Filarsky v. Delia - Oral Argument

Fri, 20 Jan 2012 22:25:59 +0000

Case:

Filarsky v. Delia

Media File:

10-1018_20120117-argument.mp3

Related Transcript:

10-1018_20120117-argument.xml

Transcript:

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next this morning in Case 10-1018, Filarsky v. Delia.

Ms. Millett.

Ms Millett: Mr. Chief Justice and may it please the Court:

When a private attorney is temporarily retained by the government to work in coordination with or under the direct supervision of government employees in fulfilling the government's business, in getting the government's work done, that attorney is entitled to the same immunity that a government employee performing that same function for that same government would receive.

In this case that is qualified immunity.

That rule comports with the history and policy concerns that have animated this Court's section 1983 and immunity jurisprudence.

Justice Ruth Bader Ginsburg: Is that across the board, Ms. Millett, the rule you just stated?

Is there any situation in which a private attorney engaged to assist a government office in the performance of a public function would lack qualified immunity?

Or is it simply whenever a government agency employs a private attorney to assist it in doing its work that attorney will have qualified immunity?

Ms Millett: I think it -- it may well be the latter rule, the more broader one, but for these purposes, the Court only needs to decide the situation when they are working in -- in coordination with or under direct supervision of government employees.

And I want to clarify that answer, because how one defines doing a public service -- for example, if a State government appoints somebody to represent one of their police officers who's been sued in a 1983 action, if there is five defendants the attorney general can't represent them all, they will commonly appoint people and will pay them, some States will pay them from the State fisc.

So they will be paid by the government to perform a governmental function in that sense, but their allegiance there is to the individual employee, not to the government.

The same with public defenders.

So there are certain situations where someone can be retained by the government in that sense, paid by the government in that sense.

Justice Samuel Alito: Why does it matter whether the privately retained attorney works in close cooperation with government employees?

Suppose in this case Mr. Filarsky had simply been hired to go off and perform this investigation, and at the end of the investigation report the results to the town?

Would the case come out differently then?

Ms Millett: I don't think that would, but in this -- but I think it depends on what one means by coordination with or supervision.

And with respect to attorneys, attorneys can never be an independent contractor in relationship to their client in the way the prison was in Richardson.

Attorneys just can't be.

They are always, in the sense of the rule that I'm using it, working for their client agency, their client government, and under its control and authority.

And the decisions they make are the decisions of that client.

And that's why the whole -- the whole reason we should have this rule is understanding what immunity protects.

It protects government decisionmaking, governmental conduct, and its ability to maneuver with an area -- in an area of reasoned decisionmaking.

Justice Anthony Kennedy: And I suppose -- I suppose you can argue that there is a built-in limitation because the question doesn't even come up unless there is State action.

So there has to be close enough cooperation so there is State action.

I had never thought that when a private attorney gives an opinion letter to a government agency or government entity at its request that there is any State action there at all.

So that question -- so there the question just wouldn't even come up; am I correct?

I assume--

Ms Millett: Right.

Certainly the State action limitation both limits the operation of this rule.

There's many times attorneys or others who work with the government will not implicate the State action rule.

And that's sort of the irony of -- of this case, and I think it would not be uncommon in attorney cases.

The only reason this was a tort, or an alleged tort, is because the government was involved, because governmental actors took his advice, conducted a search -- he didn't -- issued an order -- he didn't.

And yet we have -- we're left in this is odd world where the only way this tort, constitutional tort lawsuit, can go forward is without the government.

Now, 1983 is about deterring governmental conduct, but this Court's immunity jurisprudence says we don't over-deter and we want to allow the government to operate within a realm of reasoned decisionmaking.

And they need to operate within that realm, get reasoned advice and make reasoned decisions, regardless of whether the source of the advice is a temporarily or permanently retained attorney.

The need is for reasoned decisionmaking.

And if you over-deter, which is what an action against a private attorney who is now charged with litigating and defending the government's allegedly unconstitutional conduct, standing all alone while all the government actors have walked away, that turns section 1983 on its head.

Chief Justice John G. Roberts: But your test -- and this is, I think goes broader than the articulation of the test -- doesn't give this private attorney much assurance by itself.

It's sort of a multifactor, is he is coordinating, is he under the supervision, is he really doing public service?

I mean, if the idea is to give him sufficient breathing room so he doesn't stop, and when, as in this case, he is threatened that we are going to sue you if you do this, he has to think, well now, am I being supervised by the government?

Am I coordinating with the government?

Or I -- am I telling them what -- it -- the -- the test itself undermines the asserted purpose.

Ms Millett: Well, two responses to that.

First of all, the State law requirement, the State action requirement that Justice Kennedy referred to, will up front require allegations by the plaintiffs that will discuss the coordinated, presumably the coordinated action, because there has to be some level of coordination.

But the second reason is, as I said, with respect to attorneys, I don't think this is going to be a hard question, because they are forever agents and fiduciaries.

They can never be the independent contractor that you had in Richardson.

They are always answerable to and working for their governmental client.

And when I say supervision here, I don't think the test here is -- is an on-hands, day-to-day looking over your shoulders.

The government has to be able to get the advice of professionals and to trust them--

Justice Samuel Alito: Suppose -- suppose the government hires an attorney to do an independent investigation; it hires an outside attorney precisely because it does not want to be faced with allegations that it has manipulated the outcome of the investigation because its own conduct is at issue.

So they say, you are going to be independent, hands-off, we are not going to interfere at all.

But that would still in your -- in your submission satisfy the coordination requirement?

Ms Millett: --It -- it would in this sense, because there would be -- and I am assuming here we are not talking like a Bivens appointment or something like that.

