John G. Roberts, Jr.: We'll hear argument first this morning in Case 06-11612, Gonzalez v. United States. Mr. Newton.
Brent E. Newton: Thank you, Mr. Chief Justice, and may it please the Court: Petitioner was not present at the bench conference and did not have the assistance of an interpreter when the magistrate judge solicited his attorney's consent to conduct jury selection. The record does not reflect the Petitioner personally consented or ever learned of his attorney's consent. Whether defense counsel can unilaterally waive a criminal defendant's right to an Article III judge at jury selection, as occurred in this case, is a serious constitutional question. Applying the constitutional avoidance doctrine, this Court should avoid answering this question by interpreting the III judge at felony jury selection.
Ruth Bader Ginsburg: Mr. Newton, you're not claiming in this case that the defendant was any way disadvantaged by the magistrate judge conducting the voir dire, are you?
Brent E. Newton: I'm contending that the denial of his right to an Article III judge at felony jury selection violated his rights.
Ruth Bader Ginsburg: But there was no objection to any of the proceedings by the magistrate judge. There were no objections to any... well, she didn't do the questioning. She allowed the lawyer to do the questioning.
Brent E. Newton: Well, I think it was a combination, Your Honor. No, we're not making any allegation of discrete error during the jury selection process. We're contending that there should have been a personal waiver of the right to an Article III judge. The "Additional Duties" Clause--
John G. Roberts, Jr.: This may not be a pertinent question, but where does the right to voir dire come from in the first place?
Brent E. Newton: --The Court has discussed the right to voir dire in capital cases and in non-capital cases as it relates to the right to a fair trial, the right to an impartial jury--
John G. Roberts, Jr.: So it's derivative from other rights? In other words, it helps implement the right to a fair trial, in the Batson context helps guard against an equal protection violation, but it's not on its own a free-standing right.
Brent E. Newton: --Well, Your Honor, I would say that the Court has said that, in a Federal case particularly, you have a right to an Article III, Section 2 right to a jury, as well as a Sixth Amendment right, and the Court has referred to this as an allocation of Federal judicial power in the people as well as in judges. So selecting the jury obviously is a... has constitutional implications with respect to the structure of Article III as well as any personal right a defendant may have to... to an impartial duty. The "Additional Duties" Clause is silent about the type of waiver or consent required and the silence is understandable.
Samuel A. Alito, Jr.: Well, where a defendant is waiving a jury trial or pleading guilty, that's something that an ordinary person can probably readily understand. But how likely is it that an ordinary defendant is going to have any kind of independent opinion on the question of whether it's better for the voir dire to be presided over by a district judge as opposed to a magistrate judge? Isn't the situation going to be in the vast, vast majority of cases that your client will simply turn to you and say, which do you think is better, and whatever the lawyer recommends, that's what the client is going to do? Isn't that the realistic situation?
Brent E. Newton: Your Honor, I don't think that's necessarily true. I've had... I represent people in trial court as well as on appeal, and I've had many clients who like district judges better than magistrates or magistrates better than district judges, depending on how they've encountered them in prior proceedings. So I don't think that's an assumption I would make. And, more importantly, other personal rights... the right to a grand jury, a petty jury... those are rights that a lot of defendants don't understand. I've had to explain to foreign clients what a jury is because they don't have juries in foreign countries.
Ruth Bader Ginsburg: But there's a big difference between having a judge trial and a jury of one's peers. The difference between having a magistrate judge and an Article III judge to do the voir dire doesn't have... is not a question of the same dimension.
Brent E. Newton: Well, Your Honor, it's hard to put these rights in terms of relative importance. The Framers clearly believed Article III independence was essential to our separation of powers and to the rights of defendants. John Marshall... the Court in Hatter quoted from former Chief Justice John Marshall saying that the rights... the right to an independent judge is perhaps most important in a... in a criminal case because the rights of the most powerful person, the prosecutor, versus--
Ruth Bader Ginsburg: Well, we're not talking about a trial. We're talking about the voir dire. And perhaps you could tell me one piece of information. In the Federal proceedings that I've observed, it's always the judge who does the questioning, and this one seemed to me extraordinary. The magistrate said it was her practice to let the lawyers do it, right?
Brent E. Newton: --Well, certain judges in Federal court tend to give the lawyers a lot of leeway. Other ones... other judges I've appeared before do it themselves. I think it depends. But ultimately it's the magistrate who is ruling on challenges for cause or ruling on what questions are appropriate.
Antonin Scalia: Whose thumb is the magistrate under? Is he under the thumb of Article I or Article II or Article III?
Brent E. Newton: Well--
Antonin Scalia: Who decides whether he stays on or she stays on as a magistrate?
Brent E. Newton: --Article III judges are the ones who select magistrate judges--
Antonin Scalia: So we're really not talking here about giving away any Article III power. I mean, the magistrate is only subject to Article III.
Brent E. Newton: --Well, Your Honor, the magistrate judges have been permitted to exercise the attributes of Article III power when they are adjuncts. The Court in Gomez unanimously thought that the magistrate's role at felony jury selection was not really that of an adjunct because there was no meaningful Article III review of the--
Antonin Scalia: That may well be, but the reason... the reason presumably is that an Article III judge, which goes... who goes through a much more substantial process of selection and confirmation is much more qualified. Now, if you want to make that argument, that's fine, but that's a quite different argument from saying that we're giving away Article III powers to magistrates, right? Magistrates are creatures of Article III.
Brent E. Newton: --Well, I think it's a twofold argument. It's one that we presume that Article III judges who have gone through the Senate confirmation and presidential appointment process, that they are more qualified as a general rule. But it is also an Article III exercise of power because magistrate judges do not have those protections that Article III provides to life-tenured district judges. So it is... it's both of those things.
David H. Souter: Would you go back to I think it was to Justice Ginsburg's question about the comparative significance of the waiver here. The paradigm examples of waivers that have to be personal are, you know, waivers of counsel, waivers of the right to put the State to trial. This question of waiving an Article III judge as opposed to an Article III appointed magistrate just does not seem to rise to the significance of... of the... of the... of those other paradigm waivers and what is... what is your response to that? You started to say that, you know, that the Framers said Article III judges are important because they... they have independence and so on. But beyond that kind of high theoretical level, is there anything in practical terms that you think brings this kind of a waiver to the point of significance of, say, waiving counsel?
Brent E. Newton: Yes, Your Honor. There are basically three characteristics that I can discern in the Court's jurisprudence about other personal rights that must be personally waived by a defendant on the record. First of all, it obviously must be a fundamental right, and I think that the Court's decisions in Hatter and Gomez and the plurality opinion in Northern Pipeline,... all those decisions I think establish that the right to an Article III judge at a critical stage of a criminal case is a fundamental right. But there's more than just that. That's necessary but not sufficient, because we have lots of fundamental rights that can be waived during the trial by the attorney. The other two characteristics are I think what distinguish this right and make it more like waiving counsel and waiving a petit jury and a grand jury and the right to go to trial at all. And besides being fundamental, the second characteristic is that this right concerns the players in the game as opposed to the rules of the game, the framework of the proceedings in the sense of the players. The right to a jury trial, the right to a grand jury, the right to counsel, those are rights that concern the players in the game, as opposed to, say, the confrontational--
Anthony M. Kennedy: Well, I see what you're doing. You're constructing your argument so that we have structural protections. I can understand that argument, but Justice Souter's question points out just as a practical matter this is not nearly as important as a failure to object to illegally seized evidence, a post... a post-arrest delay, open courtroom, all of which are subject to waiver.
Brent E. Newton: --Well, Your Honor, if I can answer your question, but also the third characteristic. The third characteristic of this kind of right is timing, how it's waived. The Court in Barker v. Wingo said these personal rights are to be waived at a discrete point in time, as opposed to something during the heat of battle of the adversarial process. So... and I would respectfully disagree that the right to an Article III judge, at least the right to have it without a personal waiver, is a fundamental right. This is something the Framers considered to be of utmost importance, and in Hatter the Court said the considerations that led the Framers to believe this was an extremely important right--
Anthony M. Kennedy: Well, I was interested in your comment on trying cases, but to say that you have to sit down and explain to the... to the defendant the difference between the magistrate and an Article III and why you like this particular magistrate... it's the attorney that does all the questioning, after all... it seems to me is... is a burden. It's not justified by the position that you're... you're submitting to us.
Brent E. Newton: --Well, Your Honor, Congress has made the judgment that this is such a fundamental right that it must be personally waived by a defendant.
John G. Roberts, Jr.: In practice, it's more a tactical decision than a theoretical one. I mean you can explain to your client the difference between Article III and a magistrate, but he's going to be more interested in your judgment about, oh, judge so and so doesn't let you get away with anything on voir dire, you know, he runs a tight ship. This magistrate will let me raise all sorts of other things. I mean, it's like an objection at trial, in other words. It's going to be a tactical decision rather than a theoretical constitutional one.
Brent E. Newton: Your Honor, the very same thing could be said of waiving a jury or a grand jury.
John G. Roberts, Jr.: Well, if you get to that point, which case of ours holds that the right to a jury trial is a personal right that the defendant must waive rather than waive through counsel?
Brent E. Newton: Two cases Your Honor: Patton v. United States, 1932, and Adams ex rel. U.S. v. McCann, which reaffirmed, and the Court has cited those two cases repeatedly for the proposition that this is a right that must be personally waived. The fact that there is a--
Antonin Scalia: You say it was the holding in Patton?
