Earl Warren: Number 177, Vincent Cicenia versus R. William Lagay Superintendent of New Jersey State Prison Farm. Mr. Debevoise.
Dickinson R. Debevoise: May it please the Court. This is a habeas corpus proceeding in which a constitutional question arising under the Fourteenth Amendment is being reviewed. The facts, I think, are essentially agreed upon by both sides in the case. Very briefly, the petitioner was arrested and questioned in connection with the murder. The arrest taking place at about 9 o'clock on December 18th, 1949. He was taken to the Orange, New Jersey Police Station at about 9 o'clock and from there he was taken to the Newark, New Jersey Police Station arriving at approximately 10 o'clock in the morning. There is some question as to the amount of questioning to which he was subjected during the course of the day, but there's no question that he was -- he was interrogated from time to time by the Newark police. There was a representative of the Essex County Prosecutor's Office present and that continued from the time he arrived in Newark intermittently until he signed a statement at approximately 9:30 in the evening. The significant thing was that -- at approximately (Voice Overlap) --
Felix Frankfurter: May I -- may I interrupt you to restate that last sentence, the -- the time, would you mind stating the time period?
Dickinson R. Debevoise: The time he arrived at the Newark, New Jersey Police Station at about 10 o'clock.
Felix Frankfurter: Now, up to that time, is there any complaint of what happened after that time?
Dickinson R. Debevoise: No complaint, unless possibly -- there was no warrant for his arrest but we're not raising that issue. There was no questioning -- formal questioning prior to that time.
Felix Frankfurter: Perhaps you -- are you going to go in to this in detail again? I'd like to have ten -- schedule from 10 a.m. on --
Dickinson R. Debevoise: Yes, I -- I will go into that in detail if you like, Your Honor.
Felix Frankfurter: All right, very well.
Dickinson R. Debevoise: At 10 o'clock, he arrived in the police station and according to his testimony, he went through the formalities which accompany any arrest, photographing, fingerprinting and the like. Mr. Cicenia stated that he was questioned shortly afterwards and then periodically throughout the day. Many times, he couldn't remember exactly how many. One of the Newark detectives testified that he was questioned at about 12:30, 12:15, for maybe 30 minutes, 35 minutes, then would return to his cell while other suspects were questioned. That he was brought out of his cell again at about 3 o'clock, questioned further, returned to his cell and then at approximately 5 o'clock -- 6 o'clock, his statement was taken from him by one of the detectives. The detective who took the statement estimated that it was about a three-hour undertaking to write it down in longhand and the petitioner himself recollects about one hour, but I think in this instance, the detective memory would be more reliable.
Speaker: Does the record show, enable you to add up the total period of the questioning that produced the confession.
Dickinson R. Debevoise: The total period of questioning, which is in the record and not disputed would be approximately an hour and a half, I would say.
Speaker: An hour and a half.
Dickinson R. Debevoise: Yes, adding the two together. Now, beyond that, there is dispute in the record and therefore, I would assume that I can't say that that -- there was more. The petitioner's attorney arrived at the Newark Police Station at 2 o'clock and that is well documented without dispute. He immediately asked to see the client asking the detective at the desk and he was denied admission at that time. He was denied admission periodically throughout the afternoon. And the words of one of the detective's, Attorney bother us, comes in one ear out the other, we pay no attention to them, which characterized the attitude of the entire prosecutors and Newark police staff at that time. At 9:30, the man's signature was placed on the confession and the attorney was admitted to see him at that point. The next morning, he was arraigned before the magistrate and pleaded not guilty. As the case of the defense prepared for the trial of this case, there was a motion to suppress this confession and there was a motion o inspect it, combined at one motion. Now, the State's brief which says that no effort was made to attack the confession in the state courts. Now, I would submit that this -- the motion to inspect and to suppress was certainly an attack on the confession and it was raised as early in the proceedings as possible. The motion was denied in both respects. The petitioner was neither permitted to have the confession suppressed and he was not permitted to examine it. After failing to reach that result, the petitioner pleaded non vult to this -- to the indictment. He knew he couldn't see the confession. He knew it would be a part of the case against him and as the prosecutor of Essex County pointed out, this confession, together with the two others which were taken at the same time constituted the heart of the case against the petitioner. Now these -- these facts raise the question of "When does the right to counsel begin?" There's a subsidiary question of whether or not a petitioner in these circumstances may see the statement which he signed prior to his trial, but the emphasis in this case has been the right to counsel during the period between arrest and the arraignment. Now the law has long recognized, and this Court has long recognized, that there is a right to counsel in certain circumstances if the general rights which any defendant may -- may be able to take advantage of. Now, the cases have not dealt with this particular situation. It's a right which have been suggested in different context at different times, different places, but the spirit behind all these cases is fairness under the circumstances to an accused.
Felix Frankfurter: Mr. Debevoise, am I right in inferring that you are arguing the points that you are arguing as though the case had come up here directly from the Supreme Court of New Jersey and not on review by habeas corpus in the District Court after New Jersey courts got through with it?
Dickinson R. Debevoise: Well, I (Voice Overlap) --
Felix Frankfurter: And drawing that inference that you -- that you --
Dickinson R. Debevoise: That I'm -- that I'm arguing this as if it came directly from the New Jersey Supreme Court?
Felix Frankfurter: Yes.
Dickinson R. Debevoise: To review a --
Felix Frankfurter: Conviction on the basis of violation of due process.
Dickinson R. Debevoise: Yes, that's -- that is the basis in which I'm appealing.
Felix Frankfurter: And you think the fact that this comes up on habeas corpus in the federal courts after the state courts are through is a matter of no moment.
Dickinson R. Debevoise: Well, I think it is a matter of some moment, Your Honor.
Felix Frankfurter: Well, I just thought I wanted to (Voice Overlap) --
Dickinson R. Debevoise: Well, the factual or perhaps the factual data will be reviewed with more scrutiny. I said that it is a habeas corpus proceeding, the -- any factual question of the course are resolved against petitioner. I -- I think you will probably examine it more closely than you would. We're at a -- in effect, an appeal from the judge.
Felix Frankfurter: But do you think the scope of review of a Federal District Court on habeas corpus after exhaustion of the state remedies is the same as though we had -- as though a case have been brought here on certiorari from the state court.
Dickinson R. Debevoise: Your Honor, I -- I cannot -- and I definitely, I am convinced that you have -- you may review this case -- this question in this case.
Felix Frankfurter: It will be, but I think there's got to be some basis unless we are to say, we are to assimilate the review by jurisdiction on habeas corpus as the equivalent of direct review by way of certiorari or appeal.
Dickinson R. Debevoise: Well, I'm proceeding on jurisdiction under the statute. I -- permitting habeas corpus.
Felix Frankfurter: Yes, I understand that but whether the -- whether the -- whether our inquiry is the same as though we had no problem because the habeas corpus is not equivalent of a direct review by this Court. It seems to me, that raises a serious question. However, I don't want to take your time.
Dickinson R. Debevoise: I -- to proceed, Your Honor, on the merits of the question, I would suggest that recent cases of this Court do indicate that the right to counsel should exist in a case of its nature, in a murder case, capital case, during the time between the arrest and the arraignment when -- when the -- when the petitioner, when the accused is being questioned by the police officials. I would suggest that the Groban case, of course in a different situation, infers that in a criminal matter, counsel should be permitted to consult with his client during questioning, which precedes arraignment when the police are seeking to obtain information.
Felix Frankfurter: Are you restricting this contention to the crime in issue, in this case murder, are you -- are you urging a general proposition?
Dickinson R. Debevoise: Your Honor, I think I'm -- I'm -- I would maintain that it's a matter of degree. Now, in many cases --
Felix Frankfurter: All you have to assert here is in a capital case.
Dickinson R. Debevoise: In a capital case is the one I'm concerned.
Felix Frankfurter: All right.
Dickinson R. Debevoise: I think that of course is the strongest case. The Fikes case which was recently before this Court, again, additional circumstances, but again, it was pointed out that the petitioner was not permitted to see his father. He was not permitted to see an attorney. The case arising in the Court of Appeals for the Second Circuit, the Murphy case, again, great emphasis was placed in the fact that a petitioner was not allowed to see an attorney during the period of his interrogation. I think when we decide whether or not this is a due process requirement, we are -- Judge Forman stated in the District Court on the boarder line of due process. In determining which side of that line we are on, I don't think it's a mess to examine the benefits and the burdens which would result from a rule requiring a presence of counsel during a period of interrogation by police. The benefits it would seem to me are substantial. In every case, the rights of an accused would be safeguarded by the presence of counsel during or at least from time to time during his interrogation by the police. The situation is one where the accused is alone, is usually confronted with one or many more police or prosecution officials. He's not as advised to his rights, necessarily. The record his statement is not a stenographic record. It's a record taken down by a detective or a prosecution official. Usually, often, it's leading questions, the petitioner will answer with a yes or a no and then the leading question is written down as if it were an affirmative statement. Naturally, the person can't remember what he said. He can't remember what he signed, which is not an uncommon situation even for someone under -- or normal circumstances. He is not provided with a copy of the statement after he has -- after he has signed it and he usually cannot obtain a copy before the trial when it's used against him by the prosecution. But in addition to this, which is any case where there is prolonged or -- not necessarily prolonged interrogation, beyond this, these circumstances are conducive to much, much worse. They're conducive to force confessions, coercion and other unfortunate practices which we know do occur from time to time. Now, a criminal case is like a civil case and that it's an adversary proceeding. Theoretically, the prosecutor is representing the interest of the public, the accused, as well as anyone else but in practice and perhaps necessarily, he has to present the strong points of his own case and the weak points of the defendant's case. But unlike a civil action, the accused does not have the advantage or the opportunity to obtain access to the data, the information, the statements, which are to be used against him at the trial. His hands are tied. They're tied during this interrogation period. They're tied right up until the trial itself. Now, the state is partisan. It zealously tries to convict the defendants I brought before the court of a state or a federal court if that's the situation. Now -- and that -- I think that it should be. I have no -- I have no quarrel with that. But if this zeal is unchecked, we know it can lead to injustice. We know for a fact that on occasion, defendants who are innocent have been convicted. We know for a fact that they have, on occasion, been convicted as a result of their own confessions. Now, we don't have statics. We can't get statistics of course, but we can affirm from the number of cases we do know about if there must be an infinitely larger number of cases where a defendant wrongly takes the penalty for something which he did not do.
