William H. Rehnquist: You may proceed whenever you are ready, Mr. Gardner.
Donald E. Gardner: Mr. Chief Justice, and may it please the Court: On behalf of the town of Newton, New Hampshire, I appear before you today because a gentleman by the name of Bernard Rumery reached an agreement in conjunction with the dismissal of a valid criminal prosecution against him. Mr. Rumery agreed that he would not pursue a civil action against the town, the arresting officer, or any of the town's public servants. Subsequently, Mr. Rumery breached that agreement. The Federal District Court, Justice Martin Laughlin, ruled that Mr. Rumery's agreement should be enforced. The Court specifically found that Mr. Rumery voluntarily, knowingly and deliberately waived his right to bring a subsequent action and that when he did so, he did so thinking and knowing that it was in his best interest. Mr. Rumery now seeks to escape the consequences of his agreement by asking this Court to apply a per se prohibition against the type of agreement that he entered on that day in 1983. If the Court accepts the arguments offered by Mr. Rumery and allows him to revoke his agreement, then this Court not only will be providing Mr. Rumery with a benefit but will also be denying all present and future defendants in a situation like Mr. Rumery, they will in effect be prevented from taking upon themselves an opportunity like that which was presented by Mr. Rumery. I therefore suggest to the Court that application of a per se rule in this case offends common sense, basic justice, and fair play.
Antonin Scalia: The argument that you are preventing future people from engaging in it is not terribly persuasive. You could say the same thing about, if you... if we didn't enforce promises made to blackmailers we would be denying people in the future the opportunity to prevent blackmailers from doing the terrible things they are threatening to do by making a promise to them.
Donald E. Gardner: I would agree, Your Honor, the difference being--
Antonin Scalia: So if, indeed, there is some overreaching here, and it is a bad thing to have cities or anybody doing this sort of thing... it's hardly something to be worried about, that we're preventing it from happening in the future.
Donald E. Gardner: --If in fact it were overreaching, I would agree, Your Honor. The suggestion that a blackmailer in the town might be engaging in a similar type of conduct as regards this type of a situation, I would suggest, is not appropriate. This is a case where the County Attorney, as opposed to a town... an actual town representative... entered in to an agreement when he was concerned about a prosecution, concerned about the principal witness, the complaining witness, and the fact that she was also the victim of a rape and that she may not be willing to testify in this subsequent action, he entered into an agreement at that point in time to dismiss the prosecution, conditioned upon the police officer, the public servants, and the town being somewhat protected, or being protected against a civil action. This is a case where a man made a voluntary, knowing and deliberate choice. This is a case where a man gave up a right to a civil remedy, and it's a case that I would suggest, also--
John Paul Stevens: He also gave up the right to defend himself in court, too, I suppose. The thing that really is on the table is whether he wanted to stand trial on a criminal charge.
Donald E. Gardner: --He had a choice. He chose not to stand trial on a criminal charge, but in a sense chose to have his day in court when he had nothing to lose, apparently, be reneging on his agreement and thereafter--
John Paul Stevens: Do you think there are very many cases in which the defendant would say, I'd much rather go to trial on the criminal charge, than just have you dismiss the charges?
Donald E. Gardner: --Commonly, I would expect that a defendant who is assured of his innocence will do that. I expect in a plea bargain situation--
John Paul Stevens: Assured of his innocence, he'd still want to go to trial, even though you know nothing is all that certain in trials?
Donald E. Gardner: --Well, I would expect, Justice Stevens, that that's very similar to the plea bargaining situation and we see people who stand trial despite plea bargain offers on a daily basis. I would suggest in that situation--
John Paul Stevens: Those are a choice between one of two different criminal trials. The plea bargain is never one where you get total exoneration in exchange for a bargain.
Donald E. Gardner: --Well, there are plea bargains which are very near total exoneration, situations in New Hampshire, for instance, where an individual can plead to a lesser included misdemeanor and suffer a conditional discharge which allows him an automatic annulment of his record in one year. If in this particular case--
John Paul Stevens: It's still fairly serious.
Donald E. Gardner: --It is certainly not going to jail, for instance, and it's something that if it were done in this case, we would not be here today over. I'm not suggesting particularly that Mr. Rumery would or would not have entered into an agreement like that. But I am suggesting that the distinction between that and what happened in this case is not all that great and that in effect all that's happened here is, the state has given up a criminal prosecution but in doing so, in a case involving arrest, a question of the propriety of the arrest, not a question of abuse of force, a question of arrest, and in this case all that was at issue was whether the arrest was proper.
John Paul Stevens: Do you suppose a bargain would be enforceable if the prosecutor said, we'll dismiss the charges if you give $1,000 to the police benefit fund?
Donald E. Gardner: If you give $1,000 to the police benefit fund... I would liken that to the blackmail that Justice Scalia--
John Paul Stevens: Well, why is that any different from this?
Donald E. Gardner: --Well, because in that case the prosecutor is doing something that's wholly outside his ambit.
John Paul Stevens: You mean he has a duty to prosecute if he thinks there's prima facie evidence?
Donald E. Gardner: He has a duty to prosecute, but his duty is not solely to convict. His duty is to serve society and the best interests of society, and there are many cases that--
John Paul Stevens: Don't you think the police benefit fund serves society?
Donald E. Gardner: --Not as directly as the prosecutor's activities on behalf of society in judging whether or not in a particular case--
John Paul Stevens: Well, here you can settle a loss to it for less than $1,000, if it's a frivolous case. What's the difference? I don't understand.
Donald E. Gardner: --Well, the distinction, I would suggest, Your Honor, is that again the prosecutor in the situation where he garnered $1,000 for the police benefit society would in fact be outside the ambit of proper prosecutorial discretion, whereas in this situation, I would suggest, he was well within the proper area of prosecutorial discretion.
John Paul Stevens: --garnered the release for two or three police officers who otherwise might be subjected to personal liability.