But here -- because understand what happens in that situation.

They are being appointed to investigate for the government and on behalf of the government.

And it's not usually because we say the government writ large may have done something that would create a conflict.

It may be an individual employee or something, that's when the conflict comes.

But they are working for the government.

The government is their client.

They are not freewheeling independent contractors.

And--

Justice Samuel Alito: What is the difference between that and the prison situation?

The private prison -- the guard in the private prison is performing a function that has been delegated to that or assumed by that entity pursuant to a contract.

I don't understand exactly what the difference is.

Ms Millett: --The difference is -- there is a practical difference and then a legal doctrinal difference.

The practical difference is that in Richardson it was a quite unique situation where the government really had washed its hands of the prison operations.

It had put the day-to-day operation of the prison, the decisionmaking of the prison, how we treat the prisoners entirely in the hands of a private contractor, subject only to what this Court said was very limited supervision, essentially in contract terms.

But it had ceded that authority and it did not exercise the control.

It did not exercise the day-to-day decisionmaking.

And that's where we get into the doctrinal point.

So the decisions that were being made there, and that were -- the lawsuit concerned, there wasn't a single governmental defendant named in that case.

It was just simply the private -- the private guards that were at issue there.

And the decisions that were made were the private company's decisions.

And so this Court said there, that's not what qualified immunity is out -- is out to protect.

It is to protect what, the government's decisionmaking, the special concerns that arise when you are bringing lawsuits that are designed to regulate, limit, deter governmental decisionmaking.

We have to protect that area of reason.

If the government's not making the decision, they have passed the buck, they have handed it off, then there is nothing to protect.

Justice Sonia Sotomayor: Why isn't that the case here?

Ms Millett: I'm sorry?

Justice Sonia Sotomayor: It seems to me that there is enough evidence that the lawyer was the one who held the investigation; the people who attended the meeting between the lawyer, the Respondent, and the other personnel that were there were acceding to what he was doing.

The chief -- he goes to the chief and he says: I want you to do this.

And the chief is relying on him, not his own independent judgment, to issue the command that's contested here.

So, that sort of puts your argument on its head, because it appears that he was more the independent investigator than he was--

Ms Millett: No--

Justice Sonia Sotomayor: --the individual under the control of the agency.

Ms Millett: --First of all -- a couple of responses.

First of all, no, that's nothing like Richardson.

This was the government's investigation.

They initiated it.

They brought him on to the team for his expertise, much like prosecutors might bring on a psychologist to evaluate a criminal defendant.

Now, are the prosecutors going to sit there and say, you know, psychologist, you should ask this question, or are they going to defer to the medical expertise?

That's--

Justice Sonia Sotomayor: This argument seems to fall under what Justice Scalia termed the functional test, that he's serving just like any other government lawyer.

If you are going to fit this case under the Richardson majority test, how would you do it?

Ms Millett: --I do that -- first of all I'm putting it right in -- in Richardson's language, which said it was reserving this very question, and that is, when an attorney or any individual who's working in close coordination or under the supervision of government officials in the performance of an essential function.

And so that makes clear that Richardson was deciding not that situation, the handed-off turnkey situation.

This -- there's no turnkey here.

This is Mr. Filarsky being brought onto the team.

Justice Antonin Scalia: So -- so independent counsel would not be covered.

I mean, if you have a -- you know, a counsel appointed because -- to show that the administration is disinterested in this prosecution and you get independent counsel, the Attorney General says: I will not interfere with him.

The President says: I will not interfere with him.

Then him you can sue without any immunity, right?

Ms Millett: No.

In that--

Justice Antonin Scalia: Why?

He's not working in close coordination.

He's not subject to supervision.

The whole purpose of an independent counsel is to eliminate supervision.

Ms Millett: --Yes, but independent counsel still sued in the name of the United States.

Their client was the United States Government.

That is whom -- that is the interest in which they worked.

They were -- they had a client that they were answerable to.

They were not freewheeling independent contractors; they were attorneys with a client.

Justice Antonin Scalia: Excuse me.

Weren't the prison guards who were -- who were suable in Richardson, weren't they suable under 1983 as acting under color of law?

Ms Millett: This Court assumed that question but did not answer it in that--

Justice Antonin Scalia: Well, the -- the whole issue would have been a nonissue if they -- if they couldn't be sued.

Ms Millett: --This part assumes -- I think it's fair to assume when you're operating a prison, although I think to -- there's a reason this Court reserved it, because the question there is -- with certainly the corporation was under color of law, whether the individuals who worked for the corporation would also be under the color of law.

Justice Antonin Scalia: Don't you think the -- the two should go pari passu, as we say, that if you can be sued for acting under color of law you ought to have the defenses that people who were acting with legal authority have?

Ms Millett: Well, this Court's already crossed that bridge in cases like Wyatt, where, for example -- and it does -- because the State law requirement can sweep broadly in some situations.

So I don't think in a situation like Wyatt v. Cole, where you have private plaintiffs pursuing a private agenda and they simply invoke a State law, that that makes them integrated with the government in the way that an attorney is, and certainly the way Petitioner was here, that they're not part of the governmental team, and they're not making -- they weren't making decisions in the interest of the government.

There was no governmental decisionmaking to protect there, and that's what -- the rationale this Court gave for denying qualified immunity in Wyatt.

The key here is that this is exact -- you cannot protect governmental decisionmaking in this context without protecting the source of advice for that decisionmaking--

Chief Justice John G. Roberts: Lawyers -- lawyers are not supposed to be cowed by the exigencies of the situation.