Speaker: Apart from -- apart from your claim of right to counsel, do you claim that this was a coerced confession?
Dickinson R. Debevoise: No, the facts are in dispute on the issue of coercion and we have to -- we -- we cannot raise that issue here, Your Honor.
Speaker: Simply that single point that you're raising.
Dickinson R. Debevoise: The single point plus the additional fact that the defendant tried to get access to his confession after he'd given it and was denied that access, which as we see it, it -- it's part of the same thing. As part of your right to counsel is the right to have counsel, get the material he needs to defend the case.
Felix Frankfurter: You -- may I interrupt because you're, I'm sure, well aware of the fact urging of a very far-reaching raising a far-reaching problem in this case and I wondered if you -- before you sit down, indicate precisely what the rule of law you're urging. Is it to be specific that when a man is apprehended and in -- under detention, charged with a capital offense, the police may ask him no question and may not begin any questioning at all except in the presence of a counsel?
Dickinson R. Debevoise: No, Your Honor. My contention would be that you don't have to go that far. My contention would be that in a capital case, if there were questioning, if counsel were asked for and denied or counsel asked permission or not allowed admission, you could not use that confession or statement against the defendant in the trial against him.
Felix Frankfurter: Well, let me ask you to -- to be still more specific because this is far-reaching problem that you're appreciated. Must you tell him -- must you ask him whether he wants counsel? Must you or are you -- your case request for counsel and denied, it was a very different thing.
Dickinson R. Debevoise: Our case is a request for counsel and denial.
Felix Frankfurter: At what point?
Dickinson R. Debevoise: At the point when questioning begins, Your Honor.
Felix Frankfurter: So when did questioning begin here?
Dickinson R. Debevoise: The questioning began here -- at least we know it began as soon as an hour and three quarters or two hours, two and a quarter hours, after he was brought to the Newark Police Station. That would be about 12:15. He arrived at Newark at about 10 o'clock in the morning.
Speaker: Am I correct in understanding that before this man was brought from Orange to Newark, he already had engaged a lawyer?
Dickinson R. Debevoise: Yes, Your Honor. He --
Speaker: And that the police knew that he had a lawyer when they start interrogating.
Dickinson R. Debevoise: I'm not sure whether the Newark police knew we had a lawyer when they began interrogating him. Again, that would be a disputed question. He testified that he told him he had counsel. Counsel had been retained by -- by him and his family that morning and also, they contact a counsel the day before. Counsel himself did not arrive in Newark until 2 o'clock, which was after one of the periods of questioning before a subsequent period of questioning and at that point, inform the Newark police and the prosecutor's office that he represented the defendant.
Speaker: Well, when your man got over to Newark and they started questioning him, did he say, "I've got a lawyer. I don't want to -- I don't want to submit to questioning without having my lawyer present." Did he raise that right --
Dickinson R. Debevoise: That was his testimony, Your Honor. It was disputed by the State. They say he did not asked for a lawyer. The petitioner claims that he did.
Felix Frankfurter: Did this question -- had this question the one that you're presenting then passed on by the Supreme Court of New Jersey?
Dickinson R. Debevoise: The question of the right to counsel during the (Voice Overlap) --
Felix Frankfurter: The one -- the only question you're raising here that you are raising --
Dickinson R. Debevoise: Yes it has, Your Honor, and it's been decided adversely to the petitioner.
William O. Douglas: What case was that?
Dickinson R. Debevoise: One of the cases was the --
Felix Frankfurter: Not in this case.
Dickinson R. Debevoise: Oh, in this particular case?
Felix Frankfurter: Yes.
Dickinson R. Debevoise: It was raised on the habeas corpus petition, Your Honor.
Felix Frankfurter: I mean, there was a conviction, was there?
Dickinson R. Debevoise: No, Your Honor. In this case, the defendant pleaded non vult to the crime. I --
Felix Frankfurter: And what happened then?
Dickinson R. Debevoise: He was sentenced to life imprisonment. Thereafter, he instituted a habeas corpus proceeding.
Felix Frankfurter: Could -- and that's your procedure. He didn't go up to the -- from the superior court. He didn't go up to the Supreme Court on the merits on this question.
Dickinson R. Debevoise: Yes, Your Honor, he went on the merit. Well, he went on the merits but the Supreme Court did not hear it on the merits.
Felix Frankfurter: And there -- so there is no adjudication as to -- in this case, on this question, on this fact, is that correct?
Dickinson R. Debevoise: Yes, Your Honor. There is an adjudication. It was adjudicated by the Essex County Court on the habeas corpus petition. It was an appeal to the appellate division.
Felix Frankfurter: With an opinion of the Essex County Court?
Dickinson R. Debevoise: The opinion, I --
Felix Frankfurter: Was there an opinion?
Dickinson R. Debevoise: I think it was done (Voice Overlap) --
Felix Frankfurter: -- I'm looking for your state decision and I can't find it.
Dickinson R. Debevoise: Well, it was not -- it was not written in the reports as I recall. There was -- there was a decision by the appellate division.
Felix Frankfurter: There was a question -- there was a litigation on suppression, but that's outside this case.
Dickinson R. Debevoise: That -- that preceded the plea of non vult.
Felix Frankfurter: Yes.
Dickinson R. Debevoise: After the plea of non vult, there was a habeas corpus proceeding decided on the merits of the County Court reviewed on the merits by the appellate division. The New Jersey --
Felix Frankfurter: Would you be good enough to give me -- give us the site, the references to the reported opinion in this case on this question of the denial of a right to counsel in the course of the proceeding?
Dickinson R. Debevoise: I'm not sure they were reported, Your Honor.
Felix Frankfurter: All right, that's what I thought. That's what I -- that's -- that was my (Inaudible) Mr. Debevoise.
Dickinson R. Debevoise: Well, I relay -- I will check them during the interval that's given to me on my rebuttal if -- if they're in the brief.
William O. Douglas: Your brief indicates, or the record indicates the Supreme Court of New Jersey is not going to that.
Dickinson R. Debevoise: That's correct, Your Honor. They denied it. They denied a petition to proceed in forma pauperis which of course is the question in the Fay case now before this Court, which were not raised in this particular case.
Earl Warren: Do you believe Mr. Debevoise that there is a legal distinction between your capital case and non-capital felony?
Dickinson R. Debevoise: I think it might well be, Your Honor. This Court has made the distinction that in certain cases, there is a right to counsel if the severity is of a sufficient degree, other cases, perhaps that right, may not exist and I think the same --
Earl Warren: You mean Betts versus Brady?
Dickinson R. Debevoise: I'm thinking -- possibly Your Honor -- I'm thinking particularly the Uveges case where -- it was emanated that there may or may not be a right in every case for (Voice Overlap) right.
Earl Warren: To have counsel or to --
Dickinson R. Debevoise: To have counsel in general, not in this particular situation.
Earl Warren: None of those cases touch this point.
Dickinson R. Debevoise: No, Your Honor, but I think the same distinction might be made that in -- the more -- where the penalty is more severe, the right to counsel might exist where the penalty is less severe might not exist.
Earl Warren: If there was constitutional right, why wouldn't any man accused of a felony be entitled to it?
Dickinson R. Debevoise: My own view would be that he -- he would be, but I don't think the Court has to go that far in --
Earl Warren: In the decision of this case.
Dickinson R. Debevoise: -- deciding this case. Yes, Your Honor.
Earl Warren: Yes. Well, that's -- that's all I want know.
Dickinson R. Debevoise: And I would submit briefly that the disadvantages which can be raised against such a rule, such a right, is the fact that criminal detection will be handicapped and I think, in frankness, that must be admitted. It will not be as easy to obtain convictions, possibly not as easy to obtain evidence if the right to interrogate between arrest and arraignment is curtailed. I would also submit that where that right is curtailed, either voluntarily or otherwise, I as in England or with the FBI, criminal prosecution has not appeared to be fatally handicapped. In some, the -- this objection is raised to every advanced and criminal rights -- rights for an accused. Every -- every right is resisted while the statement, law enforcement will be broken down, society will suffer seriously by it and yet, each advance is made without substantial detriment to the public or to law enforcement. I would submit that in view of the tremendous advantages in fairness to the accused that the judgment of the Court of Appeals for the Third Circuit should be reversed. I respectfully submit that there is nothing more subversive of law enforcement in the ultimate sense than the injustice that occurs on occasion through the faulty conviction of innocent person.
Speaker: Could I ask you one question before you sit down? Is there any question here that -- any -- any attempt to justify a refusal to have counsel present after he requested it on the ground that they weren't sure that this fellow in fact or the lawyer in fact represented this fellow?
Dickinson R. Debevoise: No, Your Honor. I think there was no question but that the --
Speaker: No (Voice Overlap) --
Dickinson R. Debevoise: -- representative.
Charles E. Whittaker: Well, I'm -- I'm a little unclear if I may ask.Do you contend that there is any finding on the conflicting evidence you mentioned, saying that petitioner did in fact request a lawyer?
Dickinson R. Debevoise: I say that is in dispute.
Charles E. Whittaker: Is there a finding on it?
