Warren E. Burger: We'll hear arguments next in 72-350, United States against the Tax Commission of Mississippi. Mrs. Lafontant, you may proceed whenever you are ready.
Speaker: Thank you. Mr. Chief Justice, may it please the Court. Mississippi prohibited the sale or possession of alcoholic beverages until 1966. In that year, it adapted a local County option policy, subject to requirement that the State Tax Commission be the sole importer and wholesaler of alcoholic beverages. The Commission promulgated a regulation which authorized military post exchanges and other military agencies to purchase liquor either from the Commission or directly from distillers, but required that the distillers collect from military and remit to the Commission a markup cost. The officers and non-commissioned officers' clubs and other non-appropriated fund activities had purchased liquor from out of state distillers and suppliers when Mississippi was a dry state, and they decided to continue this practice rather than purchase from the Commission itself. United States filed an action seeking declaratory and injunctive relief against the enforcement of this Mississippi regulation that required out of state distillers to collect a percentage sum, designated as a wholesale markup on their liquor sales to certain post exchanges and other military organizations.
Warren E. Burger: Has the military at any time made purchases directly from the State?
Speaker: None whatsoever, not from any distillers in the State and never from the Commission itself. All of the purchases by the military, all of them had been made from out of state distillers, never from the State. So, the United States filed this action seeking declaratory judgment which said that, the markup had to be collected from the military and remitted to the State on basis in the State of Mississippi and also required the distillers to remit the markup to the Mississippi Tax Commission. The United States, in addition to this, sought to recover the total of all such payments made by these military purchasers. Incidentally these payments were made under protest and by July 31st of 1971, the total payments made amounted to $648,421.92. The State of Mississippi ceded and the United States acquired jurisdiction over lands within the State, comprising the Keesler Air Force Base and the United States Naval Construction Battalion Center. Mississippi also ceded and the United States accepted concurrent jurisdiction over lands comprising the Columbus Air Force Base and Meridian Naval Air Station. The court below decided against the United States, stating that the Twenty-First Amendment makes Mississippi Law applicable to the sales of liquor to the military bases and the Court entered a summary judgment in favor of the appellees on all issues. In his opinion, the Court found and Mississippi conceded on Page 5 of its motion to affirm and dismiss that the United States had exclusive jurisdiction on two bases, namely Keesler Air Force Base and the United States Naval Construction Battalion Center, and in the opinion of the Court, the United States and Mississippi had concurrent jurisdiction on the other two, Columbus Air Force Base and Meridian Naval Air Station, and we accept the findings of that Court. The Twenty-First Amendment regulates the importation of liquor into a state. Section 2 of that Amendment provides the transportation or importation into any state of the United States for delivery or use therein of intoxicating liquors in violation of the laws thereof is hereby prohibited. We submit that the mere finding of the lower court that the Government has exclusive jurisdiction means that the federal enclave is not within a State, but is a separate territory outside the ambit of the Twenty-First Amendment. The interpretation of the lower court that the Twenty-First Amendment makes Mississippi law applicable over the sales to the instrumentalities on the basis over which the United States has exclusive jurisdiction is inconsistent with the case law. In Collins versus Yosemite Park, 304 U.S. 518, it was held that the regulatory phases of a California Law with respect to the importation and sale of intoxicating liquors are applicable to a corporation selling liquor in a national park, jurisdiction over which has been ceded to the United States with a reservation only of the right to tax persons and corporations in the ceded territory. To the extent that the statute operates as purely tax or revenue measure, it was found that it was enforceable in the park. However, license fees could not be enforced, because the state did not reserve the right to regulate or license, without I could say for the exception that it did reserve its right to issue license fees for fishing, but nothing concerning alcoholic beverages. Thus, in Collins, California did not derive its right to impose revenue measures from the Twenty-First Amendment, but did so solely from its reservation of its right to tax. In this case, there was no reservation by Mississippi of the right to tax. Mississippi reserved only the right to serve civil and criminal process. A proper application of Collins would defeat Mississippi’s claim of any right to impose any taxes of a regulatory or revenue nature or any taxes whatsoever.
Potter Stewart: Mrs. Lafontant as I understand it there are what, four military instillations in Mississippi of which only two are --
Speaker: Exclusive, yes.
Potter Stewart: -- are exclusive and this case involve only those two?
Speaker: No, this case involves all four. What I am attempting to deal with --
Potter Stewart: But certainly your arguments are applicable only to the two?
Speaker: So far.
Potter Stewart: So far.
Speaker: So far, yes sir.
Potter Stewart: Right, thank you.
Speaker: I would take up unless you want me to do.
Potter Stewart: No, no I just want to be sure I understood that.
Speaker: Right, I am still on the exclusive jurisdiction.
Potter Stewart: Right and that applies only to two out of the four.
Speaker: That's correct.
Potter Stewart: Thank you.
Speaker: Thank you.
Harry A. Blackmun: Well, at this point could I ask you a question please? What is the Government’s attitude with respect to Mississippi’s power to regulate intoxicants taken off the base?
Warren E. Burger: The position of the Government would be that Mississippi would have the right to regulate the taking of intoxicants off the base. Our position is that it has no right to tax or regulate intoxicants that are taken into the base, which is a military enclave, a federal enclave. In other words, they could have a policeman at the door, at the gate of the military enclave to check people who are taking intoxicants off, if that would be the case.
Warren E. Burger: But would it -- but, it follow from that, that they could require a declaration each time a person left to much like the declaration you make when you come into the United States, a declaration stating that you did not have any liquor or that you would had three-fifths, could they do that too?
Speaker: I think the State within its powers to control activity within the State would have that power.
Warren E. Burger: And make it a criminal offense for any or al least to tax some kind of sanctions to the violators.
Speaker: Yes sir, I believe the State of Mississippi could pass such a law and make that a requirement to check every individual who would leave a military instillation and make them --
Byron R. White: That's just smuggling.
Speaker: Yes, yes sir.
Harry A. Blackmun: I mean you told us that the post orders the direct from the distillers and I suppose if they follow the other alternative of ordering liquor from the Tax Commission, then they would pay the markup or would they not?
Speaker: That would be my feeling, yes sir, Your Honor. The basic constitutional import of --
Harry A. Blackmun: Suppose that Mississippi required all purchases to be made from the Tax Commission and didn’t permit buyers this alternative of direct purchasing, then where would the Government be or would they have the right to --
Speaker: I don’t believe in the absence of congressional action, I don’t believe that they would have the right to prohibit or to really state that they could only buy the liquor from the State of Mississippi.
Byron R. White: It's sort of Yosemite?
Speaker: Collins versus Yosemite, yes sir.
Warren E. Burger: Congress could surrender some of this supremacy?
Speaker: And it has -- yes sir, and it has done so in many cases, but to this date it hasn’t done it in this area.
William H. Rehnquist: Is your answer to Mr. Justice Blackmun's question the same for both Keesler and Meridian, the concurrent and the exclusive?
Speaker: No the answer would not be the same in the concurrent jurisdiction, I don’t believe that, if I understand the question correctly.
William H. Rehnquist: Concurrent jurisdiction -- and the State of Mississippi could require that liquor be purchased only from the State beverage outlet?
Speaker: I believe so, yes that would be our position. The basic constitutional import of Collins is that the Twenty-First Amendment does not make state laws applicable to an enclave over which the federal government has exclusive jurisdiction. Any exercise of sovereignty by the state over such enclave must be only through a reservation of right at the time of cession. The lower court did not, in its judgment, differentiate between the enclaves over which the United States exercises its exclusive jurisdiction and the other two bases over which the United States and Mississippi have concurrent jurisdiction. The Court found it unnecessary to do so because of its interpretation of the impact of the Twenty-First Amendment, stating that Mississippi laws are applicable to enclaves under the exclusive jurisdiction of the United States. It is our opinion that where there is exclusive jurisdiction, the State has no right to impose a regulatory or revenue measure upon a federal instrumentality. Even where there is concurrent jurisdiction the State can impose regulatory measures only when the transactions involved non-appropriated funds. So, that I really have to return to your question Mr. Justice to state that the same would apply for the ones where there is exclusive jurisdiction as well as concurrent jurisdiction, except where there is non-appropriated funds, I think the State could limit Meridian. Such is --
William H. Rehnquist: Are these
Speaker: Such is --
William H. Rehnquist: Are these funds here all are non-appropriated; all appropriated or are they mixed?
Speaker: They are mixed Your Honor. No, some are appropriated funds. Now the commissaries are considered appropriated funds. The mess halls are non-appropriated. So, we have both kinds in both the exclusive and the concurrent jurisdiction bases. As I said, even when there is concurrent jurisdiction, the state can impose regulatory measures only when the transactions involve non-appropriated funds, such is the holding of Paul versus United States, 371, U.S. 245. The Paul case does not involve any enrichment of the State of California. It deals with regulatory measures to establish minimum health standards in the distribution of milk through a minimum price statute. Paul should be interpreted as meaning that even where the state and Federal Government have concurrent jurisdiction, that where the overriding concern of the State for the health of its citizens does not result in any direct expenditure of funds from the United States Government, the interest of the state in the health of its residents shall prevail. The instant case is even stronger than Paul. In our case here we have a direct imposition of a tax upon the instrumentality of the United States. There is a direct enrichment of the state through the imposition of the markup and that markup collected by Mississippi, we submit, is a tax. It is not a voluntary payment by the distillers. How can it be voluntary when the distillers are threatened with delisting, unless they impose the markup upon the instrumentalities and remit it to the State.
Byron R. White: Now this is -- this goes across this argument, it goes across the board in all four bases?