We're worried in qualified immunity with protecting governmental actors, to make sure they will feel comfortable doing the right thing rather than being intimidated in the situation we had here.

Lawyers have that professional obligation in the first place.

So why does a lawyer need the -- the defense of qualified immunity?

Ms Millett: --There are a couple of reasons.

First of all, that rationale would mean no government lawyers get the protection either, because they have that exact same obligation of fealty, and we don't apply that rule.

That hasn't even been questioned.

And the reason we don't is we understand that this is a more layered inquiry into timidity.

First of all, we don't even want the subconscious pressures that would come with full freight liability for governmental conduct to any angry third party even subconsciously interfering with the decisions of government lawyers temporarily or permanently retained.

Secondly, we want the government to be able to get the advice, to be encouraged to get the advice.

Section 1983 must support governments getting legal advice to counsel them in complying with the law that section 1983 enforces, but government will be deterred from obtaining legal advice if the costs of getting an attorney -- especially if you're a small town, municipality, county, you don't -- can't afford a full-time staff, and the cost of getting an attorney is all those things that qualified immunity wanted to protect against.

Our decision -- reasonable decisionmaking that we thought was protected by qualified immunity is now on trial.

And we have to be there as witnesses, and the jury is going to assess liability for a reasonable governmental decision.

Justice Elena Kagan: Ms. Millett, our cases have said that we're supposed to look not only to policy but also to history.

Would you disagree with the premise that a person in your client's position historically would have had at most an actual malice -- a malice defense, or a reasonable cause defense?

Would a person have anything more than that?

Ms Millett: They would have had the same sort of good faith defense that this Court in Harlow turned into qualified immunity.

Both those lawyers--

Justice Elena Kagan: But in Wyatt, we said that that was a very different kind of immunity than the Harlow immunity, and we said historically it provided no basis for giving Harlow immunity.

Ms Millett: --It -- it -- the Harlow immunity came from the same root.

What happened in Wyatt was we said we will turn that into protection for the government when we need to protect the special functioning of government.

You had no need -- the Court had no need to do that in Wyatt because there was no governmental decisionmaking at stake there.

But the -- the same type of defense -- this Court recognized--

Justice Elena Kagan: So I take it your answer is, yes, it would only have been a malice defense, but that doesn't matter, notwithstanding Wyatt.

Is that your answer?

Ms Millett: --The answer -- the answer is that it is the same type of defense that this Court recognized in prior cases as supporting qualified immunity when needed to protect the decisions of the government.

And Richardson itself recognized that--

Justice Elena Kagan: Doesn't that suggest really that we don't have a historical test any more, that really all we're looking to is policy considerations?

Ms Millett: --Not this case at all, because you've got layers.

You have layers of government -- of history.

You have the history recognized in Richardson for -- for lawyers who are working at the behest of the government, that specific history.

You have the general history where -- where attorneys were provided a reasonable and good-faith, malice and probable cause type of defense, which again is the type of -- the type of defense that gets turned into qualified immunity when needed to protect government's reasoned decisionmaking.

If I could reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, Ms. Millett.

We'll hear from Ms. Saharsky first.

Michael A Mcgill: Oh.

I'm sorry.

Chief Justice John G. Roberts: That's all right.

Ms. Saharsky.

ORAL ARGUMENT OF NICOLE A. SAHARSKY, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Ms Saharsky: Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner may assert qualified immunity on the same terms as the fire department officials, because he was working side-by-side with them and under their supervision on a personnel investigation.

And this is really exactly the situation that the Court reserved and anticipated in Richardson, that when you have a situation where private and government workers work closely together and you deny qualified immunity to the private person, it would directly affect the ability of the government employees to do their jobs.

Chief Justice John G. Roberts: So if they don't work closely together at all and it's just this one fellow conducting the investigation, he wouldn't have qualified immunity?

Ms Saharsky: No, this is a situation in which there's a very close working relationship--

Chief Justice John G. Roberts: I'm sorry?

No, I'm wrong, or no--

Ms Saharsky: --He likely would have qualified immunity.

The closeness of the relationship is very apparent here, but as a general matter it is our position that when people are doing the business of government, private people, can be sued under section 1983 or Bivens, there should be a presumption in favor of qualified immunity.

And Richardson is not to the contrary, because that is a fairly unique case in which the private prison was so removed from the day-to-day workings of government officials that it would not have furthered the purposes of qualified immunity to give qualified immunity to the folks in those situations.

So what we're talking about--

Justice Anthony Kennedy: It's -- it's just hard to imagine anything more imbued with State action than imprisoning someone.

That's -- that's the problem I have in thinking about the case.

Ms Saharsky: --Right.

I mean, several members of the Court said that in Richardson.

And the -- the Court's opinion really talked about the uniqueness of the situation there, that Tennessee was doing something really out on the forefront in terms of giving the day-to-day decisionmaking to the folks in that situation in the private prison, and only checking up.

There was monitoring, you know, annually.

It was really not much ongoing monitoring at all.

And the -- the Richardson Court, you know, found that to be a unique situation, but it distinguished the situation that you have here, where--

Justice Elena Kagan: Wasn't Richardson really all about how market forces would make immunity unnecessary?

And how is it that market forces play any different role in this case than they do in Richardson?

Ms Saharsky: --Well, we understand the Court's discussion of market forces to be really important in the context there, where you don't have individuals who are working closely with government.

The Court needed and the purposes of qualified immunity wouldn't be served in terms of deterrence and in ensuring good government decision making.

But the market forces discussion was the Court reassuring itself in those circumstances that there would still be private prison companies that would be willing to take on the business of government and would be able to do it, you know, consistent with the Constitution.

