have sovereign immunity from all aspects of suit. In the past, this Court has reconciled this conflict by drawing a line between sovereign power and sovereign immunity. States are bound by Federal law, but the States are immune from monetary damages for violations of those laws. In the bankruptcy context, this line means the States are bound by the discharge decisions, but that the States are immune from the trustee's attempts to augment the estate through monetary judgment.
Sandra Day O'Connor: Can you tell us how often States are creditors in bankruptcies around the country? Do you have any idea?
William E. Thro: There is some information to that effect in the amicus brief of Ohio and every other State of the Union, Justice O'Connor, but my recollection is that the States are creditors in probably the majority of bankruptcies around the country.
Sandra Day O'Connor: So, if you're correct, how would the result you want affect all the other creditors in these bankruptcies?
William E. Thro: It would have some impact on the other creditors, in that you would not be able to augment the estate by collecting a monetary judgment from the State.
Sandra Day O'Connor: And probably, on your theory, States can disregard the automatic stay that issues--
William E. Thro: No, not at all--
Sandra Day O'Connor: --when a bankruptcy--
William E. Thro: --Your Honor.
Sandra Day O'Connor: --commences?
William E. Thro: No. Under our... under our theory, the... theory, the States are bound by the automatic stay. The States are also bound by--
Sandra Day O'Connor: How is that, on your theory?
William E. Thro: --Well, because--
Sandra Day O'Connor: Why wouldn't the sovereign immunity extend to that?
William E. Thro: --The automatic stay is an exercise of sovereign... of the sovereign power of Congress, just as the discharge decisions of a bankruptcy court are an exercise of the sovereign power of Congress. The States are bound by the discharge decisions. States are also bound by the automatic stay. Where we draw the line is where the trustee attempts to get a monetary judgment as a means of augmenting the estate, which is what is happening with this case.
Anthony M. Kennedy: Well, why don't we say that that's the exercise of the sovereign power of commerce, just... of Congress, just like you said? That--
William E. Thro: The automatic--
Anthony M. Kennedy: --I mean, it seems that that answer is just conclusory, that it's an exercise of the sovereign power of Congress, okay. That's just... that's just a conclusion. That's not a reason.
William E. Thro: --Yes, Your Honor. The... this Court's decisions have struck a balance between respecting the need for the States to obey Federal law and, at the same time, respecting the constitutional value of the States' sovereign immunity. What we have here in... with respect to the automatic stay and with respect to the discharge decisions, is States being bound by Federal law, no different than the States being bound by the minimum wage law, for example. But what we have with respect to the trustee's attempts to augment the estate by collecting a monetary judgment against the States is an attempt to invade the State treasury, which this Court's decisions clearly state is barred by sovereign immunity.
Stephen G. Breyer: Tell me, if you're... if you're right... let's suppose you're right. I'm over here. That's-- [Laughter]
William E. Thro: Sorry, Justice Breyer.
Stephen G. Breyer: That's all right. So, it's hard to figure out, because the direction... you can't tell by the sound. I don't know if there's a modern system that would help with that, but... you're right. Suppose that the State... suppose you're right. What I'd worry about... and I'd like your response to this... is that in bankruptcies, or weak firms... a lot of firms are weak, and they owe a lot of money to the States. So, the States figure this out after a while. It takes a few years to seep through, but once they see what they can do, they say, "Here's what we'll do. " "Settle your claims against the State, which happen to be pretty good, for 50 cents on the dollar. " "Give us the money. " "And you're... we're out of it. " So, they settle it. A month later, phhht, bankrupt. Now, two things have happened. The States got 50 cents on the dollar, every other creditor gets 5 cents on the dollar, because they were a month ahead of it. The second thing that happened is, the creditor... the firm lost the chance to come in and be rehabilitated. So, the result of this is two bad things, bankruptcy's law's basic purpose, to treat creditors fairly, bankruptcy law's basic purpose, to give firms a chance to rehabilitate, are both seriously undermined. So, given the Bankruptcy Clause in the Constitution, how is it possible to say that Congress does not have the power to prevent those two very, very seriously harmful results... harmful in terms of the basic purpose of the Bankruptcy Clause?
William E. Thro: Your Honor, the Constitution... specifically, the Eleventh Amendment... confirms that the States are not to be treated like private parties. Private parties are not immune from contract actions; States are. Private parties are not immune from torts... from tort actions.
Stephen G. Breyer: But there is not a Tort Clause of the United States Constitution. There is not a Contract Clause. And there is a Bankruptcy Clause.
William E. Thro: There is a Bankruptcy Clause, Your Honor, and that clause empowers Congress to make bankruptcy laws which apply throughout the entire Nation and which apply to the States. However, the Bankruptcy Clause does not authorize Congress to abrogate the State's sovereign immunity from suit. When... while abrogation can be accomplished using other provisions, it cannot be accomplished using the bankruptcy provision.
Antonin Scalia: Bankruptcy Clause presumably does not allow Congress to set up the bankruptcy law in such a way that it would amount to a taking of property without just compensation, right? Wouldn't allow another constitution to be violated. So the only question here is whether the constitutional protection of States' sovereign immunity can be taken away by the Bankruptcy Clause; whereas, other provisions clearly can, right?
William E. Thro: Yes, Your Honor. And this Court said, in Seminole Tribe, that the Article 1 powers could not be used to take away, or to abrogate, the States' sovereign immunity. Now, obviously, section 5 of the Fourteenth Amendment can be used to do it, but there is no suggestion that Congress used section 5 of the Fourteenth Amendment in enacting its attempt to abrogate sovereign immunity.
John Paul Stevens: But, may I ask, how do you... how do you reach the conclusion that you're bound by the automatic stay and the discharge? Why aren't those also an infringement of State sovereignty?
William E. Thro: I think there is a strong argument which can be made that both the automatic stay and the discharge decisions infringe upon State sovereignty. However, this Court's decisions, dating back to at least New York versus Irving Trust in 1933, have made it clear that the States are bound by the provisions of the discharge orders. I think, also, the automatic stay is something similar to the Ex Parte Young doctrine, in terms of the States being enjoined from doing something else. However--
Antonin Scalia: To say... to say that the State can't be sued is not the same thing as saying that the State can sue, is it? You--
William E. Thro: --No, it's not, Your Honor.