Speaker: Yes sir, yes sir. If the distiller refuses to collect and remit the markup, he will be denied the right to sell its products and he maybe prosecuted criminally and he can made to serve up to a year in jail or pay a fine of $1,000 or both. We submit that this tax is a contribution towards the cost of maintaining Mississippi’s governmental function since it is paid into the general revenue account. In addition there is no service rendered by the State of Mississippi of on the exaction the markup. Thus it is a payment demanded by the State of Mississippi as a contribution toward maintaining its governmental function and as I said before it is a tax.
William H. Rehnquist: Would you say --
Speaker: In other words --
William H. Rehnquist: Mrs. Lafontant, would you say that's true as to any state liquor operation where the state gets the markup that a wholesaler normally would, that's, in effect, a tax?
Speaker: It depends on how it's collected. I would say this that if the markup was included in the price of the liquor and passed on, you might have some problem showing that it was a direct tax upon the purchaser, but in this case it is almost like social security or sales tax. No one has any question about the fact that this money is collected specifically to be submitted to the State of Mississippi and is collected from the purchasers itself, and there is -- and then its put in the general revenue fund of the State, and the State does nothing to receive this money. Although in the brief of my opponent, it is stated that this is for services rendered by the distiller in passing this liquor on and collecting this. This is his service, but he doesn’t collect the money. The money goes directly to the State of Mississippi, and so therefore it certainly is passed onto the purchaser himself.
William J. Brennan, Jr.: Now, if I understand it, this argument is predicated on even though concurrent jurisdiction?
Speaker: Yes sir.
William J. Brennan, Jr.: That the base is an instrumentality of the United States?
Speaker: Yes sir. The particular and -- the particular agencies of the United States that are involved both in the concurrent and exclusive.
William J. Brennan, Jr.: And would this be true without regard to whether it's appropriated and non-appropriated funds, this argument?
Speaker: Yes sir.
Byron R. White: Well, it would be rather difficult to establish an instrumentality of the United States for non-appropriated funds?
Speaker: No, I don’t think that's the issue at all. I feel -- we have cases, one case is Standard Oil case versus Johnson that was passed in 1941 where Mr. Justice Black held that the messes, which were considered -- which earn from appropriated funds, he held in that case, Your Honor, that the messes are instrumentalities of the government and now I have a specific language here.
Warren E. Burger: What about the Tort Claims Act cases, we haven’t had one here for a long time?
Speaker: Federal Trot Claims?
Warren E. Burger: Yes, what -- an activity sponsored by non-appropriated funds, United States is liable under the Tort Claims Act, in an officer's club for example? It seems to me I remember a swimming pool case, at Court of Appeals level, where they held it was an instrumentality for the purposes of the Tort Claims Act.
Speaker: I am not familiar with that case, the Federal Tort Claims Act case, but I certainly feel that what we are dealing with is a tax situation which might not necessarily flow over into --
Warren E. Burger: It won't follow necessarily, but there is some relevance to it I would assume?
Speaker: Well, if we followed that thinking a little further, I would say that where you have non-appropriated activities, where there is no financial detriment to the United States, that the United States would not be liable. So Court stated in United States versus La Franca at 282, U.S. 568 and 572, "A tax in an enforced contribution to provide for the support of Government." Appellee concede that the markup payments maybe treated as an excise tax in its motion to affirm or dismiss at Page 11. This tax, we submit, is imposed upon the instrumentality of the United States in both the appropriated and non-appropriated.
William J. Brennan, Jr.: Well, I notice on Page 29 of your brief, you have citation to a statute, a federal statute, the State is supposed to exchange on other non-appropriated fund activities as instrumentalities of the United States is recognized by that statute -- is that into that?
Speaker: Yes sir.
William J. Brennan, Jr.: So -- but, independently statute, would still say as to non-appropriated fund, it would be an instrumentality of the United States?
Speaker: Yes sir, it would.
William J. Brennan, Jr.: Well, this is --
Speaker: Because the -- it has been interpreted in Standard Oil versus Johnson that these mess halls are instrumentalities of the United States even though non-appropriated funds.
William J. Brennan, Jr.: Was that statute on the books when that case --
Speaker: In 1941, it's at 50 U.S. -- I can’t find exactly where you are reading, would you please?
William J. Brennan, Jr.: I am on Page 29, second paragraph of the Footnote 16.
Warren E. Burger: It becomes the status of post exchanges.
Speaker: 5 U.S.C., I don’t know what year that would have been. The fact that Mississippi found it expedient to collect those revenues directly from the distiller does not change the reality that the burden of payment is directly placed upon an instrumentality of the United States Government. It is true that Mississippi normally imposes the tax upon the distillers, but in operation and effect these taxes go upon the purchaser. It is well settled that a state may not impose a tax upon the transactions of the United States Government or upon its instrumentalities and agencies. The tax here is imposed upon governmental instrumentalities, the United States army post exchange and various clubs. The Supreme Court in 1942 in Standard Oil versus Johnson 316 U.S. 481, the question was settled that army post exchanges are instrumentalities of the United States, and army post exchanges are out of non-appropriate funds. Mr. Justice Black said there that post exchanges are arms of the Government, deemed by it as essential for the performance of governmental functions and partake of whatever immunities the armed services may have under the Constitution and the federal statutes. The reasoning of the Johnson case has been extended to include military messes and officers clubs in many cases. The fundamental principle that federal instrumentalities are immune from state taxation was first stated in McCulloch versus Maryland. That principle is deeply rooted in the concept of federalism and has not been abrogated to this date. For all of these reasons and the reasons set out in our brief, we respectfully submit that the judgment of the court below should be reversed. Thank you, very much.
Warren E. Burger: Mr. Wright.
Robert L. Wright: May it please the Court. I am going to first describe to you the Mississippi policy toward military sales of liquor and then describe the federal policy toward those sales and finally discuss this Court’s decisions that accommodate State and Federal liquor control policies with each other. Now Mississippi’s policy is as has been pointed out to preempt for itself all profits made from the wholesale distribution of distilled spirits and wine within its own borders. Now Mississippi also imposes an annual privilege tax of $900 on package retailers and excises taxes on all sales, varying from 35 cents a gallon on wine to two-and-a-half dollars a gallon on distilled spirits. Now, the states give, the State gives to the military retailers, these are the clubs and by the way those are all stipulated to be non-appropriated instrumentalities of the United States. There is no question about either fact that they operate in non-appropriated funds and that they are instrumentalities of the Government. Now, the State gives to those military retailers, the option of ordering direct from the distillers without payment of any state taxes, providing only that the state's wholesale markup is collected and remitted to the State by the distiller. Now, the markup districts administratively by the Commission in accordance with the statuary direction to cover the cost of operation of a state's wholesale liquor business, yield a reason of a profit, and be competitive with liquor prices in neighboring states. During the period here involved, that markup by the spirits was 17% to 22% on wine. Now that markup was applied uniformly throughout the State, selling to all retailers in the State, and the effect of the military tax exemption, however, was to give the military retailers a price on whiskey and gin that was 50 cents cheaper than the private retailers pay, because the excise tax exemption amounts to two-and-half dollars a gallon on spirits. The military retailers were also exempted from the $900 a year privilege tax not paid by the private retailers. Now the net effect of the State's regulation is that the military clubs are guaranteed a price on the distilled spirits that is no more than 17% above the price at which distilled spirits are sold in the State. This 17% markup, that's State's gross profit margin, that their income to the State from the market is the difference between the markup and what it costs the State to maintain its wholesale distribution system. Now that cost is substantial because it involves stocking and warehousing, a very large inventory of wine and spirits statewide. Now the cost to this, carry that inventory, has to borne by the State, whether the military chooses to buy direct from it or direct from suppliers and in accordance for the options given to the military for their convenience. Now when military orders are sent direct to the suppliers, he supplies, of course, to perform the wholesaling functions that the State normally performs, and to remit the State's normal wholesale market to the State. The application of the State's --
Byron R. White: Well, Mr Wright, do you -- is it your position that the State could compel purchasing from the State?
Robert L. Wright: Indeed, it could and this option was granted to the retailers for their benefit, for their convenience?
Byron R. White: Are there any cases -- is there any case that you would cite in support of that statement?
Robert L. Wright: We had cited the Yosemite, the Collins against Yosemite Park case, which held exactly that as far as California’s excise tax is concerned, but I will get to that case later on, I want to describe here first how the Mississippi system operates and then I will describe how the federal policy operates, because after you see how the federal system and state system perform, I don’t think you will find any conflict that would force you to reach the constitutional issue. Now, when the military orders are sent direct to the suppler, he has to perform those wholesaling functions, but the State, the military clubs, the United States never performs these wholesaling functions, whether it buys direct from the distiller or whether it buys -- whether it chose to buy from the State, in neither event, would the United States or the clubs, perform the wholesaling functions for which markup is charged. Now the application of this markup to direct sales prevents the distiller from adding more than 17% to his wholesale price when he sales to military retailers. That's the same ceiling that applies, of course, to the sales that are made by the State to the retailers because of the fixed 17% markup.
Thurgood Marshall: But the distillers don't keep that money?
Robert L. Wright: I beg your pardon.
Thurgood Marshall: The distillers don't get that money, right?
Robert L. Wright: No, what they get is the privilege of selling liquor in Mississippi. They gain access to the Mississippi market that they could not have they did not comply with Mississippi law.
Thurgood Marshall: And what does Mississippi give either to distiller or the club?