So we don't understand the Court to have been setting out market forces as a test for qualified immunity, because, as your question seems to suggest, taken to its logical conclusion, any time a private person is being hired by the government, you could say, well, there is a market for the person, couldn't someone else fill those shoes, et cetera, et cetera.

So we think the Court's market forces decision was fairly confined to what the Court itself described as the unique situation in Richardson.

And the Court's--

Justice Elena Kagan: Do you think market forces do operate differently here, or is it basically the same thing?

Ms Saharsky: --We do think that there is a difference in that the attorney in this situation has private clients that that attorney can work for, whereas the private prison company really could only work for the government.

But--

Justice Ruth Bader Ginsburg: I thought that in this case the firm the lawyer was associated with said its dominant business was giving advice to local governments, local municipal governments.

Ms Saharsky: --Yes.

I mean, that was an important part of the firm's business.

But Mr. Filarsky is trained as an employment lawyer and has, you know, broad training and expertise in employment-related matters.

So there is certainly other work that could be done.

But, you know, we thought the core of the Court's decision in Richardson was really focusing on the purposes of qualified immunity and whether they would be furthered by giving them to the private prison and the private prison guards.

And the Court--

Justice Antonin Scalia: You seem to assume or to acknowledge or to concede that market forces do not operate for government employment, that all government employees are doing it out of love?

I mean, why does market force eliminate this defense for somebody who is an employee of a private company but not for somebody who is an employee of the government?

Ms Saharsky: --I'm sorry, Justice Scalia, I didn't mean to suggest that we thought that the market forces inquiry was particularly relevant to answering the qualified immunity question.

I am just explaining that the way we read the Court's opinion in Richardson, which obviously the members of this Court are the experts on, is that the Court was looking to market forces to reassure itself after it determined that the purposes of qualified immunity just wouldn't be served by giving an organization that was so far removed from the day-to-day workings of government the protection of qualified immunity.

The Court just -- the market forces really was just something unique to that case.

And what we think is the most relevant is what the Court started with both in the decision in Wyatt and in Richardson, which is, is it necessary to give qualified immunity here to make sure there is principled and fearless government decisionmaking.

It's the business of government that's important.

And in this case, although Petitioner is an attorney who has his own fiduciary obligations, it is certainly the case that when he was threatened during the conduct of this personnel investigation that that is something that potentially could chill his behavior.

And to the extent that he cabins the advice that he gave to the fire department officials, that affects the ability of government to do their job.

And I might give the Court--

Justice Sonia Sotomayor: Well, that would be a breach of his duty as an attorney.

Ms Saharsky: --I'm saying--

Justice Sonia Sotomayor: And he would be subject to malpractice in that case.

You -- seriously, I find this whole argument about market forces with respect to attorneys representing people odd, because there is a whole slew of unemployed lawyers who would be happy to take on any government service they can.

So going back to the -- that's -- what I consider the central argument you are making, which is: will it chill advice?

And I'm not sure how it can, given the independent fiduciary duty that an attorney has to zealously guard his or her client's interest.

Ms Saharsky: --I'm saying that an attorney is in a difficult position there, and it's the same position that a government attorney would be in, and the Court has extended qualified immunity to government attorneys who are in this position, either giving legal advise, like in the Burns case, or serving as prosecutors.

And there is just no difference when he is operating in this case that would make him distinguishable from a government attorney.

To answer another suggestion, I think, in your question, the Court talked about in terms of deterrence and chilling, making sure that there were talented candidates who wanted to take on the position of government.

So the Court has never said, you know, we are concerned about wiping out the market entirely.

It said, you know, if there is a segment of the market that will not take on this business anymore, that's a fairly serious problem when we need to make sure that the government business is done.

And if I can just make -- give the Court another example to, perhaps outside the context of this case, see how a private person being denied qualified immunity would affect government employees.

Consider a fire department that has some full-time fire department personnel and also some volunteer firefighters.

When they are working together and fighting a fire, you don't want the volunteer firefighter thinking: Should I break down this door?

I may face personal liability.

You want him to make fearless decisions because whether he breaks down the door or not is going to directly affect the ability of the other folks who are trying to go into those homes, trying to stop the fire, to do their jobs.

That would also be true in the context of court security.

The United States Marshal Service sometimes uses private security guards and we have direct supervision and control over them, but--

Chief Justice John G. Roberts: --What if it's a 100 percent purely volunteer fire department?

I mean, the town, whatever, contracts, out-sources, whatever, but it's just run by volunteers.

Is your answer the same?

I'm trying to get at your point about they're working with or coordinating with government employees.

And your argument seems a little derivative.

You are saying the whole point is to protect the government employees and you have to have qualified immunity for the non-employee to do that.

But does your argument apply when there are no government employees around?

Ms Saharsky: --It is just difficult in the fire department situation, even if there is an all-volunteer force, that there wouldn't be some type of direct supervision by the mayor, by the city council, et cetera.

You know, that's -- particularly in the local government situation, those folks would tend to work fairly closely together.

It is, in the case of deterrence and wanting fearless decisionmaking, a primary concern that we have about protecting government.

But we need to protect the individuals to protect government.

So we do need to make sure that their decisions aren't chilled, that persons like Petitioner are willing to take on representation of this kind.

And the Ninth Circuit suggestion that no private person should be -- should get qualified immunity, even when they are doing the day-to-day business of government, is just one that can't be reconciled with this Court's decisions in Wyatt and Richardson.

Justice Ruth Bader Ginsburg: The other part of qualified immunity, and I know it's not teed up in this case, but why is it reasoned decisionmaking to recognize you can't enter a home without a warrant but you can tell the occupant to bring out every item you want to see?