Donald E. Gardner: The prosecutor in this case, Your Honor, did not... the is no evidence that the prosecutor in this case demanded a release. The evidence is in this case that the defending attorney, Attorney Woods, called the prosecuting attorney and said, you'd better dismiss the case against my client and if you don't, we're going to sue afterwards and we're going to win. He then knew, having thrown down the gauntlet, as he testified to in his deposition, that the only way this case could be resolved is if a release were executed. It's important to realize that never did the defendant speak with the police--
John Paul Stevens: In other words, it was settled on the assumption that there was a meritorious 1983 claim that would otherwise be filed, is that it?
Donald E. Gardner: --It was not... I would not suggest that it was settled on the assumption that there was a meritorious claim. I would suggest that it was settled on the assumption that any claim brought, a 1983 claim or other, a false arrest state claim, has a settlement value in that it causes the person who is sued a considerable inconvenience. It causes the person against whom suit is brought to have to defend that action. The cost--
John Paul Stevens: Why is that inconvenience to the individual police officer any different from the benefit to my police fund?
Donald E. Gardner: --Because the police officer in the criminal justice system is a public servant. The prosecutor is acting on behalf of the state. The police officer, when he arrested Mr. Rumery, was not making... he was not taking action on his own behalf. He was acting for the state. He was, in effect, an agent of the state. As a matter of fact, in bringing the 1983 action, the plaintiff must so plead, that he was a state actor.
Sandra Day O'Connor: Mr. Gardner, if the 1983 suit has a dollar settlement value, how is the case different from just having the police say, if the respondent will pay the city $1,000 it will dismiss the charges?
Donald E. Gardner: I would suggest, Your Honor, that not all cases have a dollar settlement value on account of their inherent value.
Sandra Day O'Connor: You said this one probably did.
Donald E. Gardner: I was suggesting that I have a file cabinet full of releases in cases which I don't believe are meritorious, that have been settled because the settlement value... the nuisance value of the case--
Sandra Day O'Connor: Well, let's suppose there is a dollar settlement value. How is it different from just saying, you pay us "X" number of dollars and we'll drop the charges?
Donald E. Gardner: --Well, a dollar settlement value, as I understand it, if this were a case that were being pursued, would run to Mr. Rumery rather than vice versa. I think your example suggests that Mr. Rumery is going to pay money to the state.
Sandra Day O'Connor: Well, he is giving up his suit, something of value.
Donald E. Gardner: And he is also... he is voluntarily waiving something which he knows, because he has been advised by counsel, he's thought about it. In fact, in Mr. Rumery's case his counsel testified that he spent a half hour to an hour with him. They discussed it. He went home. He thought about it over the weekend. He was gaining something in return. He was gaining the dismissal of the criminal prosecution against him.
Sandra Day O'Connor: Well, isn't that very fact something that makes it different from plea bargaining because here the city has something else it's concerned about other than just the operation of the process of the enforcement of the criminal law in reaching this agreement? There's another element at stake, to wit, the city's or the officer's own liability.
Donald E. Gardner: In the plea bargaining context, he's obviously pleading to a reduced offense, even to the point of a reduced offense that is perhaps not going to cause him any disability for any great period of time into the future.
Byron R. White: And what was the motive of the prosecutor, or the reason--
Donald E. Gardner: In our case there were several motives, I think. I think it's appropriate prosecutorial discretion to look at the situation, and I would suggest to the Court that you have to look at the totality of the circumstances and determine whether it was voluntary, just, deliberate.
Byron R. White: --Do you think determining whether... should a factor in determining whether to dismiss the case be that this will protect some public official?
Donald E. Gardner: The factor in determining whether to... well, that should be a factor. I think it's appropriate and it's within... it should be within his discretion that that be a factor, yes, Your Honor. I would suggest that when he... because what he's effectively doing, in an arrest case--
Byron R. White: Well, what that means to me is that you would otherwise pursue the criminal case if it weren't for this factor?
Donald E. Gardner: --If that were the only factor.
Byron R. White: Well, no, but if you say it's a factor, there are bound to be some cases where that's the factor that determines whether you will try the case or not.
Donald E. Gardner: I would suggest that if that were the factor--
Byron R. White: So you think that you're justified in trading off the public interest in having this criminal case tried, against releasing the public official?
Donald E. Gardner: --I would suggest that if that were the only factor, Justice White, what we would be talking about is a coercive situation, inherently coercive, and I would trust the trial court to find that it wasn't a voluntary waiver.
Byron R. White: But you say it can always be a factor.
Donald E. Gardner: If it's the only factor, I would suggest that in that particular case, it was clearly a coercive situation.
Byron R. White: Well, here's a case where you had otherwise tried... there has to be some situations like this that you would otherwise try, but you did not because there is this factor of possibly gaining the release of a public official?
Donald E. Gardner: I would suggest, Your Honor, that there is absolutely no evidence in this case that it would otherwise have been tried. I don't know... in fact, the prosecutor said, if there had not been a release, I don't know what I would have done. There hadn't even been a probable cause hearing in this case. This man had been arrested and bailed, and that was it.
John Paul Stevens: Mr. Gardner, I think the issue in this case is whether a per se rule is appropriate. In other words, what's at issue in this case is the whole file cabinet full of releases you've obtained in all those other cases, because that's... we have a general rule. We have to presume that all of those other cases would have been dismissed, or would not have been dismissed, without this release?
Donald E. Gardner: Well, if there's going to be a per se rule, then obviously that's what we have to do. The Court is either going to have to presume that all of the cases would have been dismissed or not dismissed, and that's the difficult--
John Paul Stevens: Which do you think is the correct presumption? If you've got, say 150 releases in your drawer and dismiss cases, do we assume there was merit to all those cases or no merit to all those cases?
Donald E. Gardner: --I would suggest, Your Honor, that this Court have faith in the prosecutors of America and assume that those cases, if they were not meritorious, would have been dismissed despite the release, or the obtaining of a release. I would suggest also, Your Honor, that in an arrest--
John Paul Stevens: Then really, there's no consideration for the release except that the defendant got out of a meritless criminal trial, and I suppose there's a lot of pressure on a defendant to give a release in that situation if he's faced with a trial, even if he thinks he's going to win.
