John G. Roberts, Jr.: We'll hear argument first this morning in Case 11-465, Johnson v. Williams. Ms. Brenan.
Stephanie Brenan: Mr. Chief Justice, and may it please the Court: A fairly presented claim has been adjudicated on the merits when a state court issues a decision denying relief unless it has made a plain statement to the contrary. And this is especially true where the state court has grappled with the substance of the alleged error. And this rule is correct for three reasons: First, state courts discharge their duties. They are sworn to uphold the Constitution. Therefore, they must adjudicate claims that -- that allege constitutional violations. So when a state court issues a decision denying relief, it must necessarily have considered and rejected all of the claims.
Sonia Sotomayor: What happens when there is a challenge to the admission of evidence on a state law ground on a Confrontation Clause ground, and all the state court does is grapple with the evidentiary rule, but it's self evident that the Confrontation Clause is based on a different theory? Are we to assume, in the light of that kind of decision, that the court actually grappled with the Confrontation Clause?
Stephanie Brenan: Your Honor, we would assume that there the state court, through its denial of relief, did adjudicate the presented Confrontation Clause claim. And that would be because -- for a number of reasons. First, the presumption of regularity that judicial officers do do their job, and it can only be rebutted by clear evidence.
Sonia Sotomayor: Am I to make that assumption when, before our line of cases in this area, state courts generally had held that if hearsay was admissible under their evidentiary rules, that that was the end of their Confrontation Clause challenge? Is a Federal court supposed to continue with that presumption in light of an undisputed state's statement that their rules are consonant with the Confrontation Clause.
Stephanie Brenan: In that situation, if the state court rule was consonant with the Confrontation Clause, we would have certainly an adjudication of the Confrontation Clause.
Sonia Sotomayor: Well, let's assume it's not after our -- we render our decision.
Stephanie Brenan: And if it were -- if it were different, we would still hold that in that situation, as this Court -- in relying on Richter, in that situation it would be more of a summary denial on the confrontation analysis.
Sonia Sotomayor: If one--
Anthony M. Kennedy: Well, we can continue and probably should talk about this broad theory that you want us to adopt. Really, in this case, the court of appeals in -- in the state system cited Nesler, and Nesler in turn cited, at page 104 of the petition appendix, a Supreme Court case you don't even -- you say citation, you don't even give -- but it -- it's -- it's the Supreme Court case, United States v. Wood, written by Chief Justice Charles Evans Hughes. And it seems to me it very clearly ties its state analysis to the Federal Constitution and a Sixth Amendment discussion in Wood. So it seems to me that you're -- you have a very strong argument that they did adjudicate the Federal claim anyway. I know you want us to maybe reach the bigger issue, but -- and your brief almost downplays it -- but it seems to me pretty clear that you have the argument, that you don't strongly make, although you don't, by any means, abandon it, that -- that here the state law was tied to the Federal standard, and the Federal standard was the basis for the entire jurisprudence.
Stephanie Brenan: Yes, Your Honor, we agree that in our situation it just so happened to be that the state standard also encompassed this Court's Sixth Amendment jurisprudence because it was citing U.S. v. Wood, and it was citing Smith v. Phillips among the -- the Sixth Amendment cases. In our case, it just so happens that it does. But we posit also that our case shows why this is illustrative as to why this Court should adopt the broader rule that, in situations where a state court has denied relief or a claim has been fairly presented, that this Court and all Federal courts should assume that the state courts did their job by adjudicating claims--
Sonia Sotomayor: --Irrebuttably?
Stephanie Brenan: --Your Honor, in -- we have suggested that -- that it can be rebutted by a plain statement, if the state court says that it is not reaching it or, more particularly, if a state court imposes a procedural bar.
Sonia Sotomayor: I see exceptions to that already. There are cases where the state court reaches one prong of the Strickland standard, has no need to go to the second.
Stephanie Brenan: Yes--
Sonia Sotomayor: So you really can't say in that situation that you can assume they reached the second, can you?
Stephanie Brenan: --Well, Your Honor, I posit that those Strickland cases are different. And they are different because in all of those cases of Wiggins v. Smith and Rompilla, that there the courts -- what the State court did was follow exactly what this Court has said of how a Strickland claim may be answered entirely by only addressing the one prong of Strickland. And so there they're doing exactly adjudicating everything through the analysis of one. Additionally, in those cases, by doing so, the courts are not in any way suggesting that the State courts failed to do something.
Anthony M. Kennedy: Well, suppose that the--
Ruth Bader Ginsburg: Ms. Brenan, we are straying pretty far from this case. And correct me if I'm wrong, but, as I understand it, the argument was made under State law, and then Williams said there was an abuse of discretion under State law and therefore the Sixth Amendment was violated. So there really isn't any independent -- Williams hasn't stated any independent Sixth Amendment right. It's State law was violated and therefore the Constitution was violated. So it seems to me if we just look at the position that Williams was taking, that these two, the State and the Federal claim, are tied -- tied together. And we don't -- to go beyond this case and imagine some other case that might come before us some day would not be wise.
Stephanie Brenan: Yes, Your Honor, I completely agree with the view that here Williams did present a completely dependent Federal claim; and, therefore, the State's analysis -- the State court's analysis would have fully adjudicated that. However, we suggest that this case does illustrate why that broader rule is important. And it's important because, otherwise, other Federal courts may not view it as this Court did, seeing it as a dependent claim--
John G. Roberts, Jr.: The court of appeals, whose decision we're reviewing, understood the Respondent to present a separate State claim and a separate Federal claim, correct?
Stephanie Brenan: --Exactly, Your Honor.
John G. Roberts, Jr.: That's the predicate to the whole question we have before us, right?
Stephanie Brenan: Exactly, Your Honor. So--
Samuel A. Alito, Jr.: Let me give you this hypothetical. The brief filed with an intermediate State court of appeals contains 25 pages of argument on a Federal constitutional claim. Let's say it's a Brady claim. And then it also has two other claims, two other arguments. They are State law claims, and each one is dealt with in two pages. And then the State court, intermediate court of appeals, issues an opinion that addresses only the two State law claims and says nothing about the Federal constitutional claim. You would say there that -- that it's conclusively presumed that they adjudicated the Federal constitutional claim?
Stephanie Brenan: --Yes, Your Honor, in that situation we would. One, because of the presumption of regularity; two, because of what this Court has said in Richter, where we could view it as a summary denial; and, third, what underlies that is that if it's not written in the opinion, that it has been ignored. But that's not what this Court said in Castillo, where it said, if a court chooses to ignore in its opinion, which should be read as in its opinion writing, means that that claim has been impliedly rejected. So, therefore, just because a State court chooses not to write about it in its opinion does not mean that it didn't consider and reject that claim.
Samuel A. Alito, Jr.: Why is it necessary to go so far as to require a plain statement? Why wouldn't you protect the same interests if you had a rule that said that there is a presumption that they have adjudicated the claim on the merits, but that it can be rebutted if there is a strong inference that they overlooked it or a very strong inference that they overlooked it. Then you wouldn't have situations like the one that Justice Sotomayor posed in her hypothetical or the one that I just mentioned.
Stephanie Brenan: Sure, Your Honor, but the reason why there should be a plain statement is because it's long been held that in order to rebut that presumption of regularity, you need clear evidence. And, really, the only clear evidence that one could have would be a plain statement. And this Court reinforced that when it said in Richter, it talked about an indication or other State procedural bars, and it cited Harris v. Reed. And Harris v. Reed is a case that talked about plain statements.
Antonin Scalia: Well, I assume that in -- in many cases, especially capital cases, one could argue for years over whether -- whether, in fact, there was enough indication that the court did not consider it or not, right? And every year is a reduction of sentence, so to speak.
Stephanie Brenan: Exactly, Your Honor. And that's -- that's why having a broader rule with this presumption--
Anthony M. Kennedy: --Well, I suppose -- I suppose the broader rule, if you took $28.52 out of the State's judicial budget and bought them all a stamp which just says, we have considered and rejected all constitutional claims, then there would be no problem?
Stephanie Brenan: --Your Honor, they really do that when they say “ affirmed ” at the end of the decision. It really adds nothing. If it were a stamp, it would be merely reflexive, and therefore would in the end give you no indication whether an argument had been considered or not.
John G. Roberts, Jr.: Any idea based on your experience how many separate claims are typically raised in a capital case of this sort?
Stephanie Brenan: If -- this was not a capital case--
John G. Roberts, Jr.: I'm sorry.
Stephanie Brenan: --but an LWOP case. However, in a capital case there can be hundreds. And we -- or hundreds of pages of documents -- or hundreds of pages in an appellant's opening brief, and, therefore, if one were to slip in, in a phrase an apparent claim, and that the State court happens to--
Antonin Scalia: There would be a lot of good debate over whether it was presented clearly enough, is presenting it in two sentences enough to require the court to answer it. I can see a whole -- you know, a whole train of litigation on this wonderful subject, a whole new area of law. Has the -- has the State supreme court overlooked something that was clearly enough presented, and is there enough indication that the State court has overlooked it? I mean -- that's the problem.