Robert L. Wright: It gives the distiller two things. It gives him the right to distribute his liquor in Mississippi and it also gives him a tax free military market that can be exploited without payment and save taxes that attach to the sales through the private store.
Thurgood Marshall: But all Mississippi wants is the $17?
Robert L. Wright: Well, I don't --
Thurgood Marshall: Anyway they can get it?
Robert L. Wright: I am pointing out that the 17% is a gross profit margin that in itself is that -- the profit of the State gets, a difference between the 17% markup.
Thurgood Marshall: But the liquor doesn't go through any State official, nobody in state does anything for this liquor at all, right?
Robert L. Wright: Not with the physical liquor. They of course --
Thurgood Marshall: Other than to accept the money?
Robert L. Wright: Well, I have to give, they don't keep track of it and they do not get the money from the military. There is no payment made by the military. These protests that were talked about are not protests made by the suppliers, who are actually assessed the charge and then pay it.
Thurgood Marshall: Well, who --
Robert L. Wright: Those are protests made by the clubs to the suppliers.
Thurgood Marshall: Well, do I assume that the distillery is any different from any other corporation that pays all taxes through the purchaser, don't they?
Robert L. Wright: Precisely.
Thurgood Marshall: And that's what they do here?
Robert L. Wright: Yeah exactly.
Thurgood Marshall: And the distiller is a conduit for your taxes?
Robert L. Wright: Well it isn't -- I am pointing out it doesn't have to be a tax.
Thurgood Marshall: You ain't paid the distiller for collecting it for you, do you?
Robert L. Wright: It’s a wholesale markup. Now no distiller has protested this obligation, which is --
Thurgood Marshall: Because it doesn't cost him anything?
Robert L. Wright: Well it costs -- it is a possible arrangement for him, but I want to point out that the burden is his, it is imposed on him, the markup obligation. He is the one who discharges it.
Thurgood Marshall: If he can --
Robert L. Wright: And that there is no more of a burden on the clubs than any other state excise tax or --
Thurgood Marshall: Now if a distiller sues you or raises a lot of noise, would you still buy whiskey from him? You wouldn't, would you? You wouldn't -- you wouldn't really like to -- I assume you would?
Robert L. Wright: I am not suggesting that there was no compulsion on the seller not to comply with Mississippi’s law, there is. He'd be prosecuted criminally if he didn't. There is a no doubt about that, but the regulation operates on him. If the distillers --
Lewis F. Powell, Jr.: Mr. Wright?
Robert L. Wright: Yes.
Lewis F. Powell, Jr.: Excuse me sir. Do you have a general sales tax in Mississippi?
Robert L. Wright: I don't believe so. I don't believe the tax apply to -- the tax on liquor.
Lewis F. Powell, Jr.: I am not talking about liquor, but do you have a retail sales tax in Mississippi?
Robert L. Wright: There may be one, I don’t think it's significant in this context.
Lewis F. Powell, Jr.: I am just wondering whether a sales tax is collected from commodities sold in an army post exchange on one of these bases?
Robert L. Wright: No it's not all state taxes are exempted, the military clubs are exempted from all state taxes, that's the same sentence in the regulation that imposes the market exempts from all state taxes. But now, any distiller, even a private one, knows it, none of his wholesale, if he has an exclusive wholesale distributor, whether he is public or private, the wholesale distributor can't be expected to tolerate direct sales that made by the manufacturer that under cut his profit, collecting and remitting a wholesaler's or an exclusive wholesaler's markup to him on direct sales made for the convenience of a purchaser is common industry practice. Now at the trial no effort was made by the United States to show that after Mississippi's regulations, any of the effected military clubs could have bought liquor from any supplier at a lower price than they actually pay. From the nature of the regulation, I think you could see that no such choise was possible, unless you assume that some supplier wanted to penetrate the military market could validly offer special inducements that would have fit to only principles of full State and federal regulation of the liquor traffic. Now coming to the federal regulation, federal liquor control policy, unlike Mississippi, is centered around practices and have no special bearing on activities within any State. However, in some aspects federal control is more decisive than state control when it comes to price, for example. The major part of an average cost, the average price of distilled spirits. So anywhere in United States is a federal excise tax, that's $10.50 on every gallon 100 spirits. These mean that roughly half of the wholesale price even the best by the government as federal excise tax. Now if the Congress thought as the convention that's made here that making some military raft requires low liquor prices, it could cut the club prices in to half by simply providing the federal excise tax refund to military persons. Now, the Congress has been asked by the Defense Department to solve its moral problems that way. The only federal legislation now on the books dealing with military liquor is the 1951 law that's afforded in the Appendix here In full, and that statute is -- it says that two cents is the sole authority of the Defense Department of regulations that put the military in the business of selling liquor at retail. Those are also set out full in the Appendix. Now what this does on its face, I am talking about the 1951 federal act is authorized the Defense Department to make regulations governing sales to or buy members of the arm forces at or there any military base, any base. It doesn't have any distinction between exclusive and other jurisdiction.
Warren E. Burger: Let me ask you a question that somewhat like Mr. Justice Powell’s question. Does Mississippi have a tax on cigarettes, for example, a state tax?
Robert L. Wright: I really don’t know, I assume they probably might have --
Warren E. Burger: Well, they probably do, almost everybody does.
Robert L. Wright: Yes.
Warren E. Burger: Now can they tax, I am not concerned about whether they do or not do, assert that Mississippi has a right to -- the power to tax cigarettes with the state tax that are sold in the exchanges.
Robert L. Wright: I assert nothing as to cigarettes. The only association here is to liquor, because this is a Twenty-First Amendment case, and Twenty-First Amendment doesn't apply to cigarettes. It may will be that Mississippi could not do with respect to cigarettes what it has done with respect to liquor. Now what it has done with respect to liquor is well within the rights granted by that Amendment to control the distribution of liquor in Mississippi. Now the statute I just referred to were -- also makes these regulations that the Secretary of the Defense can follow here punishable with federal crime.
Warren E. Burger: Do you have any -- do you have any Indian reservations in Mississippi?
Robert L. Wright: I couldn't say, I --
Warren E. Burger: I am just trying to get out some of the same things that you were --
Robert L. Wright: It's possible.
Warren E. Burger: -- talking about before. Would you assert the state's power on an Indian reservation with respect to liquor under the Twenty-First Amendment?
Robert L. Wright: The State has -- I think the state's power to regulate staffs of the border of the end play that any of them as far as what happens on the base. The Federal Government controls what happens, not the state, but what we are talking about here is the cost of liquor that goes into the base. It is to that I don't think there is any question, but what -- the stores operated on the base are at no better position to resist Mississippi’s control than the private stores and this -- the entire -- returning to the statute, this is the only federal law on this particular question of liquor sales at bases. The law's entire legislative history is found on one page of congressional record stated in our brief. Now that was adopted as an amendment to the Extension Act of 1951 by agreement just before the House passed it. That amendment was proposed by Representative Cole of New York as a substitute for one proposed by Representative Price from South Carolina. The Price's amendment would have made every base where draftees were trained bone dry. Cole said his amendment was preferable, because there would not be regulations made by the secretary apply to all bases. Price's said that -- it was agreeable to him, Cole's amendment was adapted without any debate without the quote. Now you should also remember that three years before the Federal Assimilative Crimes Act had been enacted in 1948, which made state crimes punishable as federal crimes when committed inside federal enclaves where there is exclusive or concurrent jurisdiction, and subsequently all state liquor laws were then as they are now enforceable by criminal prosecution. Now no mention of those laws was made by Cole or by Price or anyone else when this 1951 federal regulations was passed. Now whatever else Congress may have had to do by that 51 law, it certainly didn't intend to make military bases payments for bootleggers. Now here is the term bootlegger, because since the Twenty-First Amendment, that's word that describes the activities of people who sell liquor without payment of taxes etcetera. Now the Defense Department itself construed this law that I just described as not requiring avoidance of state regulations of sales to military bases. When it amended its own regulations in June 1966, that was just before Mississippi’s regulation became effective, the federal amendment struck out the requirement that the base purchases be made “without regard to prices locally established by state statutes or otherwise”. It continued to enforce its requirement that its own sales of packaged liquor be priced “within 10% of the lowest prevailing rates of civilian outlets in the area". Now, I think it's quite clear on the face of the regulations themselves and the statutes, there is no genuine conflict between federal and Mississippi liquor control policies as they are expressed in their respective laws and regulations in those policies in both cases.
Potter Stewart: Mr Wright what was the situation before 1966? I understand until 1966 Mississippi was simply a bone dry state?
Robert L. Wright: In theory, but not in fact.
Potter Stewart: Well, but in law it was. In law it was, am I right in that?
Robert L. Wright: In law it was a dry state.
Potter Stewart: And were the -- was liquor sold on all of these military bases?
Robert L. Wright: That I can't tell you, but the stipulation doesn't cover the pre 1966 activities. I would suspect that was being freely sold in country clubs. I would suspect the military clubs also bought it and sold it, but I don't --
Potter Stewart: The stipulation doesn't show --
Robert L. Wright: This is simply not part of the record that you have here.
Potter Stewart: Well, I wondered what the situation was because of my -- on the problems at least so far as these -- some of these bases are not holding federal enclaves?
Robert L. Wright: Well they are all federal enclaves. The difference is -- between them is the two -- they claim that the grant was exclusive jurisdiction and other two concurrent, but in either events you understand these cessions of the basis were made from 42 to 50, this is while Mississippi was dry, and after the Twenty-First Amendment was passed Mississippi's right to regulate to tax or establish a markup or do anything else with respect to controlling liquor in Mississippi stems from the Twenty-first Amendment --
Potter Stewart: Twenty-first Amendment.