Donald E. Gardner: --Well, I wouldn't say that he was getting out of a meritless criminal trial, just because the prosecutor determines that he's not going to prosecute the case. Prosecutors have compassion. Mr. Rumery was a middle aged man. He was a businessman. He had a reputation. He had had no contacts with the law. The prosecutor was concerned that in this case the complaining witness might not be willing to testify.
Antonin Scalia: --We can't really assume, in other words, that all the cases that are dismissed are necessarily meritless cases. You often dismiss cases that have merit, I take it.
Donald E. Gardner: I'm not a prosecutor, Your Honor, but I would suggest that there are--
Antonin Scalia: And many cases that have merit are never brought.
Donald E. Gardner: --Many cases, that have merit are never brought. Many cases that are merited cases are dismissed.
Antonin Scalia: But what you're saying is that a case that has merit but nonetheless, despite its merit, might otherwise be dismissed because a witness would have to, as in this case, a woman in a rape case who didn't want to testify would have to be called, that otherwise the prosecutor might dismiss the case; nonetheless would have to go forward to it despite the inconvenience to this raped witness, unless the prosecutor could be sure that by dismissing it, he was not letting the city in for an enormous suit for false prosecution.
Donald E. Gardner: I'm saying that in each--
Antonin Scalia: You're not saying that?
Donald E. Gardner: --What I'm saying is that in each case you have to look at the case when the decision has to be made, and determine whether at that time the situation resulted from a voluntary, knowing, deliberate waiver of the right to bring the action by the individual.
Antonin Scalia: Can the motive of saving the city from a suit, or individual policemen from a suit, also exist when a prosecutor accepts a plea bargain to a lesser offense, so that in some cases where the prosecutor might otherwise consider dismissing the charge entirely, he insists upon accepting a plea to a lesser charge in order to be sure that the city wouldn't be subject to suit for false prosecution subsequently?
Donald E. Gardner: Well, that certainly could happen, and it's obvious that--
Antonin Scalia: Does pleading guilty to a lesser included offense eliminate the possibility of bringing a false arrest or false prosecution action later?
Donald E. Gardner: --To my understanding, it does, Your Honor.
William H. Rehnquist: Mr. Gardner, what is the source of law in this area? You've been giving a lot of answers and you've got a lot of questions. Is it federal law?
Donald E. Gardner: To my understanding, Your Honor, the First Circuit applied federal law--
William H. Rehnquist: But you're here now in the Supreme Court. You don't have to take the word of the First Circuit any more.
Donald E. Gardner: --In that I'm very pleased because they decided the case against me, Your Honor. What I would suggest is that the law here is a question of public policy, as was suggested below, and what the Court has to--
William H. Rehnquist: Well, but public policy is ordinarily a matter for state courts to decide in New Hampshire.
Donald E. Gardner: --Except when it affects constitutional rights.
William H. Rehnquist: Well, is the source of law here the federal common law, basically because it's a 1983 action, like immunity in 1983 is a federal law, or the validity of a release is also a federal question?
Donald E. Gardner: There is a suggestion, or I would suggest, Your Honor, that the First Amendment, the right to petition for redress of grievances, might arguably be applied and the suggestion might be that an individual who waives his right to seek redress or through the civil rights remedy for a deprivation of his constitutional rights has in effect waived his right to petition the Court for redress of grievances. It is my understanding that that was the interpretation of the First Circuit. There is also a due process argument to the effect that if he didn't waive it voluntarily, he was deprived of due process. The fact in this case, and the fact that is vital to this case, is that the question of the voluntariness of the release has been found in this case.
William H. Rehnquist: But where do we look? Are there other lines of cases that you think are relevant? I mean, do we just kind of sit down and talk about it and think--
Donald E. Gardner: I think, in order to determine what test to apply, I think the Court should look to what test it has applied in interpreting waivers of constitutional rights. And if you look to the constitutional rights cases, the Miranda cases, the plea bargaining cases, you see that in each of those cases the Court has looked to the question of whether the release or... excuse me, the waiver was signed or agreed to after informed and voluntary consideration. So, I would suggest that, given the totality of the circumstances, a trial court be trusted to examine the... I know what you are going to say, Justice Scalia.
Antonin Scalia: --I mean, informed or voluntary. You know, there--
Donald E. Gardner: I think that it's important to look at--
Antonin Scalia: --The thief comes up and says, your money or your life, you know, and--
Donald E. Gardner: --I think that's coercive.
Antonin Scalia: --You know, there used to be a Jack Benny story, and he'd say, hmm, you know, he'd pause for a couple of minutes. You don't have to pause. It's informed and knowledgeable. You give him your money. But does that make it all right? It certainly doesn't. If that's the kind of influence that's being exerted here, it has to be bad, whether it's intelligent to do it or not, right?
Donald E. Gardner: I agree, and I would suggest that the trial court is the best court to determine that, and the best way to have that determined is to give the trial court the latitude to look at whether the release was signed voluntarily after deliberation and in an informed manner. We have to recall that Mr. Rumery in this case deliberated over the weekend, that Mr. Rumery had the advice of a very competent attorney, as found by the trial court.
John Paul Stevens: Yes, but in Justice Scalia's example, I suppose that if the lawyer was with the man that he'd give him the same advice? Right, he turns to the lawyer and he says, should I give him my money or my life? The lawyer says, give him the money. It's an intelligent decision, right, and-- --And it's voluntary.
Donald E. Gardner: There are three prongs to the test, and I would suggest that is not voluntary. I would suggest that any time circumstances are coercive... I would suggest, for instance, in a situation unlike this case where a substantial amount... or any undue force was used on a criminal defendant in the course of his arrest or subsequent--
John Paul Stevens: Isn't the reason the holdup is involuntary is that the victim runs the risk of substantial harm if he doesn't hand over the money, and a man who elects to stand trial in a public criminal proceeding may also run the risk of substantial harm to his reputation?