Sonia Sotomayor: All of the circuit courts basically have a rule close to the one announced by Justice Alito, don't they?
Stephanie Brenan: --Your Honor, if they happen not to mention one particular claim?
Sonia Sotomayor: All of them have essentially a presumption that's rebutted by some form of evidence, except for perhaps the Eleventh and this circuit that have a clear, almost irrebuttable presumption. I'm sorry. Not the Ninth, but the Eleventh.
Stephanie Brenan: The Eleventh Circuit and, I believe, the Sixth Circuit as well.
Sonia Sotomayor: But it's not as absolute as the Eleventh.
Stephanie Brenan: True that the Eleventh Circuit has a broader rule. And we believe--
Sonia Sotomayor: I have a -- you know, I mean, for every rule you're going to find an exception that abuses it. It's the nature of human nature. Do you know what the total number of habeas petitions there are and what the percentage that are actually granted?
Stephanie Brenan: --I don't have that figure off the top of my head, Your Honor.
Sonia Sotomayor: Would you be willing to accept that it's -- in relationship to the total granted, it's very, very small?
Stephanie Brenan: Yes, I believe that is true, that there is a small number of granting of petitions, yes.
Sonia Sotomayor: So whatever the abuse of the system is, it hasn't halted justice.
Stephanie Brenan: Well, Your Honor, the thing is that -- and I think that Justice Scalia has adverted to this -- is that if we were to require only an indication, it would create a situation where there would be all this litigation. And that's why this Court, when it does -- has accepted conclusive presumptions in other cases, for example in Coleman v. Thompson, talked about we will accept these conclusive presumptions because they work in almost all of the cases, and we will accept the small number of errors in exchange for the reduction in workload. So--
Stephen G. Breyer: Well, why can't they just do what we used to do? Many district judges do this and -- because there are sometimes thousands of petitions of different kinds. A lot go to the staff attorneys that look them over and flag the arguments, and you put at the end, just to be on the safe side: Any other arguments that are made are rejected. All right. Now, that serves one purpose. A human being has a hard time writing that unless he's thinking: I've looked this over pretty carefully. And if it's a staff attorney preparing a draft, the staff attorney doesn't want to -- doesn't want to write those words unless he or she has really looked with some care. And so it serves a purpose. It means they don't do it just as a form. They could turn it into a form, but they shouldn't. And so -- let them write that, and therefore if we get nothing then you put into play these presumptions, et cetera.
Stephanie Brenan: --Justice Breyer, I would disagree with -- with that proposal because it is in the end just -- could become reflexive--
Stephen G. Breyer: Well, anything. Judges can not do their job. But -- but when you write something like the word “ denied ”, which is all most district judges write in respect to many motions, they read the motion, they think about it, that's their job. So -- so, similarly, a staff attorney or a judge who is going to have to write certain words will want to do his job or her job, and they will do it. So I'm just suggesting that it won't -- that isn't a big deal. Now, this case, they didn't write that for some reason. Many do.
Antonin Scalia: Doesn't the -- doesn't the word denied at the end of the order say the same thing? We've considered--
Stephanie Brenan: --No.
Antonin Scalia: --all of the points made, and we have denied them. And wouldn't it be the case that if you require such a statement, but you have a situation where a Federal question occupies 90 percent of the brief, and the court only addresses explicitly the state things, the state claims, and then at the very end says, we have considered all the other claims, presumably including the 90 percent Federal claims that are not addressed, would we be out of the woods, or would you be here again arguing the same problem?
Stephanie Brenan: I think we could be arguing the same problem. I think, as Your Honor's noted, that the inclusion of the word denied, or, if you're affirming a conviction in a direct appeal, the word affirmed covers that. It says exactly, we have considered all those other claims.
Elena Kagan: Ms. Brenan, can I ask you what you mean by a plain statement? Because you've said a couple of times a plain statement to the contrary. Justice Sotomayor and Justice Alito have given you hypotheticals, very different from this case, but hypotheticals, where there is, I think, a strong inference that there was no adjudication of the particular Federal claim alleged. You said that's not a plain statement, even though it seems as though there is a strong inference. So what would be a plain statement?
Stephanie Brenan: A plain statement would be a procedural bar, or if there were -- a court were to say, we're not, for some reason, going the reach the constitutional claim, that they really need to say it out loud. I don't know why they would say that, but that's what would be required.
Elena Kagan: Yes, I don't know why they would say that either. Well, by the way, we're not adjudicating this, you know. So if that's your test, your test is an irrebuttable presumption.
Stephanie Brenan: No, Your Honor, I would disagree, because there is the possibility of having -- having the procedural bar.
Samuel A. Alito, Jr.: Well, what if -- what if the brief raises five arguments, and the opinion says the appellant has raised four arguments, is that a plain statement that the fifth -- the fifth argument was overlooked?
Stephanie Brenan: I would say that it possibly could be if it were in that situation. However, I would -- I would still go back to, really, the Richter presumption of saying that that word at the end, denied, denied is denied is denied, and it covers every fairly presented claim.
Samuel A. Alito, Jr.: That's not a plain statement? What if there is one Federal claim -- one Federal argument and five state arguments, and the opinion says, this appeal raises only issues of state law, is that a plain statement?
Stephanie Brenan: Possibly it could be, Your Honor, but here we don't -- we don't have that situation.
Ruth Bader Ginsburg: May I ask you about the underlying claim here? It is quite troublesome. I think this is a state that doesn't allow an Allen charge; is that right?
Stephanie Brenan: Correct. Correct, Your Honor.
Ruth Bader Ginsburg: And the possibility of getting rid of the juror, the hold-out juror, in this way is -- is really troublesome. The judge can't give an Allen charge to urge the jury to deliberate further, but can say -- now, the judge knows who the hold-out is, and to just dismiss that juror, it is -- it is very troublesome.
Stephanie Brenan: Well, Your Honor, the thing is that here we have a trial court who is looking at this juror and makes the determination that the juror is biased. And, therefore, if there was to be anything of any sort of constitutional violation, it would be the keeping that juror, a biased juror, on the jury. That would be a violation of the Sixth Amendment.
Anthony M. Kennedy: Well, I have to -- I mean, this takes us into the merits, which is really interesting, but I -- we probably shouldn't go there, but, as long as we're there for a minute, I agree with Justice Ginsburg. I've never seen a procedure like this. And I looked -- I looked at this -- the Federal cases, Brown and Thomas, that the Cleveland court cited. Those -- and Wood was voir dire, was not mid-jury. I just hope this doesn't happen with much regularity. And the fact that the trial judge is upset, that's the reason that you should leave the jury alone, it seems to me. I think it's very troublesome.
Stephanie Brenan: Well, Justice Kennedy, it's a situation where, through the voir dire, what comes out is not that we're trying to get -- that the trial judge is feeling to get rid of this juror because he's the hold-out juror, but it's because through the voir dire he determines that this juror is biased, and that is the bias, and that's what makes it different.
Sonia Sotomayor: That the person is not guilty is a bias?
Stephanie Brenan: No, Your Honor, that's certainly not it. The bias comes from what he was saying of his disagreement or -- that he just really did not believe with the felony murder rule. Therefore, it's that -- that under any evidence, whatever evidence was presented, that he would not be able to convict because he disagreed with the very basis of the law.
Sonia Sotomayor: That -- that's -- that may be your strongest point, but most of what he said was basically this is a murder case, and the evidence has to be beyond a reasonable doubt, and I think it has to be clear enough for me to be convinced. Is that a biased juror?
Stephanie Brenan: That is not a biased juror, but that's what he said to the court. But what comes out through the voir dire of the other jurors is not that he was using a reasonable doubt standard, but that he was using a no doubt standard, an absolute doubt standard. And that's where he's not following the law, and that's where he's biased. And that's where he becomes a biased juror who has no right to be on that jury.
Sonia Sotomayor: I must say that, like Justice Kennedy, I'm deeply troubled when trial judges intrude in the deliberative processes of juries. Most of the time when we're assessing bias, we're assessing it on the grounds of extraneous evidence, a juror who has said one thing in voir dire and is now either a convicted felon or introduced extraneous circumstance. But the degree of being convinced is the very essence of jury deliberations. This case is troublesome.
Stephanie Brenan: Well, Your Honor, I believe in this situation it's one where the judge was presented with possible misconduct, and therefore had to do something. Had the judge done nothing, we could have possibly been in the same situation. And under -- under California law, it's where this -- this examination cannot be so intrusive. So we maintain that it was not. It was only to the degree in which we are finding that there was a biased juror. At that point in time, the Sixth Amendment required that that juror be removed.