Antonin Scalia: --you can prevent the State from suing, even though you can't sue the State. There's no incompatibility, is there?
William E. Thro: No, there's not, Your Honor. What we have--
Sandra Day O'Connor: Now, do you... do you agree that there are situations where, notwithstanding the sovereign immunity of States, there can be in rem jurisdiction in a court to resolve claims against property--
William E. Thro: --Certain--
Sandra Day O'Connor: --and bind the State, as well?
William E. Thro: --Certainly, this Court's decisions indicate that, in some instances, there can be in rem decisions which--
Sandra Day O'Connor: Well, maybe bankruptcy estates are one such instance.
William E. Thro: --As this Court noted in Hood, the bankruptcy decisions regarding the discharge are in rem and, of course, are binding upon the State. But what we have here is not an in rem proceeding. As this Court noted in Nordic Village, an action to recover a preferential transfer claim is not an in rem proceeding. Rather, as this Court noted in Schoenthal versus Irving Trust in 1932, and Granfinanciera versus Nordberg in 1989, actions to recover preferential transfer are much like actions to recover a contract claim. That is, like a contract claim, they do not involve the core bankruptcy proceedings, but, rather, involve matters that are... or controversies that are tangential to the core bankruptcy proceedings. They're nothing more than an attempt to augment the State. And where we would draw the line, and where we propose that this Court draws... draw the line... and a line that we believe is consistent with this Court's previous decisions... is that the States are bound by discharge, the States are subject to the automatic stay, but the trustees' attempts to obtain monetary judgments, and thereby augment the value of the estate, are barred by sovereign immunity.
John Paul Stevens: Wouldn't it at least be theoretically possible to differentiate between setting aside a preference, on the one hand, and just bringing a suit for a tort or a breach of contact, on the other? One could treat the assets that are... were transferred prematurely... or hastily, whatever you call it... as part of the estate. At least it's conceptually possible.
William E. Thro: Right. Conceptually, it's possible. And certainly there is an argument that the bankruptcy code says that preferential transfer is, in fact, property of the State. With respect, however, to a preference to a State, we would say that that particular reading, as applied to the State, is unconstitutional. I don't believe Congress can make a law which would require the State to divest money or something to which the State has in its possession in which the State has a colorable claim of ownership. Here, there is no dispute that the money is in the State treasury. What they are trying to do is to recover a monetary judgment from the State. As this Court said in Schoenfeld [sic] and in Granfinanciera, this is very much like a contracts claim.
Antonin Scalia: I suppose you could say that a... the intangible of a contract claim is part of the estate, too, right? It's--
William E. Thro: The current bankruptcy code does not say that. In theory, I--
Antonin Scalia: --But, I mean, you could be... there's no less reason to say that that's part of the res than there is to say that the preferential transfer is.
William E. Thro: --That's correct, Your Honor. And just as the contract claims are barred, so are the preferential--
John Paul Stevens: Except Congress--
William E. Thro: --transfer claims.
John Paul Stevens: --has drawn that very distinction hadn't it?
William E. Thro: I'm sorry, Your Honor?
John Paul Stevens: I said Congress has drawn the distinction that... between the preferential claim and the contract claim.
William E. Thro: Congress has drawn a distinction between preferential transfer claims and contracts claims. However, this Court has noted that the difference between an action to recover a contract claim in order to augment the estate and an action to recover a preferential transfer in order to augment the estate, that there really is no difference. Both are--
John Paul Stevens: But the theory of the second is that you're not augmenting the estate, you're merely preserving the estate, isn't it?
William E. Thro: --I think... Congress has certainly defined the estate so that a preferential transfer is considered property. I'm not sure that Congress can do that when the preferential transfer involves the estate. That strikes me as the effect of Congress, in effect, saying that property which clearly belongs to the State no longer does. I think that's probably an affront to Tenth Amendment federalism concerns. But what we do have here is a situation where, like in a breach of contract claim, they are trying to recovery a monetary judgment in order to augment the estate. It's our position that that is barred by sovereign immunity.
Sandra Day O'Connor: Well, now--
David H. Souter: What if the--
Sandra Day O'Connor: --Mr. Thro, doesn't the Respondent want to dismiss the contract claims here?
William E. Thro: The Respondent had asked the bankruptcy court... after reading our brief, the Respondent asked the bankruptcy court to dismiss--
Sandra Day O'Connor: Yes. So, why do you insist that they be adjudicated?
William E. Thro: --Well, Your Honor, I think this is an attempt by the Respondent to rewrite the question presented. Neither--
Sandra Day O'Connor: Yes, but why--
William E. Thro: --our petition--
Sandra Day O'Connor: --why should we force a plaintiff below to pursue claims they want to give up? That just seems so odd to me.
William E. Thro: --It is rather odd, Your Honor, but my read of this Court's rules are that there is no mechanism for a Respondent, the party that won below, to, in effect, give up its victory once they get in this Court. I'm not quite sure why they wish to drop the breach of contract claims. Perhaps they feel that by dropping the breach of contract claim, they somehow obtain a tactical advantage. And, if that's the case, certainly this Court should not allow them to rewrite the question presented in order to obtain a tactical advantage. But, in any event, both the breach of contract claim and the preferential transfer claims are attempts to augment the estate and are barred by sovereign immunity.
Anthony M. Kennedy: Well, do you think the waiver argument that's made is properly before us?
William E. Thro: No. The waiver argument is not properly before you. It was not passed upon by the Court of Appeals below. Moreover, it was, for the most part, not preserved in the Court of Appeals below. While they did argue that Virginia Military Institute waived sovereign immunity for all claims involving Virginia Military Institute in the Sixth Circuit, they made no such argument that filing proof of claim constituted a waiver of sovereign immunity for the transactions involving the other institutions.
Anthony M. Kennedy: You may be right about that, but, while I've got you here, let's assume just one State entity, not multiple State entities. And the State has received a preferential transfer of $2,000. It still has an outstanding claim... a different claim against the same bankrupt for $1,000. And it goes in to enforce its claim for $1,000. Could we hold, consistently with the Eleventh Amendment, that that is a waiver?
William E. Thro: I believe that this Court's decisions indicate the following position. When a State files a proof of claim, it exposes itself to the trustee's defenses to that claim. So, in other words, if the... if the... if the preferential transfer was part of the same transaction or occurrence--
Anthony M. Kennedy: No, different claim. The--
William E. Thro: --Different claim.