Donald E. Gardner: --The man who refuses to accept a plea to second degree and stands trial to murder in the first degree, stands a substantial risk of capital punishment in some states. I'd say that's an extreme harm, which this Court has found to be an acceptable situation in plea bargaining cases where the Court has found that it was voluntary and informed. And, I would suggest to the Court that those are the tests that must be applied in these cases, and that no blanket prohibition is appropriate. After all, Justice Holmes, I think, is the one who said, universal distrust creates universal incompetence. And I would suggest that a per se blanket rule--
Thurgood Marshall: Can I get back to the Chief Justice's question. What is the constitutional violation that you urge this Court to find in this case, specifically?
Donald E. Gardner: --I urge the Court not to find a constitutional violation in this case. I would suggest that there has been none.
Thurgood Marshall: Well, how has your client been harmed? Let me try that one.
Donald E. Gardner: By the First Circuit's opinion, Your Honor. I would suggest--
Thurgood Marshall: What did it do?
Donald E. Gardner: --In that it found that a per se rule would be applied in every case, and our facts in this case demonstrate--
Thurgood Marshall: That denies your client what?
Donald E. Gardner: --That denied my client the benefit of the release which Mr. Rumery had executed.
Thurgood Marshall: And that violated what section of the Constitution?
Donald E. Gardner: I'm not sure. It's our contention that--
Thurgood Marshall: Well, if it doesn't, why... where do we get jurisdiction? Where does this Court get jurisdiction?
Donald E. Gardner: --Well, it seems to me, Your Honor, that jurisdiction is the question of whether or not the Court accepts jurisdiction on the basis of the respondent's claim that his constitutional rights have been violated, and the Court accepted cert because of the discrepancy of the decisions of the various circuits on this question.
Lewis F. Powell, Jr.: Mr. Gardner, I understood that you were denying that there was any violation of constitutional rights.
Donald E. Gardner: I have taken the position that my client, who is the town of Newton, New Hampshire, entered into an agreement--
Lewis F. Powell, Jr.: I understand that, but you are saying that there has been no violation of constitutional rights in this case?
Donald E. Gardner: --That's correct, Your Honor. Mr. Rumery says the contrary.
Lewis F. Powell, Jr.: It seemed to me that you were not making that entirely clear.
Donald E. Gardner: I'm sorry. It's my position that there have been no constitutional rights violated. Mr. Rumery takes the contrary position. The First Circuit adopted a rule which says, in every case these releases are going to be held void, no matter what the facts are, and I'm here to tell this Court that in my opinion... and to suggest to this Court that the facts are such, in our case, that the release dismissing agreement should be enforced.
John Paul Stevens: Mr. Gardner, may I just ask this. Under the First Circuit holding, they say the release is void. Is that just as to the 1983 federal claim? What about the ancillary state law claims for malicious prosecution?
Donald E. Gardner: The First Circuit didn't reach that.
John Paul Stevens: I suppose that one could view the opinion as allowing those... the release to still be valid and binding as to state law claims?
Donald E. Gardner: I would expect so. The difficulty is, of course, that in the particular case i it is binding as to the state law claims, it creates a very difficult situation because then he can't prove the false arrest in the state tort and the constitutional violation on the other side seems to want to follow that, at least in my mind, Your Honor.
Byron R. White: The constitutional issue... did the First Circuit decide a constitutional question?
Donald E. Gardner: Well, the First Circuit determined that it violated Mr. Rumery's right under the First Amendment to seek redress of grievances by virtue of his signing this document.
William J. Brennan, Jr.: Where does it say that? All I can find here is that it held that the covenant not to sue was void, as against public policy. Where was there any suggestion that it was void under the Constitution?
Donald E. Gardner: I would certainly suggest, Your Honor, that it was briefed on both sides and--
William J. Brennan, Jr.: Well, I had been briefed, but where does the Court of Appeals say that it was void, the covenant was void, under the First Amendment? The Court of Appeals didn't cite a single Supreme Court decision, as I recall. It just said that this wasn't a good defense to a 1983 action, which they certainly decided federal question and which--
Donald E. Gardner: --And which both sides took as a finding that under the First Amendment, he was entitled. I suppose that we're guilty on both sides of assuming that that was the basis of the First Circuit's finding.
William J. Brennan, Jr.: --You suggested earlier, did you not, Mr. Gardner, that there was perhaps a due process claim here?
Donald E. Gardner: Well, again I'm in the unusual circumstance of--
William J. Brennan, Jr.: Your adversary should be arguing this, not you, I guess.
Donald E. Gardner: --That's correct, Your Honor. It's our position that nothing that happened here is inappropriate, and it's our position that the best way to determine whether something inappropriate happened is to let each case stand on its own, to trust the prosecutor to do a good job, to trust the trial court to do a good job, and then to trust the individual, Mr. Rumery, to do a good job and determine for himself whether it's just, whether he ought to enter into the agreement. I'd like to reserve the balance of my time.
William H. Rehnquist: Thank you, Mr. Gardner. We'll hear now from you, Mr. Bauer.
Lewis F. Powell, Jr.: Mr. Bauer, would you pick up on this constitutional question and tell us why you think we have a constitutional question before us?
Charles P. Bauer: I certainly will, Your Honor.
Lewis F. Powell, Jr.: And it is true, isn't it, that the First Circuit did not cite a single United States Supreme Court decision?
Charles P. Bauer: That is true, Your Honor.
Lewis F. Powell, Jr.: It didn't mention the Constitution of the United States?
Charles P. Bauer: No, it did not, Your Honor.
Lewis F. Powell, Jr.: It did not?
Charles P. Bauer: That's correct. Mr. Chief Justice, and may it please the Court, we represent Mr. Bernard E. Rumery, the respondent in this case, and we ask that the Court affirm the First Circuit Court of Appeals decision. With regard to the constitutional source of law that has been inquired, it is the respondent's position that the individuals Fourth Amendment rights, through the Fourteenth Amendment, those rights have been violated as to the merits, the underlying merits of this litigation. Furthermore, there are significant 1983 rights which have been prevented, chilled by the use of this covenant not to sue. I am hopeful that that speaks to the underlying constitutional requirement that brings this issue before the federal jurisdiction.
William J. Brennan, Jr.: Specifically, what provision of the Constitution?