Brent E. Newton: --Patton I suppose would have been--
Antonin Scalia: I suppose it was dicta.
Brent E. Newton: --But it became enshrined in Adams, and it has been cited repeatedly for that proposition. The rule reflects it. The rule of criminal procedure reflects it. The fact that there is a strategic or a tactical aspect--
Antonin Scalia: I thought what Adams stood for was that the defendant can himself waive the right to jury without advice of counsel, that if he wants to do it on his own he can do it without counsel. It doesn't mean that if counsel does it without his objection at the time it's invalid.
Brent E. Newton: --Well, Your Honor, it's... the language in Adams which quotes from Patton says it must be the express, intelligent consent of the defendant, which has been widely interpreted as personal--
John G. Roberts, Jr.: But that can be expressed through counsel. I mean, does... you know, does your client consent to this? Yes. I mean it's quite a different question to say that he has to be the one who stands up in court and says it.
Brent E. Newton: --Well, my alternative position is, at the very least, the record needs to reflect that when counsel speaks, counsel is directly speaking with the approval of the client. In Peretz that was the situation. In Peretz the pretrial conference involved a waiver by the defense attorney in the presence of his client and then followed up by... at the jury selection process the magistrate said: Mr. Attorney, do I have the consent of "your client"? And this was, again, in the presence of the defendant. That's in marked contrast to what we have in this case, which is all indications were going to be it was going to be Judge Kazen picking the jury, the Article III judge. And, then, all of a sudden, the magistrate judge appears and directs only the attorneys to come to the bench.
Ruth Bader Ginsburg: You were referring a while back to the Gomez case. And if I remember that case correctly, it was the defense counsel who made the objection to the magistrate; and there's nothing to indicate whether the defense counsel had done that in consultation with the defendant. We don't have any idea what the defendant's wishes were, but it was the defendant... it was the lawyer who raised the objection.
Brent E. Newton: Well, Your Honor, I think that's distinguishable because when one is objecting to the violation of a right, that's different from acquiescing in a knowing and voluntary and intelligent waiver of the right.
Ruth Bader Ginsburg: It was the lawyer's choice, and we have no indication that it wasn't... it was anything other than the strategic choice of the lawyer. And your position is that it must come from the client, and there's no indication that it did in the Gomez case.
Brent E. Newton: Well, Your Honor, in Gomez it was an objection to a alleged violation of Article III, as opposed to a waiver of the right to an Article III judge. So it's... it's the converse of what we have in this case. In this case, there was no showing on the record implicitly or explicitly that Mr. Gonzalez, Petitioner in this case, waived or knowingly acquiesced in his attorney's waiver. I want to return, if I could, to... to Congress's intent. In 18 U.S.C. Section 3401(b), Congress was crystal clear they believed in a misdemeanor case the waiver of a right to an Article III judge had to be personal and expressed by the Defendant.
John G. Roberts, Jr.: But, of course, that was for the whole trial. This is for a very discrete aspect prior to trial.
Brent E. Newton: In Peretz the Court equated an entire delegation of a misdemeanor trial to delegation of felony jury selection. They were comparable, the Court said. The dissent in that case, at least Justice Marshall's dissent, said it's more important. So we have at least eight members--
David H. Souter: Peretz, also, if I understand the case correctly, equated the waiver with a failure to object. It seems to me that Peretz undercuts your argument.
Brent E. Newton: --Well, Your Honor, as I... as I think I've explained in the brief, Peretz is full of many statements that are ambiguous. But everything in Peretz has--
David H. Souter: Well, you say they are ambiguous, but isn't it... I've reread Peretz after many years getting ready for this argument, and it seems to me that it's difficult to read Peretz without reading the "waiver failure to object" phraseology as being equivalent.
Brent E. Newton: --Well, Your Honor, Peretz has to be read in light of two things: One, it has to be read in light of the facts of that case where there was a failure to object after the attorney had personally... or had stated his client personally considered it. Secondly, Peretz was decided before the Court in Olano distinguished between waivers and forfeitures. "Consent", even in the Fourth Amendment context, means at least knowing acquiescence. "Waiver" clearly means an intentional and knowing relinquishment of a right, and mere silence cannot be interpreted as... a mere failure to object cannot be--
Antonin Scalia: I mean, yes, but... everybody concedes that, but the question is by whom? Certainly very many rights, you will acknowledge, can be waived by counsel.
Brent E. Newton: --Yes, Your Honor.
Antonin Scalia: So you can't simply say it requires an express and knowing waiver, attributing that express and knowing waiver to the defendant. Sure, it does, but who has to be "express", and who has to be "knowing"? That's the issue before us here.
Brent E. Newton: Yes, Your Honor. I was responding to... there is really... the Government makes two arguments based on Peretz: One, that mere silence equals to a waiver or consent, and that's what I was responding to. The second argument... Peretz did not deal with the issue of who is the one to consent, because in Peretz there was, practically speaking, personal consent. The Court reframed the questions presented in Peretz to assume consent. There is--
David H. Souter: Well, except for one thing, and that is, if... if it is sound to say that Peretz equated "waiver" with "failure to object", "failure to object" is a... is a failure, if you will, of counsel, not of the defendant. Defendants don't get up and make objections; counsel do. And, therefore, it seems to me the implication of Peretz is that it would be a... a decision of the lawyer that would count for constitutional purposes.
Brent E. Newton: --Your Honor, I would think in certain cases, if it's a personal right and a defense lawyer stands up and says in the presence of his client, my client consents, and the client doesn't object or respond that, I disagree, then it's fair perhaps to assume there's a sufficient showing of... of personal waiver by the defendant. But, again, what we have in this case is just vastly different. We have nothing in the record--
David H. Souter: No, but the point was you were saying that in fact Peretz cannot be read as authority for the Government's position because the facts in Peretz, quite as you correctly note, were that the... the client had in fact consented, or that was the representation to the Court. And my point simply was that does not seem to have been the reasoning of the Court, because the reasoning of the Court in equating "waiver" with "failure to object" was a reasoning that in its reference to "failure to object" seemed to pinpoint the actions of the lawyer alone. Clients don't object; lawyers do. A failure to object, therefore, refers to, in effect, a failure by the lawyer, alone; and that would be the only significant datum for constitutional purposes. What is your response to that?
Brent E. Newton: --I disagree. I think that you have to read Peretz in light of the very special facts in that case, which involve two statements in the presence of the defendant: That the defense was not objecting or was consenting; and, then, in particular, the defendant, himself, was giving consent. And I think you have to also look at the Court's repeated focus on the fact that Peretz himself gave consent in that case. There was no occasion to decide which... which party, the lawyer or the defendant, was the one to properly waive in the Peretz case.
Samuel A. Alito, Jr.: Do you think there has to be a showing on the record that the waiver is knowing?
Brent E. Newton: Under 18 U.S.C. Section 3401(b), which I contend is the obvious analog for waiving in the felony context, yes, absolutely. I think, at the very least, to avoid a constitutional doubt, and that's... also, I should say up front, all of these arguments that we are... or points we're engaging in here simply show this is a serious constitutional question.
Samuel A. Alito, Jr.: So you think there has to be a colloquy like a Rule 11 colloquy or a waiver of counsel's, this is the different, this is what a district judge is, this is what a magistrate judge is, do you understand the difference between the two?
Brent E. Newton: It's going to obviously depend on the defendant because every case involving waiver depends on the particular circumstances. But, at the very least, there needs to be a showing of a knowing, voluntary waiver of a right to an Article III judge. This is done every day in America.
John Paul Stevens: I know it's a different context, but... it does not relate to the magistrate versus Article III judge, but do you think that a lawyer could stipulate that the judge or a magistrate presiding could do all the questioning and the lawyers would do none, without the... without the express consent of his client?
Brent E. Newton: In terms of the jury selection process?
John Paul Stevens: It seems to me that the voir dire is peculiarly the... an area in which the lawyer knows what he is up to and what's at stake, and the client does not.
Brent E. Newton: Well, I would think the lawyer could in that situation for the simple reason that you have already at that point established, presumably, an Article III judge is presiding or it has been validly waived. But picking the jury, the jury selection or, more properly, the jury exclusion, because it's really excluding jurors rather than picking them, that is a qualitatively different thing than deciding whether there is a jury in the first place or whether an Article III judge should preside over the jury selection. So I would say the lawyer could do that, because that's more the heat of the battle, the adversarial process working, as opposed to a discrete point in time before it.
John Paul Stevens: Do you think a jurisdiction could adopt a rule that was especially careful about selecting the jury panel and then decided they would take the first 12 jurors off an arbitrary list, just to pick them at random and have no voir dire during the trial, just to have a preliminary screening of qualifications of the... of the entire panel?