Elena Kagan: Could I go back, Ms. Brenan, to your basic theory, because I guess I'm not sure I understand what you're arguing now. In your brief, you talked about focusing on the error. So if evidence was admitted, you would say it doesn't matter that there were three different theories for why the admission of evidence was wrong; you should just look at the fact that we're talking about the admission of evidence. Now, is that what you're arguing, or are you also saying what the states say in their amicus brief, that even if, you know, one claim is about the admission of evidence, and one claim is about ineffective assistance of counsel, you would still apply the same rule?
Stephanie Brenan: What we're saying is that, at the very least, in our type of situation where -- where the court discusses the alleged error, there is an adjudication on the merits, but that plays into the larger and broader rule.
Elena Kagan: Well, why does your theory make any sense? I mean, we're supposed to be interpreting a statute here that says whether the claim was adjudicated on the merits. Usually when we speak of claims, we speak of legal grounds for relief. We don't look at a claim and say, we'll just check, you know, what -- we don't use an operative facts test, and you seem to be suggesting that that's the kind of test we should use.
Stephanie Brenan: Yes, in -- especially if you're going to look at the state courts, which are -- must decide both the Federal and state questions. So their interpretation of what a claim is does not necessarily mean what it eventually becomes when it's in Federal habeas. And the Federal habeas courts are limited by their jurisdiction to only be Federal law theories, and a Federal petitioner can only bring such claims. So, for that reason, it's -- it's not the good fit for the state courts to limit them in that way. And that's why we're saying, at least in a situation where a state court has grappled with the substance of the error, that it has adjudicated the claim, which it could have viewed, as was here, sort of a single claim independent, or it could have state law theories and Federal law theories that it puts together. And I would like to reserve the remainder of my time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Hermansen.
Kurt D. Hermansen: Mr. Chief Justice, and may it please the Court: The rule this Court should adopt is the same rule that the consensus -- the consensus rule of the courts of appeals. When they look at an opinion, a reasoned opinion, they look at what the opinion says, the text of the opinion. And if the opinion grapples with the bulk of the claims that are in the prisoner's appellate brief but omits to address one of the claims, then there is an inference that the claim has not been adjudicated on the merits.
John G. Roberts, Jr.: Well, just the way you phrased it, if it addresses the bulk of the claims, under your theory it has to address every claim, correct?
Kurt D. Hermansen: If -- under my theory, if there is a Federal claim that's overlooked or omitted, then the inference--
John G. Roberts, Jr.: No, no. Not overlooked or omitted. Not discussed.
Kurt D. Hermansen: --Correct.
John G. Roberts, Jr.: Not analyzed in the opinion.
Kurt D. Hermansen: Correct. Here it's Sixth Amendment, so the Sixth Amendment was not mentioned. The Sixth Amendment was not -- there is no indication from the opinion itself that the Sixth Amendment claim was adjudicated.
John G. Roberts, Jr.: You agree that if -- this was raised when your friend was at the lectern -- if the court at the end said, not only denied, but said, I considered all other arguments not addressed, denied, then you have no case, correct?
Kurt D. Hermansen: Correct. And that's the recommendation of the NACDL brief. And we do see that a lot. There is -- where there are opinions that say: We've reviewed and considered all claims raised and reject them.
Ruth Bader Ginsburg: That would mean that if you prevail it would just become routine. Justice Kennedy mentioned the stamp that says: We considered all of the questions raised, those not discussed on the merits--
Kurt D. Hermansen: Well, Justice Ginsburg, as Justice Breyer was saying, we, and as my friend was arguing, you know, there is regularity and we do -- it's fair to assume that a judge who is looking at an appellate court brief is going to do their job and look at the briefs.
John G. Roberts, Jr.: Well, you're not willing to assume that when the judge says “ denied ”. You're willing to assume that when the judge says: I've looked at everything, denied.
Kurt D. Hermansen: Right--
John G. Roberts, Jr.: It seems to me if you give them the presumption of regularity in the one case you ought to give it to them in the other.
Kurt D. Hermansen: --And I don't think the presumption of regularity should apply here, just as this Court in Smith v. Digmon looked at the opinion and looked at what was argued and said: All the courts below made a mistake; it was fairly exhausted. And I would like to address Justice Scalia's concern about the whole area of litigation that might occur. That won't happen for one reason: In the habeas context the claim must be fairly presented, period. If the Federal constitutional claim is not fairly presented, you're not in Federal court. And so there is already a whole body of law talking about what a claim is. And my friend tries to avoid the word “ claim ” because it's inconvenient.
Ruth Bader Ginsburg: --Was it fairly presented here?
Kurt D. Hermansen: It was fairly--
Ruth Bader Ginsburg: Given that the argument was abuse of discretion?
Kurt D. Hermansen: --Yes, Justice Ginsburg, it was fairly presented. And in the red brief at page 39 I talk about that, and also at page 43 of the red brief I indicate that the attorney general conceded that the claim was exhausted.
Anthony M. Kennedy: Of course, again this is fact-specific to the case. It doesn't address the rule that we want to address and was the reason for us taking the case, but 104a, the State court, State appellate court, cites the United States v. Wood, and -- and it also cites Cleveland, and Cleveland had three circuit court cases, all of which involved the Sixth Amendment. It seems to me that the Federal constitutional claim was intertwined with and controlling of the procedural matters that the court discussed. I just don't see the case is here even on your theory.
Kurt D. Hermansen: Justice Kennedy, I'm glad you brought that up because I do want to address your concern on that, and it's Dye -- this Court's opinion in Dye takes care of the intertwined argument. In Dye this Court said that as long as the claim, the Federal nature of the claim is presented, even if it's presented under the same heading, it's fairly presented on a habeas claim.
Samuel A. Alito, Jr.: Yes, but that's the state court. Here didn't -- would you disagree that the California Supreme Court in Cleveland correctly or incorrectly adopted a rule that it believed was consistent with the Federal Constitution?
Kurt D. Hermansen: If that were the case, then we would have a different case. But in Cleveland the California Supreme Court explicitly rejected or declined to adopt the Brown, Symington, Thomas--
Samuel A. Alito, Jr.: And were they under any obligation to agree with Federal courts of appeal as to the interpretation of the Sixth Amendment?
Kurt D. Hermansen: --They were not.
Anthony M. Kennedy: Well, they -- isn't the -- isn't the reasonable reading of Cleveland that we're adopting this rule, this is our State rule, it's based on a very broadly worded State statute, it is informed by our understanding of the Sixth Amendment, and we disagree. We mention the Federal courts of appeals decisions on this issue and we respectfully disagree with their interpretation of the Sixth Amendment.
Kurt D. Hermansen: Correct. So if the -- if Cleveland were to come before this Court, then there would be a clear indication from the opinion that they had considered the Federal standard, but didn't adopt it.
Samuel A. Alito, Jr.: Didn't the -- I'm sorry.
Kurt D. Hermansen: But this case isn't Cleveland. In this case what happened was--
Sonia Sotomayor: I'm not sure how you can say that. I mean, I think the simplest statement of the State rule is that the State believes that if you remove a juror for actual bias, that that is okay under the Sixth Amendment. They said it in Cleveland. They were presented with the argument in this case by the briefing that the juror was not biased and hence the Sixth Amendment was violated. And they ruled to say he was biased, and I see as a natural, clear inference that they were saying the Sixth Amendment wasn't violated because he was biased.
Kurt D. Hermansen: --There -- the problem with that determination is that there's the Federal standard on what is -- what the Sixth Amendment standard is. So under Thomas, Symington and Brown--
Sonia Sotomayor: That's a different question. That question is whether the California Supreme Court's Cleveland decision, its assumption that a biased juror violates -- doesn't violate -- the removal of a biased juror doesn't violate the Sixth Amendment, is that an unreasonable application of supreme court precedent, not circuit court precedent?
Kurt D. Hermansen: --This gets to the -- my friend's argument about how their argument is upside down. They are saying that we're trying to incorporate into 2254(d)(1) what is contrary to and what is the United States Supreme Court law, but we never get to (d)(1)'s United States Supreme Court law limitation because, looking at the text of 2254(d), you start with was the claim adjudicated on the merits. That's the threshold question. So if the claim was not adjudicated on the merits you don't get to the United States Supreme Court law limitation. Instead--
John G. Roberts, Jr.: Well -- I'm sorry. Go ahead.
Kurt D. Hermansen: --Instead you look at Brown, Thomas, and Symington, and they say that if the juror's views on the merits of the case have been expressed and the juror might be kicked off because of -- which is exactly what happened here -- kicked off because of his views on the case, then the Sixth Amendment has been violated.
Sonia Sotomayor: What Supreme Court precedent commands that result?
Kurt D. Hermansen: Supreme Court precedent doesn't command it, but because it's de novo review and because -- because it's a quid pro quo. 2254(d), Congress said States are going to get deference and they are going to get a limitation on the law that the Federal courts can look at, the United States Supreme Court law. But for that quid pro quo to happen, for the States to get that deference and limitation on the law, they have to have adjudicated the claim. Because that's--
John G. Roberts, Jr.: No, the--
Kurt D. Hermansen: --The main event is supposed to be in State court. That is where the bite of the apple is supposed to be, in State court.