Charles P. Bauer: Specifically, Your Honor, the Fourth Amendment; that is, the unreasonable search and seizure including the unreasonable arrest, the tension, intimidation and coercion that was used against this individual by an agent or an arm of the state through the Fourteenth Amendment.
Lewis F. Powell, Jr.: Would that not present a factual question, whether or not there was coercion?
Charles P. Bauer: With regard to the underlying merits, Your Honor, yes. But we are not here for the underlying merits of this case. Whether there was or was not a constitutional violation of this man's rights under the Fourth and Fourteenth Amendments, that is a jury determination and we are not--
Lewis F. Powell, Jr.: Do you want a retrial?
Charles P. Bauer: --Yes. Your Honor... well, we have not had a trial as of yet. If I may, I'd like to take a few moments just to go through some of the facts of the underlying case that may put the case in perspective, if I may. Mr. Rumery is a rock-solid citizen of the State of New Hampshire. He has lived all of his life in a small New England town, in New Hampshire. He was an insurance agent and married, and never having any prior contact with the criminal justice system. He was arrested for tampering with a witness in an underlying rape case. He was arrested and charged with a Class B felony for tampering with a witness, which in New Hampshire brings a maximum of seven years' imprisonment.
Harry A. Blackmun: Would your case be any different if this were a misdemeanor charge... not this particular alleged action, but suppose it were a misdemeanor?
Charles P. Bauer: No, Your Honor. It would make no difference at all.
Harry A. Blackmun: You would still be here?
Charles P. Bauer: Yes, Your Honor. Our position is that the clash of using the criminal justice system to extract a civil benefit for third party interests is void, as against public policy, as a matter of law. So, it makes no difference whether this is a felony, underlying felony, or misdemeanor charge. Now, prior to the arrest--
Sandra Day O'Connor: Is that a matter of some federal contract law principle, or what? The defense in the 1983 action raised by the city and the defendants was the existence of a valid contractual release. So, what principles govern the validity of that release? Do we look to state law, or the validity of the agreement?
Charles P. Bauer: --No, Your Honor. You do not look to state law. You look to federal law. You look specifically to the intent of 42 U.S.C. Section 1983 which provides--
Antonin Scalia: You mean, if state law requires two witnesses to such an agreement, we could simply say, you don't need two witnesses? Why? This is not an agreement. The federal government's not a party to this agreement at all.
Charles P. Bauer: --No, Your Honor, no. If state law would require two witnesses, this issue still is meritorious under the federal Constitution.
Antonin Scalia: But Justice O'Connor's question didn't go to this issue, as I understood it. It went to, what law governs the contract between the town and your client.
Charles P. Bauer: That's correct.
Antonin Scalia: And what law... you assert that's federal law?
Charles P. Bauer: Yes, Your Honor. The reason it is federal law is because it's not federal contract law. I do not mean to suggest that it is federal contract law. What I mean to suggest is that the rights afforded under 1983 protect federal rights articulated through the Constitution, and if there is a waiver of those rights through an inherently coercive--
Sandra Day O'Connor: Well, now, wait a minute, 1983 doesn't create the federal right. It provides some kind of a statutory remedy.
Charles P. Bauer: --Yes.
Sandra Day O'Connor: And it would seen to me that what was at issue below was the validity of a covenant or agreement viewed in terms of state law. This isn't a direct waiver of constitutional rights. This case, it seems to me anyway, involves a covenant to give up some statutorily created right to sue.
Charles P. Bauer: Well, Your Honor, I think it is a direct waiver of constitutional rights. It is, I think, a direct waiver of the right of an individual to petition his or her government to have his or her day in court, to at least go to a jury to decide whether his or her individual rights under the Fourth Amendment through the Fourteenth Amendment have been violated or not. And, if you have the state, through the arm of the state, that is the prosecution or the police taking away that right, I think it is a direct deprivation.
Thurgood Marshall: You take away all covenants not to sue?
Charles P. Bauer: No, Your Honor. Only in the individual situation where an individual, prior to conviction, is presented with the dilemma of giving up civil rights, federally guaranteed civil rights, in exchange for a nolle pros, or dismissed with criminal charges.
William H. Rehnquist: Well, that covers an awful lot of covenants not to sue. Most of them.
Charles P. Bauer: It really does not, I don't believe. It does in the context of pre-conviction release dismissal practices. I will submit that this practice, although not widely reported in the appellate decisions, this practice is apparently being utilized to a fair extent.
Byron R. White: Tell me what's so bad about it.
Charles P. Bauer: What's so bad about it?
Byron R. White: Yes. Why is it so contrary to public policy?
Charles P. Bauer: What's so bad about this is that the public interest is being subverted, Your Honor. The public interest of--
Byron R. White: You mean, the prosecutor is giving up a perfectly good criminal prosecution that he shouldn't give up just in order to protect a public official?
Charles P. Bauer: --That may be, yes.
Byron R. White: Well, is that what you're talking about?
Charles P. Bauer: That is what I'm talking about. That's one of the public interests that's--
Byron R. White: Even though if the prosecutor has a good case, he might put your client in jail?
Charles P. Bauer: --Yes, Your Honor. Once the prosecutor makes a decision to nolle pros a criminal charge, regardless of the underlying reasons once that decision has been made that this case does not warrant criminal prosecution, with the interest of the public in mind, then we say it is improper for that prosecutor to refuse to nolle pros.
William H. Rehnquist: Well, why is that a concern of federal law, to encourage the prosecutor that way? It seems to me the concerns of federal law here would be exhausted when you're sure that the putative defendant is treated fairly. Just like in an FELA release case, where there are federal standards, you don't worry about how it's going to help the railroad, basically, so long as the defendant is treated fairly.
Charles P. Bauer: The reason I believe, Chief Justice, that it is a matter of federal law is that in addition to the required waiver of 1983 rights there is also an unequal protection--
William H. Rehnquist: I'm not questioning, that the ultimate question is to be decided by federal law. But I'm just saying, why does federal law factor in this concern that the prosecutor not... fail to prosecute as much as he should? It doesn't seem to me that's the concern of the federal law. The federal concern here is that in 1983, plaintiff not be unfairly euchered cut of his right to sue.