Robert L. Wright: -- which annotated the cessions.
Potter Stewart: And until 1966, Mississippi chose to exercise its power under the Twenty-First Amendment by having absolute provision.
Robert L. Wright: Right, and that --
Potter Stewart: And I wondered what the situation was on these bases during that period with respect to the sale of liquor either by the drink or by the bottle?
Robert L. Wright: I can't tell you but I would suspect that there was liquor on the bases as there was nearly everywhere else in Mississippi on merely the bases.
Warren E. Burger: Let's lay aside the fact, what is your view of the power? Could Mississippi have prohibited liquor on military enclave?
Robert L. Wright: I think its more identical question than the one we have here because I think it's clear that when you have a state trying to control what happens on the base, conduct on the base, you have entirely different question than you do when all state wants to do is to control the distribution of liquor to the base, which is what you have in the case here, and then this was also involved in the Yosemite case, but this brings me to what I take are the two decisive cases of this Court in this area. Assuming that you do believe there is a conflict between federal and state policy, which I don't think can really be found --
Byron R. White: I know, but it seems to me that that regulation you are talking about is permissive. It doesn't -- it didn't require -- it didn't any longer require the military to seek the lowest price of the buy, if possible?
Robert L. Wright: It never did require them to seek the lowest price.
Byron R. White: But I don't know how you can say that it's the conflict from the United States is not asserted a right to buy liquor free of any state imposed markup?
Robert L. Wright: This suit clears the conflict unquestionably. I am talking about if you lay the federal policy side by side with the state policy as expressed in the laws and regulations that were applied to the --
Byron R. White: You say that the United States, awfully sorry we just wanted to entertain the lawsuit because you just brought your lawsuit?
Robert L. Wright: Well, even if you regard it a conflict as present, I think your decisions, the Court’s decision in Ohio against Helvering and in Collins against Yosemite Park decides this case in favor of Mississippi. Now in 1934 Ohio’s attorney general thought the moral of Ohio citizens would be a proof if they went to federal excise tax is -- liquor sales could be avoided. Now, following the Twenty-First Amendment, Ohio preempted for itself didn't it suppose to selling, wholesaling liquor within the state. Now, Ohio argued that since it had gone into the liquor business itself there is both the control over revenue and measure. The sale of liquor in Ohio was a sovereign function that could not be impaired by federal action, and they claim that the federal excise tax was such an unconstitutional impairment, because it did enormously increase the prices that the state had to pay for the liquor itself. Now this Court as far as to Ohio's argument was refusal to allow Ohio's point. The opinion simply observed that while Ohio could enter the liquor business with a state monopoly, it could only do so subject to normal non-discriminatory business taxation and all you have here is normal imposition of a markup, which is discriminatory only inside of the clubs, because when we markup does apply to military service, all taxes are away, but when applied to the private clubs, the excise tax has to be paid which gives them a much higher per case price. Now four year later in the Yosemite Park case, a liquor selling concession here at the park service tried to avoid the payment of the California excise tax on his liquor sales and couldn't do it. Now, he argued that he was the an agent of the Federal Government, operating in an enclave where the United States had exclusive jurisdiction. Now this Court held that that the concession area that they have take out a retailer's permit or pay California's tax on retailers, and Mississippi is not attempting to force these clubs either to take out retailer's permit or pay that retailer's tax. The Court also held, however, that the Yosemite Park in cession did have to pay California’s Excise Tax, levied on all liquor sold “within the state”, because within the state meant anywhere within the state’s boundaries whether on a Federal enclave or elsewhere. Now the Court noted that California reserved taxing power when the Park was conceded to the government in 1990, but that doesn’t explain the, sticks to truth, between the retailer's tax and the Excise Tax. Now, California has treated that 1938 decision as authorizing application of its excise tax to all liquor sales to military bases within the state, and the United States has never challenged that construction. Now, California gives liquor wholesalers no excise tax exemption on sales made to non-appropriated fund agencies selling liquor on military bases.
Warren E. Burger: Well Mr. Wright, your analysis of the Yosemite case would seem to equate the concession error with an instrumentality, does it not?
Robert L. Wright: Yes, I think he clearly wasn't an agent of the Park Service.
Warren E. Burger: And you make no distinction on the other factors in Yosemite about the consent of the --
Robert L. Wright: No, I think clearly if there is a constitutional prohibition against California’s taxing sales of liquor into a Federal Enclave, then nothing California could do by its statutes where they give it the right to do it.
William J. Brennan, Jr.: Well, the United States could consent to California's doing it, could it not?
Robert L. Wright: Well, I think it was held as to that conservration --
William J. Brennan, Jr.: Well, could it; my question would be, could it?
Robert L. Wright: They could.
William J. Brennan, Jr.: (Inaudible), and did it not?
Robert L. Wright: In that case it did, yes. All I am saying is that since that time, California has enacted legislation which applies its tax not only to sales to non-appropriated fund instrumentalities, at all the bases in the state and without regard to the charge of cession or without regard to what taxing rights, if anyway they were reserved on the cases were ceded, and that California also gives no excise tax exemption to distillers outside the state who sell direct to military installations where payment is made out of the Federal Treasury and the US has never attacked California’s right to do that. Now, in 1947, a distiller did litigate the matter however. National Distillers tried to avoid payment of the tax on the sale of 41000 (Inaudible) whiskey (Inaudible) for distill purposes and sent to army medical depot in Los Angeles. Now that whiskey was ordered out of the St. Louis and shipped to Los Angeles from Ohio and the distiller argued that the application of the California excise tax to that shipment creates an unconstitutional burden on federal functions, because the tax was included in the price the army paid. Now, the California Appellate Court rejected the distiller’s argument and sustained the tax. That case is cited on the Page 17 of our brief in Footnote 12. Now, the US could have intervened in that case and carried it to this Court on the constitutional issue, but it didn't. What it's doing now, is asking you to overturn a construction of that 1938 decision in Yosemite Park that was regarded as settled until this case was brought against Mississippi. Now, if there is only solid policy reason for doing that, I haven't heard of expressed into government's argument, haven't seen in its brief. Thank you.
Warren E. Burger: Thank you. Does the government have anything further?
Speaker: Thank you Mr. Chief Justice. At this time I would like to waive my right to rebuttal.
William H. Rehnquist: Mrs. Lafontant, let me ask you one question if I may before you waive. It seems to me at least possible that a distiller is either an indispensable party or perhaps the only party here who can raise this type of an issue that the government has made these payments to the distillers. The distillers aren't a public body which -- or nearly pay under protest, doing it the distiller has in turn remitted the payments to the State of Mississippi. Don't you think that perhaps the distillers ought to be parties in order that these issues you have brought can be properly raised and adjudicated?
Speaker: I see no reason or any real necessity for the distillers being made party plaintiff to this case. The United States Government is attacking the whole regulation and the United States is certainly, the purchaser, the real party in interest, because he has to pay the money, the distiller is just a conduit passing it on and it’s expressly stated that way. I don't think it would detract from the case however, if the distillers were made party plaintiffs. But I don't feel that there would be a necessity for it.
Byron R. White: Well, could I ask you? Couldn't Mississippi just simply have a law that required all distillers who sell in Mississippi to charge everybody, all of its customers, a certain price?
Speaker: Certain price, I would agree that Mississippi could do that. If they -- if Mississippi had passed such a law, I don't believe we could be here, but that is not the case.
Byron R. White: And it says to the --
Speaker: It's the manner in which -- the method of which it takes --
Byron R. White: So, if Mississippi had a law like that, the distiller would have to charge the United States a certain price?
Speaker: Except I feel that the -- in the enclaves where there is exclusive jurisdiction, that there might be a problem.
Byron R. White: Well, I know, but what Mississippi says to the distillers, "By the way if you want to sell to anybody in the state, just make sure you charge the United States the same X price?”
Speaker: And we couldn't argue with their price. I will agree with you, if it was in the total price, we would have no cost bargaining.
Byron R. White: Well, then -- and if you couldn't complain about that, how come you can complain if they go one step farther and they say, “By the way, give us part of the price that we are making you charge the United States?”
Speaker: Well, I think it makes all the difference in the world, the method and the way it is set out.
Byron R. White: Alright.
Warren E. Burger: But you seem to be conceding something, and I am not sure without some authority, I couldn't accept, namely that any state has the power to fix the price at which the United States Government buys anything, liquor, milk or turnips?
Speaker: In my haste, I didn't get to clarify because then I followed up to a subsequent question that it would still be the position of the United States Government that on the exclusive jurisdiction bases that no state could control the price of anything.
Potter Stewart: The Paul case.
Speaker: Yes sir. Thank you very much.
Warren E. Burger: Thank you. The case is --
Robert L. Wright: Your Honor, I give you this one citation that I thought it was my last point.
Warren E. Burger: You may -- you may give us the citation.
Robert L. Wright: All I have is this should have been included in my belief, it's a senate report on the Buck Act, which was passed in 1940. You will simply look at the report, the Finance Committee Senate report, 1625, 76th Congress, May 16, 1940, you will see that the exclusive jurisdiction defense was removed entirely insofar as the sales and used taxes on the general merchandise.
Warren E. Burger: Case is submitted.


William H. Rehnquist: We'll hear argument next in No. 87-121, Richard L. Dugger v. Aubrey Dennis Adams. You may proceed whenever you're ready, Ms. Roper.