Anthony M. Kennedy: --One, the State received $2,000 worth of taxes, but it... still have its $1,000 contract claim.
William E. Thro: Then I believe that this Court's opinions indicate that that would not be a waiver with respect to the different transaction or occurrence. Certainly, by filing the proof of claim you would expose yourself to the trustee's defenses with respect to the same transaction or occurrence.
David H. Souter: --Go--
Ruth Bader Ginsburg: So was... there's a section in the back of... I think it's 160(c)... that says if it's an unrelated transaction, then... so, it would be a permissive counterclaim if we had ordinary civil proceedings. Then there can be a setoff to the extent of the claim that's being made against the bankrupt estate. There can't be any affirmative recovery, as there could be with a permissive... with a compulsory counterclaim. But you're saying that that section is unconstitutional... 160(c)?
William E. Thro: To the extent that 106(c) goes beyond the rule announced in Gardner, then, yes, it has constitutional problems. But you need not reach the constitutionality of 106(c). What we were talking about here is basically a straightforward application of this Court's precedence in a line that you have drawn in other contexts.
Ruth Bader Ginsburg: But if we're talking just about VMI, not about the other schools, then you... if this claim is unrelated, so that it would be a permissive counterclaim, then you would say not even against VMI could you have the setoff.
William E. Thro: That's correct, Your Honor. In... this Court's decisions dealing with what effect happens when a sovereign entity initiates litigation indicate that the sovereign, by initiating litigation, certainly exposes itself to defenses, but does not expose itself to affirmative recoveries.
Ruth Bader Ginsburg: But why shouldn't a setoff be a defense, even if it's unrelated? I mean, there were such things in... at common law, were there not, that you could set off an unrelated debt?
William E. Thro: Yes, Your Honor. And to the extent that a setoff is a defense, it would be permitted. But I may have misunderstood your hypothetical that you were talking about, a setoff which involved an affirmative recovery against the State.
Ruth Bader Ginsburg: No, I meant a setoff--
William E. Thro: Okay.
Ruth Bader Ginsburg: --only--
William E. Thro: Then I misunderstood your hypothetical. I'm sorry, Your Honor.
David H. Souter: --Mr. Thro, I... am I correct in assuming that if the... if the preference in a case like this, that had been given to the State, were not a bank transfer, a check, but were some tangible object, like a gold bar, that there would be in rem jurisdiction on the part of the court to get the gold bar back as a... even though its function is that of a preferential transfer?
William E. Thro: I don't think so, Your Honor. I... although this Court has recognized certain in rem exceptions to sovereign immunity, particularly in the admiralty context, this Court has never recognized... said that sovereign immunity allows a Federal court to order the State to return something where, number one, it's in the State's possession, as it would be in your hypothetical, and, number two, the State has at least a colorable claim of ownership, which, if I understood your hypothetical correctly, the State does have a colorable claim of ownership. But you need not reach... deal with the intangible or personal property issues. The only thing that is at issue here is a demand for a monetary judgment.
David H. Souter: Well, that's... with respect to... I mean, you can say that of any claim that is valued in dollars. But, I mean, your... you know, what I'm getting at is your position that there is no distinction to be drawn between the contract action and the preferential transfer. And my point was, some transfers might be satisfied... might be sought in what, at least in the traditional classification, would be an in rem, rather than an in personam, action. Would your answer be any different if the... if the gold bar were simply sitting on the... on the desk of some State purchasing agent, as opposed to deposited in the... in the State treasury or sold by the State for the monetary value?
William E. Thro: As I understand this Court's decisions on this, if the... if the property is in the possession of the State, and if the State has a colorable claim to ownership, then sovereign immunity will bar the... a court--
David H. Souter: Okay, so--
William E. Thro: --a Federal court order to--
David H. Souter: --in effect, you're saying there are some in rem exceptions, but not all in rem actions are exceptions. And this would not--
William E. Thro: --This Court has certainly recognized certain in rem exceptions, notably in the Treasure Salvors case, where the State did not have a colorable claim to title, and also in Deep Sea Research, where the State did not have possession of the object. Also, in the Whiting Pools case, the Federal Government had possession of a intangible asset, but it was clear that the debtor still had the ownership interest, and this Court said that, in that circumstance, the Federal court would... could order the return.
Antonin Scalia: Well, I suppose you could have a contract action that... in which the State promises to turn over a particular parcel of land that it owns, or even, for that matter, a gold bar that is on somebody's... some State functionary's desk. And I guess you could have a suit for that gold bar or for the piece of property. And I guess you could call that an in rem action, if you wanted to. But it wouldn't be.
William E. Thro: Right. It would be a gross in... a radical in... expansion of in rem jurisdiction. Traditionally--
David H. Souter: --Well, because--
William E. Thro: --in rem--
David H. Souter: --because we normally deal with that as specific performance of the contract, and what... you know it's in rem, in the sense that we're talking about an object, but that's not what we mean, traditionally, by "in rem jurisdiction", is it?
William E. Thro: --Traditionally, in rem jurisdiction has a couple of characteristics. One is, it is... it is everyone against the world. It binds--
David H. Souter: Yes, you sue... in effect, you sue the race, rather than--
William E. Thro: --Right.
David H. Souter: --than the person.
William E. Thro: And--
David H. Souter: And in the... in a... in a specific performance contract action, you sue the person.
William E. Thro: --Right. And a specific performance contract action, while barred in Federal court, would, of course, be allowed in State court, to the extent that Virginia has--
Antonin Scalia: What about a rescission action in which the private party has conveyed property to the State, and the State doesn't pay, and the private party seeks to rescind the action and to receive back the property that it turned over, which is real estate or a gold bar? Could that not--
William E. Thro: --Right.
Antonin Scalia: --not be a... characterized as an in rem action? He's seeking back the property he gave over.
William E. Thro: I don't believe it could be characterized as an in rem action, given the traditional understandings of "in rem". But, regardless of whether you call it "in rem" or "in personam", sovereign immunity would still bar such a thing in Federal court. This Court has never said that there is an in rem exception to sovereign immunity. To the contrary, you explicitly rejected an in rem exception to sovereign immunity in Nordic Village, at least where money was concerned. You have allowed recovery in certain limited circumstances, such as the admiralty cases. Those do not exist here. This is not an in rem proceeding. Preferential transfer is not an in rem proceeding under Nordic Village. Moreover, as this Court's opinions in Schoenthal and Granfinanciera make clear, it's more... it's a traditional sort of common law, similar to a contract action.