Charles P. Bauer: --Yes, Your Honor. I would agree with that. There is a clash here between the systems, and the clash is the use of the criminal justice system in order... against the individual by the arm of the state, against the individual to extract a waiver of rights for the benefit of not the public--
John Paul Stevens: Mr. Bauer, I think there is some difference between your position and the position of the Court of Appeals, if I'm not mistaken. I read their opinion as merely holding that the waiver was unenforceable as to the 1983 federal claim, but it said nothing that persuaded me they intended to hold unenforceable the waiver of state law claims such as... you had about five or six state law claims. But the argument you're making now, that there is a constitutional compulsion to hold it void would also invalidate the entire covenant not to sue. Is that the position you intend to maintain?
Charles P. Bauer: --Yes, it is, Your Honor.
John Paul Stevens: I see. Do you want us to go beyond the holding of the First Circuit?
Charles P. Bauer: I don't believe that it is required to go beyond for the purposes of deciding this case and deciding whether this covenant is void as against public policy. I don't believe that it's necessary to do beyond. But, yes, I agree with you, Justice Stevens, that the First Circuit identified the covenant not to sue as void as against public policy, and stopped right there. It did not go on to speak to the pendant state claims.
John Paul Stevens: See, one can read their decision as just a statutory construction decision, thinking this is necessary to make the remedy, the 1983 remedy, an effective federal remedy. Your position is a much broader one and says that the whole covenant is unconstitutional, as I understand your argument, because it was obtained... I don't know, I'm not quite clear on your theory of unconstitutionality. Don't you really say that you can have a covenant not to sue for everything under the sky except 1983? Isn't that what your position is?
Charles P. Bauer: No, Your Honor.
Thurgood Marshall: If not, what is it?
Charles P. Bauer: My position is that if the covenant not to sue deprives an individual of federally guaranteed rights to petition a court for redress, to be treated fairly and equally under the law, to have his liberty interests adjudicated by a jury, if that is the ultimate decision or impact of the covenant not to sue, then yes.
Thurgood Marshall: Well, that's all covenants not to sue. That's just about all of them.
Charles P. Bauer: Within this context, Your Honor.
Thurgood Marshall: I mean, you don't have a covenant not to sue unless you've given up something.
Charles P. Bauer: Within this context, yes.
Thurgood Marshall: Right. So, you say you can't give up anything.
Charles P. Bauer: Well--
Thurgood Marshall: Is that what you said?
Charles P. Bauer: --I just want to make sure--
Thurgood Marshall: Didn't you say that if you sign a covenant not to sue, you don't give up your federal rights?
Charles P. Bauer: --Well--
Thurgood Marshall: Yes or no?
Charles P. Bauer: --Yes, you do. You are forced to. You are forced to under this circumstance.
Thurgood Marshall: You are forced to give up your federal rights?
Charles P. Bauer: Yes, Your Honor.
Thurgood Marshall: And you can't covenant to give them up?
Charles P. Bauer: You shouldn't... yes, you can't be forced by the government to give up those rights, yes.
Thurgood Marshall: Well, how are you forced to?
Charles P. Bauer: Well, I'm glad you asked that. You are forced to because the prosecutor and the police, having the threat of criminal prosecution ranging from arrest all the way through punishment, has an inherently unequal bargaining position and that's the way that you... an individual is forced.
Thurgood Marshall: The police?
Charles P. Bauer: No. The way you remedy that, Your Honor, is for this Court to send a clear signal to police and prosecutors that these kinds of covenants will not be tolerated, that an individual--
Thurgood Marshall: Do you have to give up plea bargaining?
Charles P. Bauer: --No, Your Honor.
Thurgood Marshall: What's the difference?
Charles P. Bauer: The significant difference, Your Honor, between plea bargaining and this context is that in plea bargaining there is not a confusion of the two systems. You have plea bargaining solely within the criminal context and there is a mutuality of advantage to the state and to the criminal defendant. Moreover, the public interest in the plea bargaining situation, the public interest is being served. That is, there is... the state is obtaining a plea to a guilty charge and there is a conviction on that guilty charge.
Antonin Scalia: Well, the state would argue that here there's a public interest being served as well, that the prosecutor, given his other business, has decided that this case, on reflection, is not worth his resources. So, he wants to get rid of it but at the same time he doesn't want to leave the municipality open to a 1983 suit. That's perfectly reasonable. Or, as also is alleged to have happened in this case, the prosecutor has decided in light of the reluctance of the rape victim to testify, justice would be disserved by putting her through all that and going ahead with this proceeding. Why aren't those valid interest of the state?
Charles P. Bauer: Most of what you've just articulated, Justice, are valid. However, using the proper discretion that you just described, of the prosecutor, he or she may nolle pros that charge. But to go one step further, and to say to the individual, now, in addition to my public interest duty which has been served in weighing whether to go through with this criminal prosecution, I want to extract from you your right to sue and to exercise your federal rights. My position is, Your Honor, that for the prosecutor to protect individual police officers, to protect individual witnesses, to protect the municipality, is not within the ambit--
Antonin Scalia: So, you want him to say, the only way... and he can't even consider that in deciding to go ahead with the prosecution?
Charles P. Bauer: --That's correct, Your Honor.
Antonin Scalia: He can't have in mind that, "If I don't go ahead... I think it's a valid prosecution but I think... you know, other things being equal I would think it's not worth doing for a number of reasons, one of which is I have better things to do. " "Nonetheless, since I'm aware that if I dismiss it the city will be subjected to an enormous amount of suits. " Do you expect the prosecutor nonetheless to dismiss?
Charles P. Bauer: To dismiss, yes.
Antonin Scalia: Without bearing in mind that although it's a meritorious case he's going to have to litigate this thing in civil matters?
Charles P. Bauer: Yes. If he or she uses proper prosecutorial discretion to dismiss.
Antonin Scalia: But the time he's saving in the criminal prosecution, he's losing in having to litigate the civil case. So, he saves nothing.