Margene A. Roper: Thank you, Mr. Chief Justice, and may it please the Court: Aubrey Dennis Adams, Jr. was convicted of the first degree strangulation murder of an eight-year old child in 1978. Eight years later, the Eleventh Circuit Court of Appeals, applying the principles enunciated by this Court in Caldwell v. Mississippi, vacated Adams' sentence of death. We are before the Court today asking it to reverse the decision of the Eleventh Circuit Court of Appeals. Our position in the case and at issue in the case is our contention that the merits of the alleged Caldwell claim should never have been reached because of the abuse of the writ doctrine and because Adams had procedurally defaulted upon this claim in state court. I would submit to the Court that the issue of abuse of the writ is before the Court and is fairly comprised within the question presented to the Court.
Sandra Day O'Connor: Where was that raised in the cert petition? Would you tell me please?
Margene A. Roper: The thrust of the entire cert petition, Your Honor, I would submit is that there was no significant change of law to excuse the application of all procedural barriers, and by that we meant not only the doctrine of procedural default, but abuse of the writ as well. And we would submit that the issue is fairly subsumed because any analysis this Court takes in regard to a change in law would have necessary applicability to the doctrine of abuse of the writ.
Sandra Day O'Connor: Well, that's a pretty specific question. And I frankly have trouble seeing how it was raised in your cert petition.
Margene A. Roper: It was raised on the basis, I would submit, of a misapplication of the court below of the principles enunciated in Reed v. Ross which does deal with a change in law which is significant enough to constitute cause for procedural default. And necessarily any such change in law analysis would have application as well under the abuse of the writ doctrine as the advisory committee note indicates that a change in the law can excuse a failure to submit an issue in a first habeas petition as well. So, I think it could be argued in subsequent cases that this Court's rationale in this very case in both contexts. So, I think it is subsumed. Also, I think that the Court does have jurisdiction in this case to notice plain error. And if the Court does find error in regard to there not being a change in law to excuse procedural default, I think it would apply as well across the board to the issue of abuse of the writ so that plain error could be noticed there. The procedural history of the case reflects that Adams did not object to the trial judge's statements at the time of the actual trial in 1978 or on direct appeal in 1979. The governor signed his first death warrant on Adams in 1984, and at that point in time Adams did not raise the instant claim in his state court attack collaterally on his judgment and sentence and he did not raise it in his first habeas petition. The issue was first raised for the first time in 1986 upon the signing of a second death warrant, and it was at that time presented to state and federal courts for the first time. According to the principles enunciated in Reed v. Ross, I think it's clear that where the constitutional basis of a claim is not available to an attorney, then there is cause for his failure to not raise the claim in accordance with state procedural rules. And there is a concomitant advisory committee note in the area of habeas corpus litigation to Rule 9(b) which indicates that a change in law will also excuse the failure to present an issue in the first habeas petition. We... we would submit to the Court, however, that where there are tools available to construct a claim, that a court should not find that there is cause for a procedural default. Our position is that at the time of trial and on direct appeal there were necessary building blocks by which Aubrey Dennis Adams, Jr. could have fashioned and presented this claim to the state courts. And those building blocks grew as time progressed until there was quite a monumental stack of them at the time of Adams' first habeas petition in 1984. We have chronicled the progression of the law in this area, and I don't want to dwell in length at it. But I think a few comments are in order. I would first note that if the comments are misleading, Adams needn't have awaited this Court's decision in Caldwell to set a principle that misleading comments should be objected to or are erroneous. If it was misleading, then at that point in time, Adams had a basis to frame an objection at trial. Moreover, if it can be argued or held that the comments were misleading on the basis of the Florida Supreme Court's decision in Tedder v. State, which indicates that a jury's recommendations should be given great weight by the trial judge, then at the time of trial Adams again had a basis to raise this objection because the Tedder decision was in existence at that time. I think it's clear that at the time of trial any competent litigator would have objected to statements which indicated that the jury needn't be considered... needn't consider or ruminate over the consequences of their verdict. I think that proposition would be clear to any attorney.
John Paul Stevens: Ms. Roper, do you think it's clear at the time of trial that if the objection had been made, the trial should... the trial court should have sustained the objection?
Margene A. Roper: Under Florida case law, that would be clear at the time of trial, yes, Your Honor.
John Paul Stevens: So, this is a case of clear error by the trial judge, in other words, in your view.
Margene A. Roper: I don't believe that it's a case of error at all on the part of the trial judge. I'm saying that if error could arguably be found, then there was a basis for bringing that error to the attention of the court. My contention is that there was no error in the trial judge's statements in the first instance.
John Paul Stevens: So, it would have been a futile objection that mould have been made then.
Margene A. Roper: Well, I don't think--
John Paul Stevens: I mean, you're, saying the building blocks were there. Were there... were there enough building blocks to advise the trial judge as to how to rule on such an objection?
Margene A. Roper: --Yes.
John Paul Stevens: But then what should the trial judge have done if an objection had been made in 1978?
Margene A. Roper: I think the trial judge would have declared a mistrial as far as sentencing goes and had a resentencing if error was established, but our position is--
John Paul Stevens: Well, we know what the facts are, but what is your view? At that... at that time would you say the trial judge should have sustained the objection?
Margene A. Roper: --Not under the circumstances of this case, no, but the basis for the objection was there and that's our position.
William H. Rehnquist: What your're saying is that the basis for a true Caldwell claim was there, but this did not qualify under Caldwell.
Margene A. Roper: Yes, that's exactly, Your Honor... that's exactly what I'm saying.
John Paul Stevens: So, then your position on procedural default really depends on the merits of the Caldwell claim.
Margene A. Roper: There is a interplay of concepts in this case, and I--
John Paul Stevens: So, bottom line you don't think there's a valid Caldwell claim here anyway. So, we really don't have to go through all this procedural--
Margene A. Roper: --That's correct. And I'm not going to dwell at length on it. This Court has noted the strong state law basis for it, and from a defendant's perspective, it doesn't matter to him whether his reversal is gained in a state or a federal court on state law grounds or federal grounds. So, I think that the fact that if there was a state law basis provides a basis for raising the claim in any context and there's no less potential for sandbagging by falling to raise a state law ground. You can still hold that in abeyance, and the real issue is still delay just as in the case where a federal ground was not submitted to a state court. So, I think that the state law basis is also a compelling consideration. But, more importantly, I think there was an Eighth Amendment basis, a clear Eighth Amendment basis, for this claim at the time of trial and even progressively more so at the time of his habeas petition. At the time of the habeas petition, In fact, Justice Stevens had indicated in a concurring opinion in Maggio the danger of a prosecutor advising a jury that an appellate court could correct any error. And at that point in time the decision in California v. Ramos was out and all the other prior Eighth Amendment jurisprudence of this Court. And as I pointed out in the brief, Caldwell himself was able to raise this claim based upon Ramos and other prior cases of this Court. Another issue in the case is whether the Florida Supreme Court in regard to the procedural default actually found a third layer of default. I... I think an examination of their opinion reflects that no other construction can be given to it. The language in the opinion indicated that further, we find the presentation of these claims an abuse of the post-conviction procedure. Rule 3.850 was then set out and it was described as barring new claims as well as successive claims. And the Florida Supreme Court then concluded and held that the new claims were barred as an abuse of procedure as well as by case law. And the new Rule 3.850 is a... a codification of prior existing case law barring such new claims. And I would also submit to the Court that contrary to the Respondent's position, Florida has regularly and consistently applied its procedural bars in the context of Caldwell claims being raised on collateral attack. The court has discussed in its opinions the inapplicability of Caldwell only to demonstrate that no relief can be granted in this area on a 3.850, and it cannot be entertained because Caldwell is not a significant change of law, which is one of the criteria under our post-conviction relief procedure. Caldwell was discussed in the case of Garcia... excuse me... only to demonstrate the absence of error. In that case it was contended by the Defendant that the trial judge gave too much weight to the jury's advisory sentence. So, in conclusion, the Florida Supreme Court has regularly and consistently applied its procedural bar. Our contention is that even if the merits of the claim could be reached, Adams is still entitled to no relief because the claim is an adequate description of Florida sentencing procedure. During voir dire in this case, each time new prospective jurors were seated, the trial judge explained our capital sentencing system to them. He advised them of the advisory nature of their sentencing recommendation and the fact that he could disregard it and sentence them to either life or death. In elaborating upon this, he indicated verbally to the jurors, distilled to its essence, the ultimate decision is on my conscience and rests upon my shoulders, not the jury's. During voir dire, however, he also instructed the jury as to the finding and the weighing of aggravating circumstances. Proceeding to the penalty phase, the jury was similarly again instructed under our standard instruction... excuse me that their recommendation is advisory in the final... the sole responsibility for the final determination rests upon the trial judge. At that point in time, however, they were also instructed that they must find sufficient aggravating circumstances not outweighed by the mitigating circumstances and that their verdict should be based on the evidence. More than that and most important to this case also is the fact that the trial judge drove home to them the importance and the gravity of their undertaking at that particular time in the proceeding. He stated to them that they should not act hastily or without due regard to the gravity of these proceedings, and he instructed them to carefully weigh, sift and consider the evidence, and all of it, realizing that human life is at stake. I don't think the jury could have any notion at all but their... their recommendation may have the possibility of sealing Adams' fate. I think that that was driven home to them. Moreover, the prosecutor admonished the jurors to be fair to the defendant and the people of