It seems to me that it's not -- that there's clearly established law to say that's wrong.

Ms Saharsky: Well, the Ninth Circuit found that it wasn't clearly established law.

I understand that it's a fairly difficult Fourth Amendment question.

But as you say, it wasn't teed up in this case.

It wasn't -- there wasn't a petition on this question.

It wasn't raised in the brief in opposition.

You know, in light of the fact that the Ninth Circuit found it wasn't clearly established, it probably wouldn't make sense for the Court to address it.

One thing I might point out along those lines is that both the district court made a finding on page 49 of the joint appendix and then the court of appeals made a finding in it's opinion, and this was the reason that the court of appeals found it wasn't clearly established, was because there was no attendant threat in terms of employment consequences to Respondent in this case.

Justice Anthony Kennedy: Another question that is not teed up, but I guess I'm just curious to know about the history of the case.

Was it argued that there was no State action here?

And in your view, is that a very simple question to answer?

Ms Saharsky: In terms of the argument, Petitioner conceded throughout the litigation that he was a State actor.

In the complaint, Respondent actually suggested he was an employee of the city.

In terms of whether he was asserting the authority of State law, it does seem fairly clear that he was asserting the authority of State law here.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. McGill.

ORAL ARGUMENT OF MICHAEL A. MCGILL ON BEHALF OF THE RESPONDENT

Michael A Mcgill: Thank you, Mr. Chief Justice, and may it please the Court:

The Petitioner has not demonstrated a historical basis of immunity at common law for somebody in Mr. Filarsky's situation.

The Petitioner has also not shown that the immunity's purposes also serve Mr. Filarsky's situation here.

I want to put those two issues aside.

We will talk about that in a minute, but I want to address the issue that has been most -- discussed the most, which is the Petitioner's test.

The test that the Petitioner proposes that this Court adopt is one that is very difficult to use.

The test is simply whether the individual is temporarily retained in the functional equivalent of a government employee, considering three factors.

The three factors are: One, the nature of the role performed; the close supervision and/or coordination with a government official--

Justice Samuel Alito: Well, what about your test?

What is your test?

Michael A Mcgill: --Well, our test is Richardson.

I think Richardson is the correct analysis.

The court starts with looking at a historical basis of an immunity at common law and then from there works through the policy reasons.

Justice Samuel Alito: Well, suppose you have a lawyer who is a part-time employee.

Does that matter?

Michael A Mcgill: A part-time employee--

Justice Samuel Alito: A part-time employee of government unit.

Michael A Mcgill: --Well, he would be -- he would receive Harlow immunity.

Justice Samuel Alito: So the difference, your difference, is between an employee and an independent contractor?

Michael A Mcgill: Absolutely.

Justice Samuel Alito: Isn't that often a very difficult determination under the law?

Michael A Mcgill: No, I don't think so.

Any time -- like in Mr. Filarsky's situation, Mr. Filarsky is a for-profit law firm.

He sells himself as an experienced professional in the field providing legal services to the city of--

Justice Samuel Alito: There are a lot of -- there are a lot of -- I think -- well, there are a lot of law firms.

I think all law firms other than public interest firms are for-profit firms, and the attorneys are part-time employees of municipalities and other government units to perform various functions, part-time judges, part-time prosecutors.

Michael A Mcgill: --Well, the Court has made a distinction in its past decisions about functions that are integral to the judicial process.

So when you talk about a judge or a prosecutor, that's a special function.

That's sort of a different situation.

But never has there been an immunity for an attorney just because they happen to be an attorney.

There is no historical basis for that.

Neither the Petitioner nor the Respondent nor the seven amici have--

Justice Samuel Alito: Well, now you're talking about history.

But I want to know how -- how the courts are to determine and why it should matter how a municipality sets this up.

Suppose the town had hired Mr. Filarsky as a part-time town employee.

So he has the certain -- he has a one year contract or six month contract or something for a certain amount of money to perform services for a certain number of hours.

You would say that he would be entitled to qualified immunity then?

Michael A Mcgill: --No I would say that he would not be entitled to qualified immunity.

Justice Samuel Alito: Why?

Michael A Mcgill: Because he's a--

Justice Samuel Alito: He's an employee.

They passed a resolution saying he's an employee of the town.

Michael A Mcgill: --Well, they passed a resolution to hire him and his firm to provide those services on a temporary basis, or a basis of six months.

But he still is an outside attorney and he's probably got -- has other clients and has other interests involved.

And the situation is different -- it's an entirely different system when you have a private law firm operating for profit, contracts--

Justice Antonin Scalia: Year-long employment is not employment?

If I accepted a government job for only a year, I'm not a government employee?

I don't understand that.

Michael A Mcgill: --Well, as I understood the hypothetical, if -- if that individual is -- is working as an employee of the city--

Justice Antonin Scalia: He's working as an employee.

He's hired for one year.

It's a one-year contract.

Why does that make him not an employee?

Or is it the fact that he's a lawyer?

And all lawyers have a certain independent responsibility, they can't do some things that government superiors might tell them to do, right?

So are you going to say all lawyers are -- are -- cannot plead qualified immunity?

Michael A Mcgill: --Well, our position here in this case is that Mr. Filarsky was not necessarily acting in a role of an attorney, he was functioning as an internal affairs investigator.

It is doubtfully that he would have maintained an attorney-client relationship with the city given that he was hired for a chance to conduct a fact finding--

Justice Antonin Scalia: It makes it even easier then.

I thought the attorney thing would help you, but if he's not even functioning as an attorney, he's functioning as a government investigator.