Charles P. Bauer: The civil case, Your Honor... let me back up if I may. The public, the public interest is, if there has been a misuse of public official action, the public interest has an interest in exposing that misconduct to the air of light and to correct it if necessary. Furthermore--
Antonin Scalia: I understand, but he denies that there has been any. He thinks this has been a good arrest, a good prosecution, and, "If I went ahead with it I'd win it, but it's not worth it. " "I have other things, and there is a rape victim that has expressed her reluctance and I don't want to put her through the wringer. " Now, he can't take those things into account, you say?
Charles P. Bauer: --No. What I'm saying is that he can take those things into consideration but he cannot take into consideration whether I should get a civil release in order to protect my--
Antonin Scalia: But the only way to take them into account, and the only way to protect them is to get the release. Because the rape victim doesn't care whether she's put on the stand in a criminal prosecution or in a subsequent civil suit. It's going to be just as bad for her. And his time is going to be as much wasted in the civil suit as it would be in the criminal prosecution. So, you're just telling him there's really no way that he can do anything about this?
Charles P. Bauer: --Your Honor, I would respond by saying that there are already safeguards for police, prosecutors, towns. We have absolute immunity in some circumstances. We have qualified immunity in other circumstances. We have good faith defenses, and it is not the proper role of the prosecutor--
Antonin Scalia: I'm worried about his waste of time. You tell me how his waste of time is preserved, unless he gets the release. He has just decided, "I have too much business. " "I have other criminal prosecutions that are more important. " "I'd rather dismiss this one. " "On the other hand, if I know that the time I save in trying the criminal case is going to be wasted in a civil suit, I'd rather try the criminal case and get this guy because he deserves it. "
Charles P. Bauer: --Your Honor, if only the waste of time is the consideration, then it's our position that that is not a proper prosecutorial decision because that so-called waste of time does not serve the public, does not serve the public.
William H. Rehnquist: Why shouldn't that be for New Hampshire to decide here, whether they want their prosecutors wasting time or not and whether that sort of thing serves the public interest? I mean, why is that particular aspect of this argument something that should be decided by a federal court?
Charles P. Bauer: Your Honor, I would tend to agree with you that that particular aspect, that issue or sub-issue, does not really cry to this Court for adjudication. But it is crafted onto the issue of federally guaranteed rights, civil rights versus the threat of hanging in criminal prosecution or a nolle pros over an individual's head. I would submit that what individual, faced with that dilemma, facing the criminal charge on the one hand and giving up civil rights with a nolle pros on the other hand, what individual would not sign such a covenant? I submit that each and every one of us would sign and--
Antonin Scalia: Suppose a prosecutor comes up and--
Charles P. Bauer: --Your Honor, not if he was innocent. There are certainly risks and uncertainty.
Thurgood Marshall: --You want us to put a wall up against all of it by saying, you just can't sign a covenant not to sue, and I don't see any authority under the sun that you have for that.
Charles P. Bauer: Your Honor, I'm not saying that--
Thurgood Marshall: We've had covenants not to sue since we've had courts.
Charles P. Bauer: --Certainly in the civil context, we have, Your Honor, where one civil--
Thurgood Marshall: Well, now we're going to exchange all of that and we're going to make one little narrow exception, that you can covenant not to sue on every statute in the world except 1983. That's what you are asking us for.
Charles P. Bauer: --Your Honor, what I'm asking for is not whether an individual may or may not sign a covenant. What I am asking this Court to declare is that the state, through the police and prosecutor, can't use that as a threat, the dropping of a criminal charge as a threat to extract the covenant not to sue. That's the process that I see.
Sandra Day O'Connor: Well, Mr. Bauer, who initiated the suggestion of dropping--
Charles P. Bauer: I'm sorry, Your Honor. I didn't hear the--
Sandra Day O'Connor: --In this case, was it you or your client who initiated the discussion with the city about dropping the 1983 liability?
Charles P. Bauer: --Your Honor, I did not represent the respondent in the criminal charge below.
Sandra Day O'Connor: Did the respondent or his then lawyer initiate this covenant?
Charles P. Bauer: To the best of the recollection of the criminal defense attorney, it is his belief that the prosecutor first brought up the subject. But there is question about that. Neither individual, neither the prosecutor or a criminal defense attorney, can actually remember who actually brought it up first. But the criminal defense attorney's best recollection is that the state brought it up first.
Sandra Day O'Connor: Do you concede that in this case, at least, Mr. Rumery and his attorney very much wanted to enter into the agreement and thought it was in their best interest to do so?
Charles P. Bauer: Your Honor, Mr. Rumery had no other choice and Mr. Rumery's criminal defense attorney had no other choice. What other recommendation would his criminal defense attorney give, other than to say, "Bernie, sign it".
Antonin Scalia: Mr. Bauer, what about the situation which I understand is pretty frequent, where a prosecutor is thinking of filing an assault charge against an individual and ultimately it's worked out that the prospective defendant agrees to pay the medical expenses of the party that was injured, and if he does so the whole thing's dropped? Now, things like that happen all the time. Isn't that person under the same kind of compulsion, shall we set aside those... is that prosecutorial misconduct as well? I mean, is there any way to avoid this, you know, what you say is hanging over the head of the defendant? Of course there's something hanging over his head.
Charles P. Bauer: Your Honor, if there is a conviction, if there is a conviction or a plea of guilty to a charge with restitution as part of the punishment--
Antonin Scalia: No, that's not the deal. The deal is, look, the complainant says, "I'll drop the charges". And the prosecutor says, "I'll drop the charges if you pay the medical expenses that this guy incurred. " Now, the defendant still says, "I didn't do it, but nonetheless, I'll pay the expenses. " Now, isn't that the same kind of coercion? Should all of those things be viewed disfavorably as well?
Charles P. Bauer: --No, Your Honor, because in that hypothetical the individual is not being forced to waive his federal rights to sue, under 1983, Your Honor.
Antonin Scalia: We're only talking about money here, aren't we? I mean, that's all we're talking about is money.
Charles P. Bauer: No, we're not, Your Honor.
Antonin Scalia: What is he going to get in his 1983 suit besides money?