the State of Florida, and that any way they decide will satisfy the people of the State of Florida. These statements were an accurate description of Florida law. Under our death penalty statute, Florida statutes 921.141, a jury is directed to return an advisory recommendation, but the statute proceeds to state beyond that notwithstanding the recommendation, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death. Under our statute then, the judge is the sentencer and not the jury. What the judge looks for from the jury is essentially in the nature of guidance alone. And I think that his independent nature as the sentencer is reflected most aptly in a scenario where if the jury recommends death and the trial judge, applying the statutory criteria, cannot find an aggravating circumstance, he's constrained to impose a sentence of lite. I think that reflects that he is, indeed, an independent and ultimate sentencer. Excuse me. I would further submit to the Court that these statements are not made inaccurate by the Florida Supreme Court decision in Tedder v. State. The Florida Supreme Court has recently indicated in the case of Combs v. State that in so holding in Tedder, it never meant to alter the clear statutory directive that the jury's recommendation is advisory only. And they had, in fact, promulgated the standard jury instructions in question in this case after the Tedder decision. Sos at best Tedder is either an appellate standard or simply an admonition to trial judges to carefully consider the jury's recommendation prior to their own independent findings. I think the case would fall squarely within the ambit of California v. Ramos which does not prohibit the jury from being given accurate instructions rather than within the ambit of Caldwell v. Mississippi. And think the distinguishing factor is that in Caldwell v. Mississippi, this Court found the instructions to be misleading. There is no danger of that in this case. I think the State of Florida has a valid penalogical interest in having such information imparted to the jury because the state does not want its citizens' faith and the integrity of judicial and criminal proceedings destroyed by having them later find out, after they had served on a jury, that indeed they weren't true sentencers at all, they were simply advisors. And I think that that would go a long way toward the people of our state losing faith in the criminal justice system. And it has to be remembered also that the community voice that participates in the trial is also the community voice that's heard in the legislature as well when the legislature enacts and implements a death penalty statute. So, we can't assume that the jury is ignorant of our statutory scheme in the first instance, and I don't think that we should be required to mislead them in any way as to their role in sentencing when they are, In fact, not sentencers. I think another valid state penalogical interest in having the jury learn or understand their role in our sentencing procedure is that it actually enhances the reliability of their deliberations because they understand their true role. And not only that, but I think the questioning and such knowledge, even if it's imparted to them at the penalty phase, but most particularly during voir dire, would go toward including within a jury those... those jurors who may be death-scrupled to the degree that they could not impose a sentence of death if theirs was the final verdict. If they realized that their sentence... or advisory sentence was simply a recommendation, then they could impose a sentence of death and would be included on the jury. That's another valid state interest and an interest that really accrues to the benefit of the defendant is the goal of achieving a cross section of the community anti having life-prone, as well as jurors who are more retributive, make a final determination as to a defendant's fate. And I don't think such an instruction would cause any sort of bias under the four-prong bias analysis of this Court in the Caldwell decision. There is no danger that the jury might not understand the limited nature of appellate review because, in fact, the judge is the ultimate sentencer. The jury can't send a message of disapproval to the community or a higher authority because of the fact that the jury is not in the first place a recognized sentencer. And even if it had a desire to send such a message of disapproval, that message can't get past the trial judge because he is the sentencer and he makes his own independent determination. The judge in Florida can overrule a life sentencer not only a death sentence. So, there would be no urge on the part of the jury at all to delegate its duty by returning a death sentence because it could delegate its duty by returning a life sentence as well and there would, further, be no reasons for a juror who was reluctant to vote tar death in a deadlock situation to capitulate to demands because of this same fact. I think the real issue in this case... and it has been made clear in subsequent Eleventh Circuit opinions... is the contention that it is the voir dire statements alone which are erroneous. The Eleventh Circuit in Harich v. Wainwright has indicated that there is no Caldwell claim presented at all in regard to the penalty phase instructions that the jury can be told of the advisory nature of its sentencing recommendations. So, that would not implicate our sentencing... or penalty phase instructions. And other cases in the Eleventh Circuit have indicated that the error they perceive in this case is the trial judge's statements at voir dire. Now, I would submit to the Court that if it is correct, which the lower court is even now in agreement with, state and federal, that the judge is the ultimate sentencer, then as a matter of logic, the decision is on his conscience and it is on his shoulders, and that even these voir dire statements were a correct statement of Florida law as a matter of logic. It's our further position that it these statements could be seen to fit within the prohibition enunciated in Caldwell by this Court, that any such error would be harmless. And for the same reasons such error would be harmless, prejudice was not demonstrated by Adams below to overcome a procedural default. In the first place in this case, voir dire took place on October 12 through October 16. The penalty phase did not occur until October 27. Thus, there was a... a lapse between voir dire and sentencing of almost 11 days. I think this Court noted in its recent case of Darden v. Wainwright in a footnote that the fact that these comments occurred during the guilt-innocent stage lessened any chance at all that they had an effect on sentencing. In this case--
Antonin Scalia: --Ms. Roper, Isn't... Isn't it true that the Florida Supreme Court has... has reversed a trial judge who doesn't accept the jury's recommendation?
Margene A. Roper: --Yes.
Antonin Scalia: And does so with some regularity.
Margene A. Roper: Yes, It does.
Antonin Scalia: So, It's... It's not just a recommendation then. I meant that must mean--
Margene A. Roper: I--
Antonin Scalia: --That must mean that it's not just a recommendation, musn't it?
Margene A. Roper: --I don't think that's correct, Your Honor. I think when the Florida Supreme Court reverses a jury override, it's reversing the trial judge. The court will find that aggravating circumstances have been improperly found and that there are obvious, very obvious, mitigating circumstances that should have been found. And it will make a statutory analysis. And I submit that any error in a jury override situation is error on the part of the trial judge.
Antonin Scalia: Well, what about... what about Ferry v. State? The statement of the Florida Supreme Court is quoted in... in Respondent's brief where the Florida Supreme Court in reversing the trial judge's sentence which ignored the recommendation said under the state's theory, there would be little or no need for a jury's advisory recommendation. This is not the law. Sub judice, the jury's recommendation of life was reasonably based on valid mitigating factors. The fact that reasonable could differ renders the override improper. That sounds to me like more than a recommendation. It sounds to me he has to accept it if a reasonable person could... could make that recommendation.
Margene A. Roper: Again, that's extraneous appellate language, and as I said before, if Tedder represents anything at all, It's either an admonition to trial judges or an appellate standard. It's not a direction to trial judges in the least. They're compelled under our statute to independently find whether death is a appropriate sentence. The Ferry case I think stands out because Ferry walked into a grocery store. He threw gasoline on numbers of people and set them on fire. I think mental illness has always been considered by all courts to be an extremely strong mitigating factor. And the Florida Supreme Court stated in Ferry that he was extremely mental ill, and I... mentally ill, and I think that that was the overriding consideration in that case, that it was just so obvious, although they may chastise the judge, it should have been obvious to him, aside from what the jury recommended,-- I would also submit to the Court that the error in this case is harmless, and prejudice hasn't been demonstrated for the further reason that the subsequent instructions to the jury drove home to them quite clearly the gravity of their undertaking, particularly the later statement by the trial judge to carefully weigh, sift and consider the evidence, and all of it, considering that human life is at stake. So, I think that aside from any voir dire statements, the jury certainly had driven home to them the gravity of their undertaking. Also, Adams has not demonstrated and cannot demonstrate that he's innocent of any aggravating factor in this case. The murder under Florida law is clearly heinous, atrocious and cruel. It was committed during an attempted rape by Adams' own confession and during a kidnapping and to avoid lawful arrest, as his confession also indicated, that the child was screaming, and he put his hand over her mouth to silence her. The lower court found it compelling that there was a balance of aggravating and mitigating factors, but I would submit to the Court that that's not the case at all. This jury deliberated for only one-half hour before recommending that Adams be sentenced to death. I think the heinousness of this crime just leaps out from... from the sentencing order aside from any mere numerical balance. And I would submit that that's all it is is a numerical balance.
Antonin Scalia: Ms.... Ms. Roper, I hate to come back to it, but I... I... I've been thinking about it some more and I still don't know what you say the... what is the Florida Supreme Court's... what was the Florida Supreme Court saying in Ferry when it said the fact that reasonable people could differ renders the override of the jury's recommendation improper? What... and that's a recent case. That's an 1987 case.
Margene A. Roper: I think what the Florida Supreme Court is saying is... again, the answer I have for it is that it's an appellate standard. It's the same sort of standard that was set forth in Tedder. I think you have to consider the Florida Supreme Court's other statements, especially in Combs, that they didn't mean to detract from the clear statutory directive. I think when the Florida Supreme Court finds error, it's judicial error. And I don't think anything bespeaks of this more than the actual Tedder decision itself. In Tedder, the court later went on to indicate that two of the aggravating factors were invalid in Tedder and that they would have been constrained to reverse under a proportionality analysis in any event. So, I think the Florida Supreme Court basically determines whether it is the trial judge who has erred or not and the other language is extraneous. It's a appellate standard or an admonition to the judges to... to more carefully consider the guidance offered by the jury, but that doesn't mean that the jury's recommendation, as this Court recognized in Spaziano, rises to the level of a judgment or makes the jury a presumptive sentencer. xxx.
William H. Rehnquist: Thank you, Ms. Roper. We'll hear now from you, Mr. Tabak... Tabak.