Brent E. Newton: I think certain jurisdictions have done that before. I think there's been bargaining by prosecutors and defense counsel. That again occurs during the adversarial workings of the proceedings as opposed to the discrete point in time before. The... Justice Alito asked about how this procedure would work. This has gone on every day in American courtrooms since 1979. Every day around America in courtrooms, Federal courtrooms, in magistrate judge cases over misdemeanors this kind of colloquy goes on. This is done every day. It's done in the very same courthouse that Mr. Gonzalez was tried in because they regularly refer felony guilty pleas to magistrate judges. And in the brief I've cited a couple of cases reported in Westlaw where District Judge Kazen has accepted reports and recommendations where the magistrate judge said, I went over the right to Article III judge with the defendant personally, he executed a waiver, and this was done on the record. So, this is not some innovative proceeding. This has been done since 1979 when they amended Section 3401(b). The legislative history to Section 3401(b) clearly shows that Congress believed the right to an Article III judge was a constitutional right that had to be personally waived by the defendant. That is further evidence this is a serious constitutional question. The Court should avoid answering that serious constitutional question because you can easily interpret the Federal Magistrate's Act, in particular the "Additional Duties" Clause, to allow for consensual delegation, which Gomez talked about and Peretz talked about, only if it's personal consent. So, this is not a leap of logic to think that Congress would have intended this in a felony case. Gomez held Congress never intended this, this was not something Congress intended, so the Court is going to have to fill in a gap in terms of what kind of consent is appropriate. And Congress has clearly signaled they believe a defendant's personal express consent is the type that is required. At the very least there is a serious constitutional question.
John G. Roberts, Jr.: Was there a right to voir dire at common law? I have the impression the judge would send somebody out and, you know, grab the first 12 people they could find.
Brent E. Newton: I don't know, Your Honor. I don't know the answer to that question. If I could--
Antonin Scalia: Could I--
Brent E. Newton: --Sure.
Antonin Scalia: --Are we supposed to go through every one of the rights that a defendant has in a trial one by one and decide, you know, this one the lawyer can make, this one the defendant must make personally?
Brent E. Newton: No, Your Honor. I think--
Antonin Scalia: One by one? I mean, I never thought that that was the approach we take.
Brent E. Newton: --I think the Court has already decided the vast majority of these. Taylor clearly referred to the confrontation or the Compulsory Process Clause. There are numerous other cases in which the Court has said, at least implicitly, that it's waived by the lawyer's failure to object. But there are a special class of rights: The right to a jury trial, the right to a grand jury, the right to counsel, the right to plead not guilty.
Anthony M. Kennedy: That gets back to your structural argument, which makes a certain amount of sense just insofar as knowing where the line is. On the other hand, I'm just not sure of the practical significance of the client's participation when it's really the attorney who is making the decision whether or not this magistrate will allow him to strut his stuff in front of the jury for a little longer than the district judge would. I just don't see how the client can really have much informed input into that at all.
Brent E. Newton: Well, Your Honor, the Framers clearly believed it was an extremely important right for defendants. Congress clearly believed this was a constitutional right defendants had to personally waive. The fact that the lawyer may be in a better position to make the judgment would be equally true in waiving a jury or a grand jury. And if I could reserve my additional time for rebuttal.
John G. Roberts, Jr.: Thank you, Mr. Newton. Ms. Blatt?
Lisa Schiavo Blatt: Thank you, Mr. Chief Justice, and may it please the Court: The decision whether to have a magistrate judge conduct voir dire is a strategic call that counsel is uniquely qualified to make. Counsel is best equipped to determine whether the magistrate judge's particular style, reputation or practice in addressing prospective jurors or resolving objections outweigh the independence conferred by Article III.
John G. Roberts, Jr.: Of course, it might be said of the right to plead guilty as well. The lawyer has a lot more experience with what kind of sentence the judge is going to impose, what the odds are of the jury returning a verdict of innocence. I mean, the fact that the lawyer is better situated to make the judgment doesn't mean it's not a fundamental right.
Lisa Schiavo Blatt: That's correct. And for the few fundamental decisions where the defendant must personally explicitly make, they have a monumental impact on the defendant, and they protect values that extend beyond mere... mere trial strategy. If a defendant is indicted for a criminal offense, he readily understands he's going to have to decide, do I want to plead guilty, do I want to stand trial, do I want counsel, do I want a jury. He does not readily appreciate that decisions that occurred during voir dire, such as whether to have an Article III judge or a magistrate, whether to exercise peremptory challenges, whether to challenge jurors for cause, whether to object to the prosecutor's actions. These are all decisions that are entrusted to counsel's best professional judgment and his fiduciary obligation to represent the defendant. The defendant... I mean, the defense lawyer also speaks for the client in exercising the defendant's confrontation clause rights, introduce or object to evidence, to object to the closing of the courtroom. There's just a small handful of fundamental rights. And for the vast majority of criminal defendants, they don't even have Article III rights, Mr. Chief Justice; they're in State court. So it's an important right. It implicates important trial issues. But nonetheless, counsel is best equipped to make it. And I do think, unlike the decision whether you're going to be convicted or stand trial or even testify, this is a decision where the defendant is overwhelmingly likely to defer to counsel's tactical and strategic judgment. In this case, I just wanted to point out one other thing about the magistrate. As Justice Ginsburg said, she not only let the lawyers pose their own questions to the jurors, she also gave the lawyers each an extra peremptory challenge. And that just shows that magistrate judges can have particular styles or practice, and counsel would be uniquely situated to assess the value of that.
Antonin Scalia: Did she rule on strikes for cause?
Lisa Schiavo Blatt: They were all by consensus, so yes, she ruled on them in that jurors were excused for various reasons. But there was... it was pretty much by consensus by defense counsel and the prosecutor.
Antonin Scalia: But that... I mean, that is, I suppose, the most significant power that the judge who is conducting the voir dire or presiding at the voir dire has, to allow or not allow a strike--
Lisa Schiavo Blatt: Right, and defense counsel's going to have to weigh in any given case whether the magistrate judge is going to rule on any objections and de novo review is possible, but it's difficult as a practical matter, as the court noted in Peretz. The defense counsel is best situated to decide, and I want to get the most favorable jury I can for my client, what's the best way to do that? Is this magistrate judge better off... am I better off with which one? And defense counsel, if he has any concerns, can object to the magistrate's role and then would be entitled under the Federal Magistrate Act to have an Article III judge conduct voir dire.
Anthony M. Kennedy: Suppose... I know you don't like to contemplate this, but that we accept the Petitioner's position that there has to be, that the client has to waive. Would we be better off just adopting the rule that there has to be express waiver, or would you then recommend that we ask the further question whether or not there was an implied consent?
Lisa Schiavo Blatt: An implied consent in--
Anthony M. Kennedy: Well, he was there, he probably knew and the record shows that he knew what was going on.
Lisa Schiavo Blatt: --If an explicit personal--
Anthony M. Kennedy: I, frankly, don't think we should go down that route.
Lisa Schiavo Blatt: --If a personal explicit waiver is required, there wasn't one here. The express waiver was by defense counsel, so it would not meet that test of having... I don't know what the implied waiver would be. There is an expressed waiver by defense counsel. If counsel just said nothing and there was no objection, which is not what is at issue in this case, then there would be a question on how do you read this Court's decision in Peretz.
John Paul Stevens: May I ask how it works in practice? Does the magistrate's ruling on objections to jurors, are those rulings subject to review by the district judge or are they final?
Lisa Schiavo Blatt: Under this Court's decision in Peretz, there would be de novo review at the end of the process. And here an Article III judge actually swore in the jury but there was, nothing was ever objected to by the magistrate's role. There was no--
John Paul Stevens: But in practice, as I understand it, very often the judge will, will review the magistrate's decisions on contested objections.
Lisa Schiavo Blatt: --He can. Right. Yes. And if the Court said in Peretz that the Constitution would require that the review be de novo and they recognize in a footnote this Court that as a practical matter it might be difficult to reweigh credibility determinations, and you have the same kind of issues when a magistrate judge conducts Social Security cases or suppression hearings, the magistrate rules on or weighs credibility and there is a de novo review by the Article III judge.
Anthony M. Kennedy: How does that work? You have some jurors, and you have juror's excused for cause, and there is an argument about that, then that juror has to sit down and wait for two days and then they go back and they review that before the district judge. I just don't know mechanically how that can work.
Lisa Schiavo Blatt: I don't know if it can be done that day. I mean, in this case, the jury selection was just a matter of a couple of hours.
Anthony M. Kennedy: Excuse me, if the Article III judge says, oh, this should not have been excused for cause, then you go back and bump the juror that was seated... I guess that's the way you'd have to do it.
Lisa Schiavo Blatt: I think this discussion just shows why a defendant... this would not be a right that he would readily appreciate and understand. This is something defense counsel would just decide. And is it... in this particular trial, and this was a short drug trial, this voir dire occurred without incident and it was pretty routine. Is this something that if it were different type of case defense counsel might think, no, I don't want whatever disruption it might be and we want an Article III judge. And defense counsel is of course able to object. I also wanted to point out--
John G. Roberts, Jr.: Do you... do you think the right to a jury trial is something that has to be personally waived by the defendant or can that be waived through counsel?
Lisa Schiavo Blatt: --We read a discussion of it in Florida v. Nixon and New York v. Hill including that among the rights that required a personal explicit waiver. But if we're wrong about that--
John G. Roberts, Jr.: Were those... was the right to a jury trial at issue in those cases?
Lisa Schiavo Blatt: --No, it was just a descriptive: There are decisions of such moment that the defendant must personally make and this is usually included in the list. But whatever... whatever--
John G. Roberts, Jr.: When I was researching it, I saw that it was usually included in the list, but I thought it would track back to some case that held that it was, but it never... never does.