John G. Roberts, Jr.: --The discussion you've been having with Justice Sotomayor and Justice Alito highlights another problem with your approach, is that the court is going to have to decide in every case whether or not State law is coterminous with Federal law. And there was -- I don't know that the Ninth Circuit got that question right in this case or they got it wrong, but in every case, or many of the cases, the claim will be made on the part of the State, well, yes, they just said State law, but it's the same as Federal law. And the Ninth Circuit recognized that as an exception to their rule. Isn't that really going to cause all sorts of collateral litigation?
Kurt D. Hermansen: And it's not because this is the rare case--
John G. Roberts, Jr.: I'm sorry?
Kurt D. Hermansen: --I'm sorry. It's not, Your Honor.
John G. Roberts, Jr.: Oh, it's not.
Kurt D. Hermansen: Mr. Chief Justice, this case is a rare case where, looking at the opinion, we can't tell if they adjudicated the claim on the merits. And it appears, every appearance and inference is that they overlooked it or didn't adjudicate it. So that's a rare case. Normally, just looking at the opinion you can tell if they adjudicated the Federal claim.
John G. Roberts, Jr.: Except in a case like Harrington v. Richter.
Kurt D. Hermansen: Harrington v. Richter created a very simple, straightforward, and appropriate presumption, because when you have a unexplained order it makes sense that, in that context, that they have adjudicated everything on the merits. And to give the greatest respect to the State courts in comity and federalism is to look at what the order says, and if it's a reasoned opinion to take it at face value. It says what it says; it doesn't say what it doesn't say.
Elena Kagan: Well, I may be just repeating some of my colleagues here, but I think if you take this opinion at face value, it cuts against you. I mean, it's a -- they're applying Cleveland. Cleveland is a constitutional decision. It's a Federal constitutional decision. The concurrence makes that completely clear. California has made it completely clear in other cases post Cleveland that it thinks it's applying the Sixth Amendment. Whether it's applying a correct interpretation of the Sixth Amendment is unclear, but it's also completely irrelevant. It thinks it's applying the Sixth Amendment, and it's reaching a Constitutional judgment, isn't it?
Kurt D. Hermansen: No, Your Honor. Cleveland -- a careful reading of Cleveland shows that the majority does not adopt the Federal standard. So the consensus standard in the -- in the Federal circuit courts is that if the merits of--
Elena Kagan: You're quite right, it does not adopt the consensus standard. It specifically rejects the consensus standard, but it's entitled to do that. As a state court, with no Supreme Court decision that it has to follow, it can say, we have a different view of the Sixth Amendment. I'm just repeating what Justice Alito here said. And that's what it's doing. It's saying, we're applying the Sixth Amendment, we're applying it differently from the way these other courts have done so because we think they're wrong.
Kurt D. Hermansen: --And so two points on that. First, is the concurrent chides the majority for not being concerned about the Sixth Amendment. The second is the -- my friend cites People v. Allen with an ellipse and doesn't give the full context of Allen. So when they cite more recent law, 2006, that talks about how the demonstrable reality test, which is just a notch up above substantial evidence, is designed to protect constitutional rights of due process and Sixth Amendment, what they don't say is in People v. Allen, they only reached the statutory issue, they never reached the constitutional issue. So, at most, it's dicta. And the California Supreme Court has never held -- has never addressed the issue of when is the Sixth Amendment violated when a juror is kicked off in this fashion? And instead, they -- their role is we allow free intrusion into the deliberative process. We don't adopt Symington and Brown and Thomas when they say that -- when a juror's views on the merits of the case, questioning should stop. Instead, we think that questioning should -- should be free to continue.
Samuel A. Alito, Jr.: The -- section 1089 is very broadly worded; isn't that right? The section that was being interpreted in Cleveland?
Kurt D. Hermansen: Section 1089 -- I don't--
Samuel A. Alito, Jr.: All right. You think that the California Supreme Court said, we're announcing a rule of state law, and, you know, we've been told that this rule is inconsistent with the Sixth Amendment, but we don't care, and we're not even -- we're not going to worry about what the Sixth Amendment requires, we're just going to adopt this rule as state law; do you think that's what they did?
Kurt D. Hermansen: --In People v. Collins, the California Supreme Court said that 1089 is a rule of efficiency so that courts can efficiently deal with possible juror bias. And that -- that's still good law. That hasn't changed. So that's why Justice Werdegar, in her concurrence, was saying, we need to be worried about the Sixth Amendment. And the only reason she joined in the opinion was it used to be, well, if there's just substantial evidence that the juror is not deliberating as a juror should, she wasn't satisfied that that was sufficient; but, because there had to be a demonstrable reality from the record that the juror wasn't deliberating, she signed on in Cleveland. And in Cleveland, they reversed under 1089. And this case should have been reversed under 1089.
Stephen G. Breyer: --a minute, please, to Justice Kennedy's question about page 104(a). I read the court of appeals' opinion. Most of it, about six or eight pages, recites the facts. Then they discuss the law. The legal discussion is on page 104(a). It's approximately 30 lines long. More than half of it concerns Federal law. I mean, they don't just cite that Federal case. They say, "In assessing whether a juror is impartial for Federal constitutional purposes -- Federal constitutional purposes -- the United States Supreme Court has said. " da, da, da, then they quote it all. Now, since your argument, the argument in the -- in this brief here is entirely Sixth Amendment, as far as I can tell, they say, look, look what happened here, they took this man off the jury. That violates my rights to Sixth Amendment right. It says it over and over and over. I have no doubt you raised it. And now they give an answer. And the answer that they give consists of 30 lines, and 16 of the lines consist of Federal law. So -- so what's the problem?
Kurt D. Hermansen: The problem--
Stephen G. Breyer: The remaining 14 lines do consist of state law too; but, I mean, how can we say they didn't consider the Federal issue?
Kurt D. Hermansen: --Because Nesler doesn't talk one iota about kicking off the holdout juror.
Stephen G. Breyer: No, they didn't quote -- Nesler doesn't. What they did in Nesler is quote a Federal case. And what they do here is not just say Nesler, they quote the Federal case.
Kurt D. Hermansen: And that Federal case has nothing to do with kicking off a holdout juror.
Stephen G. Breyer: Well, maybe it doesn't. Maybe they didn't properly -- maybe they didn't properly state what Federal law is. Everybody has some concerns about that one. But what I don't see is how when they spend 14 out of 27 lines quoting a Federal case which they believe sets the standard for impartiality and partiality you can say that they didn't discuss the Federal issue.
Kurt D. Hermansen: You hit the nail right on the head, Justice Breyer, because they are taking about impartiality. That's all they're talking about. They're looking at a Federal case to see what the definition of impartiality is.
Stephen G. Breyer: For Constitutional purposes. And this guy was kicked off the jury because they thought he was not impartial.
Kurt D. Hermansen: The bottom line is they did not apply the Federal rule. And the Federal rule is that if the juror's views on the merits of the case have been revealed, then the juror should not be kicked off.
Stephen G. Breyer: Well, then your claim over in the Ninth Circuit is not that they didn't consider it, but that, rather, they considered it, but no reasonable juror could reach -- no reasonable jurist could reach the conclusion that they reached on the issue. That argument is open to you. The only thing I don't understand is how you're saying -- or everybody -- I must be wrong, because everybody seems to be saying it -- that they didn't reach the Federal issue when they spent 14 lines discussing it, rightly or wrongly.
Kurt D. Hermansen: Respectfully, Justice Breyer, they don't -- they're just talking about a definition of one word, of what actual bias is.
Stephen G. Breyer: Which happens to be the issue in this case.
Kurt D. Hermansen: The issue in this case is can you kick off a juror who has expressed 10 or 15 times -- and this came out right out of the bat -- the foreperson was called out, asked about some notes and said, Juror No. 6, 10 or 15 times has said, I don't think there's sufficient evidence. So that's different from whether we look at Federal law to -- for the definition of actual bias. My -- I think it's a reasonable position to say that you can't infer from this discussion of Nesler, only talking about what the definition of actual bias is, that the actual Sixth Amendment claim -- and even the trial attorney was arguing in Symington, Your Honor, please don't question these jurors. The foreperson, right out of the box said that Juror No. 6, 10 or 15 times, has already said that he thinks there isn't sufficient evidence.
Stephen G. Breyer: No. Now, what the court says about that argument, what the court of appeals says, is that the argument of your client not only misstates the evidence -- that's their -- not you, but they're criticizing -- and then he says, "It ignores the trial court's explanation that it was discharging Juror No. 6 because he had shown himself to be biased. " So this court of appeals thinks the issue is whether he had shown sufficient bias. You think the answer to that is clearly no. The government thinks it's yes. And I can understand the differences of opinion, but I'm back to my question. It seems to me in 14 lines they do address the Federal constitutional question of bias. And that's -- that's -- maybe it wasn't the right issue, et cetera, but -- or maybe they didn't decide it correctly. But you see what's bothering me. And so I've listened to the answer. Do you want to add anything?