Ronald J. Tabak: Thank you, Mr. Chief Justice, and may it please the Court: I think that one preliminary matter that has really been overlooked in the State's argument is when they talk about a procedural bar here, is there simply was no independent or adequate State ground in this case. As unanimously held by the Eleventh Circuit, based on its special familiarity with Florida jurisprudence, Florida's rule is not one of strict forfeiture of claims not raised at trial or on appeal. There is a provision for new constitutional holdings of either this Court or the Florida Supreme Court and for fundamental constitutional error to be considered even if not raised at trial or on direct appeal. The Eleventh Circuit's opinion gives examples of that, this Court's holding in Enmund, a situation where the state had withheld evidence helpful to the defendant. And this exception also applies here to allow consideration of Mr. Adams' Caldwell claim. The problem is that the Florida Supreme Court, because of its erroneous view of the merits, has not recognized that the exception applies. That this is, in fact, the reason why they have not applied the exception here is illustrated by the Florida Supreme Court's treatment of Lockett claims before and after this Court's decision last year in Hitchcock. Before Hitchcock, the Florida Supreme Court applied the procedural bar to stop claims of people whose trials had occurred after 1978 saying you had... if this claim had any basis, which we don't think it does, but if it did have any merit, you had basis under our state law decision in a case called Songer and under Lockett to make this claim. But we're going to not consider the claim. And they so held in a case called Copeland, 505 So.2d 425 (1987). Then shortly after that this Court unanimously informed the Florida Supreme Court and the rest of the world in the Hitchcock decision that the Florida Supreme Court's view of the merits of that claim were wrong, and that in fact there had been a constitutional violation under Hitchcock. Then what did the Florida Supreme Court do after that? Very interesting. They have now gone and considered the merits of all Hitchcock claims, including ones for trials after 1978. In fact, the Combs case which Ms. Roper cited for its discussion of the Caldwell issue, is an example of a trial that occurred after 1978 in which the Florida Supreme Court, following this Court's decision in Hitchcock, said, Hitchcock is a sufficient change in law. Therefore, we will now consider the merits and rule in favor of your Lockett claim.
William H. Rehnquist: Mr. Tabak, do you think the doctrine of the Caldwell case should be applied to trials which took place before it was announced?
Ronald J. Tabak: I do believe so, but I also believe--
Speaker: Why? Why is that?
Ronald J. Tabak: --First I should note that is not a question before the Court. It has never been raised below. I don't think the Court should decide that now. But the reason why, if the Court somehow were to decide that, is that it goes to the heart of the decision making process and is a misleading of the decision maker which goes to the core of the Court's Eighth Amendment Jurisprudence.
Speaker: And why does the... why should that make it retroactive?
Ronald J. Tabak: It should make it retroactive the same way that Lockett has been applied retroactively and all of the Court's other Eighth Amendment cases have been applied retroactively because when life is at stake and we know before the person is put to death that a core principle under the Eighth Amendment, namely, the reliability of the jury's verdict, has been undermined by a judge who has deliberately undermined the jury's sense of responsibility by repeatedly telling them that their decision would have no weight, that it would not be their responsibility, that it was not on their conscience, that when that which goes to the heart of what this Court--
Anthony M. Kennedy: Is there any capital... capital punishment decision from this Court involving the Eighth Amendment that it shouldn't be applied retroactively under that standard?
Ronald J. Tabak: --That it should not be--
Speaker: Yes.
Ronald J. Tabak: --applied retroactively? I am not aware of it, and--
Byron R. White: So, all... all capital punishment decisions turning on the Eight Amendment based on that are to be applied retroactively?
Ronald J. Tabak: --I don't think that I am prepared, since we did not brief the subject, nor did the state, nor was it raised below, nor was it decided below... am prepared to make such a sweeping pronouncement. What I am prepared to say is that if, contrary to the usual practice of this Court, it were somehow to leap out and decide that issue in this case, that in this case, under the circumstances here, it should be applied retroactively. But I don't think that's necessary to a decision of this case just as the other side stated in their brief. I also think that, to finish my analysis, that the real problem here, as is pointed out by what they have done in the Hitchcock situation is that the Florida Supreme Court does not recognize the applicability of Caldwell to this case. They criticize the decision of the Eleventh Circuit in Combs. If they do realize, based on a decision today by this Court on the merits, that as they were wrong in Hitchcock, they are also wrong here, then to be consistent with what they have done in the Hitchcock situation, they would also have to apply their new law exception here. In fact, they have pretty much hinted as much in a case called Card v. State. They said, well, we're not going to consider your Caldwell claim because the Eleventh Circuit's decision in Adams and in Mann is not come under our new law exception because only decisions of the United States Supreme Court or the Florida Supreme Court would come under that exception. Well, that all but says that if this Court now reaches the merits and tells them again that they were wrong, as I believe they clearly are wrong, on the merits, then they will apply their exception and they will consider such claims. And it would be anomalous were only Mr. Adams not to get the benefit of the holding established in his case. Thus, as the Eleventh Circuit concluded, the Florida Supreme Court is either relying on its mistaken view of the federal constitutional law or is inconsistently applying its procedural bar, and either way, there is no independent and adequate state ground in this case. Now, I'd also like to point out that, as was suggested in Justice O'Connor's questioning, there is no abuse of the writ issue presented in the cert petition and, in fact, even the amicus curiae who favored the State of Florida in this case, when they purported to rearticulate the two issues in this case, said that the two issues were the merits of the Caldwell claim and procedural default. So, even they did not perceive what isn't there. Now, turning back to the merits, as you may well know from reading the brief, the judge in this case instructed the jury no less than 11 times that the sentencing decision was in no way whatsoever the jury's responsibility, did not fall on its shoulders, and that the imposition of the death sentence would not be on its conscience, but solely on his. He said I don't want you to feel that you determine whether he lives or dies because you don't. And he repeatedly said that I can disregard your recommendation.
Anthony M. Kennedy: I... I take it your position is going to be that's a violation of state law or it misstates the state law?
Ronald J. Tabak: It misstates state law.
Anthony M. Kennedy: Why is it that the defendant should not be held to have objected? What difference does it make that the violation depends on state law or that it's an Eighth Amendment violation?
Ronald J. Tabak: I think that's so for one important reason, that the objection, in order to be pertinent to the cause and prejudice standard, must be... with respect to this claim, the claim that we are now raising here is not a state law objection.
Anthony M. Kennedy: But why should that be that because the... the purposes of... of the two rules are... are the same? I... I assume if the state rule is as you say it is, it is so that the jury is aware of its responsibility and of its role in the process.
Ronald J. Tabak: Well--
Anthony M. Kennedy: And it's exactly the Eighth Amendment question.
Ronald J. Tabak: --Justice--
Anthony M. Kennedy: And the defendant did not object.
Ronald J. Tabak: --Justice Kennedy, the State of Florida has never recognized even to this day when it gets cases like Combs that what has occurred in cases like Adams is a state law violation--
Speaker: Well, we'll--
Ronald J. Tabak: --and nobody--
Anthony M. Kennedy: --We'll get that... to that in a minute. But on the premise that this was a... a misstatement, an egregious misstatement I think you'll probably tell us, of Florida law, why is it, as a matter of policy, that we should suddenly allow an Eighth Amendment claim when the state law violation, the state law error, was not objected to and serves exactly the same purposes?
Ronald J. Tabak: --The fact of the matter is I would state, Mr. Justice Kennedy, is that the state law was not clearly applied and has not been clearly applied to the undermining of a jury's sense of responsibility under the current capital sentencing scheme. The Florida Supreme Court does not... the... the... the key part that was a misstatement was a misstatement of what the jury's role is. The Florida Supreme Court, under its current death penalty system, has never recognized that to undermine the jury's sense of responsibility under the current death penalty system in Florida violates Florida law. If they did realize that, they would have ruled in favor of these claims in situations like Combs where they're not applying a procedural bar. The fact also is that nobody in Florida perceived this claim, no one objected on the basis of the state law claim, and it is important that when the Eighth Amendment provides an independent basis, regardless of whether under Florida law there is a view about undermining juries' sense of responsibility under their current death penalty system, which there is no such principle that they've recognized... it is, nevertheless, important under Eighth Amendment law that when the Eighth Amendment is violated, that relief be granted.
Antonin Scalia: But it really doesn't... it really doesn't supply an independent basis as you've said. Doesn't the Eighth Amendment claim require you to establish that state law was improperly described to the jury?
Ronald J. Tabak: It does require that, but it--
Antonin Scalia: So, what you have is... is... is a federal claim that has within it the state... the state claim that could have been objected to. To be sure, it was not a claim under the Eighth Amendment, but... but surely the jury must be instructed properly concerning state law. Surely that could have been objected to.
Ronald J. Tabak: --That could have been objected to but, Your Honor, it would not have established the basis for this claim if he had gone to any court, including federal court, having not been granted relief, as he would not have been granted relief, in the state courts. What this reminds me of, Your honor--
Antonin Scalia: That is true.
Ronald J. Tabak: --is some day there will be a cure discovered for AIDS, a drug will be developed, and undoubtedly that drug will include variety of chemicals that are now available. The problem is that there will have to have been developed a formula to figure out how to make that into a successful solution for AIDS. Now, here the fact that there was a violation of Florida's accurate sentencing description is an element of the Eighth Amendment claim. But it is not enough to win on the Eighth Amendment claim, which is the claim we're making here, without Caldwell which for the first time established that it is a key Eighth Amendment concept that the jury's sense of its awesome responsibility not be undermined. Now, once you have that, then you have the claim.
Antonin Scalia: But it still amounts to it was not objected to at that time and could have gotten corrected at that time. He could have... his counsel could have jumped up and said that is not the state law. The jury should be instructed correctly, and had he said that, the trial judge would have done it. He didn't do that.
Ronald J. Tabak: This trial judge, I submit, would not have done it based on every indication that he gave in his 11 different times when he said the most important thing you should understand is that the jury does not have any responsibility. And I submit that the Florida Supreme Court, based on its recent jurisprudence, would also not have ruled in favor of such a claim. And if Adams before Caldwell had tried to raise the claim in federal court, he also would have not gotten any relief.