Lisa Schiavo Blatt: --Well, whatever is in the list, it's a very small handful and it is something that the defendant--
Antonin Scalia: --It's our list, after all, right? [Laughter]
Lisa Schiavo Blatt: --It's a very short list, and I just think it's something that a defendant can readily appreciate, even though it may be a strategic call, whether or not he is going to plead guilty or even take the stand. I mean, the right to testify is a decision that personally belongs to the defendant, but you still don't need an on-the-record, explicit personal consent by the defendant personally. If the defense lawyer says, we have no witnesses, the client's assent is assumed and that's just the way our criminal justice system works. The lawyer does speak for the defendant in all but the very few exceptional cases.
Ruth Bader Ginsburg: Ms. Blatt, if you, if the Government prevails, what happens to the 11th Circuit's ruling in the... what was it, the Maragh--
Lisa Schiavo Blatt: Maragh--
Ruth Bader Ginsburg: --case where the 11th Circuit said, we're not going to mess with any constitutional question, but under our supervisory power, we're going to tell the district... the magistrate judges, district judges in this circuit; it's a simple thing to do, put on the record that the defendant himself consented. That would be... that would no longer be valid, right?
Lisa Schiavo Blatt: --I don't think so. I mean, I think a... there is nothing to stop them--
Antonin Scalia: You think it would be valid or don't think it wouldn't be valid?
Lisa Schiavo Blatt: --I don't think so. I mean... and that's why the Court took the case to resolve that circuit. And I read the decision as reading this Court's decision in Peretz to require it. Or at least there was some constitutional doubt about it but I don't--
Ruth Bader Ginsburg: They specifically said, we're doing this under our supervisory powers, not under the Constitution. So my question was could a circuit still say, we think it's better for the defendant himself to be told, so in our circuit that's going to be the rule?
Lisa Schiavo Blatt: --I mean, I don't think I have a fully developed answer on that, but my guess would be our position is no. But I don't... I don't think there's at least anything to stop the particular magistrate judge in any given case from saying... from addressing the defendant or requiring it. But--
John G. Roberts, Jr.: Well, suppose the question would come up. I mean, if the circuit does that the question would come up, if the magistrate doesn't do it and it's not objected to, because of course if it's objected to you deal with it then.
Lisa Schiavo Blatt: --Right. Well, I--
John G. Roberts, Jr.: And then we'd have to decide, or the Court would have to decide whether that's a basis for reversal.
Lisa Schiavo Blatt: --Right. And on that issue our position is clear: There is a rule that would dictate how it would be resolved and Rule 52(b) of the Federal Rule of Criminal Procedures has no exception, and plain error would apply. And so if there was some sort of error, the defendant would have to make the necessary showings for plain error review, and on that I would like to address, since we are on the subject, that if the Court disagreed with us on the merits, Rule 52(b) would apply and we think that all the concerns that animate a contemporaneous objection rule are at their peak when the defense counsel expressly agrees to the course of action followed by the court, and Petitioner's rule of automatic reversal would open the door to gamesmanship and sandbagging because it would allow defense counsel to wait and see if the defendant is convicted before objecting to the magistrate's role. And before I get to... I wanted to turn to, if you apply plain error, I just wanted to point one thing out about the Court's decision in Peretz. This was not something that was just not at issue in the case. The petitioner extensively argued that the waiver in that case was ineffective because it did not meet the requirements of Section 3401(b); there was no personal explicit waiver; the defendant did not understand what was happening, he didn't speak English well, and so on; and the dissenting justices picked up on that and urged the Court and dissented because there had... one of the reasons there was not an explicit and personal waiver by the defendant. And the Court nonetheless upheld the magistrate's role in jury selection despite the absence of that waiver.
Samuel A. Alito, Jr.: If Mr. Gonzalez had stood up at some point during the voir dire and said, Your Honor, I've just learned you're not an Article III judge, and I want an Article III judge to preside over the voir dire, what would happen?
Lisa Schiavo Blatt: Well, our position is the magistrate judge could say sit down. This is if defendant says my counsel is putting in some evidence I don't like or my counsel is not cross examining the witness or my counsel just asked a juror a question that I'm really uncomfortable with. I mean, this show belongs to the lawyer, and the magistrate judge could tell him to... to be quiet. The defendant has not made a... and his time is not up yet... in effect an assistance of counsel claim, but if he has an objection and he think his right rises to the level to testify, that he has some duty... that the lawyer had some duty of personal consultation, then he can make that Sixth Amendment argument. We don't think it would have any merit because this is no different than the myriad other types of trial rights that belong to counsel.
Anthony M. Kennedy: Do you think the magistrate judge would overstep... assuming you win and that is that rule is that the attorney can make the waiver, would the magistrate judge overstep by saying I know you've consented to this, but I want you to talk to your client about it; I want you to explain what the rules are? Would that be overstepping?
Lisa Schiavo Blatt: No. I think there is some room for that. I mean I... some room for that for the court, but it's... it's not like it's the right to testify. It would be hard to, you know, if there was some argument over objection or how to question prospective jurors. There's not a hybrid defense team where the... the judge is always supposed to turn to the defendant and say are you sure you're comfortable with what your counsel is doing? If the Court does conclude that there is error, the Petitioner, we don't think has made the necessary showing for plain error review. The first problem and the most fundamental is the error is not plain, because this Court has already upheld the role of the magistrate judge in jury selection in Peretz, despite the absence of a personal waiver; and at least four courts have read that decision to allow a magistrate judge to conduct voir dire, either when there is an absence of an objection or there is express consent by defense counsel. And even assuming this Court doesn't reach the question of whether the error had an effect on substantial rights, the error did not seriously affect the fairness, integrity or public confidence of criminal proceedings. The error... the voir dire in this case occurred without incident or objection, as Justice Ginsburg pointed out, to anything that the magistrate judge did; and there is no indication... and I don't think we have heard any... there is no indication that the defendant actually disagreed with his counsel's professional judgment to consent to have the magistrate judge, or even had an opinion on the subject. And Petitioner's rule would, as I said, open the door to gamesmanship because it would relieve counsel of any obligation to call an error to the court's attention and therefore give the court the opportunity to correct the error. If there are no questions, we would ask that the Fifth Circuit's decision be affirmed.
John G. Roberts, Jr.: Thank you, Ms. Blatt. Mr. Newton, you have four minutes remaining.
Brent E. Newton: Thank you, Your Honor. I'd like to return to Section 3401(b), which the plain language of, and the legislative history behind, clearly show a congressional intent in the misdemeanor context for personal waivers on the record by defendants. It would be anomalous not to require the same thing, at least in some similar form, in the felony context.
Antonin Scalia: Could I just... a question that has troubled me. Basically, what you say that is of such importance here is the composition of a jury. I mean, that's what it all boils down to, who's going to rule on the composition of the jury, should it be a magistrate or should it be an Article III judge. But if... you know, if that is... is so fundamental that it needs a special rule that the waiver has to be personal by the defendant, then you can say the same thing about... about objections to... to the Court's failure to permit a strike for cause. That affects the composition of the jury. Now do you need... do you need the defendant's consent to the judge's ruling on that point, or is it enough if the lawyer makes no objection?
Brent E. Newton: It would be enough if the lawyer made no objection, Your Honor, because that is the kind of rule that I described earlier that concerns the heat of the battle of the adversary process, unlike a discreet point in time before.
Antonin Scalia: I see.
Brent E. Newton: The other point I'm trying to make is that the... it's not just the fact that it's a critical stage; it's a critical stage where there is a right to an Article III judge over the critical stage. The Court in Gomez clearly recognized that jury selection is a critical stage. So it is the Article III right that implicates the right to a jury trial, but it is fundamentally the right to an Article III judge that is at issue. The Government makes much of its claim that there could be meaningful Article III de novo review of magistrate judge rulings. The court unanimously in Gomez stated that the Court highly doubted it would be possible to have such review, and it realistically speaking is not possible because delays between the time that the district judge can get back to conduct a review, and in Gomez the Court found... pointed out that if you bring jurors back and question them again, you run the risk of making them hostile... they think they did something wrong... where you don't have that in an erratic situation where you're delegating an evidentiary hearing. Witnesses get recalled all the time. They know that's part of the process. So, realistically speaking, there is no de novo review, which is why it's not an adjunct situation here. It's not the magistrate judge acting as an adjunct; it's the magistrate judge acting as an Article III judge. The Government argues plain error doctrine should apply, Rule 52(b). Justice Scalia's concurring opinion in Freytag noted that there are different kinds of rights that can be waived or forfeited, and most rights can be forfeited short of a waiver, but there are certain kinds of rights... and we contend this is one of them... that cannot be forfeited short of a valid waiver. The Court in Barker and in Boykin v. Alabama stated that there are certain personal rights where the prosecution has the entire responsibility to spread on the record the valid waiver. And if the prosecution doesn't meet that burden in the trial court, it's illogical to apply the burden on the defendant on appeal when it's the prosecution that would need to assure it was the defendant's personal waiver that happened in the trial court. The Court in Wynn and Glitton and other cases moreover has said, if it's a fundamental question of judicial administration, then it can be raised for the first time on appeal. I think the Court also should consider the facts of this case in deciding whether there was gamesmanship. There wasn't. Clearly there wasn't. Mr. Gonzalez was cut out of the equation entirely. The magistrate judge only invited the attorneys to the bench, left him sitting there without the assistance of an interpreter. You have to consider his personal characteristics. He had no experience in the Federal criminal justice system. He did not speak English fluently. He was in no position to object. He didn't have the meaningful opportunity to object. And under Rule 51(b), there should be de novo for that reason as well. I finally I just... I want to return to my main point, which is... I'm not asking the Court to decide as a matter of constitutional law whether a personal waiver is required. I think there's a very strong argument based on the Court's precedent that should happen and--
John G. Roberts, Jr.: You can finish your sentence.