Kurt D. Hermansen: I would respectfully request that, read -- that reading this whole thing in context, it's clear that the California Court of Appeals is dealing with 1089. They are not dealing with the Federal standard that we're grappling with here, which is if a juror's views on the merits of a case have been expressed, can you then interrogate all the jurors--
Sonia Sotomayor: Is this -- is this a holding that the Sixth Amendment requires you to keep a biased juror as long as the juror says, I have doubts about the sufficiency of the evidence?
Kurt D. Hermansen: --No. If there is good cause--
Sonia Sotomayor: Now, answer my question. Does the Sixth Amendment require you to keep a biased juror?
Kurt D. Hermansen: --No.
Sonia Sotomayor: All right. So, if the Sixth Amendment doesn't require you to keep a biased juror, then why is it that the state court's finding that this juror was biased a Sixth Amendment holding, that it wasn't violated because the juror was biased? The logic is almost inescapable to me.
Kurt D. Hermansen: Yeah, right. So for a minute we'll get into the issue that wasn't certified, but what happened in this case was the judge -- the Ninth Circuit found that the finding of bias wasn't good cause under the Federal standard because the--
Sonia Sotomayor: Did the California court find the juror was biased?
Kurt D. Hermansen: --Yes. Because he was applying too high of a standard because he said very convinced beyond a reasonable doubt, and there was a quibble about what does the word very add to beyond a reasonable doubt. And the jury very eloquently responded that very convinced beyond a reasonable doubt is the same as convinced beyond a reasonable doubt. And so that doesn't show bias when someone--
Stephen G. Breyer: That was one of the things. Then they go through in those four pages about six other -- they called -- he gave one story to the judge, Juror No. 6. Then the prosecution calls about eight other jurors, and they come up with quite a different story about what he was telling them in the jury room and -- that I'm not going to convict him. Well, he didn't quite say that; he was talking about Vietnam and talking about the slaves, and you don't want to convict a person for -- make him return the slave. I mean, they talked about a lot of things. And he went through all that, and then concludes he was biased. And your point was he wasn't biased. He was going to decide it fairly. Okay, I'm listening.
Kurt D. Hermansen: --But the threshold issue is when the foreperson, at the very, very, very beginning, says, Juror No. 6, 10 or 15 times has said he doesn't think there is sufficient evidence, all questioning should have stopped at that point, because there was no indication of bias. But -- and how do we know that there's a possibility that he's being kicked off because of his views on the merits of the case? We know that because the prosecutor filed a motion saying, let's reopen questioning. And that -- then the judge said, okay, yeah, let's reopen questioning. But the foreman had already said, I think your response to the jury note has satisfied that; I think it will be fine. Yet, the prosecutor filed a motion to reopen because the prosecutor knew that this juror had reasonable doubts. And so that's why there's clear evidence in this case that the motion to dismiss the juror was based on the juror's views on the merits of the case. And -- and, also, this is not a capital case, it's just a -- an LWOP case. And if there are no further questions, thank you.
John G. Roberts, Jr.: Thank you, counsel. Ms. Brenan, you have four minutes remaining.
Stephanie Brenan: Thank you. I would just like to make about four points. First, my friend discussed the case of Smith v. Digmon. And I think I would like to point this Court to the words that were used in Smith v. Digmon, which is where the state court chooses to ignore in its opinion. And as this Court later said in Castille talking about that, that's an implicit rejection. So, really, the way it should be interpreted is, if a state court fails to mention in its opinion writing, it's implicitly rejected, not that it's been ignored. Secondly, I'd just like to agree that, yes, California believes that 1089 is Constitutional under the Sixth Amendment. And, in fact, the Ninth Circuit in Miller v. Stagner said that it was facially constitutional. Third, I would just like to agree with Justice Sotomayor that here, where the trial court made the finding of bias, that answered the Sixth Amendment question. The entire argument below and throughout was a disagreement as to whether the juror was biased, or was he just having -- harboring doubts about the sufficiency of the evidence. Those were the counterarguments. The trial court, by making the determination that there was bias, necessarily answered that question. Secondly, as to that point, I would just like to also point this Court to the language in People v. Cleveland that talks about agreeing with Thomas and Brown and Symington that you cannot dismiss a juror based on his views of the evidence. And that's at 21 P. 3d at page -- 1236. So it couldn't have -- in order to have good cause in California, you couldn't have gotten rid of him for his views of the evidence. Finally, I'd just like to say that Mr. Chief Justice is correct that this would increase the litigation. We would have courts, Federal habeas courts all the time trying to decide whether there was a sufficient indication or not by deciding whether state law is coterminous with Federal law. As we've already seen in California, following the issuance of this decision that's exactly the type of arguments that we're getting all the time now. And for that reason, this Court should adopt the rule that where a fairly presented claim has been rejected by a state court, it has denied that claim, adjudicated that claim on the merits. If there is anything else?
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Hugo L. Black: Shuttlesworth versus City of Birmingham, number 42. Alright, Mr. Greenberg, you may proceed.
Jack Greenberg: Mr. Justice Black and may it please the Court. This case is here on petition for writ of certiorari to the Supreme Court of Alabama which reversed the Alabama Court of Appeals which in turn had reversed the Circuit Court of Jefferson County which had convicted this petitioner for violating a Birmingham ordinance requiring a permit before a procession or a parade may be held. The petitioner, Fred Shuttlesworth, was sentenced to 90 days in jail plus 48 days in lieu of paying a fine and cost for parading in violation of this ordinance which appears on page 4 of our brief.
Speaker: When was this conviction, 1963?
Jack Greenberg: This was in 1963.
Speaker: How in the world is it taken this long to get up?
Jack Greenberg: Well, Mr. Justice Harlan, the case was tried in the Recorder's Court in May 1963 in the Circuit Court in October 1963. An appeal was promptly taken to the Alabama Court of Appeals which did not decide the case until 1965. The State of Alabama then took it to the Alabama Supreme Court which did not decide the case until November 1967 and we promptly took it here. The time was essentially spent in a very lengthy consideration or the very lengthy time that was consumed while the case was pending before the two Alabama courts. The ordinance in question which appears on page 4 of our brief states that, “It shall be unlawful to organize or hold or assist in organizing and holding a parade or procession or other public demonstration unless a permit has been secured.” And then it sets forth standards according to which the permit may be granted or denied. And those standards include beginning on the very last line on page 4 of our brief, public welfare, peace, safety, health, decency, good order, morals, or convenience. As I stated, this arose in 1963 and this is what one might call a prototype case. This is the case of the one petitioner whose conviction has been appealed and there area approximately 1500 other cases pending in the juvenile court and the Circuit Court of Jefferson County awaiting disposition of this case. The case arose at what one may call a classical type of civil rights march.
Abe Fortas: How many cases did you say are waiting?
Jack Greenberg: Approximately 1500, about 900 in the juvenile court and 600 in the Circuit Court are being held pending the outcome of this case.
Abe Fortas: How is that possible? I thought there are only 50 marchers?