Anthony M. Kennedy: I'd like to get away from in rem and back to the waiver aspect that's being argued here. Let's assume that there is an offset obligation that the State has to comply with, that there's been a preference and it has another claim, and with just one entity. If that's true, it seems to me somewhat unfair to say that the State can proceed on multiple fronts with different entities and fractionate its immunity so that if there are more than three entities... or if there are three or four entities, each one is judged separately as to the offset obligation. It seems to me that if one State entity is subject to offset, then all of them are.
William E. Thro: I believe--
Anthony M. Kennedy: Otherwise, the State immunity, it seems to me, can be... can be fractionated.
William E. Thro: --Well, I believe that this Court's decisions in the bankruptcy context draw the line with respect to the same transaction or occurrence. So, to the extent that it arises out of the same transaction or occurrence, then you've got that, sort of, partial or limited waiver. Where--
Anthony M. Kennedy: But I--
William E. Thro: --however, with--
Anthony M. Kennedy: --I thought, with respect to Justice Ginsburg's colloquy... and my own, earlier... that we said that there is an offset obligation, even if they're different claims.
William E. Thro: --There is an offset. I--
Anthony M. Kennedy: And now... and now I want to extrapolate from that to multiple entities, each of which asserts its own immunity.
William E. Thro: --Right. I think the offset obligation... my understanding of Justice Ginsburg's hypothetical was that the... was that we were talking about an offset that would not be an affirmative recovery, but would merely be using as... an offset as one of the trustee's defenses to the claim.
Antonin Scalia: Against the entire State--
William E. Thro: Against the entire State.
Antonin Scalia: --including any money owed to the other... to the other State institutions. You acknowledged that that--
William E. Thro: Yes.
Antonin Scalia: --offset could be--
William E. Thro: Yes.
Antonin Scalia: --applied not just against the college here, but against the--
William E. Thro: No.
Antonin Scalia: --other entities.
William E. Thro: The offset with respect to that particular... with respect to that particular transaction or occurrence, not to the other transactions or occurrences.
Ruth Bader Ginsburg: --So, you're not... I thought your position was, VMI, okay. If they filed a claim, then they're open to affirmative recovery if it's a compulsory counterclaim; offset, if it's a permissive counterclaim. But I thought you said, as to the three other schools, no waiver. There's not... no way you can lump them in. I thought that was--
William E. Thro: Yes.
Ruth Bader Ginsburg: --your position.
William E. Thro: There is no way that you can lump in the other three schools. With respect to VMI, by filing a proof of claim, VMI exposed itself to the trustee's defenses. To the extent that the setoff is a defense for the trustee, then, of course, that setoff would apply to VMI. Before I sit down, I'd like to make three points. First, Seminole Tribe controls. Congress may not use its Article 1 Bankruptcy Clause to abrogate sovereign immunity. Second, to rule in favor of Virginia does not require any alterations in this Court's jurisprudence; however, to rule for Mr. Katz on any theory requires certain fundamental changes in this Court's jurisprudence. Finally, regardless of context, sovereign immunity bars monetary judgment claims. States are immune from contract actions; private parties are not. States are immune from court actions; private parties are not. States are immune from actions by the trustee to augment the estate; private parties are not. Thank you.
John G. Roberts, Jr.: Thank you, Counsel. Ms. Lewis.
Kim Martin Lewis: Mr. Chief Justice, and may it please the Court-- The... if the States are permitted to opt out of the collective bankruptcy process, and they're permitted to disregard Federal preference statutes with impunity, it will have a negative effect on the bankruptcy process. States are large creditors.
John G. Roberts, Jr.: Well, it's the same problem in the patent area, isn't it? And yet, in the Florida Prepaid cases, we've enforced the sovereign immunity with respect to patent proceedings.
Kim Martin Lewis: Your Honor, in the Florida Prepaid case, there was an alternative State remedy. In that case the plaintiff could sue the State of Florida... I'm sorry... yes, could sue the State of Florida in that particular case. In this case, they can't do that. There is a... an estate representative, who has one option, and that option, to preserve the collective benefit of the estate, is to sue the estate... or to sue the State in the bankruptcy court.
David H. Souter: Assuming that's so, for sovereign immunity purposes, why should it make a difference?
Kim Martin Lewis: For... well--
David H. Souter: Yes, I mean, this is a tougher case, but if sovereign immunity is the issue, why does it make any difference?
Kim Martin Lewis: --I do believe that it makes a difference that there is no alternative remedy. However, in this case, I don't think--
David H. Souter: Why? What does that have to do with the theory of sovereign immunity?
Kim Martin Lewis: --I'm not sure that it has anything to do, directly, with the theory of sovereign immunity, but--
David H. Souter: Believe me, I... I mean, I... as you know, I'm not a big fan of sovereign immunity in these circumstances, but I'm not quite sure how to get around it, based on the fact that there is no alternative remedy here.
Kim Martin Lewis: --Well, Justice Souter, the thing that I think is very troubling in this case is that there's a very basic bankruptcy policy, and that basic bankruptcy policy on preferences is equality of distribution and to prevent of abusive debt collection practices on the eve of bankruptcy.
David H. Souter: Then, basically, you're making the argument from the uniformity phrase... uniform bankruptcy laws. That's essentially your argument. And you're saying, in the... in this case, that that trumps the sovereign immunity, and that gets you out of Seminole Tribe.
Kim Martin Lewis: I believe that it... I believe that it does, Your Honor. But I... I'm not sure the Court even has to reach the uniformity argument in this case, because the fact that Virginia Military Institute, on behalf of the Commonwealth of Virginia, waived its sovereign immunity.
Sandra Day O'Connor: Well, but, of course, that doesn't hold true for the other agencies, necessarily, unless you think VMI can waive it for all of them. That seems to me to be only a partial argument.