Brent E. Newton: --I'm asking the Court to avoid that question by interpreting the 3401(b). Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Warren E. Burger: We will hear arguments in the number 712, Triangle Improvement Council against Ritchie and others. Mr. Greenberg, you may proceed whenever you're ready.
Jack Greenberg: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari from the United States Court of Appeals for the Fourth Circuit which affirmed the judgment of the United States District Court for the Southern District of West Virginia without an opinion. But I might add that there were dissenting opinion by the Judges Sobeloff and Winter which at some length set forth what in their view was the reasoning and position of the majority who did not write an opinion. There have been a number of changes in the law and the circumstances of petitioners, since this case was filed and the federal respondent suggest in their brief while “the case is technically not moot”, it would be inappropriate for this Court to adjudicate the complex issues originally raised by this case, that is the position of the United States.
William J. Brennan, Jr.: How many have not yet been relocated?
Jack Greenberg: There are perhaps just the handful there at this moment.
William J. Brennan, Jr.: A handful of being what?
Jack Greenberg: Half a dozen. Our position is --
William J. Brennan, Jr.: And what was in that time when the case got here?
Jack Greenberg: How many were there at the time when the case is filed, approximately 300.
William J. Brennan, Jr.: 300.
Jack Greenberg: Our position is that the changes in the facts and the changes in law determined only the form of the remedy and that the Court of Equity has the historic flexibility that equity had demonstrated to adapt relief to the circumstances. But if the changes have no bearing whatsoever on whether rights were violated and whether petitioners were entitled to any remedy at all. The decision may have a practical effect on the rights of the 300 former residents of the Triangle whom I just referred to and in answer to Mr. Justice Brennan’s question. And as the brief of amicus, National Housing and Economic Development law project states, perhaps 100,000 others throughout the nation who are similarly situated. Now, I would like to describe the principal changes that have taken place since the case was filed. The case involves an interstate highway being built through an area known as the Triangle, a poor, mostly black section of Charleston, West Virginia. In 1968 when the case was file, there existed, but since then has been recently been repealed of the 1968 relocation amendments of the Federal-Aid Highway Act and that’s statute set forth completely in our brief. But Section 502 which is one of the key sections of the statutes says if the secretary shall not approve any project which will cause displacement unless he receives satisfactory assurances from the state highway department that relocation meeting certain standards with regard to safety sanitation and decency will be furnished to persons being displaced. And elsewhere in the statute relocation is provided for.
William J. Brennan, Jr.: Would you say that under appeal?
Jack Greenberg: That has just been repealed by the Uniform Relocation Act which is set forth at length in our supplemental brief and it’s discussed in that brief Mr. Justice Brennan. Also in effect, in 1968 was IM8168, IM standing for Instructional Memorandum which is set forth in the appendix to our brief which was a regulation of the Department of Transportation, which elaborated on requirements of the statute, particularly with regard to fact gathering and formulating a relocation plan. And at the time of suit, when these statute and these regulations were in effect, they were approximately 10 persons in the path of the Triangle. Now, the position of the federal respondents at that time and now is that the 1968 Relocation Amendments and the regulation 8168 did not apply because they stated that these do not apply to areas where right-of-way acquisition was approved prior to 1968, and right-of-way acquisition in this case had been approved prior to 1968. And that is their position even though other approvals, that is approvals for clearance at construction had not yet been given. Now, the fact is exactly how many people, they are not entirely precise but a discovery was denied before trial in the court below.B ut perhaps no one had moved from the Triangle as of the time of the adoption of the 1968 statute and only a few had moved and we know this by the time of suit. Now, there have been several other changes in the law which I would like to advert to only briefly in they are set forth at length in our brief and that is in 1970, before decision in the Court of Appeals, there was something called a Circular Memorandum adopted in April 10th which in Judge Sobeloff's view and as he elaborates in his decision essentially repealed the interpretation of the statute and the interpretation in IM68 which limited to authorization to acquire right-of-way which were approved after the passage of the statute and so that’s elaborated in the brief and perhaps I will come to this term late in the argument. And nevertheless, people kept moving out. And in May 1970, when the case was in the Court of Appeals, the number in the Triangle was down to 262. In July 1970 when the case was on rehearing, the number was down to a 150. In December 1970, it was down at 65. In January of this year, it was down to a half dozen but down to 35 but now it is down to approximately about a half a dozen. And now as of January 2, 1971, there has been enacted the Uniform Relocation Act which is set forth in our supplemental brief, and which also repealed the 1968 relocation provisions. The Uniform Relocation Act applies to relocation from all sorts of displacements or a variety of displacements, not merely displacements for Highway construction.
William J. Brennan, Jr.: Well anyway, that expressly saves all rights under the old statute?
Jack Greenberg: That’s right and that express the --
William J. Brennan, Jr.: So that for the new statute has no relevancy --
Jack Greenberg: Well, it has relevancy as to the persons who had not yet moved. I mean, as of the time its adoption.
William J. Brennan, Jr.: You mean the half dozen?
Jack Greenberg: Yes. Well, we have relevancy if they were be protected by the 68 statute. I'm --
William J. Brennan, Jr.: I know, but I mean the -- I suppose, there are some differences between the Uniform Act and the 68 Act, does it?
Jack Greenberg: Well, I think there is a matter of fact as we would argue it, they really not very material differences. Certainly, if you view the 68 Act along the with the IM 8168, the regulation, the Uniform Relocation Act of --
William J. Brennan, Jr.: But why really getting at Mr. Greenberg, we don’t have to be concern on deciding this case with the provisions of the Uniform Act --
Jack Greenberg: No. I would say you would not because I would say this case is determined by the 68 Act. Now, I would like to argue to the Court what I believe that’s the case. Now, if assurances were required by the 1968 statute and that is the interpretation of the Department of Transportation and the United States is wrong. And they claim, it was to required by IM 8168 because their cut-off date which rests on their interpretation of the statute was invalid, 10 petitioner’s rights were violated. The violation of those rights would give rise to a remedy and the question then would be, what is that remedy? Now this time obviously, the remedy in the statute in the regulation would not make sense. Assurances at this point, now that almost everybody has been moved out and a plan that would everybody has been moved out would not be the appropriate thing to do. But that doesn’t mean that the Court of Equity couldn’t device what would be the appropriate thing to do. We have suggested in our brief that if the rights were violated, then the respondents would have an obligation to go and find the people who have been dislocated. Find out whether they have been located in housing which met the standards required by statute, and if not relocate them. And the state respondents in their brief seem to concede that this would be inappropriate form of relief if we can find that there was a substantive legal wrong done at the time. And therefore, the question is, were the rights violated by the 1968 statute? Since, perhaps everyone was on the site at the time the statute was passed but it would be decisive of this case if it were applicable. And we submit there is no doubt of its applicability. And if we are correct, the Department of Transportation and the courts below were in error. It is -- first, I'd like to point out that there is no question that no assurances were given as required by the 1968 statute; that’s the Government’s position as set forth in their brief and it's their position, no assurances were given because no assurances were required. And secondly, the recent decision of this Court, the Overton Park case comes into play because the assurances that should have been given, if indeed they should been given, I would like to argue that they should have been, would have constituted the administrative record upon which the court below, trial court and the Court of Appeals should have made its appraisal. Not any De Novo hearing of calling in witnesses who've been involved in the transactions, but a hearing on the administrative record. And that indeed is also, I gather the Government’s position because in their brief, I believe on page 42 or 46, they say that those assurances, page 46, would have constituted the administrative record but there were no such assurances because they were not required.
Warren E. Burger: One of the findings with respect to discrimination right at the outset here Mr. Greenberg, discrimination in the sale or rental housing, isn’t that a staggering point from which we got to build a case?
Jack Greenberg: Well, I would say, No, Mr. Chief Justice because the trial court should have had an administrative record before it and it should have appraised that administrative record. It did not have an administrative record before because the assurances which would have constituted that record were not given, because it was the position of the Government under its interpretation of the statute that they were not required. We submit that that interpretation, if the statute was incorrect, then we’d like to demonstrate to the Court quite clearly that interpretation was incorrect.
Warren E. Burger: Well, am I to understand then that you do not make a claim if this record shows pattern of discrimination in housing?
Jack Greenberg: Yes, we do make such a claim and we could sustain that if it were necessary to do that upon a de novo record, and indeed, there’s a considerable argument in our brief as to how the facts --
Warren E. Burger: The findings are the contrary, are they not?