Michael A Mcgill: --But he has other clients and he works for profit, then he operates in a different system.

Justice Antonin Scalia: Okay.

Michael A Mcgill: He is not subject to the same system--

Justice Antonin Scalia: But if they employed him for a year, exclusive employment, no other clients, you would say that is a different case?

Michael A Mcgill: --If they employed him for longer than a year?

Justice Antonin Scalia: No, I'm saying a year, in fact 364 days, okay?

And the deal was, you are going to work for us and nobody else.

You have no other clients.

Michael A Mcgill: Well, I think then that that's -- that's where you would have to look at the policy considerations.

Justice Antonin Scalia: I understand that.

But how do you look at them?

Does that case come out the same way or not?

Michael A Mcgill: No, I don't think it does.

If he's taking that position for that term, that one-year period to make money for profit, and the next year he's going to work for somebody else--

Justice Antonin Scalia: Everybody takes a position to make money for profit.

How many government employees work for free?

Michael A Mcgill: --But he may be in that instance trying to form a relationship with that municipality, and enter into a longer term contract.

Justice Antonin Scalia: He's -- he may be, I guess.

But assume he's not.

He's just a lawyer whose been hired for 364 days to work for nobody but the government.

And you still say that he has no immunity in what he does to investigate for the government?

Michael A Mcgill: Absolutely.

He gets no immunity in that situation.

Justice Antonin Scalia: Two years, though?

Three years?

I'm a lawyer who--

Michael A Mcgill: The longer you go.

Justice Antonin Scalia: --I'm a lawyer who enters a contract for life with this government to investigate, at that point does he get the immunity?

Michael A Mcgill: No, because there's--

Justice Antonin Scalia: Still not.

Michael A Mcgill: --There is no historical basis for immunity.

It just wasn't there.

For that function that Mr. Filarsky was providing, there is no historical basis for it.

And typically that would end the Court's question.

That would end the inquiry.

You only get to the policy consideration--

Justice Sonia Sotomayor: But don't we have--

Justice Samuel Alito: I thought there was a distinction between employees and independent contractors.

Is that the distinction you are drawing or not?

Michael A Mcgill: --Well, the distinction really is, if you are a private actor you are subject to a different set of rules.

You are subject to the market pressures and the competition that are going to correct your behavior and are going to satisfy the same purposes that immunity provides.

Justice Stephen G. Breyer: What would have happened if Abraham Lincoln today were there, and I gathered what happened is they thought the local prosecutor was good but Lincoln is better.

So we'll let Lincoln prosecute this case.

Now in your view Abraham Lincoln would not have had immunity, but the local prosecutor would have.

They did exactly the same thing, by the way, it was just that Lincoln had a better reputation.

Every word was the same.

Michael A Mcgill: As a historical basis, there does not appear to be immunity for private prosecutors.

However, this Court over the years has provided immunity for the judicial--

Justice Stephen G. Breyer: I'm asking you, in your opinion am I -- when I write this opinion I could say, not even Abraham Lincoln, when he acted as a public prosecutor, brought in for the occasion, in your opinion he should not have the immunity that Joe Jones, the local prosecutor would have?

I'm trying to get your opinion.

Michael A Mcgill: --I think that that's a much closer call.

Justice Antonin Scalia: If you should say that section 1983 didn't exist, that's your answer, right?

Michael A Mcgill: But I think it's a much closer call, because he was engaged in a prosecutorial function, which this Court over the years has.

Justice Stephen G. Breyer: But investigatory functions they don't get immunity, so if Lincoln had looked into it and said, you know, I've looked into this, I don't think we should prosecute.

And what they said was, use your judgment--

Michael A Mcgill: No.

Justice Stephen G. Breyer: --Okay.

So there are problems with both standards both ways.

This is one of the things that is bothering me.

Michael A Mcgill: Right.

Justice Stephen G. Breyer: Imagine in this case the lawyer sat down with the other firemen, the supervisor, and so forth, and they said not necessarily this event, they said we want to do X.

And the lawyer said, I have to tell you, it's unclear whether X is constitutional or not.

Now because it's unclear, I also have to tell you that if you do it, you will not be held personally liable.

Now, can a lawyer give that advice?

Yes.

When he does, of course, he is subjecting himself to personal liability.

Now it's that conflict that is worrying me, among other things.

So what do we do about that?

The lawyer is being asked to give advice to the client.

Under the canons of ethics he ought to have their interests at heart and in doing that he is subjecting himself to what could be hundreds of thousands or millions of dollars worth of damages or whatever in suits for malpractice.

Is there a way we side with you out of that dilemma?

Michael A Mcgill: I don't think that is necessarily an immunity question, it's more of a liability question.

Because it very well may be--

Justice Stephen G. Breyer: No, no, no.

What I'm assuming in the question is since it's a close question, he has to worry about a court saying, you were wrong in saying it was legal.

It was not legal.

The matter was unclear, but it was not legal.

At that point he becomes subject to much damages.

But of course, the others do not, and he had to tell them, go ahead with it.

You understand my point.

So what is the answer?

Michael A Mcgill: --But I think what it is, the difference there, there you have an attorney just providing advice which is different than what happened here, where you actually have an attorney engaged--

Justice Stephen G. Breyer: That may be.

But what I'm trying to work out is what is your set of rules.

If we don't say -- if we don't say you have immunity, and you agree that this is a bad dilemma, at least in my hypothetical case, I'm trying to work out what set of rules you advocate in order to either say, well, that's too bad, the dilemma is there, we can't get around it, or something else.

That's why I want your answer on.