Kim Martin Lewis: Justice O'Connor, the... VMI waived the only sovereign immunity that existed, which was the Commonwealth of Virginia's sovereign immunity. And, as a result... all of the agencies of the Commonwealth of Virginia served as unitary creditors... and so, when VMI waived the only sovereign immunity that existed, there was nothing left to waive. And, at that point, the recoveries of the estate... which were recoveries against other agencies, not only VMI... were... the Respondent was permitted to bring those actions.
John G. Roberts, Jr.: Your waiver argument is... is it under 106(b) or 106(c)? It's beyond both of those, isn't it?
Kim Martin Lewis: Chief Justice, it's not under 106(b) or 106(c), because the waiver of sovereign immunity... 106(a) provides that, with respect to preference claims--
John G. Roberts, Jr.: That's an abrogation, that's not--
Kim Martin Lewis: --That--
John G. Roberts, Jr.: --a waiver.
Kim Martin Lewis: --that's correct, Your Honor.
John G. Roberts, Jr.: Well, my question would be, How can you argue in favor of waiver when you have a statute with a much more limited waiver, the limits in 106(b) and 106(c), and you're saying, "Well, they waived it much more broadly? " It would seem to me that the most you can argue is that there was a waiver under 106(b) or 106(c), but that doesn't get rid of the whole case.
Kim Martin Lewis: Your Honor, I don't believe that 106(b) or 106(c) limits the waiver in this case, because, again, the sovereign immunity that was waived was the sovereign immunity of the Commonwealth of Virginia. And so, the claims that were asserted in that action, the preference actions that are served against VMI and the other institutions, are preserved, because we can--
Antonin Scalia: Well, you're saying that much of the language of (b) is ineffective and superfluous? (b) certainly tries to limit it. It says "has waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction. " You're just saying all of that is ineffective, then?
Kim Martin Lewis: --I'm saying that, in this context, it isn't... it isn't effective, Your Honor.
Antonin Scalia: In what context would it be effective?
Kim Martin Lewis: The... 106(b) was intended for claims that didn't... that did not arise under the bankruptcy code. 106(a) claims, which was the abrogation of sovereign immunity, are claims that arise under the code. 106(b) and 106(c), there is no sovereign immunity to waive. So, 106(b) and 106(c) were designed for the contract claims that Justice Scalia referred to earlier in the Petitioner's argument. And then we looked to the Federal... this Court's jurisprudence with respect to what constitutes a waiver of sovereign immunity. And we would most naturally look at the Lapides case, in which... in which a State came into this... removed a case from State to Federal court, and the court said it didn't matter the type of claim that was being asserted, or that there was affirmative recovery that was being asserted, but, in fact, they constituted a waiver of sovereign immunity. And the State certainly can't say, here, that they didn't know the filing of a proof of claim would constitute a waiver of sovereign immunity, because back in 1947, in the Gardner versus New Jersey case, this Court acknowledged that filing a proof of claim constituted a waiver. And there are ways that a State could avoid this. They could have a process by which they had to go through... whether it be the Attorney General's office, or whomever... that in order to file a proof of claim, they had to first go somewhere to get authority to do that. And that most naturally happens with corporations, because, as this Court is aware in the Granfinanciera case, if you... if you assert a proof of claim, you waive your jury trial right. And that is a large issue for corporations--
John G. Roberts, Jr.: How do we interpret the statute to establish that Congress intended the States to waive their immunity with the filing of the claim? I don't see that anywhere in the statute.
Kim Martin Lewis: --I'm sorry, can you--
John G. Roberts, Jr.: You're arguing that by filing the claim, the State has waived all of its immunity, but I don't see where in the statute it imposes that kind of waiver upon States. I see where they abrogate the immunity, but that's different than saying that there's a waiver. Is your argument that just because they abrogated immunity, and it turned out they didn't... may or may not have that authority, they necessarily imposed a waiver?
Kim Martin Lewis: --I don't think 106(b) applies with respect to the preference claims, Your Honor.
John G. Roberts, Jr.: Okay. Well, then where is the waiver of sovereign immunity in this statute?
Kim Martin Lewis: The... in... 106(b) and 106(c) specifies the conduct by which a sovereign must... must engage in, in order to waive sovereign immunity in a noncore matter, in those matters not set forth in section 106--
John G. Roberts, Jr.: But I thought... you're not relying on 106(b) and 106(c).
Kim Martin Lewis: --That's correct, Your Honor.
John G. Roberts, Jr.: So, where is the waiver of immunity on which you're relying?
Kim Martin Lewis: The waiver of sovereign immunity is the jurisprudence of this Court, that Eleventh Amendment sovereign immunity is not absolute, that a sovereign can waive that sovereign immunity. And it did, in Gardner versus New Jersey. And, again, this Court looked at that in the Lapides case.
John G. Roberts, Jr.: But you have no argument that Congress imposed a waiver.
Kim Martin Lewis: That's correct, Your Honor.
John G. Roberts, Jr.: Okay.
Antonin Scalia: And, again, I still don't see how you distinguish (b) when you say "(b) doesn't apply here, it may apply in other cases. " If it doesn't apply here, why would it apply in other cases?
Kim Martin Lewis: Your Honor--
Antonin Scalia: I mean, if you are appealing to this broader principle, that you either waive all of sovereign immunity or you waive none of it at all, and you can't just restrict it to the particular claim, which is what (b) says, I don't know why, in any case, that wouldn't be true.
Kim Martin Lewis: --Justice Scalia, again, it's because we do not believe 106(b) governs here, because it deals with claims that are not abrogated under 106(a) of the bankruptcy code.
John Paul Stevens: Of course, if Congress had thought it had successfully abrogated, there would be no reason to provide for a waiver, I don't suppose.