Jack Greenberg: The findings of the trial judge are to the contrary, but those findings we think, are first of all, clearly erroneous and this were an ordinary kind of trial but clearly irrelevant and improper because they were not made upon administrative record such as this Court is indicated would be required in the Overton Park case. Now, I would like to demonstrate the 1968 Amendments were applicable and we find this in just about all the sources one can find of statutory interpretation, the language of the statute, the legislative history of the statute, and the purpose of the 1968 relocation amendments. Now, we must remember, it’s the Government’s argument that the statute is not applicable because it does not apply to rights-of-way which will authorized prior to the adoption of a statute. And the first thing, we must notice, this is manufactured out of nothing. One reads the statute in vain, defines such a limitation, such a limitation appears nowhere and is not even suggested anywhere in the statute. If one looks at the language of the statute now, Section 501 which is the declaration of policy, it says, Congress hereby -- this is on page 4 of the appendix of our brief, Congress hereby declares a prompt and equitable relocation and reestablishment of persons, businesses and so forth is necessary. It speaks about relocation, there's nowhere any cut-off date as to when rights will authorize because as the briefs of all parties indicate, the time between authorization of right-of-way and construction of relocation is sometimes a period of very many years. If we look at Section 511 (1d) (3) of the statute which defines a displaced person, we find that displaced person defined as, any person who meet moves from real property on or after the effect of date of this chapter, as result of the acquisition or reasonable expectation of acquisition of such real property. So again, that not only makes no reference to projects who were rights-of-way or approved or acquired after the enactment of the statute, it refers to persons being moved after the enactment of the statute. Now, the statute also has relocation payment provisions. It requires not only relocation assistance but relocation payment. The time factors in the statute to the extent that there are any refer to relocation payment and relocation assistance without any discrimination or differentiation between the two and it has been the position of the respondents in this case that relocation payments maybe made to the petitioners here and indeed were made to the petitioners here. Yet, there is no reason and nothing anyone can find in the statute to differentiate between them. Now, we go back to the genesis of the statute. This statute came out of a 1967 study which was ordered by a 1966 statute passed by Congress. And on pages 2 and 3 of our brief, the relocation assistance study statute appears, 2 and 3 of the appendix of the brief, and that calls for a full and complete study, an investigation for the purpose of the determining what action can and should be taken to provide additional assistance for the relocation or reestablishment of persons and so forth to be displaced by construction of projects on a Federal-Aid Highway Systems. Again, it looks forward to dealing with people who are going to be relocated. And then, if we look back to the 1962 statute which is the 1968 statute replaced, we find and this is on Section 133 (e), which is on page 2 of the appendix of our brief, a limitation such as is not found in the 1968 statute and Section E says, this section shall apply only with respect to projects approved under Section 106 of this title after the date of enactment of the section. No such provision is found on the 1968 statute. Now, the new statute, the 1968 statute came out of crisis caused by the need to relocate large numbers of persons who were being displaced because highways were being built through their homes. Now, the National Highway System which gave rise to this problem was to be 41,000 miles in length. At the time, the 1961 statutes were adopted; 32,000 miles had been built. 9,000 miles remained to be built. Of the 9,000 miles, remained to be built; 8,500 miles had already had their rights-of-way authorized. Now, that would mean Congress went to all this trouble and passed this enormous apparatus and the statute made all this requirements with regard only to 500 miles, and it just doesn’t make any sense. Now, it would mean that Congress engaged in a few -- we would think that the Government has fairly well described the reason for the position which was taken. In page 424 of the record, they’re willing to pay relocation payments because after all the payment and monies are fairly simple and uncomplicated and unmessy act. Mr. Carpenter, the division right-of-way officer testifies on page 424 about what it would mean to have to actually provide the relocation. And he says, “Certainly, it would have been putting another here shirt on the state to ask them to give us a formal submission on the record of what they are already doing. They would have had to stop work, put several people on this to formalize it, submit it to me, have my people review it, and give them approval back. It would have served no practical purpose.” But on the contrary, Congress ordered that that's just what had to be done. Congress didn’t want anybody to wear a here shirt, but Congress wanted that the state and federal authorities concerned should actually attend to the difficult and perhaps unpleasant but necessary job of relocation. Now, the courts below accepted the cut-off date, that is the cut-off date as to high right-of-way acquisition which had been approved prior to the enactment of the 1968 statute, and he accepted that as an authoritative administrative interpretation of the statute. Well, everyone knows that administrative agencies make interpretations of statutes and those interpretations are entitled to considerable and often conclusive way. But that is only so when those interpretations come out of the practicalities of the situation, some special experience, some involvement with the operation of a statute and a program, which would lend a special authority to that kind of interpretation. So far as the interpretation of the plain language of a statute and its legislative history and its purpose, courts and lawyers do that as well as administrators and we submit that the language in the legislative history and the purpose of the statute point to the fact that Congress intended to protect people who are going to be relocated and not just the minuscule small amount of people who are going to be on the way of the National Highway System. Now, if this 1968 statute is applicable and we submit that there is no need to go on to the 1970 regulations, though we argue that in our brief, Judge Sobeloff sets forth the reason why those protect the rights of at least those who are on the site as of the time, the adoption of those regulations under the doctrine of the fourth case or the 71 statute which would protect the rights of those -- that handful who remain on the site after the adoption of the 71 statute, or the constitutional question. But indeed, the constitutional question provides an additional reason what the interpretation of the statute which we have argued is we believe correct. And that is the statutory interpretation which we urge would avoid the decision of the constitutional question and it is a settled cannon of statutory construction, that is something which Courts strive to do. And so for the reasons given, we would submit that the petitioners who are in the way of the highway 1968 are entitled to protection of the 1968 statute, are entitled to the protections of the instructional memorandum. If the case is not moot, it involves these petitioners as well as many others situated throughout the country and the only issue in the case is what form of relief shall be granted, and that the Court of Equity can figure that out.
Warren E. Burger: Thank you, Mr. Greenberg. Mr. Reynolds.
William Bradford Reynolds: Mr. Chief Justice, may it please the Court. At the outset, let me say that respondents do not contend that the 1968 Amendments to the Federal-Aid Highway Act are wholly inapplicable to highway projects already underway on the date of enactment. The relocation payment provisions are clearly applicable to such projects. The provision requiring a state to provide a relocation program is clearly applicable to such projects, and the statutory requirement that all housing meet the decent, safe, and sanitary housing standard as defined by the secretary is clearly applicable to such projects. What in our view and in the opinion of the courts below is not applicable to projects which by August 23, 1968 had advanced as far as the two hearing question is the single statutory provision of Section 502 requiring that State submit to the Secretary, certain formal assurances before they can obtain his approval to proceed with that space of the project “which will cause the displacement of any person”, family or business. And insofar as a statute is here involved, it is the applicability of that provision and that provision alone, that is at issue in this case. Now, let me turn briefly if I may to the facts --
Potter Stewart: Would you agree that the very new statute is basically irrelevant to this case or inapplicable?
William Bradford Reynolds: Your Honor, I would --
Potter Stewart: The 71 statute?
William Bradford Reynolds: Except with respect to our argument as to mootness, I would. The substantive provisions themselves I would say, that is correct. But I do think it is a factor which bears on the question of whether or not this Court should decline to decide these issues.
William J. Brennan, Jr.: Well, tell me Mr. Reynolds, are there other projects as to which the interpretation of the Section mentioned becomes important? Other --
William Bradford Reynolds: Yes.
William J. Brennan, Jr.: In other words, other projects of people not yet relocated?
William Bradford Reynolds: Your Honor, I believe there are other projects of the 9,000 miles of interstate highway that were fully -- not fully constructed or were under construction on date of enactment. The 8,500 miles which counsel for petitioners refer to, had not commenced right-of-way acquisition or relocation as of that date. So as to that 8,500 miles, the provisions of Section 502 calling for formal assurances and of the regulation as to a former relocation would be applicable. As to 8,500 of the 9,000 --
William J. Brennan, Jr.: Is there any idea how many people happened to beinvolved?
William Bradford Reynolds: I don’t have any information as to how much --
William J. Brennan, Jr.: So, how about a few --
William Bradford Reynolds: I assume that it would be quite a few on the --
William J. Brennan, Jr.: So that the one fact that we have only seven involved on this particular project.
William Bradford Reynolds: Oh, I'm sure. I thought you meant how many people in the 8,500 miles.
William J. Brennan, Jr.: No. How many people whose relocation maybe determined on our resolution of the interpretation of what you call it, 502 something?
William Bradford Reynolds: Section 502. It would be the number of people, I assume in that 500 miles that are not that at time --
William J. Brennan, Jr.: There are more people --
William Bradford Reynolds: There on --
William J. Brennan, Jr.: Whose relocation and turns on the answer to this question, than just a seven we have involved here, so --
William Bradford Reynolds: Well, that might turn on -- I don’t know as to that again, as to that number how many -- what status is of the projects in that 500 miles.
Byron R. White: Within the 500 miles, are there projects which have done so far as the two hearings?
William Bradford Reynolds: Which not gone so far as --
William J. Brennan, Jr.: As the two hearings or haven’t gone so far that the project would not be covered by the '68 Act?
William Bradford Reynolds: think that is correct. It is very hard that to get a bearing on each project in the 500 -- but we know that there are 500 miles which at the time, the 1968 statute was passed, had not commenced, I mean had commenced the right-of-way acquisition and relocation programs but had not completed them. And the argument I would believe, -- I believe the argument as to those projects would be the same as our argument here.
William J. Brennan, Jr.: It wouldn’t do us any good then, would it, to say, well, what's the use in our deciding this question here, only seven or five or six, seven people are involved because the issue only will be back again in some other case, isn’t it?