Jack Greenberg: Well, other persons were prosecuted for violation of this ordinance during this -- these has occurred during the series of demonstrations in Birmingham but in 1963 which openly led to the passage of the 1964 Civil Rights Act and there were a series of demonstrations and marches over a period of some time. And while there were only, there were 52 persons arrested in this particular demonstration, there were 1,500 altogether. This -- the Civil Rights March was one might call a classical type of civil rights march. The group of marchers of which petitioners, Shuttlesworth with which he was connected left the church at approximately 2:00 or 2:30 in the afternoon. They walked in the sidewalks. They were entirely orderly. There was no question about that at all. They proceeded approximately four or somewhat more than four blocks and then they were stopped by police officers who asked whether or not they had a permit. And when they did not -- when they said they did not have a permit they were arrested. I might state that the respondent's brief is written in an effort -- were written as if this was some sort of disorderly conduct or breach of the peace case. The fact is that petitioners were not prosecuted for anything of the sort. They were prosecuted for parading without a permit. The opinion of Judge Johnson in the Court of Appeals which has been adopted essentially by the Supreme Court of Alabama is expressed on the fact that petitioners who orderly -- the testimony of police officers is unequivocal that they were orderly. There was a group of demonst -- there was a group of onlookers. There is some dispute as to whether or not the onlookers were disorderly. They were however a discrete group and even the alleged disorder which came out of the conduct of the onlookers occurred after the arrest and it seems that I don't think it can be seriously contended or contended at all that these petitioners acted in violation of any disorderly conduct or breach of the peace statute. Indeed, they have not been prosecuted for that. Now, Judge Katz's opinion in the Alabama Court of Appeals which reversed the conviction of the trial court is a lengthy opinion appearing at page 88 of the record however, it is summarized in his conclusion in a brief section on page 143. And his position was that the permit ordinance is unconstitutional because it is vague and includes such terms as welfare, decency, and good morals which were not ascertained susceptible of any precise meaning. Relying upon judicial notice of records in several Alabama cases, he held that the pattern of enforcement that is prosecuted in these petitioners for walking down the sidewalk was discriminatory in the sense of Yick Wo against Hopkins. And he also held this third point that there was no need shown, no state interest shown in enforcing an ordinance of this sort against persons who were merely walking down the sidewalk. The dissenting opinion of Judge Johnson which was adopted and without any variation really by the Alabama Supreme Court consisted essentially of reconstruction of the statute in the mode of Cox against New Hampshire. He read the statute and he said, here's the statute contains the words “decency and morals and welfare and the various other vague terms” he said but I read all those terms out of the statutes so those words are no longer there. And now he said I'm going to read something into the statute. And after having read that out, he read into the statute of those traffic considerations and considerations that avert to convenience of the public which is the basis of Cox decision and the Supreme Court of Alabama said that's right. We read out the bad words and read them some good words and therefore the conviction stands. Now, our position in this case in summary is that under decisions of this Court, it uniformly has been held that a permit ordinance which imposes a prior restraint in First Amendment rights may be disobeyed with impunity if it is unconstitutional on its face and this Court has held that in Staub versus Baxley and Lovell against Griffin and case after case since then. There seems to be -- it seems to be conceded that the language and question of just to take three of the terms: welfare, decency, and morals are so vague that they aren't unconstitutional. Indeed, that's why they were read out of the statute by Judge Johnson and by the Alabama Supreme Court. There is the question of the Cox case. Our position of the Cox case and I will come to that in a moment. It is that it is distinguishable and that in event it did not take into account. It did not discuss certain due process, considerations of fair notice which reveal our central to this petition.
Potter Stewart: Which, excuse me, which Cox case? Cox --
Jack Greenberg: Cox (Voice Overlap), I will be speaking about against Cox against New Hampshire.
Potter Stewart: New Hampshire?
Jack Greenberg: Yes.
Potter Stewart: There -- you don't incline if there's anything on the constitutional as such state having a permanent requirement for a --
Jack Greenberg: Oh, No. No, providing that it meets certain substantive and we might add certain procedural standards and we say that this statute as rewritten even if it were constitutional as rewritten. First, it cannot be applied to convict this petition or who acted before it was rewritten and secondly, we claim it is not constitutional in any event because it does not provide for a speedy review and certain standards, record keeping, and so forth that would be necessary useful upon review. Secondly, we claim that five years after the event, the statute cannot be reconstructed without filing motions of fair notice to convict this petitioner would go in a substantive sense distinguished from the procedural sense such a rewritten statute that might by constitutional. Now, under decisions of this Court as I stated at the outset, a march made without a permit contrary to a regulation requiring a permit is constitutional and is protected by the First Amendment if the permit, ordinance, or regulation is unconstitutional on its face. Now, it's conceded that this ordinance is unconstitutional on its face and I've seen no arguments serious otherwise made to the contrary. An alternative would be if the Staub doctrine and the Lovell doctrine were not the law of this Court that dissenters before they marched would have to engage in expensive litigation as in, let us say the Dombrowski case or would have to submit themselves to lengthy administrative proceedings and there would be chill upon free expression. A petitioner in case such as this would be in a especially grave disadvantage in an administrative proceeding because and in a judicial proceeding because the scope of review on appeal in the Alabama courts is so circumscribed that in dealing with a vague statute, he would have great difficulty in proving just what right of his head been denied. But this ordinance like the one in the Cox case was construed in the Supreme Court of Alabama for the first time apparently to make it constitutional and it held, but was held below the Cox save the ordinance and save the conviction. Our position is as I stated before that even if this were the case it could not save the ordinance in the sense that it could convict this petitioner. We distinguish the Cox case on a variety of grounds. First of all, in Cox, there was a statute which was essentially blank as to standard and it is conceivable that one might have read that ordinance and he said, well, what is it they mean and reasonably might apply the traffic considerations. But here's a statute which quite explicitly has other standards that welfare, decency, good order, and so forth and one need not be at a loss to guess what the state means. The state means these various vague general things which one can't really -- about which one really can't predict whether one is entitled to march or not.
Speaker: And so case have any -- does New Hampshire case have any standard or whatever?
Jack Greenberg: No.
Speaker: None?
Jack Greenberg: No, standards. It just said, you needed a permit.
Speaker: It was Chief Justice Hughes' opinion?
Jack Greenberg: Yes, that was -- I think it was, yes. You just said you needed a permit but it did not have any standards in it. This case on the contrary has a series of vague standards and its while, I would not agree with this but it would be conceivable to say that one might imagine that standards could be imported into a statute which is silent. I think it is asking a great deal to expect a layman or indeed a lawyer to read out of a statute a series of vague standards then to read into the statute of series of traffic type standards. Secondly, as we point out in our brief, the Cox case was decided in some of the earlier days of First Amendment jurisprudence in this Court and it may be that the Court at this time was not sufficiently alert to the chilling effect that such a retroactive interpretation might have and further that the Court had not really fully developed its jurisprudence of First Amendment rights to apply to march as in parading or picketing of that sort. But in any event, even if the statute could be said to be now made constitutional in retrospect of the by reading out and reading in, we say that in a procedural sense, it is not constitutional in the sense of the -- of Bantam Books case and the Interstate Circuit case which says that on First Amendment rights it denied they must be speedy, precise, and efficacious opportunity for review and that none of that exist here ago. It's not even as reconstructive standards like were not read into the statute.
Speaker: Now, do you know of any case where that doctrine in the obscenity case has been applied to an ordinance -- a valid ordinance otherwise valid ordinance which relates to the control of the streets?
Jack Greenberg: No, Mr. Justice Harlan but we would say that an a fortiori should apply, perhaps not necessary to a case involving use of the streets but to a case involving what one might call political rights. Because I think it might be argued that in the case involving a book or a motion picture for example, while it is undesirable and it is unconstitutional to frustrate or delay the publication or the showing of the motion picture that something which involves the political considerations in which timeliness is exceedingly important and the necessity for avoiding delay is crucial as it was in this case. The Good Friday March had a significance on Good Friday and on Easter Sunday as such that a fortiori that rapid in effect of review notion should apply to this kind of a case, even more so than to a movie case. But the Cox case, the point we make in addition did not address itself. Perhaps, it wasn't raised in the case that to the fair notice doctrine. This petitioner, according to the law as it stood then and as he under any reason besides the degree of the statute had reason to believe that he could march with impunity. He did not have fair notice that five years later, the statute would be reconstructed in a way which could convict him. In this Court, not long ago in this case of Bouie against City of Columbia which was one of the “sit-in” cases dealt with the trespass statute and the Court may recall that statute said it was a misdemeanor to enter upon the lands of another after notice from the owner prohibiting entry and the petitioner of that case entered upon the lands. He did not have notice prohibiting entry. He was told to leave the Supreme Court of Alabama's, the Supreme Court of South Carolina so that's means the same thing and this Court said no, he did not have fair notice that the retrospect interpretation of the statute would cover this particular situation. Well, the case us entirely precise, I think the notion of retrospective interpretation to convict without fair notice is applicable in this case as well as in the Bouie case. I'd like to address for a moment the question of fair procedure which I say I think is crucial in this case because the statute remains unconstitutionally even after rewritten. There is no regularity, nothing provided for in the ordinance concerning administrative procedure in processing applications. So far as practices concerned there is no evidence concerning that. There are no reasons to be given as to where the permit is denied. There was an effort to develop upon cross-examination of the witness Sarah Nagar (ph) who gave out the permits. When questioned -- developed when permits are granted and when they are denied and are they given for walking in the sidewalks as distinguished from working in the streets. That line of questioning was cut-off very soon after it began so that was not even possible to develop this at the trial. There are no time limits, lengthy or brief. There are some suggestions about judicial review but as the best we can divide from Alabama law judicial review would then at least involve 30 days for answering the trial court and there are no stated precise periods for appeal from the Supreme Court of Alabama and the scope of review was extremely narrow would be by mandamus or certiorari at which all one reviews is the discretion of the grant or order of the permit and in a statute as vague as this, it would be very difficult to litigate something else of that sort. So for all these reasons, we submit to the Court that the conviction of petitioner Fred Shuttlesworth should not be permitted to stand that the statute as rewritten does not say that conviction that even if in a substantive sense and as to future defendants that statute might be filed in a procedural sense it is and remains unconstitutional.
Hugo L. Black: Mr. McBee.