Antonin Scalia: Now, wait a minute. Based on its recent jurisprudence, would have said that the instruction was correct? I thought you say--
Ronald J. Tabak: No. It would have said the instruction is not correct, but--
Antonin Scalia: --But that's okay.
Ronald J. Tabak: --that it is okay because their view of what is undermining the jury's actual sense of responsibility suggests to them that relief should not be granted. The fact is the only place where Mr. Adams can get relief is in the federal court based on the Eighth Amendment claim. And that is why the development of Caldwell is so crucial to this case and why, if this Court were, as I submit it should not, get into a cause and prejudice analysis, since there is no independent and adequate state ground... but if the Court were to get into such analysis, it should conclude that there is cause because this claim could not have been raised prior to the decision in Caldwell. And it is only this claim that Mr. Adams could possibly have succeeded on.
Anthony M. Kennedy: Well, counsel, it seems to me the question is whether as a practical matter, as a pragmatic matter, as a realistic matter, this instruction actually misled the jury. And I see nothing to indicate that counsel shouldn't have made that objection under state law. And you simply speculate that the trial judge would have overruled the objection, but that's sheer speculation. And that's the whole purpose for the rule that requires us to make objections in a timely fashion.
Ronald J. Tabak: But, Your Honor, the ruler as I understand the rule of Engle v. Isaac, Reed v. Ross, Smith v. Murray, is all in the context of federal constitutional violations and its principles of federalism. The Court has not granted and won't grant claims... no federal court will grant a claim merely because a state law has been violated. There must be a federal constitutional violation, and the issue then is whether there were the tools to make the federal constitutional claim. There were many states in which before Reed v. Ross... what there might not have been proper, but the fact is that what's at issue is whether the elements of... all of the elements of the federal constitutional claim were available and the were not available here. The fact that he could have made some other claim for which there were perhaps more tools available does not make the Eighth Amendment claim available, and it wasn't available.
Speaker: What if the Florida Supreme Court had repeatedly held that instructions exactly like this correctly express state law?
Ronald J. Tabak: Well, if--
Anthony M. Kennedy: Would you think Caldwell would have anything to do with the case then?
Ronald J. Tabak: --I think in that circumstance, the Florida Supreme Court on direct appeal would probably have noticed this on its own.
Anthony M. Kennedy: I just... I want to know. Suppose that repeatedly the Florida Supreme Court had approved instructions like this. The... the instruction was a correct statement of Florida law. Let's just assume that it was. Would Caldwell have anything to do with it?
Ronald J. Tabak: if this were a correct statement of state law, then Caldwell would not have anything to do with it. That's a necessary--
Anthony M. Kennedy: Well, then... then as it has been pressed before, you do... there is a... if... for Caldwell to be applicable, this instruction had to misstate state law.
Ronald J. Tabak: --That is true, Your Honor.
Anthony M. Kennedy: And there was no objection to that.
Ronald J. Tabak: And there was no objection just like there has been no objection in any of these other cases in Florida at the time. The fact of the matter is that for them to have perceived that this would be improper would have taken a combination--
Anthony M. Kennedy: Well, would it have taken any magician to... to... to recognize that this was a misstatement of Florida law?
Ronald J. Tabak: --Apparently there is no such magician under... in the Florida bar because no one objected under this ground in the numerous cases that such statements were made, although there are none where it's quite as bad as in this case. I think--
Speaker: So, you think that... you think your evidence of Florida law is just recent jurisprudence of the Florida Supreme Court?
Ronald J. Tabak: --No, Your Honor.
Speaker: Is it old?
Ronald J. Tabak: Justice White--
Speaker: Is it old?
Ronald J. Tabak: --It is old too.
Speaker: Well, then somebody should have known about it and objected.
Ronald J. Tabak: I fully agree that a good, astute lawyer might well--
Speaker: Or even one that reads these Florida Supreme Court reports.
Ronald J. Tabak: --They might well have objected to this, but the fact is that that would not have given them a... this claim, this Eighth Amendment claim, prior to Caldwell, and the fact is that none of them did--
Speaker: Well, I know, but part of the--
Ronald J. Tabak: --assert this claim.
Speaker: --Eighth Amendment claim is the state law claim.
Ronald J. Tabak: I understand that it's part of the claim, but it is not all of the tools to make the Eighth Amendment claim, Your Honor, and those... so that not all the tools were available to make this claim. And the claim they could have made... there's no indication would have gone anywhere even though there was a misstatement of state law. I also would suggest that when you... and I think that the same, exact thing was said by the Florida Supreme Court in this case I talked about before, in the case of Copeland. They said as to the Lockett claim, you had a perfect basis for objecting under state law. We said in 1978 in Songer that the jury must be allowed to consider non-statutory mitigating circumstances, And you also had Lockett which said that it's an Eighth Amendment violation to deprive the jury of the right not to consider these circumstances. You had everything you needed. Therefore, if this claim did have merit, you should have raised it. But then, that's exactly what they are now saying about the Caldwell claims. In fact, they said the very same thing immediately following that in the Copeland decision. But once they found out that their interpretation of the Eighth Amendment was wrong, they have allowed people like Combs to go back and raise the same claim under their procedure even though they have just finished saying the year earlier in Copeland that you should have objected at trial. So, I submit that all of this questioning, although intellectually interesting, is not pertinent to the proper outcome of this case because there is no independent and adequate state ground here.
John Paul Stevens: Mr. Tabak, do you cite the Copeland case in your brief?
Ronald J. Tabak: No, we do not.
John Paul Stevens: Do you have the citation?
Ronald J. Tabak: Yes, I do, Your honor, Justice Stevens. It is 505 So.2d 425. What then occurred in that case was this Court vacated and remanded in light of Hitchcock, and they are now having rebriefing of that case on the harmless error question, the state having conceded a Hitchcock violation. The Combs case where they do consider the claim in a 1980 trial is 525 So.2d 853 at page 855. So, I submit that when you take what they have done with the Hitchcock claims before and after Caldwell... and before and after Hitchcock, I should say, you will see an exact parallel to this situation. And there simply is no independent and adequate state ground here. I would also submit that on the record of this case, it is one in which a reasonable juror who accurately understood what the jury's important role is in capital sentencing where in reality most of the time where there is an override by the judge, the judge is himself overridden, a jury that had this on its conscience could reasonably have voted a life sentence. And if they had done so, and even if it... that had been overridden, the override would itself have been overridden by the Florida Supreme Court because as it was, the trial judge found that there were three mitigating circumstances, as well as three aggravating circumstances. And in the Florida Supreme Court even without an override, there were two justices who dissented on the ground that in similar Florida cases, where hopefully the juries did understand their responsibility, life was the sentence that was usually granted on facts like these. In this kind of circumstance, I submit the violation is even worse than in Caldwell because the person who was repeatedly undermining the jury's responsibility was the trial judge, and he was telling them that the fact that it was not on their conscience is the most important thing that they should remember. Yet, under Florida law, the jury is given such great weight because it is the conscience of the community. And nobody stepped in to stress the importance of the jury's role. I also submit that there is prejudice in this case because of what I have just stated about what would have occurred had the misstatement not occurred. On the rest of the subject of cause, I should also note briefly that, as stated in our brief, there simply was no court anywhere... that we have found anywhere in the country that came up with an Eighth Amendment decision anything like Caldwell at the time of the trial or appeal in this case, unlike the situation in Smith v. Murray or in Engle v. Isaac. And in fact, there isn't one rejecting such a claim because we have not seen any indication that anybody anywhere in the country at that time had formulated such a claim. And I submit that in that kind of circumstances the cause is not resent. I have explained again why I believe abuse of the writ is not before the Court. If there are questions further at this point, I'd be happy to answer them. Otherwise, I'd like to thank the Court for its attention.
William H. Rehnquist: Thank you, Mr. Tabak. Ms. Roper, you have four minutes remaining.
Margene A. Roper: I would just like to briefly respond. I would submit to the Court that consideration of cases raising claims other than Caldwell claims in the context of determining whether there's independent and adequate state ground is of no moment to this Court. Engle v. Isaac indicated that federal courts should honor state procedural rules as well as rulings. And I think Florida's post-conviction rule, Florida Rule of Criminal Procedure 3.850, has to be honored. In the same context, I think the Florida Supreme Court, like a federal court, has the right to develop its own evolving notions of what constitutes fundamental error and what they can and cannot entertain on collateral review. In regard to these cases, however, particularly the Hitchcock cases, I would point out to the Court that the Florida Supreme Court did regularly and consistently bar Hitchcock claims until it perceived that a change of law was imposed upon it by this Court. In the actual Copeland case, Copeland was taken before this Court and this Court reversed and stated that Florida should look at Copeland again for a Hitchcock violation. In regard to a basis for raising the claim counsel just most recently discussed, I think that California v. Ramos stands out first and foremost at the time of his filing his first habeas petition as authority for raising this claim and even discussed hypothetically a Eighth Amendment situation whereby the jury could be instructed that the governor had the power to commute a death sentence. And I don't think there's a requirement that a claim have to be... a claim has to be meritorious or there has to be an assured victory in order to raise it. That doesn't comport with the idea that a basis for a claim is there. And Caldwell had the basis himself on... to raise this claim and brought it before the Court on the basis of Ramos and other existing Eighth Amendment cases. Thank you.
William H. Rehnquist: Thank you, Ms. Roper. The case is submitted.