Michael A Mcgill: --If the attorney under those circumstances could be held liable for a constitutional violation for simply giving advice and he happens to be a private attorney working for profit, then he wouldn't have immunity.

Justice Stephen G. Breyer: I change it slightly and he puts them up to it.

Michael A Mcgill: Well--

Justice Stephen G. Breyer: I don't know why he couldn't.

I mean, you know, he says "go do it".

In other words, my hypothetical -- okay, go ahead.

Michael A Mcgill: --I think the answer's the same.

If somehow under those circumstances the attorney could be held liable for giving that advice, and he's a private attorney, and he doesn't pass the Richardson test, then he would not be entitled to immunity.

Chief Justice John G. Roberts: Your case--

Michael A Mcgill: There is no -- I'm sorry.

Chief Justice John G. Roberts: --Finish your answer.

Michael A Mcgill: There is certainly no -- there is no historical basis of immunity just for giving legal advice.

The Petitioner hasn't pointed this Court to any firmly rooted tradition of an immunity.

Chief Justice John G. Roberts: Your case highlights, I think is a very good example of why the lawyer ought to have qualified immunity.

I mean this is a case where it looks like there's a lot of threatening and bullying going on.

I mean the lawyer says, you know, we are going to figure out a way to name you, Mr. Filarsky.

You're issuing an illegal order.

If you want to take that chance go right ahead.

You might want to take a minute to think about it.

I mean, it seems exactly the kind of situation for which qualified immunity was developed.

We want Filarsky to give what he -- do what he thinks is the right thing in this situation.

We don't want him to be worried about the fact that he might be sued.

And you have a lawyer here saying, well, if you do that I'm going to sue you.

So Filarsky naturally, or some lawyer in that situation is going to think, wow, do I really want to run that risk.

Isn't that exactly why we have qualified immunity?

Michael A Mcgill: No.

And the reason for that is because Mr. Filarsky is a private individual, he doesn't need qualified immunity.

You know, Richardson is decided in 1977 but in 2003 the Ninth Circuit issued its decision in Gonzales v. Spencer.

And in Gonzales v. Spencer the court held that private attorneys like Mr. Filarsky don't need immunity; they don't get immunity.

So the law in the land since 2003--

Chief Justice John G. Roberts: That's easy for a judge to say, because they are absolutely immune--

[Laughter]

--but for the lawyer who is sitting there and saying -- saying, I'm going to sue you, if you were -- well, you are a lawyer, and you are sitting in that situation, isn't that going to enter into your mind?

You say, well sue all you want; I don't care; this is the right answer?

Michael A Mcgill: --But for nearly a decade the law within the Ninth Circuit has been that private attorneys don't receive immunity.

Chief Justice John G. Roberts: Right.

Michael A Mcgill: And that -- the fact that is, is that Mr. Filarsky knew going into that -- that investigation that he wouldn't have immunity for anything he -- he did.

And it didn't deter him; it didn't make him--

Chief Justice John G. Roberts: Well, how do you know?

Michael A Mcgill: --Well, because he, in light of the threats that -- that he received, he still went forward with the -- what was deemed to be an unconstitutional search.

So the -- the policy purposes of, you know, wanting to prevent unwarranted timidity and deterring talented candidates from working with the government--

Chief Justice John G. Roberts: Well he had -- he had the chief issue the order, right?

Michael A Mcgill: --Well, the--

Chief Justice John G. Roberts: And then the chief later on says, well, he told me to issue the order.

I mean, I'm not quite sure that things went exactly as they would if you had qualified immunity.

Michael A Mcgill: --Well, Mr. Filarsky said, and this is what he said on the record; it's in the transcripts in the joint appendix, is that he is issuing the order on behalf of the department.

That's -- that's what he says.

And there was some -- some discussion back and forth between Mr. Delia's attorney and Mr. Filarsky, and that's what led to the formalization of -- of the order.

Justice Antonin Scalia: I understand that there's a lot of bad, cowardly legal advice being given in the Ninth Circuit.

I don't really know that, but you don't know the opposite, either, do you?

Michael A Mcgill: I don't.

Justice Ruth Bader Ginsburg: Why didn't you cross -- cross-appeal on the clearly established law?

Because then -- then you concede so, arguendo, he had qualified immunity, but the advice he gave was contrary to clearly established law.

Michael A Mcgill: So why did the Petitioner or Respondent not cross-appeal.

Justice Ruth Bader Ginsburg: Why didn't you bring up that -- that issue?

Michael A Mcgill: I think it was -- that's sort of the law of the case, is that the Ninth Circuit found that there was a constitutional violation.

So we -- we obviously didn't want to appeal that.

Justice Ruth Bader Ginsburg: But -- but whether it was clearly established?

In other words, what we had here was a recognition, we can't go into the house.

We can't go into a private house without a warrant.

So in fact Filarsky said something about, I know a way -- a way to get around that, we just tell them to bring out the items.

Michael A Mcgill: Right.

I -- I -- my personal opinion and our position has been is that it -- the law was clearly established on that.

Why the decision was made not to cross-appeal on that, I'm not -- I'm not sure.

But--

Justice Samuel Alito: You are saying it's clearly established that there isn't a difference between going in and looking for the insulation, et cetera, and telling him to bring it out.

Because they clearly established the -- that as a condition of employment in a situation like this, the employee cannot be required to submit to a search?

Michael A Mcgill: --I -- I think it's pretty well known that the house is--

Chief Justice John G. Roberts: Well, particularly -- well, even if -- the reason it's an issue is because he says, look, I have got this stuff at my house.

That's how his -- his defense is.