Dickinson R. Debevoise: There's no finding on it, Your Honor, as far as I know. I -- think we merely have the record of his testimony where he says that he did request an attorney and the -- of the state testimony that he did not. I -- well, I -- I would submit that when he has employed an attorney prior to an interrogation, the attorney's job is to get to see a client and he is acting on behalf of his client when he asks to see --
Felix Frankfurter: Judge Forman pass on taking to account that conflict, did he do anything with it?
Dickinson R. Debevoise: No, Your Honor. He -- he went on the basis that the attorney had been appointed by the accused and his family and had tried to see the accused during this period.
Felix Frankfurter: Well then -- then the finding is -- then -- then why did you not answer Justice Whittaker's question that there was a finding by Judge Forman supporting your position?
Dickinson R. Debevoise: As I understood his question, Your Honor, the finding -- he asked me if there was a finding that the accused had requested counsel.
Felix Frankfurter: Well, now is -- is there a finding? Did Judge Forman expressed a view on that dispute?
Dickinson R. Debevoise: No, Your Honor, not to my recollection.
Felix Frankfurter: Is that disputed that question whether he did or didn't?
Dickinson R. Debevoise: It hasn't been raised, Your Honor. It hasn't been -- it hasn't been considered on that basis. It's considered on the fact that the accused hired an attorney and the attorney attempted to see the accused during questioning.
Felix Frankfurter: And that is undisputed?
Dickinson R. Debevoise: That is undisputed, Your Honor.
Charles E. Whittaker: But you did say, as I understood your statement of the question, perhaps I didn't correctly understand that you contend that an accused is entitled to counsel in the capital case between the period of arrest and arraignment if he asks the counsel.
Dickinson R. Debevoise: Well, perhaps I misstated the question, Your Honor, because we have been -- I have been trading this case as if the appointment of counsel by an accused and the attempt of that counsel to do his job is to see the accused is the same as the accused asking to seek counsel. Once the accused had retained an attorney, the attorney is speaking for the accused when he had tried to see his client.
Hugo L. Black: May I ask you this -- excuse me.
Dickinson R. Debevoise: That's page --
Hugo L. Black: -- page 12, Judge Forman (Inaudible) whether it was done flippantly or courteously, the fact remained for over seven hours, Newark believes formed an insuperable between an accused who wanted to see his counsel and the counsel who wanted to see his client, was that based on evidence?
Dickinson R. Debevoise: No, it's based on undisputed evidence, Your Honor, yes.
Hugo L. Black: And during this seven hours, the police and assistant prosecutor were able to obtain a detailed confession from petitioner.
Dickinson R. Debevoise: That is correct, Your Honor.
Hugo L. Black: Is there any dispute about that finding here?
Dickinson R. Debevoise: There is no dispute, Your Honor.
Earl Warren: Thank you. Mr. Caruso.
C. William Caruso: Yes. Mr. Chief Justice and honorable members. What the petitioner says here very briefly is this. "I didn't have the benefit of counsel when I was being interrogated by the police in Newark headquarters and I was denied by the State of New Jersey the right to a pretrial inspection of this confession. Therefore, my constitutional rights of due process have been denied." Well, that's summoned totally.
Earl Warren: But doesn't it go a little farther than that? Doesn't it --
C. William Caruso: I beg your pardon.
Earl Warren: Doesn't it go a little farther than that? Doesn't it include also that his counsel ask to see him and was not permitted to see him?
C. William Caruso: Yes.
Earl Warren: But that is not in your statement.
C. William Caruso: Now, on that specific question, this --
Earl Warren: And also, the -- on the question as to whether -- whether he asked for counsel at all.
C. William Caruso: Yes. Well, on the question of counsel, there are -- you can divide that up into two subsidiary questions. First, did the petitioner ask for counsel? Secondly, did counsel appear there for him and was he denied the right to see his client? Now, in order to get this clear, the record shows specifically that on the question of the petitioner asking for his counsel, that was seriously disputed by the state in that record. Petitioner in the hearing before the District Court judge kept saying -- these were the facts of course the crime took place a long time ago, March 17th, 1947. There was nothing -- there was nothing, no solution to this crime until December of 1949. That's over two years later and it came about in this way. The first man to be arrested was Corvino. He's one of the joint defendants in the indictment. Corvino was taken of the custody on December 17th, 1949 and it was the result of what Corvino told the police that the Newark police alerted the Orange police to seek out not only this petitioner, Cicenia, but the other third defendant who was DeMasi. Now what happened on the 17th? Petitioner has no dispute. These are facts, was out, some Orange police called at his home that we'd like to see Cicenia, bothered, I think in their home since -- well he went hunting today with his brother and now tell -- he says, "When he come, tell him to get consent to the Orange police. We want to see him." Cicenia didn't come home on the night of December 17 in Orange. There was a call made to Mr. Palmieri or Frank Palmieri is the name of the attorney who represented this petitioner Cicenia many long after that. Palmieri told the bar, “Okay, let this Cicenia go into the police and give up” give himself up and he did. Now we come to summary --
Earl Warren: Now what -- may I -- may I just interrupt there?
C. William Caruso: Yes.
Earl Warren: You say go in and -- and give yourself up? Was there -- was he requested to give himself up? Was there -- was there any accusation against him or did they ask him to come and talk to him?
C. William Caruso: No. Mr. Chief Justice, this was still in the process of investigation.
Earl Warren: Yes, but you said "go and give yourself up."
C. William Caruso: Well -- no that is not even in the record. I don't -- let me withdraw that.
Earl Warren: All right. That's all (Voice Overlap) --
C. William Caruso: As a result of a telephone conversation between Mr. Palmieri, the lawyer, and this petitioner's father regardless of everything else. Cicenia presented himself on Sunday morning in Orange police headquarters. That was around 9 o'clock in the morning. At about 10 o'clock, two officers of Newark came to Orange and brought him to Newark.
Earl Warren: How far is it to Newark?
C. William Caruso: Well, five miles, four miles between Newark headquarters and Orange. Orange -- the City of Orange is a suburb of the city of Newark about four or five miles away. Now we got to the point where Cicenia is down in Newark police headquarters. At that time, Corvino was down in the police headquarters, but not DeMasi yet, the third man. DeMasi came in at about the same time. When I say "came in" I mean "brought in" by the Newark police, and he got in Newark police headquarters on Sunday morning, December 18th, 1949, three men who were later indicted for the felony murder of the store keeper in Newark back in March 17th, 1947. Now, what happened? The first thing that happened to Cicenia was naturally what we call processing, photographing, fingerprinting and putting him in the cell. Because Mr. Chief Justice, practice, this is Sunday, hardly anybody in police headquarters at all but the practice is these matters are usually investigated by a particular squad. On this case, it was a homicide squad of Newark police headquarters. The first man to come in the police headquarters that talked to Cicenia was a lieutenant of the Newark police by the name of Joseph Kenney.
Earl Warren: May I interrupt just a moment there. What is the first scene that happened when they brought Cicenia in to photograph him and fingerprint him and put him in jail?
C. William Caruso: In his cell, yes.
Earl Warren: That was done?
C. William Caruso: Yes.
Earl Warren: Yes, I just --
C. William Caruso: No complaint, no warrant as such (Voice Overlap) --
Earl Warren: Yes.
C. William Caruso: -- killing as the result of information imparted to the police by Armando Corvino who was taken in the night before.
Earl Warren: Yes.
C. William Caruso: That's right.
Earl Warren: Yes.
C. William Caruso: Now Kenney came in about noon hour. Well, what -- I mean, what happened between 10 and noon? Well I could (Inaudible) photographing and fingerprinting and putting him in the cell. To awake Mr. Kenney, he is the lieutenant, head of the homicide squad. Kenney came in about noon. Now -- about noon, possibly around well it has to be something to that sort, having question Mr. Cicenia for maybe 10 or 15 minutes and according to Kenney at first, Cicenia said, “I don't know what you are talking about.” He didn't know anything about this. Then Kenney said -- but later after he was confronted with DeMasi, he changed the story. Now, let me get that straight.
Hugo L. Black: Confronted with what?
C. William Caruso: I beg your pardon.
Hugo L. Black: After he was confronted with what?
C. William Caruso: Confronted with a third defendant, Mr. Justice Black.
Hugo L. Black: Thank you.
C. William Caruso: A man with a name of Joseph DeMasi. See, DeMasi was the third man. We got here Cicenia, Corvino and DeMasi. Now, we won't go into the crime at all. Now, after all questioning that Kenney then what happened? Kenney sent for a prosecutor's detective by the name of George Marr, a man who's been experienced classically 30 odd years. I know that personally. A man -- still at least Detective Marr, now we've gotten in the picture, Kenney, and I want to add one other member of the homicide squad named -- by the name of Carlton Norris and we have George Marr. Now, there's three. Two members of the local homicide squad and one member of the prosecutor's detective. When Marr came in about little after 1 o'clock, he called with Cicenia (Inaudible) they went out to get something to eat. In fact, Cicenia said, "They didn't give me anything to eat all day." The truth was, at 1 o'clock, he was fed. Now, George Marr was the man who really was assigned to take all the information as far as Cicenia is concerned. Kenney was the man who was assigned to take another man, Corvino, and DeMasi was taken by Detective Norris. Now altogether, throughout the entire day, besides these three men whose names I just mentioned, there were only two others in the headquarters who are in anyway connected with the investigation of this case. One was an assistant prosecutor, Morris McCune (ph) and the other was an investigator for the prosecutor by the name of Harvey Gruley (ph); Gruley didn't question them, McCune didn't question them, but he was there supervising. Now, if I can explain, we have a system in -- in New Jersey, in -- capital cases of this kind where suspects are taken into custody, we want a representative of the prosecutor's office here to see things are done properly and that's the reason for McCune, McCune did -- he's in and out and so forth. Now, what happens to this? Detective Marr questioned Cicenia, and said, “How about this?” And in the record, you'll find that Cicenia puts it this way, "Oh, they threw, words he used -- they threw a lot of photographs at me. Photographs of the place where the crime was committed, the store, inside, outside, I didn't know what it was all about, but he changed his story after he was told by Detective Marr what DeMasi had said about this crime in which he has involved Cicenia. No question about it. Now there were two questionings, Your Honors, one was preliminary, 15 - 20 minutes, about noon by Kenney and after 1 o'clock by Detective Marr of the prosecutor's office, in which he spent possibly half hour or more. And then he gave him an oral account of the entire crime. I don't know whether on pages 103 and 104, two full pages. There is an account in the record of the details of the oral account of the crime given by Cicenia to Marr.