William Bradford Reynolds: It, it, wait Your Honor, it might be back in some other case and --
William J. Brennan, Jr.: Well, we might just well go ahead and decide it, can we?
William Bradford Reynolds: Well, I don’t believe that it is any longer an issue in this case. And I also don’t know whether on the same basis as this case, where this is any need to decide that issue for the other -- the basis of our argument in this case. I don’t --
Byron R. White: I suppose you have any objection to our reaching an issue as long as they decided the way you want us to?
William Bradford Reynolds: No, Your Honor, none at all.
Byron R. White: And what would that do for you, in terms of the projects still to be completed? Would it mean now that there isn't going to be any requirement at any of these projects for a prior submission of a client?
William Bradford Reynolds: Your Honor, that’s correct. In projects in a status similar to this one, there would be no requirement for a formal plan.
Byron R. White: And I take it, there are any projects that are any less far along?
William Bradford Reynolds: Well, as of today, in enactment, there were projects within 8,500 of the 9,000 miles that were less far along. It's only projects within the 500 miles which that were within the same --
Byron R. White: Well, within that 8,500 miles then have there been projects or are their still projects for which plans will be submitted?
William Bradford Reynolds: That is correct. All plans in that 8,500 miles will be submitted. It’s the additional 500 miles,
Byron R. White: I see.
William Bradford Reynolds: That are in a similar status --
William J. Brennan, Jr.: Now, they will be submitted what? Under the regulations or under the new statute or under the old statute, where --
Byron R. White: Under the 68 Act?
William Bradford Reynolds: Under the 68 Act, they would be required to be submitted for formal assurance --
William J. Brennan, Jr.: For the new regulations?
William Bradford Reynolds: And the regulations would by the same slogan require the former relocation plan.
Byron R. White: But not the 1971 statute that would not be involved.
William Bradford Reynolds: I don’t believe that that statute would be involved --
Byron R. White: Because the 71 statute says, that if there's anything not determined under the 68 statute, the 68 statute stays, isn’t it?
William Bradford Reynolds: That’s correct in that respect. Oh, anybody have rights under this 68 statute --
Byron R. White: That would say --
William Bradford Reynolds: I do think on that Uniform Relocation Act, the language in the provision Section 210 which would be the similar provision to the one we’re dealing with here is dissimilar and an interpretation of this statute would not be controlling on the new statute. And that is another reason that we would submit that this Court could decline to reach the issue. If I may just add a few facts. We are concerned here with two state highway projects --
William O. Douglas: Were these highway projects put down for any kind of a hearing, public hearing?
William Bradford Reynolds: They had the public hearing required by statute in connection with the route in this Your Honor and --
William O. Douglas: Well, what kind of a hearing was that?
William Bradford Reynolds: That was the hearing required in Section 128 of the Act.
William O. Douglas: I know, but what kind was it? Was it a hearing for -- just for the bureaucracies?
William Bradford Reynolds: It was a hearing for the -- it was a hearing held for the people who lived in the community to come in and discuss the routing with the federal and state officials. And that was discussed and there's no challenge in this case at this point to the routing decision. There was a hearing held --
William O. Douglas: This was a hearing prior to the formulation of the land by the Secretary?
William Bradford Reynolds: There was no plan here. This was a hearing prior to approval by the Secretary of the route on this project.
William O. Douglas: Yes, but other route?
William Bradford Reynolds: Yes, Your Honor. And that was held that --
Thurgood Marshall: In there any place, I can find a copy that hearing?
William Bradford Reynolds: Yes, Your Honor it’s in the record -- the hearing is in the record. Now as I said, we’re concerned here with two highway projects. Over two-thirds of each project is outside the so-called Triangle area. But each penetrates that area, Project A from the north and Project B from the southeast and they meet within it. Now, the portion within this so-called Triangle area covers several city blocks. Of the 284 persons, living there at the time the suit was commenced, approximately two-thirds were Negro and the rest were white. The average monthly income was a $170.00 and a substantial portion of the housing was substandard. After Federal authorities authorized the state to require all the right-of-way within the two-project carters. The State Road Commission set up a relocation office for the benefit of those to be relocated in the two-project carters. It was located within this so-called triangle area. It was staffed with 9 to 10 people full time. It conducted a survey of those living within the two-project carters to determine their family needs, their family size, where they worked, where they went to church and what their preference was with respect to new relocation housing, what type of housing they desire. They compiled a list of available housing within the Charleston area, posted it in the relocation office, and kept it updated on a daily basis. And it provided special services to those who would be displaced. For example, it would drive the elderly to available rentals that they wish to inspect. It would help those who had located relocation housing to move and to obtain furniture. It would help make arrangements for initial rent deposits, where necessary and it would help obtain priority certificates for public housing. Now on enactment of the 1968 Amendments to the Federal-Aid Highway Act, the State Road Commission assigned three persons full time to doing nothing but inspect available rental in the Charleston area to ensure that they complied with the new decency and sanitary housing standard. By August 23, 1968, the state had successfully relocated a substantial number of the original 2,184 persons who were originally to be displaced from the two-highway projects. Over one-half or 1,314 had been relocated at the time of trial and the state had acquired over 60% of the land and in each of the two carters. Now, it is true that the relocations of those persons within this so-called Triangle area had not progress that far. 42 of the 326 originally there had been relocated. Similarly, relocations within other isolated areas on these two projects had not progressed that far. But the entire statutory scheme we are dealing with here speaks in terms of projects. It does not speak in terms of segments of projects or city blocks within projects or the six ward or any other said subdivisions that maybe created for the purposes of bringing a lawsuit. And the Chief Justice suggested that petitioner’s argument turns in large part on their contention that Charleston was a racially closed housing market. I’d like to address just a few comments to that argument. The only evidence in this record to support the proposition is two studies. One by petitioner’s principle witness and one, an early draft of a study prepared for the Charleston-Irvine Renewal Program which is just now getting under way. Both studies draw primarily on 1960 census data and neither study talks about the housing situation in Charleston after 1966. Now, we do not understand the issue before this Court to be whether at one time discrimination in housing did exist in the Charleston area which resulted in earlier geographical divisions in the city along racial lines. The question is whether at the time this action was commenced in December 1968 and thereafter, Charleston had a racially closed housing market. The court below, both courts found that it did not and there is no evidence on this record to contradict that finding. In November of 1967, the City of Charleston passed an Open Housing Ordinance. Congress passed a similar law in April of 1968. There is nothing in this record, even suggesting that the people in Charleston are not complying with those statutory provisions, nor is there any indication that City and State Officials were having difficulty with there enforcement or that they were turning their backs and not enforcing the provisions. In the public housing sector, it is undisputed that there are three public housing projects, all within the Charleston City limits. And all of them rent one, two, three, and four bedroom units on a non-discriminatory basis. This housing meets the decent, safe, and sanitary housing standard in a substantially better than a housing which existed within the so-called Triangle area. It is available at 20% of a family’s average net income per month and it is available to all families earning less than $5,000.00 per year, which would include virtually all of those within this so-called Triangle area. In the private housing sector, the evidence shows that approximately 80 dwelling units were available for rent in Charleston -- in the Charleston area on any given day. In determining the availability of private housing, the State Road Commission eliminated from consideration, the two, three, and four family dwelling units in which the owner resided. Therefore, all 80 were under the open housing ordinance and were rented on a non-discriminatory basis. The average rental was $90.00 per month which with the statutory rental supplements could be afforded by all those within this Triangle area. And while I am discussing private housing, I'd like to allude just briefly to petitioner’s telephone survey which they discuss in their briefs and which is plaintiff’s Exhibit 25, they contend that this survey shows that out of 50 private dwellings, telephone, only eight would rent to black families. That survey does not show that 42 of the dwelling units would not rent the black families. 28 of the homes within that survey would not even asked the question because they didn’t have any vacancies when they were called. In fact, only four owners gave any indication that they would not rent to Negroes. One of those owners said that she would not rent to a Negro male but she would rent to a Negro female. And another one said that she cannot answer the question until she telephone her until she talk it over with her husband and she would never called back. With respect to the other two, there's no indication on this record whether they were within the exclusion of the Charleston Open Housing Ordinance. In short, there is simply no evidence to support the assertion that the Charleston housing market was in December 1968 a racially closed to the market. The courts below specifically so found, nor is there any evidence of state action which is deprive these petitioners of equal protection of the laws. No one is being forced out into the streets. In fact, the state has moved very deliberately and carefully in relocating the people within this so-called Triangle area and it is taken over three years to accomplish that task. On the statutory interpretation question, let me just make three points. First, there are two projects here under discussion and I think, it is agreed, all agreed, were well into their relocation programs by August 23, 1968. Approximately 913 persons had been relocated from Project A and there remained in that carter 380 persons. Approximately 409 persons had been relocated from Project B and there remained approximately 401 persons -- sorry, that’s reversed. 401 had been relocated and there remained 409. The language of both the statutes and the regulations there under call for formal assurances and formal relocation planning prior to any such displacement. The statute which is Section 502, speaks in term of the Secretary’s approval “Which will cause the displacement of any person.” But we cannot agree with petitioner’s contention that this language contemplates a Secretary’s approval to proceed with construction. The April 10, 1970, Circular Memorandum which they rely on so heavily makes it very clear, the construction approval, the approval to proceed with construction cannot be given until everybody has been displaced and relocated, who needs to be displaced and relocated, that there can be no approval of construction until that is completed. Second, with respect to the statutory interpretation question, I want to make the point that notwithstanding the absence of a formal relocation plan in this case. The State Road Commission was providing a Relocation Assistance Program which complied in all respects with the substantive provisions of the 1968 statutes. And this was the primary concern of Congress.