Earl McBee: Mr. Justice Black and may it please the Court. Some 18 months ago, I believe, I was -- had the privilege of appearing before this Court in reference to the case of Walker versus the City of Birmingham which we think is a closely related case in as much as it deals with the identical parade and of course it deals with and involves the same parties, that is to say the City of Birmingham and in this instance the respondent rather petitioner F.L. Shuttlesworth. We think that the facts in that case should be considered in this case because they are related and as least we believe that the Court has authority to so consider. We would like to call attention to the fact that in the City of Birmingham at the time this particular litigation began, there had been a number of mass parades and lead again to the balance and attacks the Police Department City of Birmingham to protect the demonstrators and also to protect the citizens of the City of Birmingham. On the evening of, the 10th of November -- 10th of April, the city acquired and injunction from the state court enjoying the holding of mass parades in violation of 1159, that's answer the question. The reaction to that injunction was an immediate denial of any right of the state or any intent of the parties involving the petitioner to pay any attention to the injunction but as a matter of fact, they said that the injunction was not to be respected or not to obeyed but they did not believe in obeying laws that they consider to be opposed to there way of lying.
Potter Stewart: Mr. McBee, there is no issue about any injunction in this case. It seems to me, you're rearguing the Walker case here, we already won that one --(voice overlap)
Earl McBee: No, sir. (Voice Overlap) I don't mean to be doing that but I just mean to attract to connect the two cases in this respect that there was an effort on the part of the petitioner here to say that he had been mistreated and misled into the arrest on this occasion and we believe that the facts in the Walker case are at least to some extent relevant.
Potter Stewart: I don't see how any issue of an injunction is in this case. I didn't understand it to be after having read carefully read your brief and that of your opponent.
Earl McBee: Well, we agree that it is not an issue in the case but we believe, thought at least that the factual situation was relevant.
Potter Stewart: Well this is a conviction for holding a parade without a permit?
Earl McBee: Yes sir, that's true.
Potter Stewart: And has nothing to do with the -- there are no issues here of disorderly conduct, of violence, or defiance of a court order. None of those things were in this case?
Earl McBee: I believe that's correct that there's no question of any mess conduct on the part of this particular defendants in the sense of any disorderly conduct. And it won in that case either but they did say that they were going to disobey the law.
Potter Stewart: Disobey a court order and that's not in this case?
Earl McBee: Yes, sir. And the facts in the case in this particular instance, there's no question about that the evidence clearly shows the violation of the law. Now, the question of the precedent before the Court in which the Court must consider as we believe in determining the rightfulness or the wrongfulness of the conviction in this case will be among other things of course the Cox case, that's New Hampshire-Cox case. Now, the New Hampshire-Cox case did not place any sort of restriction upon the issuance of the license. The license was particularly and fully and completely based upon a monetary consideration plus whatever construe, whatever restrictions they -- might decide it want to put into it. For example, they could if they wanted to use racial lines or for denying the application. They could use with each lines to deny their application. They could also presumably use any other criteria for the denying the application. In considering the question, and we don't believe that the ordinance in 1159 is any more void and invalid than is the ordinance in the case of Cox because of the fact that there was reference to some action on the part of the Court in connection of the city commission in connection with the various assets -- the various aspects of the police power of the city. In other words, it does relate to specifically aspects of the police power. Now, the Supreme Court of Alabama in each ruling which by the way followed the ruling of this Court in the case of Walker versus -- the City of Birmingham versus Walker did hold in line with that case that the ordinance was not unconstitutional. Now, there's been a question raised as to why this Court of Alabama waived so long. I have a strong suspicion that probably they were waiting until the Court, this Court made this decision in the Walker case. And the Court in this case in the Walker case was dealing with the particular ordinance in question and of course was certainly expected and anticipated they would gear some guidelines for the Alabama Court to follow. I think that there is some misapprehension, at least in the argument of the petitioner in this case as to the significance of the two lines of cases. Now, we certainly reflect and know that there are some admissible regulations that can be used in connection with parades and other types of actions upon the streets of the cities. But on the other hand, there is also in the connection with the regular pure speech cases, a less privilege on the part of the local government governing bodies to present and to enforce regulations which restrict or do impair the right of the demonstrators or the people using free speech. In the Cox case, the Court made it clear that there is a difference in the use of public streets and in pure speech. If a municipality has authority to control the use of the public streets for parades or processions as on the others, it cannot be denied authority to give consideration without unfair discrimination, time, place and manner in relation to the other proper uses of the streets. We find the impossible to say the limited authority conferred by the licensing provisions of statutes in question as thus construed by the state court contravened any constitutional right that must be borne in mind please that this statute was construed just as in our case in a conviction situation involving Cox. And it was construed post the act of -- for which he was convicted that is after which he was convicted. The conviction was upheld and we think in line with other decisions of this Honorable Court for the reason that when he violated the ordinance, he did so with the fact that it was conceivable that a valid construction could be placed upon the ordinance which would render it valid and which would render it constitutional and he then did at his peril violate the particular constitutional that is particular as it could be made about it by the construction of the courts. We've come on to the Walker case and of course I think Mr. Greenberg refers to the fact that Lovell and Staub and Freedman, the doctrine of those cases are at odds with the holding of the court in Alabama court in this case. But however, in the Walker case, we find the reference to Cox versus Louisiana in which the Court said that we emphatically reject the notion that the First and Fourteenth Amendments before the same kind of freedom, those who have communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways as these amendments afford to those who communicate ideas by pure speech. And at another point in while he walks a case the court said the authority of a municipality to impose regulations in order to assure safety and convenience to people and the use of public and highways has never been regard as inconsistent with several liberties but rather as one of the means of safeguarding is good order in which there are defend. And then, going on over to the question of this particular ordinance, the generality of the language contained the Birmingham ordinance upon which the injunction was based will unquestionably raised substantial constitutional issue concerning some of its provisions and the citation of a number of cases. The petitioners however did not even attempt to apply to the Alabama courts from authoritative construction of the ordinance and this we think is very significant. Had they done so, those courts might have given the licensing authority granting the ordinance in narrow and precise code as did the New Hampshire courts in Cox versus State of New Hampshire and Poulos versus New Hampshire. Here just as in Cox and Poulos, it could not be assumed that this ordinance was void on its face. And then going into question of the application of the ordinance, the petitioners also claim they were afraid to dissipate the injunction because of great ordinance in which it was based had been admonished in the past and arbitrated in the right fashion. These precedents and that is to say the (Inaudible) and other precedents clearly put the petitioner unnoticed they could not bypass all the judicial review and claim that they were entrap or misled as wholly and founded. A conclusion confirmed by evidence of the record showing that when they petitioner deliberately violate the injunction, they expect to go to jail. Now, may it please the Court, we think that the significance of that is this. That the precedent of Cox versus New Hampshire was booked and also Poulos versus New Hampshire was available to the petitioners. Now, the petitioner in this case at that time he violated the injunction and violated the Ordinance 1159 and this Justice as what (Inaudible) be a precedent which he was informed of should have known about so these list of decisions were known to him or should have known to him and he could not claim entrapment because he did know about those or should have known about them. And also, the evidence show that they did -- knew they actually did with the expectation of going to jail. Now, so far as Cox versus New Hampshire is concerned, we find that that case has an also Poulos versus State of New Hampshire has been accepted by the courts with a steady and an unbroken line and I suppose have been cited maybe at least 50,000 times. There are sound decisions they -- coming on down through of course in 1965 of the Cox versus Louisiana and by the way the decision in the Walker case in 1967 and then the most recent case is Amalgamated Food Employees Union versus Logan Plaza. And in that case, Mr. Justice Marshall writing for the court and I believe there was concurring opinion and one dissent, says in addition, the first -- the excise of First Amendment rights may be regulated with such exercise was unduly interfered with normal use of the public property by other members of the public with an equal right to access to it. Thus, it has been held that persons designed to parade along city streets may be required to secure a permit in order that he may an autonomous authorities may be able to limit now and interference with the use of the sidewalks by other members of the public by regulating the time, place, and manner of the parade. Now, of course as the Supreme Court of Alabama has construed the 1159, that is the ordinance can only be applied in reference to actually the good order and the convenience and use of the streets. The essential contention as we understand it is being made at this time that the ordinance did not give fair notice. As a matter of fact, Bouie has been referred to and I believe Lanzetta. The Bouie case involved a situation where the facts showed an intent to apply an ordinance to a factual situation that it wasn't space designed to accommodate. For instance, the ordinance was designed to prevent or rather to punish going up on property when you are not to go on it. It was applied to a situation where the (Inaudible) already own it without the notice being put up and want to get off. And of course, that construction was not the one that the ordinance on its face show that the possibility of then therefore the courts held that it was not fair notice. Lanzetta was a situation where anybody who was a member of a gang. But the gang consisted two or more people which of course was too broad and no one could ever describe what a gang was really and that is know what a gang was within the meaning of the statute. Now in reference to the question of fair notice and the administrative procedures, here again, the Court in Poulos versus New Hampshire had occasion to deal with that particular and specific problem. In that case, the ordinance had or rather statute had or ordinance whichever one it was, had been construed by the Supreme Court of New Hampshire and have been approved by the Court by this Court in the opinion written by Mr. Justice, Chief Justice Hughes. The Court in the Poulos case said that that case had been made for a permit but wrongfully the licensing authorities had refused to grant the permit. And because they had refused to grant the permit, the defendant had proceeded to violate it. Now, as he proceeded to go ahead and have his speech of whatever it's going to have without the benefit of the permit. The question was raised that in this Court that to have put him in that situation to going into a mandamus proceeding would be expensive, would be difficult for him to accomplish and would delay him in his exercise of his freedom of speech and so forth. The court rejecting that argument that is the New Hampshire Court rejecting the argument and said that that would not be permissible because he had a remedy. He could have gone into the courts and enforced his right to speak. This Court considering that question said that that's exactly correct. He could have gone into court. He could have presented his wrongful disallowance of the permit and not having followed that procedure which the state courts permitted he therefore, was not entitled protection of the constitutional amendment that he was relying upon.