Earl Warren: Now, then let me go back, if Your Honor's please, I think before I set this question of counsel as divided into two, first, whether --
Earl Warren: Before you get to that, may I ask?
C. William Caruso: Yes.
Earl Warren: How long Marr questioned him before he gave the story?
C. William Caruso: I don't know exactly, Your Honor -- oh, 40 minutes, 40 minutes, a matter of minutes, Your Honor.
Earl Warren: That's a confession?
C. William Caruso: No, no. That's that oral statement.
Earl Warren: Well --
C. William Caruso: See, this is --
Earl Warren: Did he -- did he confess (Voice Overlap) --
C. William Caruso: I'm going to come with his confession.
Earl Warren: Oh, he -- that wasn't a confession.
C. William Caruso: This is an oral statement of giving them to Marr and now the -- that is --
Earl Warren: Well, what -- what I'm getting at is this, is it an oral statement admitting guilt?
C. William Caruso: Oh, yes.
Earl Warren: Or is it a denial guilt?
C. William Caruso: Oh, yes, complete guilt.
Earl Warren: Yes, all right.
C. William Caruso: Now, that took place in the afternoon, if Your Honor please --
Earl Warren: Yes.
C. William Caruso: About 4 o'clock.
Earl Warren: Yes.
C. William Caruso: Now, the time comes for the taking down of the written confession. Now, we must bear in mind around three people here, three men, all in this one great big room on the fourth floor of Newark headquarters, and here's the way they were divided. Marr has this petitioner, Detective Marr, seated alongside. Marr already know the full story, which Cicenia, had given him about 4 o'clock in the afternoon, but the written confession wasn't start until 5:07 in the early evening and ended about 8:30.
Felix Frankfurter: (Inaudible)
C. William Caruso: I beg your pardon.
Felix Frankfurter: (Inaudible) this petitioner's confession.
C. William Caruso: Yes. It's written down by Detective Marr in wrong hand. That, if Your Honor please, the only -- was not admitted in the record at all (Inaudible) except this. You will find in the record that when Cicenia at the hearing before the district judge, I showed him his this confession and you notice the manner in which he answered frankly. Oh, possibly, is this your signature? Possibly, Oh yes, (Inaudible). Finally, he did say yes. Then with respect to the contents of that confession, Judge Forman rule in favor of defense attorney who have made an objection on the question of the detail of the commission of a crime. I'll go on that. Let me go back now to the question in the record with respect. Did the petitioner, Cicenia ask for assistance of counsel? In the record, yes, he says it several times, even repeatedly. But if Your Honor please, he didn't even know that his lawyer Palmeiri was down there where he was left. His father had called up Palmeiri but when he was there (Inaudible) they didn't know that Palmieri have been there. Now, how did Palmeiri -- Palmeiri is the name of the lawyer of the petitioner who came down (Inaudible) at 2 o'clock in the afternoon.
Felix Frankfurter: Did you say just now, who didn't know that Mr. Palmeiri was his lawyer?
C. William Caruso: The petitioner.
Felix Frankfurter: Would you mind -- would you mind then explaining what Judge Forman --
C. William Caruso: Yes.
Felix Frankfurter: - what the statement of Judge Forman on page 16 of the record.
C. William Caruso: 16?
Felix Frankfurter: 16, one, six.
C. William Caruso: Yes, sir.
Felix Frankfurter: In the middle of the page --
C. William Caruso: Yes.
Felix Frankfurter: Not only was petitioner deprived of a cherished-American right, the right to see a lawyer, but the dignity of the legal profession itself was demeaned when the police and an assistant prosecutor arbitrarily refused to permit this petitioner's counsel to perform the traditional role of the lawyer in informing an accused of his right.
C. William Caruso: Yes.
Felix Frankfurter: Now, I don't understand -- I don't understand that statement if it doesn't mean that Palmeiri had been retained, didn't -- didn't go in and it wasn't a crime hunter but had already been in a professional relation to the petitioner.
C. William Caruso: Mr. Justice Frankfurter, what I say, I still stand by and it's a distinction. Cicenia, who was inside, didn't know that his lawyer was outside knocking on the door.
Felix Frankfurter: So -- but the lawyer give notice to the authority.
C. William Caruso: I'm coming to that. Not the lawyer showed at 2 o'clock in the afternoon. Now, what did he do? He first went to the doorman or the telephone man, Mr. Cone. I want to see Mr. Cicenia. Mr. Cone is the only uniformed officer off-duty in that building. Very simple. Now, I haven't got the authority to do that. Well, "I want to see him" says Mr. Palmeiri to Cone. Cone sent for Mr. Norris, that's Norris. Now, Carlson Norris is the detective who have been -- who had also questioned the petitioner and who was taking the time to take the confession from DeMasi. Norris came down. Now, I'm coming to this big one. There was an affidavit submitted by Mr. Palmeiri in the proceeding in which he has said to Norris, I want to see my client and Norris said, “I -- I can't let you see your client." “I've got to see my client.” “Well, wait a minute.” Nevertheless, Norris was asked, “What about this? Not seeing the client." And then a great big point is made of it that Norris says -- is alleged to have said, “Oh, we get this everyday.” It goes in one ear and out the other. Norris denied in the record the conversation which is stated by the lawyer Palmeiri. He did say, frankly, about the -- he did say, and here it is, first on page 120, near the bottom, and during the course of this interrogation or at anytime that you hear Mr. Cicenia have to see counsel? Answer - He did not, sir. He never mentioned counsel.
Earl Warren: Who is that? Who is that witness?
C. William Caruso: Mr. Norris.
Felix Frankfurter: Norris.
C. William Caruso: Yes, sir.
Earl Warren: But was he -- was he in there all the time?
C. William Caruso: Yes.
Earl Warren: In the room all the time?
C. William Caruso: Well, he was one of the investigating officers. Yes.
Earl Warren: I thought he was -- I thought he was examining the other -- the other defendant, Norris.
C. William Caruso: Oh no, Marr was the man who was taking this defendant.
Earl Warren: Yes, that I know.
C. William Caruso: Marr has a control of taking his confession which he definitely (Voice Overlap) --
Earl Warren: And was Norris listening to this entire conversation?
C. William Caruso: Norris was right there. This is all in the same room.
Earl Warren: Yes. That's right.
C. William Caruso: Mr. Chief Justice. Now, Norris was asked about counsel read from the affidavit of Mr. Palmeiri in which Palmeiri said that he tried to see his client and asked Mr. Norris, and he quoted, page 121 of the record. And after he finished the quoting from Palmeiri's affidavit, he asked Norris, “I asked you if that in substance is what occurred about 4:30 p.m. at the Newark police headquarter.” Answer - “I never had such a conversation with Mr. Palmeiri like that, no conversation like that. In the first place, I'm not in charge and it would not be within my scope to even have a conversation with him.” He did not ask you to see Mr. Cicenia?” “No sir.” Now here's the thing which frightens everybody. Norris said, “Within one ear and out the other." Norris was asked about the -- about the practice in Newark on this occasions and here's the exact -- his explanation on page 122. By that time, I had heard he had an attorney and that an attorney was there but I wasn't interested. I mean, we have that everyday.
Felix Frankfurter: Well Mr. Caruso, may I ask you this?
C. William Caruso: Yes.
Felix Frankfurter: Is what you said in reply to my question a challenge to the accuracy of what Judge Forman said on page 16? Are you saying that Judge Forman was not entitled to make that statement on the basis of the record, is that what you're saying?
C. William Caruso: No.
Felix Frankfurter: He says that the arbitrary to refuse to permit his petitioner's counsel to perform his role --
C. William Caruso: This is -- this is the opinion --
Felix Frankfurter: Pardon me.
C. William Caruso: -- of Judge Forman.
Felix Frankfurter: Yes. Well now are you -- do I gather, am I to infer from what your -- from you reply if you say Judge Forman was not entitled on this record to make that statement, is that what you're saying?
C. William Caruso: I can say this without --
Felix Frankfurter: I don't mean to say you're not respectful to him of course.
C. William Caruso: He said that.
Felix Frankfurter: Yes. Now -- but you say he had no basis for saying it, is that it?
C. William Caruso: I say that Judge Forman said that he was denied an attorney and that is founded upon the request made by the attorney of the assistant prosecutor McCune. We don't have to go to that. We admit that Mr. -- the attorney was there, Mr. McCune admitted it. He's the assistant prosecutor. He came downstairs and talked with Mr. Palmeiri, and then this is what Mr. McCune said to the attorney. This is about 4:30 in the afternoon.
Felix Frankfurter: Well, do you -- I must -- I must ask you, if I may. Judge Forman says not that the petitioner asked for a lawyer and was denied getting his lawyer. What he says that the prosecutor refused to permit a man who was in professional relation, who was this petitioner's lawyer who was discharging a lawyer's duty to his client. He said, “I want to see my client and to tell him what his rights are” and that he was forbidden, he was refused the opportunity to do so. Now, are you saying that that is correct or are you challenging that statement?
C. William Caruso: No, sir. That's admitted by the state. That's -- that the attorney was denied permission to see his client.