Charles P. Bauer: Besides money, Your Honor, the public has an interest in that 1983 action. If in fact there was misconduct, the public has an interest of exposing that misconduct and correcting it, and the public also has the interest to give this individual his or her day in court, to petition his government for redress if in fact his government has caused him civil harm. So, it is not just--
Byron R. White: --there can be the most outrageous violation of somebody's Fourth Amendment rights and then a trial at which he is found guilty and there isn't much you can do about the false arrest, is there?
Charles P. Bauer: --No, there is not, Your Honor... after the finding of guilty, yes, but--
Byron R. White: The prosecutor can protect the grossest false arrest by going ahead and trying the case and winning it.
Charles P. Bauer: --And winning it, yes, and we submit that the prosecutor... if this Court does not declare such covenants void, that the prosecutors and police will incorporate this type of covenant into their standard operating procedure and thereby prevent... virtually prevent any 1983 action--
Byron R. White: Not so, not so. That statement must rest on the idea that it's impossible to sort out the good ones from the bad ones.
Charles P. Bauer: --Your Honor, with regard to the District Court, I think that you're referring to the sorting out, to the trial level. We submit that when you have the clash of the criminal justice system being used against an individual to extract a civil benefit, there cannot be a voluntary waiver. So, therefore, there is no need to even go through the ad hoc, case by case balancing. I would also, by analogy, suggest that a private attorney--
Byron R. White: I understand your position. I know that's your argument, but can't you really identify those cases where there might be prosecutorial overreaching?
Charles P. Bauer: --No, because the voluntary, deliberate and informed standard, Your Honor, only looks to the individual. Did he have time to think about it? Did he deliberate? Was he informed? Did he have a criminal defense attorney? Was it voluntary? Our position is that once you have the threat of the criminal justice system being used to extract the civil benefit, it cannot be voluntary. The voluntary, deliberate standard does not look to the motives of the prosecutor. It does not look to the conduct of the police department. It only looks to the individual. It's only one side of the equation. And our position is that with that imbalance, with that unequal bargaining position, such a covenant cannot as a matter of law be voluntary.
John Paul Stevens: Mr. Bauer, suppose instead of a covenant the prosecutor said he wanted the defendant to stipulate there was probable cause for the arrest, even though he wasn't prepared to prove that the man was guilty beyond a reasonable doubt, and presumably in this case there's probable cause if the woman told the police officers what the record suggests. Would that kind of a stipulation as to the facts be invalid, in your view?
Charles P. Bauer: Yes, Your Honor, yes, and there is a case on point on that type of matter where a trial court participated in that request for a stipulation as to probable cause. And I believe the case is Dixon versus D.C., 1968, when Chief Justice Bazelon indicated that the problem with these covenants, or these kind of tacit agreements, is not necessarily... I see that my time is up. I thank you very much for your time.
William H. Rehnquist: Thank you, Mr. Bauer. Mr. Gardner, do you have anything else? You've got three minutes.
Donald E. Gardner: Thank you. Just briefly, Your Honor. Since Justice Frankfurter in his absence is getting a lot of air time today, I thought I'd--
William H. Rehnquist: Not this case.
Donald E. Gardner: --Impart a bit of his wisdom in this case also.
Antonin Scalia: He may be here, Mr. Gardner. [Laughter]
Donald E. Gardner: He said in Adams, a case that was decided in 1942, Adams versus the United States, that to imprison a man and his privileges... or to say that a man cannot voluntarily waive his constitutional rights is to imprison a man and his privileges and call it the Constitution. Obviously, a man has to be able to choose to waive his constitutional rights. Otherwise his rights are, in a sense, not really good to him. And I would suggest, Your Honor, that it's quite clear in this case that's what happened. The Court so found, he voluntarily waived his right. The Court also found that at the time--
Antonin Scalia: I don't really believe... that is an exorbitant argument. What about, for instance, his right not to be sold into slavery? I mean, slavery's been outlawed. Are you saying that right is no good unless he can sell it, right? That means we have to allow slavery in this country because otherwise the right to be free from slavery isn't worth anything.
Donald E. Gardner: --It certainly suggests, Your Honor, that in the best exercise of your rights you ought to be able to, on occasion, waive them. Obviously there are public interest limitations at the very extremes to that kind of an application.
Antonin Scalia: And that's what your opponent's arguing.
Donald E. Gardner: And obviously that is, but in this case we don't have a man who sold himself into slavery. We have a man who gave up money, as the Court aptly pointed out. You know, my opponent suggests to the Court that what has happened in this case is that this man has been deprived of his constitutional rights. But what we all realize is that if instead of signing a release he got a check, we wouldn't be here today.
Byron R. White: You would solve all these cases by the voluntary and intelligent formula, wouldn't you?
Donald E. Gardner: That's correct.
Byron R. White: And without any regard at all to the prosecutor's conduct?
Donald E. Gardner: Well, if the prosecutor's conduct was coercive, then the release wouldn't be voluntary.
Byron R. White: Well, when is that?
Donald E. Gardner: In this particular case--
Byron R. White: Whenever the prosecutor's got a lousy case, that he'd never try in a hundred years?
Donald E. Gardner: --No. If he threatened to go on with the prosecution solely in order to coerce the release, I would suggest that that's clearly coercive. In this case the prosecutor never spoke to Mr. Rumery at all.
John Paul Stevens: Does that mean that your rule would cover every case, you'd say, "Well, we've got everything agreed and we're going to dismiss; the one last thing, you've got to sign this release before we do it. " That would be bad?
Donald E. Gardner: No. What I'm suggesting is that when we're talking about a prosecutor who has good cause within his discretion for other reasons to dismiss a case--
Byron R. White: Well, like he hasn't got any evidence?
Donald E. Gardner: --Well, I wouldn't suggest that's good cause, but for reasons other--
Byron R. White: That's one of the best reasons known to man.
Donald E. Gardner: --Reasons other than guilt or innocence, I would suggest, Your Honor, reasons other than guilt or innocence. Prosecutorial discretion, as this Court knows, is very, very broad. And the reason it's very, very broad--
Byron R. White: Well, what if... well, my time is up. [Laughter]
William H. Rehnquist: Your time has expired, Mr. Gardner. The case is submitted.