Kim Martin Lewis: That's correct, Justice Stevens. And I think this Court has recognized that bankruptcy is different in other contexts. And I think that it's very important to talk about bankruptcy differently. This Court has looked at, in... just last term, in the Hood case, which was the debtor's discharge. And the Court said that that constituted in rem authority. This Court, in Perez versus Campbell, said that somebody cannot be denied a driver's license simply because they failed to play a discharged obligation. The Court, in the Irving Trust case, said that a State is required to satisfy the procedure of bankruptcy if they want to participate in the claims process. In Van Huffel and Straton, this Court said that a bankruptcy estate is permitted to sell property free and clear of the State's tax liens. In Whiting Pools, this Court said the IRS, who seized property on the eve of bankruptcy on behalf of a... of a lien, had to return that in its in rem jurisdiction. And I believe it was Justice O'Connor who asked the question of Petitioner with respect to, How would this affect the automatic stay? And how I've thought of that is, sometimes the automatic stay, there may be an effect with respect to monetary relief, and there may be an effect as far as an injunctive relief. For example, if there was a judgment that a State had, prior to bankruptcy, against the estate, and then sought to enforce the judgment, executed on the debtor's bank accounts post petition, debtor didn't know about it, because, in a... in a debtor's reorganization, the first month of the debtor's bankruptcy, you can't... you're not following everything that's happening in the case. There is an execution on the bank account, the money is taken into the State's coffers. Does that mean that the State is bound by the automatic stay, or is the State not bound by the automatic stay? It was money that was transferred from one... from the estate to the State.
Stephen G. Breyer: I thought (b) and (c)... tell if I'm right about this... but suppose an individual bankruptcy, and sometime prior to the bankruptcy the individual got into an automobile accident and ran into a State building and wrecked it. All right? Now, I take it that, in a State that hasn't waived sovereign immunity, that individual, were he not bankrupt, might not be able to bring a lawsuit for his damages caused by a claim that the wall was too high or something. Each is claiming the other is negligent. I guess the person wouldn't be able to file. And the fact that he's bankrupt, he couldn't, either. Okay. Now, in (b), I guess it's saying that if the State happens to come in, after he's gone bankrupt, and brought his negligent suit against him, he can respond.
Kim Martin Lewis: That's correct, Your Honor. That--
Stephen G. Breyer: So, if, in fact, you were to lose on (a), I guess the whole section would fall, because it wouldn't make any sense anymore, and we'd just wipe out the whole thing, (a), (b), and (c).
Kim Martin Lewis: --That's correct, Your Honor. It was... it was a--
Stephen G. Breyer: All right. So, then the case really turns on the extent to which the Government can... sorry, the extent to which Congress can waive sovereign immunity, as they seem to have waived it in (a), whether the Constitution permits them to do what they did in (a).
Kim Martin Lewis: --Right, to abrogate sovereign immunity.
Stephen G. Breyer: And if you win on that, you win. And if you lose on that, the whole section 106 would probably fall.
Kim Martin Lewis: I believe 106 would fall, but, if 106 falls, doesn't mean that Respondent would lose, as far as the waiver argument, because--
Stephen G. Breyer: I'm not sure, because if you lose on the whole thing... suppose you were to say Congress doesn't have the power to do anything there. I just wonder if (b) and (c) would survive, because they may have had something else in mind. But maybe that's too complicated to go into now.
Kim Martin Lewis: --Well, Justice Breyer, I think that (b) and (c), as pointed out by another one of the Justices, may be a limitation on the general concept of common law waiver. So, to the extent that 106 would be... this Court were to rule (b) that would... unconstitutional, you would look to the general common law waiver of sovereign immunity, which would be the Gardner versus New Jersey case and the Lapides case. The--
John G. Roberts, Jr.: Well, how do you... how do you have an informed waiver if the argument is over the authority to abrogate? In other words, the Federal Government is saying, under your theory, that we're abrogating your immunity. And the State's saying, "You don't have that authority". And how do you get an informed waiver, simply because the State participates in a bankruptcy proceeding, on the basis of the legal theory that they're asserting here today, that Congress doesn't have the authority to abrogate the immunity?
Kim Martin Lewis: --We believe, obviously, Congress had the right to abrogate sovereign immunity--
John G. Roberts, Jr.: I understand that. But your theory, as I read in your brief, as an alternative argument, is that there was a--
Kim Martin Lewis: --That's correct.
John G. Roberts, Jr.: --waiver. The State waived its immunity by participating through... in the--
Kim Martin Lewis: That's correct.
John G. Roberts, Jr.: --bankruptcy proceeding. How is there an informed waiver if the argument is over the authority to abrogate?
Kim Martin Lewis: Well, Your Honor, I believe, because this Court has recognized, in Gardner versus New Jersey, that if a State files a proof of claim, it constitutes a waiver, that the State had to have to been informed, it had to know that the actual conduct of filing a proof of claim would have a consequence of a waiver.
John G. Roberts, Jr.: Yes, but all the... all the statute does is abrogate.
Kim Martin Lewis: All--
John G. Roberts, Jr.: In 106(a). It's--
Kim Martin Lewis: --That's correct--
John G. Roberts, Jr.: --an attempt to--
Kim Martin Lewis: --Your Honor.
John G. Roberts, Jr.: --abrogate.
Kim Martin Lewis: That's correct.
John G. Roberts, Jr.: And if it turns out that Congress doesn't have that authority, I don't see how you can say the State has made an informed waiver, when their theory is, "Guess what? " "You don't have that authority to abrogate. "
Kim Martin Lewis: Well, Your Honor, 106(a) certainly didn't exist back in Gardner versus New Jersey in 1947 either. And I think that the... the fact that... if sovereign immunity exists, sovereign immunity can be waived. I'm not sure--
Stephen G. Breyer: No, no, no, he's... so, I'm wrong. What I said is wrong. The answer has to be that... we're only talking about (a) at the moment. And what Congress tried to do in (a) is abrogate sovereign immunity insofar as it is constitutional to do so. So, then, you say, if you lose on it, it's unconstitutional for it to do so here, but it could... it is constitutional for it to do so insofar as there is this situation that the State brings a case against the estate, and you can do an offset, et cetera. But it would have nothing to do with (b) and (c). It would have to do with reading that into (a), I guess.
Kim Martin Lewis: --I believe that's correct--
Stephen G. Breyer: All right.
Kim Martin Lewis: --Justice Breyer.
Ruth Bader Ginsburg: In... I don't follow that, because I thought the theory of the cases were that you can waive something by conduct. And so, when you ask a court for relief against a party, then it's reasonable to say, "If you're coming in and asking the court to give you something, then it's only fair that your adversary should be able to-- "
Sandra Day O'Connor: A light bulb exploded.
John G. Roberts, Jr.: I think we're... I think it's safe.
Stephen G. Breyer: A light bulb went out.