Felix Frankfurter: Although it was known that he was an attorney and although the request he made was in the ordinary and almost necessary discharge of a lawyer's duty, is that it?
C. William Caruso: The denial was made with a qualification. You will see him as soon as we're through with the police investigation, any day.
Felix Frankfurter: Well then, for whatever legal significance it has, this statement of Judge Forman I may take as -- as not challenged, is that right?
C. William Caruso: That's correct.
Felix Frankfurter: All right.
C. William Caruso: That's a fact.
Felix Frankfurter: That's is --
C. William Caruso: That's a fact, Your Honor. That's a fact.
Earl Warren: It is your position -- it is your position in the case that the police can arrest a man in this matter and hold him as long as they want while they're making an investigation and during that time, they may refuse admission to his lawyer to see him. Is that your position?
C. William Caruso: Yes.
Earl Warren: Yes.
C. William Caruso: Yes, and we stand on the law of New Jersey, which was established many years ago, if Your Honor please, in the case of State against Murphy.
Earl Warren: Yes.
C. William Caruso: Now in that case, the opinion which of course -- which are quoted. Here is what he says in so many words. The Sixth Amendment of the federal constitution and of the state constitution which is substantially the same as the Sixth Amendment simply says this. I will enter many words. "Every accused is entitled to a speedy trial by a fair and impartial jury," number one. Number two, "He is entitled to know." Now, the word "trial" is used right there. Number two, "He is entitled to know the nature of the accusation and cause of the accusation." Number three, "He is entitled to be confronted with the witnesses against him." Number four, "He is entitled to have compulsory process for witnesses in his favor" and then it ends up the paragraph by saying, "And he's entitled to the aid and assistance of his counsel for his defense." In interpreting that section, if Your Honors please, (Inaudible) I think used this reasoning, is that accused entitled to be confronted by witnesses against them when he is seated in the room alongside of the detective who is hearing this story? Well, of course not. Is he entitled to have compulsory process for witnesses in his favor? In other words, if the defendant says to the police, "Why don't you see John Doe or Richard Roe held thereof what I say." Do the police have (Inaudible)? The police do their own checking and there isn't any question gentlemen in instructing when -- at a two-storey (Inaudible) were similar. We know that he's gotten it cleared. But more or else when checking, it is not (Inaudible). Now, we have maintained in New Jersey, ever since 1915 and prior to what clearly established by the highest court of New Jersey in 1915 that an accused has the constitutional right to the aid and assistance of his counsel at his defense and that contemplates when he is placed in jeopardy at the trial and not during the time between the arrest and his arraignment. That has been time and time again, Your Honors, State against Murphy, State against (Inaudible) that came to this Court, certiorari denied and I answered exactly the same question. State against Grillo (Inaudible) State against Cole, I remember those cases very well. Certiorari denied by this Court in the Cole case, in the Burns case. Well, that's number one. What happens after these people were held the next morning incidentally, the arraignment took place at 11 o'clock on the 19th of December and from the night of the 18th of December when Mr. Palmieri was allowed to go in to see his client, he has the benefit of that lawyer from that time on up to the time of sentence on April 18th, 1951. All was (Inaudible). But the counsel didn't do anything. As soon as they were indicted by the grand jury, the first thing he did was to go into courts and say, “I want a copy of that confession.” And how do you suppose he would handle the court? On the theory that he was entitled to have absolute right to a copy of that confession. Well, the appellate division in New Jersey denied that. They threw him out. The Supreme Court of New Jersey in (Voice Overlap) --
Earl Warren: We'll recess now Mr. Caruso.


Warren E. Burger: We will hear arguments next in Green against the Michigan Department of Social Services. Mr. Burnham, I think you may proceed whenever you are ready.
William Burnham: Thank you, Mr. Chief Justice, and may it please the Court, I would like to reserve five minutes of my time for rebuttal. This case is actually comprised of two Section 1983 class actions. The claims in the cases are essentially that the defendant state official violated the plaintiff's statutory rights under Title 4(d) of the Social Security Act, thereby depriving them of AFDC benefits to which they were entitled. The two cases factually parallel each other. However, I will indicated briefly what those were. The cases were filed in 1980 and 1981. The first case, denominated Michigan Welfare Rights Organization versus Dempsey originally, is the child care expense case, in which Michigan in concluding an AFDC budget refused to allow a deduction for the expenses of child care which were necessary to be paid for the recipient to go to work. This, petitioners believe, violated clear pre-October, 1981, federal law. This court has decided a case on that very issue, Shea versus Vialpando. The Department of Health and Human Services, which is charged with administration of the Act, wrote Michigan several letters telling them essentially that, and they nonetheless did not change the policy. However, in October, 1981, federal law changed, and federal law continued the requirement that there be deductions allowed. However, Michigan changed its regulation to comply with the new federal law. The reason for that presumably was because the new federal law imposed a limitation of $160 a month, and Michigan believed, I suppose, that it could live with that, and therefore changed its policy to comply with the new federal law. The other case, Benas versus Dempsey--
William H. Rehnquist: What remains of that first case now, the one that you have just described, after the chance?
William Burnham: --After the change, the defendants, we would submit, are currently in compliance with the new federal law. Consequently, what remains is our request for summary judgment as to the defendant's compliance with federal law before October of 1981, and the issue, but relief may be granted based upon that determination.
William H. Rehnquist: And are you seeking damages for the period before 1981?
William Burnham: We are not seeking any monetary relief at all. We are not seeking damages. All we are seeking is a declaratory judgment or some other substantive federal question determination, and an injunctive order requiring the defendant to send notice relief as was done in the case of Quern versus Jordan, which this Court decided in 1979.
William H. Rehnquist: Why isn't the case moot or very close to it?
William Burnham: Well, the case is not moot. It is our position the case is not moot. First of all, the Sixth Circuit found that it was not moot, and we believe that that analysis is in fact correct, although they decided against us on the Eleventh Amendment issue. In order to be moot, of course, under Garrity, there must be a lack of any cognizable legal interest, and the issues are no longer live. Under this circumstances, the issues are clearly live.
Byron R. White: You want the notice.
William Burnham: We want the notice, and there is an interest in--
Byron R. White: And you want the notice so that these people could apply for relief in state courts.
William Burnham: --Well, probably in the state administrative tribunal.
Byron R. White: Yes, to get... to get what you think they are entitled to prior to the amendment of the federal law.
William Burnham: To state it more specifically, we believe that the interest is in being given the opportunity to do that. In other words, class members may decide that they do not want to pursue that remedy, or they may decide that they do. If they do pursue that remedy, they may not be able to actually get an award of retroactive benefits because of state law.
William H. Rehnquist: But it takes more than just a very tiny thing to keep a case alive. For instance, an award of costs, the outstanding issue of costs won't keep a case from being moot.
William Burnham: I understand.
William H. Rehnquist: It strikes me that this is really awfully far down the line so far as any live controversy about federal issues is concerned.
William Burnham: Well, petitioners would respectfully disagree. This case is in no different position than the case of Quern versus Jordan was in 1979. In Quern versus Jordan, the issue involved was a question of whether or not notice really could be ordered. And in this case, the entire program to which the relief could have related had been abolished for over a year by the time the District Court considered notice of relief and had been abolished for approximately four years by the time that this Court approved the notice of relief. However, in the case, and I think it is an indication of how that case was still alive, in that case this Court affirmed an en banc Seventh Circuit decision saying that notice really should be ordered, and after notice of relief was ordered, in fact, the class members, some of them, filed for administrative bearings, and then after they had exhausted their administrative remedies, went to the Illinois Court of Claims, and in fact were able to get an award of benefits. Now, that award of benefits, of course, was under state law as a result of actions taken by the state courts.
William H. Rehnquist: There were no damage claims in Quern?
William Burnham: There were no... well, Quern was Edelman versus Jordan revisited. Consequently there was originally a request for equitable restitution, in other words, a direct award that the state pay those benefits. This Court in Edelman versus Jordan, of course, held that that violated the Eleventh Amendment. On remand to the District Court in Quern, the District Court and the Seventh Circuit agreed that no such order, of course, direct order to pay benefits would be entered. However, limited injunctive relief requiring that a notice be provided of the availability of state administrative remedies could in fact be ordered, and that was the context in which it arose. In other words, this case is just like Quern in the sense that there is no current live claim for an injunction against future violations. However, there are live claims for past violations and for notice relief to allow the claims the opportunity to seek redress for those past violations.
Lewis F. Powell, Jr.: Mr. Burnham, as I understand it, you make no claim for prospective relief.
William Burnham: That depends on how one interprets the term "prospective".
Lewis F. Powell, Jr.: Well, identify what you claim as possibly being prospective if the court below thought you had advanced any claim for prospective relief.
William Burnham: Well, Justice Powell, the understanding of prospective relief, if I understand the question correctly, prospective injunctive relief against future violations, there is no claim for that. That is correct.
Lewis F. Powell, Jr.: And no claim for damages.
William Burnham: And no claim for damages.
Lewis F. Powell, Jr.: And I understand you want notice relief, but what would that relief lead to? Would it lead to a damage claim against the state for alleged violation of law prior to 1981?
William Burnham: It may if the individual class member who received that notice decided that they wanted to take advantage of it and at that point to request an administrative hearing, and then to get judicial review of that administrative hearing decision. Under Michigan law, administrative hearings are available in the circumstance. They are, of course, compelled by federal law. In other words, Michigan may not have an AFDC program unless it has a system of hearings.
Lewis F. Powell, Jr.: In Quern, my recollection is that the notice relief was ancillary to some prospective relief. If that is correct, do you have an analogy here?
William Burnham: I believe... Your Honor, I believe, is referring to the statement in Quern about the notice being ancillary to prospective relief already ordered.
Lewis F. Powell, Jr.: Yes.