Thurgood Marshall: Well, who approved that out in the state?
William Bradford Reynolds: Who approved?
Thurgood Marshall: The relocation plan?
William Bradford Reynolds: There was no relocation plan submitted.
Thurgood Marshall: Well, who approved that all of these nine men in the office can spend six days and --
William Bradford Reynolds: That was this --
Thurgood Marshall: Five times as much as you needed now?
William Bradford Reynolds: That was the State Road Commission that did provide the relocation program.
Thurgood Marshall: And what did the Federal Government do as to that?
William Bradford Reynolds: I would -- if I may just now get to that in just one second that -- I just want to wind up my point here that there was compliance with substantive provisions and that there was a relocation program.
Thurgood Marshall: Why didn’t you agree?
William Bradford Reynolds: Well, it will only take two seconds The only additional point is that the formal assurances and the formal relocation plan in a regulations were a procedure which Congress deemed appropriate to ensure that the states complied with the substantive requirement that a Relocation Assistance Program was afforded by the states. That was the intent. The purpose of Congress was to have the program provided. Now, here the procedure was neither required by the statute nor essential to the implementation of an adequate Relocation Assistance Program. Now Justice Marshall on your question, the Federal authorities here reviewed the state Relocation Assistance Program. They reviewed it specifically with respect to the two projects here in question. Over a 125 of the relocations had found that they were --
Thurgood Marshall: How was this review done?
William Bradford Reynolds: Well, that is what I'm explaining. They had a day-to-day audit of Federal authorities in West Virginia. The Division Engineer had a day-to-day audit of the State Road Commission’s operations. It reviewed over a 125 of these specific relocations that are involved in these two project areas and found them to be satisfactory in all respects. And it continually reviewed the state operations throughout the state as well as on these two projects.
Thurgood Marshall: Where is the project?
William Bradford Reynolds: Well, there was --
Thurgood Marshall: There wasn’t?
William Bradford Reynolds: There was no plan as such, that’s correct. There was a study of the relocation of the available housing and there was -- it’s termed in the record, a half of relocation plans submitted in 1966. But there was no written plan as such.
Thurgood Marshall: I was wondering, did the Federal Government “reviewed” (Inaudible) “approved?”
William Bradford Reynolds: They “reviewed” this.
Thurgood Marshall: Where it is that in?
William Bradford Reynolds: That is in the record in a number of pages most of which are referred to in our brief as appendix references, where the Federal authorities went in and scrutinized, what was going on in these two projects? What the state was doing to relocate the people and how they were providing assistance? And there is testimony, an abundance of testimony that they were in there looking at this on a day-to-day basis. And that Your Honor is why I think this case is not within the citizens to preserve the Overton Park decision. This was not a review of a Secretary’s “approval” under Section 502 because he did not give that approval. What it was a review of agency action under the statute based on the experience of the federal and state officials.
Thurgood Marshall: And then all shall agree with you, do I have to assume that this was reported to the Secretary?
William Bradford Reynolds: No, Your Honor.
Thurgood Marshall: Just day-by-day?
William Bradford Reynolds: No, Your Honor.
Thurgood Marshall: Alright.
William Bradford Reynolds: We do not because as we argue the case, the Secretary was not required in this case to give the approval. What was required in this case is that the state provide an adequate relocation program, and that is what was being reviewed by Federal authorities and they determined that this program was adequate and that we -- this was not a review of the administrative record and I believe in Overton Park, this case stated that where there is no such administrative record, it is entirely appropriate to call the officials involved in the action and have them testify and make a judicial determination on the basis of that testimony.
William O. Douglas: Did he approve within the meaning of Section 504, the payment of Federal funds?
William Bradford Reynolds: Your Honor, the Federal funds were approved. There was full payment of Federal funds and the reason that that was required in this case was 504 (b), Section 504 (b).
William O. Douglas: I understand, but I mean he had to approve in part but not all you were saying.
William Bradford Reynolds: He did not give an approval under 502.
William O. Douglas: Yes, that’s why our question is whether he should have?
William Bradford Reynolds: Correct but he did.
William O. Douglas: Yes.
William Bradford Reynolds: He did approve the fact --
William O. Douglas: He did approve under 504?
William Bradford Reynolds: 504.
William O. Douglas: That’s where the money was?
William Bradford Reynolds: Yes, Your Honor and that is one of provisions that we concede is applicable to this case, the only one not as 502.
Warren E. Burger: Mr. Preiser.
Stanley E. Preiser: Mr. Chief Justice and may it please the Court. I wanted to point just a few things in addition to the Solicitor General and that is that during the trial of the case, I think in the appeal, the thrust of the petitioner’s argument was that there was no formal plan. Now, the evidence conclusively establishes there was a relocation program that congressional intent was being carried out. Everything that would have been replied by the plan was done. Even before the 1968 Act was continued beyond the 68 Act. The case was tried on that theory on the technicality was there a plan, a former plan. We concede there was not. Secondly, on the evidence of Mr. A. Bliss, their major witness, theory was that because the Charleston urban renewal would be displacing people at about the same time. They would not be adequate housing. The fact, the matter is that the Charleston-Irvine renewal did not in 68, 69, 70, and have not yet started, some almost three years later displacing anyone. So, there was no competition for the adequate housing. The facts further conclusively established that on any given day, there were 80 houses available. From the Triangle District, some 30 persons lived in the Orlando Hotel which was substandard. There were, at that time 250 available hotel rooms within one mile and so, it is our position at the trial and still is, there was no discrimination. There was adequate housing. We complied with every requirement of the Act except the technicality of filing the formal plan. We feel that that should be --
Byron R. White: Well, do you comply on this?
Stanley E. Preiser: Sir?
Byron R. White: If you comply with that in accordance with your view of the statute by not filing?
Stanley E. Preiser: Yes, we say the -- it’s not required --
Byron R. White: There's no require plan?
Stanley E. Preiser: Yes, Your Honor. There was no plan. In our view, we say we complied with that. Other requirement of the statute and of all the memorandums, and with that, we feel that the matter is disposed off, whatever they complained about below never happened. So, we think that the matter has in fact become moot, if their position was correct at all to begin with. And that’s all I had to say, I want to save this time.
Warren E. Burger: Thank you Mr. Preiser. Mr. Greenberg, you have few minutes left to --
Jack Greenberg: Mr. Chief Justice and May it please the Court. The fact is the statute was not complied with. The assurances that are required by a statute were not given, a plan that was required according to the interpretation of the statute was not filed. I might add, there was indeed a plan filed, prepared for this litigation, very much like the litigation affidavits in Overton Park and that was dismissed by the Federal authorities as half a plan and really not adequate. The reason that the Congress enacted a statute and the department adopted regulations was because precisely the kind of practices that are going on here, that is informal relocation taking the word of the various departments acting in a non-structured, non-reviewable way, not on any record which a court can review was deemed adequate and that is why, the statute was adopted and the regulations implementing were adopted. That is what happened here. The court made a De Novo review on the basis of ad hoc, post hoc rationalizations, testimony put on by witnesses, came to the court after the event not on administrative record which is exactly what this statute was designed to provide. And we submit there's been no --
Speaker: Mr. Greenberg, it is already proposed that you prevailed in this case, exactly what do you visualize through this relief?
Jack Greenberg: The relief as to the 326 persons who originally were on the side of the Triangle would be something in the general nature of what the state respondents and we agree would be appropriate. I mean, they agree that if they lose the case, this would be appropriate and that is that the state authorities ought to find where these people had been relocated to. And in fact, they say they are even somewhat in the process of doing that right now and find out whether or not the housing in which they now live meets the statutory standards. If it does not meet the statutory standards then they ought to take such steps as unnecessary to relocate these people in statutory housing. Now, that’s not the relief provided for in the statute but that is an adaptation of it which is appropriate to the circumstances of this case. And of course, there would be a Rule of Law coming out of this case which would protect the other persons in the way of the highway. I might say there’s some difference in opinion --
Speaker: Well, that inquiry was to how many or 400 that would --
Jack Greenberg: Well, it would apply to all 326 people who were in the trial.
Speaker: Depending on the action was brought?
Jack Greenberg: That there are some of them may --
Speaker: But there had been others relocated before that time had denied?
Jack Greenberg: Yes, but they are not members of this class and not in this case but --
Speaker: These are only those not relocated when this action was filed?
Jack Greenberg: That’s right. That’s right and there are 326. Now, there is some difference between us on the division of the 8,500 and 500 out of the 9,000 miles. We have cited in our on page 29, the Senate Committee report, and I believe or at least, I hope you will find to that report that approximately 8,500 miles had already been authorized. And therefore, if their interpretation of the statute prevails, only persons in the remaining 500 miles would be covered, but even those of 500 miles through cities involves a very considerable number of people.
Warren E. Burger: Thank you, Mr. Greenberg, Mr. Reynolds, Mr. Preiser. Case is submitted.