John G. Roberts, Jr.: It's a trick they play on new Chief Justices all the time. [Laughter]
Antonin Scalia: Happy Halloween. [Laughter]
Ruth Bader Ginsburg: --Let me ask this--
Anthony M. Kennedy: Take your time. We're interested--
John G. Roberts, Jr.: We're even... yeah, we're even more in the dark now than before. [Laughter]
Ruth Bader Ginsburg: --If you lose on the abrogation notion, and the Court holds that there is no authority in Congress to abrogate sovereign immunity, still the bankruptcy code codifies what is, across the board, the law. That is, if you come to a court and say, "Give me X against D", that D should be able to come back and say, "Either I want full relief because it's a compulsory type counterclaim. " "I have to bring it here. " "I can't bring it separately. " "Or at least a setoff. " I mean, that was understood, that a party over whom the court would not have jurisdiction otherwise, is amendable to the court's jurisdiction to the extent of a counterclaim or a setoff. So, I don't see why (b) and (c) are not discrete from (a). (b) and (c) are implementing the idea of a setoff. You come to court for a claim, you are deemed to have waived any jurisdictional objection to the counterclaim or the setoff.
Kim Martin Lewis: I understand that argument, Justice Ginsburg, but I believe when Congress enacted 106(a), (b), and (c), that they enacted it... (a), being those actions which were abrogated, (b) were those actions that remained. And those actions that remained, there were limitations to that waiver. Because this is not... there was nothing to waive on sovereign immunity on 106(b) as to preference actions, for example. Contract claims are different. Contract claims would have... are not abrogated under 106(a), so, therefore, the only way they can be waived is under 106(b).
Anthony M. Kennedy: --Well, it's the same question. But let's say that the court thinks there might be merit to the argument of waiver, that the State entity comes in asking to be treated as a creditor, and its preference is then before the bankruptcy court. How is that issue preserved in the question you raise? You say, maybe the Congress used Article 1 to abrogate the State's sovereign immunity.
Kim Martin Lewis: Did you ask how it's preserved? We raised the--
Anthony M. Kennedy: It just seems to... seem to me to be part of the question presented.
Kim Martin Lewis: --Your Honor, I think, to the extent that this Court can avoid addressing the Constitution about constitutionality of a statute... and, in the situation of waiver, we believe that it can... then we believe that's the appropriate jurisprudence.
Anthony M. Kennedy: Well, you asked... you framed the question.
Ruth Bader Ginsburg: No.
Anthony M. Kennedy: Oh, no, you... you're right. You're right. You're exactly right.
John G. Roberts, Jr.: Well, to what extent was this argument raised below, I guess is a--
Kim Martin Lewis: Chief Justice, it was raised, to the extent of VMI's sovereign immunity. And the reason that it was is, at the time that the motion to dismiss was filed, as recognized by the Petitioner in their brief, and as recognized by the court, at the bankruptcy court level, the Hood decision at the Sixth Circuit had been a decision. And so, there was no necessity for the court to engage into any other proceedings, other than to deal with the Hood decision.
John Paul Stevens: May I ask a question on another subject, just talking for a minute about your in rem theory of the case? And I understand you would contend that assets have been subject to a fraudulent transfer or a preference should be deemed to be part of the estate. But is it not true that this case also involves a claim on the accounts receivable? And do you contend they also should be treated as part of the estate?
Kim Martin Lewis: Justice Stevens, we did seek to dismiss the causative action with respect to the accounts receivable and the causative action that we--
John Paul Stevens: Is that because you concede, in effect, that they would not be part of the estate if we adopted an in rem theory that included the preferential transfers?
Kim Martin Lewis: --They would not be part of the estate--
John Paul Stevens: Okay.
Kim Martin Lewis: --in a situation of... if this adopt... Court adopted an in rem theory, that's correct.
Stephen G. Breyer: Which would not? I'm sorry.
Kim Martin Lewis: Any recoveries on behalf of State contract claims, account receivable as collections.
Stephen G. Breyer: And you have some of those.
Kim Martin Lewis: We do, Your... Justice Breyer.
Stephen G. Breyer: Are you trying to get those in this case?
Kim Martin Lewis: No, we are not.
Stephen G. Breyer: Oh, okay.
Kim Martin Lewis: We sought to dismiss them.
Antonin Scalia: Well, you were, but you're not.
Kim Martin Lewis: That's correct, Justice--
Antonin Scalia: I mean, you're--
Kim Martin Lewis: --Scalia.
Antonin Scalia: --trying to get rid of that, right?
Kim Martin Lewis: That's correct, Justice Scalia.
John Paul Stevens: Now, that doesn't fit into your in rem theory, but why wouldn't you have been able to recover that on a waiver theory? If you... and I understand your waiver argument is, you can defend the judgment on the ground not... you know, any ground to uphold the judgment is okay for the Respondent. But why wouldn't you have tried to defend that part of your case on the waiver theory?
Kim Martin Lewis: It would have been the waiver with respect to just VMI's contract claims. And, I apologize, off the top of my head I don't recall what the value of just the VMI contract claims would have been. But that's what we believe the waiver would have been limited to. It would have not included the contract claims of Central Virginia Community College, Blue Ridge.
Antonin Scalia: Would you explain to me again why it's okay that your waiver argument below was only directed to the claims against VMI?
Kim Martin Lewis: At the--
Antonin Scalia: I'm not... I didn't understand your answer to that. You made a much narrower argument there than you're making here.
Kim Martin Lewis: --I--
Antonin Scalia: You didn't... you didn't assert that all the sovereign immunity for the entire State and all of its institutions had been waived simply because of the claim by VMI. You didn't make that argument.
Kim Martin Lewis: --At the time of that decision, Justice--
Antonin Scalia: Yes.
Kim Martin Lewis: --Scalia, the Sixth Circuit Hood decision had already been decided, and, just as it was acknowledged in the--
Antonin Scalia: What... which said what?
Kim Martin Lewis: --Which said that sovereign immunity is waived, or abrogated, for preference actions in... it was actually across the board... an abrogation of State sovereign immunity. And, at that point, there was notice--
Antonin Scalia: Well, then why didn't you make the argument? I mean, if Hood said, when you make a partial... or one institution... if I understand what you're saying, Hood said that a waiver by one institution waives for the whole State. Is that... is that what Hood said?
Ruth Bader Ginsburg: No. Hood said--
Kim Martin Lewis: --No.