William Burnham: The defendant's and the Sixth Circuit's interpretation of that is that that referred to the permanent injunction, which of course had in the intervening time become moot because of the abolition of the program to which it related. It is our view that that phrase simply refers to the way that the word "ancillary" is used in Eleventh Amendment jurisprudence. In other words, a full statement distinguishes between the notice that was approved by the en banc Court of Appeals and the notice that was approved by the District Court. And the court was in essence saying the notice approved by the District Court was not ancillary, but the notice of proof by the Court of Appeals was ancillary. Well, if in fact the Sixth Circuit's reading of ancillary is correct, that would make no sense, because those notices, the only difference in the notices was the form of the notice, and the fact that it could be ordered was the same in both situations, both in the District Court and in the Court of Appeals. Consequently, taking that data, it is quite clear that it could not have referred to ancillary power to enter that kind of relief. It could only refer to the usual meaning of ancillary, which is that the effect of that relief was ancillary to a proper substantive federal question determination.
Byron R. White: Why was a declaratory judgment proper?
William Burnham: Under the facts of Jordan?
Byron R. White: This case.
William Burnham: In this case, the declaratory judgment is proper--
Byron R. White: The only purpose of it would be to effect... to declare whether the federal law had been violated in the past.
William Burnham: --Yes, that would be the purpose of the declaratory judgment.
Byron R. White: And the only purpose of it would be to give somebody a basis for making a claim in state administrative proceedings.
William Burnham: Well, the purpose would be to settle the rights of the parties.
Byron R. White: Certainly you wouldn't say that notice would have been properly ordered except for a declaratory judgment.
William Burnham: Well, no. I would say that the notice of relief may be ordered without any formal declaratory judgment.
Byron R. White: Why?
William Burnham: Well, in the same--
Byron R. White: --that there is--
William Burnham: --Well, in the sense that any injunction is ordered based upon a determination that the law was violated, there was no need for separate declaratory relief. In other words, a federal court may enter an injunction, an affirmative injunction, without necessarily entering declaratory relief.
Byron R. White: --I know, but the injunction is moot, in this case. I mean, wasn't the law changed?
William Burnham: That's correct, and consequently one has to at that point separate the determinative federal... substantive federal question determination from the issue of the injunction.
Byron R. White: So you have to say you are entitled to a declaratory judgment about whether the state had been violating the federal law.
William Burnham: At least in effect one would have to do that, yes. But this is no different than any other--
Byron R. White: Why is that prospective? That seems to me that is-- --Looking back. --looking backward.
William Burnham: --Well, it is prospective in the sense that... in the sense that the federal determination, the federal question of determination determines how it is that in the future the state will have to deal with past claims.
Byron R. White: Well, I know, on the basis... that would be the same if you ordered money be paid. It is always pain in the future. And the Eleventh Amendment wouldn't--
William Burnham: Of course. I am not saying that the money would necessarily be... in other words, I am not saying that just because actions are going to be taken in the future, that it is prospective.
Byron R. White: --What are you saying?
William Burnham: What I am saying is that in order to be prospective, the relief must be based upon some ongoing federal duty, and if there is an ongoing federal duty to take action with respect to past claims, which there is in the federal statute and the federal regulations, then an order enforcing that ongoing duty can in fact be prospective.
Byron R. White: You could say the same thing about money. Yes.
William Burnham: That could be, but this case does not involve--
Byron R. White: It could be, but it would still-- --Edelman against Jordan rejected that as to money.
William Burnham: --That's correct, and we are not dealing with monetary relief, and for that reason--
William H. Rehnquist: But you are dealing with something that is just almost identical. Why shouldn't it be rejected for the same reason?
William Burnham: --Well, that was precisely the argument that was made to this Court in Quern, that in fact this, the Quern case, after it came back with notice relief, was no different than Edelman, and this Court made the distinction between an order which propels the state to pay money and an order which simply determines illegality and orders some nonmonetary relief.
Byron R. White: I know, but whether the Court was right or wrong in Quern, it said that it was ancillary to prospective relief, didn't it?
William Burnham: Yes, it did. I--
Byron R. White: Well, stop right there. What is the prospective relief again in this case?
William Burnham: --Okay. The prospective relief, if in fact this comment means something beyond what the court had said in the previous paragraph, that in fact the prospective relief is a substantive federal question determination that in this case Michigan violated federal law before October 1st.
Byron R. White: It is hard to swallow that. Really, it is cutting it awfully thin. Just quite apart from mootness, is that, giving prudential consideration in some way, is that a sound use of declaratory judgments, to render a totally abstract decision on something where the federal court cannot give injunctive relief because it is not applicable? It can't give damage because of the Eleventh Amendment, but nonetheless adjudicate the merits in a declaratory judgment, and then take that into state court where you are going to plead it is res judicata on liability?
William Burnham: Well, this Court made clear in Quern that whatever the class members were going to do with the notice, and going to do with the substantive federal question determination necessary for it did not really affect the issue of whether or not the notice relief order should be entered. It is our--
William H. Rehnquist: Well, but that doesn't really answer my question. I asked you if you thought it was a sound use of declaratory judgments to use it in that manner.
William Burnham: --Yes, I believe it is, because otherwise what is going to happen in this case is that without that declaratory judgment, the state may treat any action that it took in the past as valid.
William H. Rehnquist: But the state would have to defend the action in state courts. You know, maybe the state courts would come to precisely the same conclusion.
William Burnham: That is, of course, possible, but in this case we have in fact, we would have a delay between the time that a state court will render a decision, and we have in fact persons who received benefits under preliminary injunction. If no final judgment is entered saying that they in essence directly receive those benefits under the preliminary injunction, then the state is open to... those benefits, because they may treat the actions that they had taken as having been legal during that time, despite the fact that there was a preliminary injunction. This Court in Edgar versus White rejected the idea that in fact there is some immunity because of that, and the state is certainly open to do that. Now, they have, to grant them, they have disclaimed any interest in doing that. I would submit that that is solely for the purpose of saying, well, this matter is really completely moot.
Thurgood Marshall: You want us to give you some relief that you might or might not use ancillary in the Michigan state court?
William Burnham: I am asking the Court to give us relief, and that the relief is complete upon its being given, because the relief, the interest the class members have is an interest in the opportunity to apply for that hearing.
Thurgood Marshall: It only can be used in the Michigan state court.
William Burnham: It may be used in the Michigan state court.
Thurgood Marshall: That is the only place. That is the only place it can be used.
William Burnham: No, it could be used in the Michigan administrative tribunal. If they win there, they don't have to go to the Michigan state court, no.
Thurgood Marshall: And they don't have to follow it.
William Burnham: They would have to... I would think that the usual rules of collateral estoppel would apply to issues that are actually adjudicated. That would not prevent the state from interposing some other defense, for example, its own sovereign immunity. It could in fact say that the claim are time barred, as it has claimed in this case. Any number of ways that in fact the plaintiff would be... would not be able to get a final judgment actually awarding them money. But what is important in the case is that in fact they have an adjudication which settles the rights of the parties, and they get the opportunity. If they want to avail themselves of that opportunity, they have the opportunity to have a readjudication of whether or not they were entitled to those benefits if they seek that readjudication.
Thurgood Marshall: We are sort of pendent jurisdiction to Michigan.
William Burnham: I don't believe it is pendent jurisdiction simply because that notice relief stands on its own... in other words, notice relief should be no different than any other kind of injunctive relief which is nonmonetary. An example would be a state university student who is expelled for a period, or a public employee who is dismissed. It could well be that that dismissal period is over, and in fact they are back on the job by the time that they start their... by the time that their lawsuit is filed. In that case, it would be very injust to have the District Court say that it can't do anything. The disciplinary record might be disseminated to other employers. It may in fact follow the person throughout their tenure there. Consequently, the District Court should have the power to enter nonmonetary relief--
Byron R. White: You know, there are some federal statutes that restrict the power of the federal courts to issue injunctions.
William Burnham: --Yes.
Byron R. White: And although the statutes don't say so, the courts have said the same rule applies to declaratory judgments.
William Burnham: If Your Honor is referring to the Younger versus Harris, Samuels versus McKell sort of--
Byron R. White: I am not talking about those. There are statute, for example, that keep the federal courts from enjoining the collection of taxes.
William Burnham: --Yes.
Byron R. White: Well, those have been interpreted to apply to declaratory judgments, too.
William Burnham: Yes, in the McNary case.
Byron R. White: Yes, and that is the argument here. When you enter a declaratory judgment, you have tied the state's hands.
William Burnham: Well, I believe that there are distinctions between the anti-injunction statutes on the one hand and the Eleventh Amendment on the other. It is petitioners' view that the Eleventh Amendment does not bar a determination of past misconduct, but in fact the Eleventh Amendment only bars certain kinds of relief based upon that, and in fact a violation of federalism or a violation of the statute that might occur occurs just because of the determination, and in the Eleventh Amendment case that is not the case. There are numerous situations were the federal court adjudicates the legality of past misconduct, but so long as relief is entered that does not violate the Eleventh Amendment, that is okay.
Byron R. White: Suppose the statute hadn't been amended at all. Then the Court could probably have said, determined what the federal statute required, and if the statute was being violated, it could have entered an injunction.
William Burnham: Yes.
Byron R. White: The Eleventh Amendment would permit prospective relief.
William Burnham: Prospective relief, even though it cost money.
Byron R. White: Then I suppose... I would suppose the same objection could be raised in those circumstances to giving them notice that they are being here.
William Burnham: That is true.
Byron R. White: Because... on the grounds that it is really ancillary to retrospective relief.
William Burnham: Something along that line could be argued. In other words, it should make no difference whether or not the notice relief is sought by itself of sought in conjunction with a future looking injunction. As a matter of fact, the facts of Quern versus Jordan illustrate that beautifully. In fact, there were two separate groups of persons involved, the persons who were going to apply after the final judgment and the group of people of which Mr. Jordan was a member who had already applied before judgment, and as a member who had already applied before judgment, and as a matter of fact Mr. Jordan had litigated for some eight years, and had gotten no relief. As a matter of fact, he was not covered by any of the relief in that case until notice relief was entered.