Hugo L. Black: Mr. McBee.
Earl McBee: Yes, sir?
Hugo L. Black: What was the -- suppose a convention in your city in one of the convention polls adjourned and these many people walked in exactly the same manner as these people did in this case back to their hotel. Would they be violating the --
Earl McBee: Oh, no sir. No sir, they would not.
Hugo L. Black: What is the thing then in this case that makes this a violation of the law.
Earl McBee: The ordinance as construed --
Hugo L. Black: What is the thing that these people did that makes them liable to the ordinance where they wouldn't be liable under circumstances I just suggested to you?
Earl McBee: Well, that I was trying to answer that question in saying this that there was, the ordinance does have as construed refers to formal, actual precision type of walks. They have the same issue in the Cox-New Hampshire case where in that case there were I think three or four or five or six groups or some 10 to 15 walking in single file. Peaceably there were no question about that. Nobody raised that question but they did walk in single file and the issue raised was whether or not that amounted to a parade within the meaning of the ordinance. And of course that was a -- they held that to be a violation of the New Hampshire statute ordinance. Now, in this case, suppose the court said again, it must be a formal parade and of course the reasons why we think that a permit is required for a demonstration or a parade of this type is simply this. That the city or the local governing body is required by law by this Court to provide safeguarding procedures and police protection to take care of a possible disorders that might interfere with their right to parade and of course in this instance, if they had no permanent requirement, they would not know where the parade was to be or when was it to be or what route was it to take and we have no information as to what to do in providing the protection.
Speaker: Why wouldn't the same thing occur when they broke up for the convention and went to some other part of the city and walked along the sidewalk in exactly the same manner?
Earl McBee: I don't know of any likelihood of anybody committing disorder in a crowd walking from one event to another event. I never have heard of that but there is --
Speaker: Well, I understood you to say there was no disorder in this case.
Earl McBee: Well, actually, I don't believe that -- now, of course that the question of the participation of the body of the so-called onlookers. Now, that's the question really of I think disputed --
Speaker: The so-called what?
Earl McBee: So-called onlookers. They have recruited these people to come and they have assembled them in the vicinity of the church and while they only about 52 came out of the church in the formal march wearing blue jeans, I believe, the numbers of the onlookers which came along were took up around, I think maybe a 1000 or 1500 and they took up the street and also both sidewalks. They were blocking those sidewalks. I mean, they were completely utilizing and completely in mass moving on and preempting the use of both sidewalks.
Speaker: Were they arrested?
Earl McBee: Some of them were but they couldn't catch them, not very many of them. But those --
Speaker: But they did take all of these who were going peacefully?
Earl McBee: Well, yes and I think but then those that went peacefully were going to be arrested. That was the part of the procedure.
Speaker: There has to be?
Earl McBee: Yes, sir. They have recruited people to be arrested and go to jail that's what they came there for. They intended to do that. Now, they have purposes in mind, I suppose money-raising was one of the reasons they did it. I wouldn't of course be certain about it but I would assume that that was for other reasons of their own. What they did, they did recruit people to come and to march and to be arrested and they were arrested.
Thurgood Marshall: When the case was tried, did they deny that they were parading or intended to parade?
Earl McBee: I think the only case we've tried that is to say now that Recorder's Court trials they didn't take the stand at all with that call.
Hugo L. Black: But it went up to the Circuit Court, didn't it?
Earl McBee: Well now, the only thing is, may it please the COurt, in this case, Mr. Justice Black, there was no -- this is the only case that has been tried as far as I know of these cases.
Hugo L. Black: Well, did it go to the Circuit Court?
Earl McBee: Yes, it went to Circuit Court.
Hugo L. Black: It was tried before a jury?
Earl McBee: Yes, it did.
Hugo L. Black: Did they defend on the ground that they had not paraded on the ground that the law was unconstitutional?
Earl McBee: Well, there main objection was and so far as I know as I recall, there was no series objection, I mean series denial of the fact that they paraded. Certainly, the evidence was clear that they did.
Hugo L. Black: Without a permit?
Earl McBee: Yes, without a permit. They made no contention they ever have a permit.
Potter Stewart: But except Mr. McBee, they must have raised it because in the Court of Appeals, Judge Katz's opinion, I'm reading now from the very last paragraph of his very lengthy opinion appearing on 143 of the record here says, “that the city failed to make a case under the purported meaning of Section 1159 of there being a need for the appellant in this case to be covered by a permit to use the sidewalk in company with others.”
Earl McBee: Well, that --
Potter Stewart: And that's a clear holding as I read it, you tell me if I'm mistaken that this, the ordinance at issue here is simply was not applicable to the conduct of this petitioners and if there's that much and then I understand of course that the Supreme Court of Alabama disagreed with that.
Earl McBee: Yes.
Potter Stewart: There's that much room for disagreement as appears that there was here between the Court of Appeals and the Supreme Court doesn't the -- don't the petitioners have a very valid fairly notice argument as to the very meaning and coverage of this ordinance?
Earl McBee: Well, as a matter of fact, they also have notice. They -- I think there was some, statement made at some point along the line that perhaps because they are on the sidewalk as opposed being in the middle of the street that they probably went out, possibly not violating the ordinance. But however though, there was in this city code a section which defines the meaning of street to include sidewalk.
Potter Stewart: Well, then --
Earl McBee: It had been in all these years, so there must Mr. Justice Stewart, the Judge Katz either did not know that or had not made an effort to find out because if it was, actually in the law of the city.
Potter Stewart: I don't understand him to be necessarily making a decision between the paved part of the street and the sidewalk part of the public way but rather, just to use the streets in company with others. As I understand, I think I would gather, perhaps again, I'm wrong that his language could simply be construed 52 people which he elsewhere characterizes in this very lengthy 56-page opinion as about the size of a football squad walking down the street simply is not the kind of procession or parade contemplated by the Birmingham Ordinance. Now, and he holds that as a matter of -- or in your intermediate Court of Appeals in Alabama and as this Court is clear that the Supreme Court subsequently disagreed. But if say if there's not much doubt about it, don't the petitioners have a very colorable argument with respect to the notice that the ordinance gave him?
Earl McBee: Of course, we think this -- we think that that Court of Appeals primarily was addressing itself to the idea that it was a street rather sidewalk rather than a street case. But he did write a very lengthy opinion. (Voice Overlap) And we frankly think that he would not have written the opinion had he had benefited the Walker case in this Court for his guidance when he wrote that opinion. But he did write it very lengthy as we know.
Potter Stewart: Well, as a matter of fact, the Walker opinion rather relied on his opinion, didn't it? At least referred to in the footnote?
Earl McBee: Well, I think (Voice Overlap).
Potter Stewart: To the effect that this (Voice Overlap) has been held to be unconstitutional?
Earl McBee: I think it mentioned the case and said that, of course, it could perhaps be construed to be unconstitutional.
Potter Stewart: He pointed out that it ad been held to be?
Earl McBee: Well, yes, I think it makes him that.
Potter Stewart: And if the -- as support for the proposition that the place of the petitioner is to have gone into the Walker case was to court.
Earl McBee: Ah -- we would like to make one more observation in connection with the organized march and that is to say that an organized march does compete for the use of the sidewalks with other use of the sidewalks on the part of people who have the right to use them and that's the reason why an organized march which is known to be planned requires a permit. If it didn't have that permit, there would be no opportunity to provide against the overlapping parades and it wouldn't be no opportunity to prevent violence and/or disorder which would result from possible situations of good result. And of course, in this instance, there was an explosive situation in the City of Birmingham at the time and the police department was in -- was put hard put to it to try to keep the situation from developing into a very, very serious situation. I believe that my time has ran out.
Hugo L. Black: Very well. Mr. Greenberg.
Earl McBee: May I say this though, may it please the Court, since I was here before I would accumulate a little tremor here and some impediment of speech with which I apologize.
Hugo L. Black: Alright. I'm very sorry to hear that Mr. McBee. Mr. Greenberg.
Jack Greenberg: We have nothing further to add Your Honor.
Hugo L. Black: Very well.