Ruth Bader Ginsburg: --that Congress could abrogate--
Kim Martin Lewis: That's correct. Congress could--
Ruth Bader Ginsburg: --through the Bankruptcy Clause. The... what... and then when the case came to this Court, we didn't--
Antonin Scalia: Yes.
Ruth Bader Ginsburg: --address that issue.
Antonin Scalia: But if you're making a separate waiver argument, apart from the abrogation argument, I don't see why you would not make that waiver argument as broadly as possible. It's a separate argument from the abrogation argument.
Kim Martin Lewis: --We--
Antonin Scalia: And you're making it as a separate argument here. But here, you're making it as to all claims against all State institutions; whereas, below you made it only as to the claims against VMI. I don't understand that.
Kim Martin Lewis: --At the time, 106(a), in the Sixth Circuit, it was determined that that was constitutional. So, at the time, the only thing left for the States to waive was the contract actions. And the contract actions of VMI were the only things that could be waived as part of the--
Antonin Scalia: I see.
Kim Martin Lewis: --underlying--
Antonin Scalia: I see.
John G. Roberts, Jr.: --So, the... so, the long and short of it is, for good and sufficient reasons you did not make the same waiver below that you're making here today.
Kim Martin Lewis: --That's correct, Chief--
John G. Roberts, Jr.: Okay.
Kim Martin Lewis: --Justice.
Anthony M. Kennedy: And the proof of claim in VMI was $43,000, and the preference was $25,000.
Kim Martin Lewis: That's correct.
Sandra Day O'Connor: Now, on your in rem argument, how do you distinguish Nordic Village's case?
Kim Martin Lewis: In the Nordic Village case, the trustee in that case focused on the money damages. They didn't focus on the portion of the preference statute that says you can get the transfer back, you can get the property back. And as this Court recognized in Bowen versus Massachusetts, just because it is monetary relief doesn't mean that it's money damages. And that's how we distinguished the Nordic Village case, Your Honor. The... this Court, I believe, would be extending the Article... its jurisprudence if it permitted the bankruptcy estate not to be able to sue the States. This Court has recognized that a private citizen, Indian tribes, and foreign sovereigns cannot be sued. But this Court's never recognized a Federal entity cannot pursue a State. And this Court... this is a situation where there is no alternative remedy. We aren't in a situation where we have the ADA, the ADEA, where the EEOC can bring an action on behalf of the Government and on behalf of the individuals to enforce a Federal law. We have no other enforcement in bankruptcy, other than the collective bankruptcy process, the bankruptcy code. And the bankruptcy code assigns to the debtor in possession, or to the trustee, the ability to collect on behalf of the estate. Bankruptcy is unique in its very in rem application and its very narrow and specialized enforcement of the bankruptcy system. The framers recognized the critical nature of binding the States in a uniform scheme. The decision below ought to be affirmed on the basis of in rem, on the basis of the Constitution, and on the basis that Virginia, the Commonwealth of Virginia, waived its sovereign immunity. Thank you.
John G. Roberts, Jr.: Thank you, Counsel. Apologize for the fireworks. [Laughter] Mr. Thro, you have three and a half minutes left.
William E. Thro: Thank you, Mr. Chief Justice. The question presented is whether or not Congress may use the Article 1 Bankruptcy Clause to abrogate sovereign immunity. In Alden versus Maine, this Court held that there was a presumption that the States had retained their immunity unless it could be shown by conclusive evidence that the States surrendered their immunity in the plan of convention. If Congress can use the Article 1 bankruptcy power to abrogate sovereign immunity, then one would expect there to be discussions to that effect at the constitutional convention, in the federalist and antifederalist writings, and in the ratifying conventions. Yet, as the Sixth Circuit conceded in its version of Hood, there is no compelling evidence. There is, at best, silence. Silence cannot equal the compelling evidence. Therefore, the Article 1 bankruptcy power cannot be used to abrogate sovereign immunity.
Ruth Bader Ginsburg: That's the question you've presented, Mr. Thro, but it was the same question that was presented to us in Hood. And in Hood, we decided that we were not going to answer the question presented, we were going to decide the case on a lesser ground. So, the Court, certainly if our venture in Hood was proper, here, too, we could decide the case on some other ground than the one you presented in your question.
William E. Thro: Yes, you could, Your Honor. But you should not address any of the alternative arguments raised by Mr. Katz.
Antonin Scalia: We couldn't decide it in your favor, on some alternative ground, though, could we? [Laughter]
William E. Thro: Well--
Antonin Scalia: Well, I mean, that distinguishes it--
William E. Thro: --Yes, absolutely, Your Honor--
Antonin Scalia: --The difference between this and Hood.
William E. Thro: --Your Honor, but I believe that the proper exercise of judicial restraint is to decide the question presented, and only the question presented, and do the other grounds for perhaps another day. All of Katz's... all of Katz's novel arguments raise complex constitutional issues and, quite frankly, ask for radical alterations of this Court's jurisprudence.
John Paul Stevens: May I ask if you think, within the text of the question presented, we could decide whether the sovereign immunity was abrogated by the convention itself, not by Congress? There is that argument out there, you know.
William E. Thro: Yes. Within... I think, in effect, if you were to decide... if you decided that the convention itself had intended--
John Paul Stevens: Abrogated.
William E. Thro: --for the States not to have sovereign immunity in bankruptcy, then you would conclude that the Article 1 Bankruptcy Clause includes the abrogation power. So, I think it's, sort of, two sides of the same question. Returning to Justice Ginsburg's question, a second reason for not addressing Katz's arguments were, they were not passed on below. As this Court noted in Granfinanciera, where--
Ruth Bader Ginsburg: Well, then that would be a ground to allow them to present it below. They had a total winner--
William E. Thro: --Yes. Yes.
Ruth Bader Ginsburg: --on that hands below.
William E. Thro: Yes, absolutely. You... it... you can... you should decide the question presented. And if you decide the question presented in our favor... that is, that Congress has... does not have the power to abrogate sovereign immunity... you would presumably remand to the Sixth Circuit for further proceedings, consistent with your opinion. At that time, Katz could attempt to present these other defenses. We would, of course, argue that some of those defenses had not been properly preserved. But it has not been briefed below.
John G. Roberts, Jr.: Thank you, Counsel.
William E. Thro: Thank you.
John G. Roberts, Jr.: The case is submitted.