William H. Rehnquist: But the determination of illegality in Quern was originally made in the context of the Edelman pleas, where the Court determined illegality and awarded damages, thinking that it could do that.
William Burnham: That's correct. That is one difference in that case. It was in fact originally ordered--
William H. Rehnquist: The determination of illegality served a purpose in the federal court. That is, it was the basis for awarding damages, albeit later held to be improperly awarded, but your determination here by declaratory judgment doesn't serve any purpose other than to take it into another court system and say, look, it is res judicata.
William Burnham: --Well, if that logic were applied, then there would be no situations that one could think of where notice relief would be appropriate. For example, the appropriate substantive federal question determination to support notice relief would have to be that the defendants had violated the plaintiff's rights in the past.
Byron R. White: In the past.
William Burnham: Now, that... if a prospective injunction is entered, that is not a necessary basis for that prospective injunction. Consequently, one... award of it even where there is a prospective injunction, you can't order notice relief because there has been no relevant finding of past misconduct. So, the only situation that notice relief would apply would be the peculiar facts of Edelman, where the District Court makes a mistake and enters the wrong kind of order first, gets reversed, and then says, okay, now I will enter a notice relief. That would be the only situation.
Sandra Day O'Connor: Perhaps it would apply if there were a finding of a continuing violation, which is not the case here.
William Burnham: If there were a finding of a continuing violation, one could argue that that only determines that from that date of judgment forward the defendant is violating federal law. Again, that doesn't give us any determination as to what the status of that conduct was in the past. It is always necessary to--
Sandra Day O'Connor: Well, the point being that perhaps there could be continuing violations and prospective relief as to those to which notice could properly be given.
William Burnham: --That is correct, and this case presents a very unusual situation that way, because I just found out as of last Friday the state is in fact violating current federal law on stepparent asset assumption. And--
Sandra Day O'Connor: Well, we don't take it on that record, of course, I assume, do we?
William Burnham: --No, we don't, but I would... I believe that that... that indicates just how illogical it is to somehow tie notice relief, if in fact, if in fact we were able to show that, if we tie notice relief to an injunction that is based upon a violation of a totally different federal law or a totally different class of people and somehow say that just because we can say that is ancillary to that it is okay, that is not a very firm basis on which to base a belief.
Sandra Day O'Connor: Well, conceivably, that could explain or distinguish the Quern decision in any event.
William Burnham: On the facts of this case?
Sandra Day O'Connor: That the finding there was with relation to a continuing violation--
William Burnham: Yes, the--
Sandra Day O'Connor: --under the notice.
William Burnham: --Yes, that would be one distinction. We would argue that it should make no difference because in fact that injunction had been totally moot for some four years.
Sandra Day O'Connor: This case does cause one to wonder whether the declaratory judgment isn't being sought in effect to determine liability, and just leave enforceability to state courts to determine statutory time bars or that sort of thing.
William Burnham: Well, that is an important point. I believe it is important to emphasize that a declaratory judgment does not establish any state liability for payment of anything. It simply establishes that the state through its regulation violated federal law in the past, but the consequences are of that determination--
Sandra Day O'Connor: Well, that is the point. If the state has violated federal law and the declaratory judgment reveals that payment should have been made under federal law, then that in effect determines state liability, and what is left is really a determination in state court of enforceability, and that might turn on what the statute of limitations might provide or what remedial limitations there might be at the state level.
William Burnham: --Yes, that's true, and that would be the situation on the Quern case as well.
Sandra Day O'Connor: Well, if that is the case, then it does seem to be very close to Edelman, when you are really providing a form of financial relief, in effect retroactively.
William Burnham: It would be petitioners' position that the same description of the effect of notice relief applied in Quern would apply in this case, and that would be that the chain of causation is clearly severed, and that it is in fact up to the state as to whether or not... what they do with this substantive federal question determination, that they may in fact not have to pay any benefits.
John Paul Stevens: Maybe this has already been covered, but did the Court of Appeals hold that both the notice relief and the request for a declaratory judgment were barred by the Eleventh Amendment?
William Burnham: I am not entirely clear about the declaratory relief. I believe what they said was, the notice of relief was barred.
John Paul Stevens: Right.
William Burnham: And that to the extent that we sought declaratory relief, I think the clear implication of that is that declaratory relief is barred. I don't think that they--
John Paul Stevens: In other words, their position was that I guess the declaratory judgment went to a question of federal law. In effect they were saying the Eleventh Amendment requires that that question of federal law must be decided by a state court.
William Burnham: --In essence that would be the only place that the plaintiffs could go. That is correct. Under the circumstances of this case, plaintiffs believe that the District Court, that the Sixth Circuit decision is completely contrary to the rule of Ex Parte Young and the rule of Edelman versus Jordan. Ex Parte Young in essence held that a suit against a state officer is in fact not a suit against a state, but Ford Motor Company and Edelman, of course, make it clear that it in fact monetary relief is sought, then that pierces the fiction of Ex Parte Young, and it again may become a suit against the state. Under the circumstances here, the Court in Quern has quite clearly held that notice relief, this kind of relief, is not a money judgment, and consequently the Ford Motor Company exception does not apply to that. Consequently, it should be treated no differently than any other kind of injunctive relief, and after all, it is an injunction. It is an order to the state that they in fact provide certain kinds of notices to the plaintiff class members. And under the circumstances, it should not be deemed to violate the Eleventh Amendment. Indeed, the Ex Parte Young Court mentions the situation of habeas corpus relief, which is a situation where obviously there is a determination that in the past the state officials violated the federal rights of the plaintiff. However, the Court indicated that that was not a violation of the Eleventh Amendment. That is a clear indication to petitioners that Ex Parte Young was not as narrow as the Sixth Circuit would say it was. In other words, it did not just provide for prospective injunction against ongoing violations. In fact, it contemplated explicitly a determination of past misconduct, and of course that in modern Eleventh Amendment parlance, the habeas corpus writ would not violate the Eleventh Amendment simply because there was no impact on the state treasury in that situation. That is like the expunction case. That is like the public employee record expunction situation. It is non-monetary relief, albeit based upon a past determination of misconduct, and that is permitted by the Eleventh Amendment. The final point I would like to mention is that the reading of the Sixth Circuit in this case of Ex Parte Young gives the state a virtually limitless power to control the jurisdiction of the District Court. There was a great deal of delay in these cases, and of course the federal court dockets are very crowded. The state can quite easily have an incentive to look to delay because they can simply avoid any determination of past misconduct by at the eleventh hour complying with future... with ongoing federal law. If they do that, then they wipe out any past claim for the back benefits. That sort of control over the court's jurisdiction quite clearly should not be allowed. The facts of this case, in fact the stepparent violation that we believe is... the state is engaged in right now, quite clearly the state could render that issue quite moot by saying, okay, we know the stakes are high in this case because an order could be ancillary to that ongoing injunction. Consequently, we will decide that we will comply. That would then divest the District Court of jurisdiction, and under the ancillary theory of Quern there would be no basis for ordering a notice relief remedy. That sort of power should not be allowed, and it doesn't make any sense, simply because the issue of future violations and the issue of past violations are two rather distinct things. Thank you.
Warren E. Burger: Mr. Caruso.
Louis J. Caruso: Mr. Chief Justice, and may it please the Court, the Court of Appeals decision in this case that is on review was compelled by law principles that were previously established by decisions of this Court, and the purpose of the Eleventh Amendment requires adherence to those principles. In this case, the petitioners could have availed themselves of a state forum. Instead, they chose the federal forum to deal with two cases in which the judicial power was constitutionally limited, and now are strenuously attempting to override that limitations. They contend that they are not after money relief by way of a judgment. A declaratory ruling of past actions coupled with a notice as an invitation to class members to seek state administrative relief as to those past actions as requested here, I suggest, is designed to obtain retroactive payment of an accrued monetary liability through the force of a federal judicial power in contravention of the Eleventh Amendment. And it certainly becomes quite evident that that would be the case when you consider the nature of a declaratory judgment. A declaratory judgment under the Act is a final judgment, and it adjudicates the rights of the parties involved, and it is an actual case in controversy, and it would cover a period here when the respondent was not under a final court imposed obligation to comport her conduct with different standards. Now, this becomes quite evident when you consider the ancillary notices that were considered in Quern and in Edelman and in Trainor v. Jordan. The first notice was rejected by the court. After rejecting the first notice, they approved a notice that merely advised the class that the court described as one that simply informed the class that the federal suit is at an and and the federal court can provide no further relief, and if they may wish to pursue state administrative remedies, they may do this. But this kind of notice, the Court said, didn't impose any retroactive liability. It was in no way handicapped by a federal court determination of state liability, and in that case, in the case, in the Quern case, there was an adjudication by the court of misconduct, and there was a prospective compliance order entered in that court, and we don't have that situation here. The Court, however, found the first notice offered in Quern to be infirm. It expressed a finding of past liability. That notice stated, you are denied public assistance to which you were entitled. Respondent submits that if the Court were to allow that kind of notice that was found acceptable by the Court in Quern to be coupled, predicated on a declaratory judgment of past actions as requested by petitioners, the Quern notice would be changed in its import because it would become indistinguishable from a substantive federal question determination by a federal court of past action. It would import the same degree of finality that the first notice that was proposed in Quern that was found to be, that was found by the Court to be infirm. It would permit, as the Court said in Colbeth, to do indirectly what is prohibited to be done directly. Insofar as Ex Parte Young is concerned, Ex Parte Young was cast by the Court as an exception, as a necessary exception to vindicate federal rights. And the relief in that case was a prospective compliance order against a state official to comport, to have that official comport his conduct with the constitution and not enforce a statute that was held to be unconstitutional. At no time has Ex Parte Young or the subsequent cases applied by this Court dealing with the exception encompassed declaratory judgments of past actions in the notice relief requested here.
John Paul Stevens: May I ask a question, Mr. Caruso?
Louis J. Caruso: Yes.
John Paul Stevens: This case is somewhat unusual because of the change in the law on October 1st, 1981, as I remember the facts.
Louis J. Caruso: That's right.
John Paul Stevens: If there had been a judgment entered by the District Court, say, on September 15th, 1981, pursuant to a complaint which asked for injunctive relief and declaratory judgment, would you say that at that time the Court could have entered a declaratory judgment?
Louis J. Caruso: No, the Court could not have entered a declaratory judgment unless a declaratory judgment was related to the prospective... the ongoing violation.
John Paul Stevens: Supposing the judge--
Louis J. Caruso: I did not ask for past violations.
John Paul Stevens: --Supposing the judge... you don't think the finding as to past violations... say there was no change in the law at all. Could he not then have entered a declaratory judgment saying you violated in the past, and I want the parties to argue about the kind of injunctive relief what was appropriate, and one of the things I will take into consideration is the nature of the past violations?
Louis J. Caruso: It may take into consideration the nature of the past violations only for the purposes of stopping the ongoing violation insofar as the exception to the Eleventh Amendment is concerned, because the Eleventh Amendment is concerned, because the Eleventh Amendment prohibits equitable and legal relief in state courts against the state.
John Paul Stevens: My question is whether... if at the time the declaratory judgment is entered it is then legally permissible to enter an injunction, why isn't the declaratory judgment also legally permissible at that time, just as a predicate for the rest of the litigation?
Louis J. Caruso: Because a declaratory judgment is not a prospective compliance order. That is the only exception that is permitted.
Byron R. White: Wouldn't the District Court in an injunction action enter his conclusions of law?
Louis J. Caruso: Yes.
Byron R. White: And the proper basis for an injunction is that there is a violation of law that has been going on.
Louis J. Caruso: That is correct.
Byron R. White: And you conclude that there is... that this is what the statute means, this is what the state is not doing, and therefore you need an injunction. Now, that is for all intents and purposes a declaratory judgment.
Louis J. Caruso: It is not a declaratory judgment.
Byron R. White: Well, what is it? What is it? It is a declaration--
Louis J. Caruso: Well, it requires... it requires--
Byron R. White: --that the state is violating the law, and therefore it is an injunction.
Louis J. Caruso: --If that is a declaration of the violation of the law that is occurring at that time, it would not be prohibited by the Eleventh Amendment. Based upon that declaration of violation an injunction could be entered under the Eleventh... and not violate the Eleventh Amendment as to prospective compliance.
Byron R. White: And in Justice Stevens' example, suppose six months before this law was changed--
Louis J. Caruso: Yes.
Byron R. White: --There was an injunction, there was an injunction entered based on a declaration or a conclusion that the law was being violated.
Louis J. Caruso: Then a proper Quern notice could be entered as predicated on that injunction--
Byron R. White: Exactly.
Louis J. Caruso: --that is based upon the declaratory judgment that was entered.
Byron R. White: Yes.
Louis J. Caruso: And that injunction that would be entered--
Byron R. White: Isn't that exactly true of the stepparent case in this case?
Louis J. Caruso: --No.
Byron R. White: Well, there was a preliminary injunction entered.
Louis J. Caruso: There was a preliminary injunction, but a preliminary injunction--
Byron R. White: And that injunction was on appeal. Wasn't the state supposed to have made that injunction?
Louis J. Caruso: --That preliminary injunction was against the state, but it was a preliminary injunction. It was never filed--
Byron R. White: Wasn't it supposed to... wasn't it supposed to obey the preliminary injunction, or was it--
Louis J. Caruso: --And it did obey the preliminary injunction. It did comply in every respect, and it did make the payments.
Byron R. White: --I see, so they made the payments.
Louis J. Caruso: That's right.
Byron R. White: So there wasn't any need for a notice for that period.
Louis J. Caruso: There wasn't any need to have any notice. There isn't any need at this time because not only did they pay with respect to the claim--
Byron R. White: Okay, that is all I wanted.
Louis J. Caruso: --But... that's right. Now, one of the things you may have as a prospective injunctive order could be based, Justice Stevens, upon a declaratory judgment of ongoing violation. Perhaps I misunderstood, and orders ancillary to such injunctive relief have been permitted by the Court as necessary to accomplish termination of this conduct, because the essence of the Ex Parte Young exception is termination of unconstitutional conduct by state officers by a prospective injunctive order absent Congressional abrogation or a state waiver of that immunity. Now, the orders ancillary to injunctive relief have been permitted by the Court, and an example of that is Milliken v. Bradley, which required the taking of affirmative steps that resulted in expenditures of money out of state treasury, but that relief, however, so far as the ancillary order is concerned, was prospective and primarily directed toward cessation of the violation of the federal law. As a matter of fact, in Milliken v. Bradley, the Court made it very clear that that is all they could do, is to award prospective relief, prospective compliance order. I wish to make it clear here--
John Paul Stevens: May I pursue my other question just--
Louis J. Caruso: --Pardon me.
John Paul Stevens: --because I am not quite sure I follow everything you are saying. Supposing again in my hypothetical example you have a declaratory judgment and an injunction entered, which you agree would not be barred by the Eleventh Amendment.
Louis J. Caruso: Yes.
John Paul Stevens: Then 30 days later Congress passed the new statute that says you don't have to follow this procedure any more, and so the state goes in or its officials go in and say we want the injunction vacated because the law has been changed. You vacate the injunction.
Louis J. Caruso: Yes.
John Paul Stevens: Would the Eleventh Amendment require that the declaratory judgment also be vacated, in your view? And if so, why?
Louis J. Caruso: I don't believe it would require the declaratory judgment to be vacated if the law was changed because there was a determination at that time that the state was in violation of federal law by virtue of the declaratory judgment and an injunction put in place.
John Paul Stevens: And it had been violating federal law for the past two years.
Louis J. Caruso: So then after that the law had changed. I wouldn't say it would be necessary to vacate. It would be ineffectual. It wouldn't--
John Paul Stevens: Well, it wouldn't be ineffectual as it might happen here. The members of the class thereafter go into Michigan administrative proceedings and say we would like to get out past benefits or whatever it is based on that finding of illegality, and the state would have to decide whether or not to pay.
Louis J. Caruso: --If there was an ongoing violation and a determination of that ongoing violation by a declaratory judgment upon which there was based an injunction, and notice on that injunction to the class concerning the violation, I would say that they could do that in the state administrative procedure. That would be all right. But in the hypothetical that you pose there would have been a determination of liability of an ongoing violation. In this case there is no such thing as an ongoing violation. There is nothing to enjoin. There is nothing to determine except--
John Paul Stevens: Well, is the ongoing violation--
Louis J. Caruso: --Except by going in the past and making a declaratory judgment as to past actions.
John Paul Stevens: --Is the ongoing violation essential? Sometimes we get cases where a governmental agency has voluntarily changed its policies pending adjudication, supposing before the time of the judgment they voluntarily changed their policies and then later on there was the statute.
Louis J. Caruso: In that hypothet there would be no determination by a court as to ongoing violation, and that is necessary. There must be an adjudication by a federal court.
John Paul Stevens: Not an adjudication of liability, adjudication of ongoing violation.
Louis J. Caruso: An ongoing... an adjudication of liability concerning their present acts and the relief would be to stop that ongoing violation, in other words, to put a termination to that--
Byron R. White: Well, it can't be ongoing if they are going to evade the injunction, and as soon as the injunction entered, whatever the violation was--
Louis J. Caruso: --That ends it.
Byron R. White: --it stops.
Louis J. Caruso: That ends it. That stops. That's right.
Byron R. White: And so what would the possible purpose of a notice in that situation be except to be of an aid to past violations?
Louis J. Caruso: I think that that is the way you have to read the Quern notice. The Quern notice, I think, probably would have to be the past violation, but nevertheless insofar as we... as the courts have gone today, it has to be based upon a prospective compliance order and not a judgment as to past action, because an injunction, a determination by injunctive order doesn't adjudicate the actions that have taken place heretofore as a declaratory judgment to past actions would necessarily do. At any rate, as I say, I wish to make it clear that the respondent does not seek any decision here that would permit the avoidance of the state's responsibility with respect to the state's federal aided programs, public welfare programs, because they do have the administrative procedures in place or mandated by Congress, and also there is available the judicial forum in the state and they could... that could review any decisions made at the administrative level, and they could take judicial action.
John Paul Stevens: But, Mr. Caruso, it is true that your position is that whatever federal question of law has to be decided ought to be decided by the state court.
Louis J. Caruso: Not every federal question of law, but in this situation, the type of relief that they are seeking here should be decided in state court because the type of relief that is available to them because of the Eleventh Amendment immunity is only a prospective injunction, and a prospective injunction is not available here simply because there is no violation of federal law, and there has never been a determination made by a federal court that there was at any time a violation of federal law.
Warren E. Burger: You have one-half minute left, if you can do anything with that.
William Burnham: I would like to just briefly respond to something that Mr. Caruso said about the availability of hearings. In fact, as indicated in our reply brief in the stepparent case, for those persons who asked for hearings, they were denied hearings. They were told that because it was an automatic change in grants and so on, they could not get an administrative hearing. Now, later they changed that policy when they found that that was also a violation of federal law. However, at the time that the suit was filed, it was quite clear that the plaintiffs were unable to get any relief by way of the state administrative tribunal, which is, of course, one of the reasons why they filed in federal court.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The honorable Court is now in recess until 4 o'clock, this date.