I haven't used it; I have got the insulation there.

So you think it's still clearly established that it violates the Fourth Amendment for the city to say, okay, well, show it to us if you want to use that as your defense?

Michael A Mcgill: --Yes, I do because it -- it -- certainly Mr. Filarsky didn't have any reasonable suspicion to believe that Mr. Delia was lying or was being dishonest.

He certainly didn't have probable cause.

He had a hunch.

And then, that's what said, I -- I -- he said it as -- at the -- during the interview that I -- I don't necessarily know that you are lying, I just -- I want to see if you are.

So, you know, the investigation turned from wanting to see whether Mr. Delia was off work on false pretenses into, well, I don't have anything there, so let me just see if he is lying, just for the sake of it.

And that's when they ended up issuing that order.

I think that would be a different situation if perhaps you could argue that they had a reasonable suspicion, or had some cause to search his house, but here they didn't.

So I think it is under those facts clearly established.

Justice Elena Kagan: Mr. McGill, back to immunity.

What -- one thing I don't understand about our law here.

You say there was no historic basis.

And I have to concede that that's right.

Seems to me that there's -- there was only a malice defense.

But isn't that always true when it comes to a -- a private person?

In other words, of course there is no historic basis for qualified immunity.

This kind of immunity was developed in 1970.

It's sort of by definition, there is no historic basis for this sort of immunity.

So to say that the historic basis matters is really to say that private people never get Harlow immunity.

Michael A Mcgill: Well, I -- I think that that's right.

There was not qualified immunity at common law, but there was absolute immunity.

And in -- in their -- I mean, I can't go back and think about all the different immunities that may or may not have existed, but I -- I do know the Petitioner has the burden to bring forth -- a firm -- tradition.

This Court has said over and over it's not going to create new immunities.

Justice Samuel Alito: But the Court's cases are a mix of history and -- and policy.

The Court has recognized both absolute immunity -- has recognized absolute immunity in instances where there wasn't absolute immunity at common law; isn't that true?

Michael A Mcgill: Right.

Justice Antonin Scalia: And -- and the rule about malice being -- being the criterion of liability, that applied not just to -- not just private lawyers but to government lawyers as well, didn't it?

Michael A Mcgill: It did.

That that -- that good faith defense applied.

Justice Antonin Scalia: So if we are going to be historically faithful, we should deny any qualified immunity to government lawyers, or expand the government immunity to -- for government lawyers, so they can do anything so long as it's not malicious?

Michael A Mcgill: Well, that -- that's what this Court would have to do.

Justice Antonin Scalia: Yeah, right.

Michael A Mcgill: It would have to basically expand what a common law defense.

Justice Antonin Scalia: Right.

So the -- history, right?

Michael A Mcgill: Well, it would result in this Court having to expand that immunity that it expanded in Harlow to private individuals.

And our position is that because a private individual, like Mr. Filarsky, as a market participant, the purposes of immunity aren't served.

They are just simply aren't not needed.

And I was mentioning earlier about--

Justice Ruth Bader Ginsburg: What about -- what about the argument that Filarsky makes, that if there were to be a proceeding against him, inevitably the witnesses would be the government employees?

There would be the battalion chief, the fire chief; so one of the reasons for the qualified immunity is you don't want to disturb a -- government employees in the routine performance of their work.

Certainly in this case there would be disruption, distraction of these government employees.

Michael A Mcgill: --Well, there probably would be some distraction.

That would be inevitable, but it would be no different than the distraction that the government would face when a private attorney is sued for any number of claims, malpractice or you know, some State law violation.

And to say that the distraction that the government is going to faced based on just what is probably a small sliver of the big pie, which is you know, 1983 litigation, is pretty speculative.

And of course, it doesn't answer the question that the -- the government employer itself can still be liable under Monell.

So even though the immunity may kick in and the individuals may get off, or may not have to stand suit, it -- there are still occasions when the government is still going to be there, so that distraction is still going to exist.

Chief Justice John G. Roberts: What if Filarsky was there, you know, hired to help the fire department with these -- and he did absolutely nothing?

He just sits there and watches.

The battalion chief says, I want to do this, I am going to go get the stuff; you bring it all out.

And he just -- he just sits there, doesn't see any reason to offer any legal advice or legal opinion.

Could you sue him under 1983?

Michael A Mcgill: Well, I don't think he would be liable.

I don't think under that situation he would have participated in the--

Chief Justice John G. Roberts: Really?

He has an obligation as a lawyer to speak up if he thinks something illegal is going on, that's his job, and he doesn't -- he just sits there quietly?

Michael A Mcgill: --No.

I don't know that -- that he would be liable under section 1983.

But if he were, and he were a private lawyer, he would not have qualified immunity.

He would still be under the same Richardson test where there is no historical basis for it, and because he's a private individual working under -- you know, working ing for profit and subject to market pressures, he wouldn't--

Chief Justice John G. Roberts: This for profits, I -- the significance of that eludes me.

Sometimes people act out of, you know, public purpose, and particularly in these sorts of situations the town needs a lawyer and he -- he's helping out.

What -- if he were purely a volunteer, it would be a different answer?

Michael A Mcgill: --If he were purely a volunteer it -- it very well might be a different answer, because some of those policy concerns that -- that Richardson talked about and discussed may not be present.

So you have to apply the test to the situation you have before you.

Chief Justice John G. Roberts: And, well -- and what if he gives the city a discount?

He is working for half -- half his fee, because it's the city.

He wants to help out, but he can't do it totally for free, so it's 50 percent his normal rate?

Michael A Mcgill: I don't know that 50 percent makes a difference.

And earlier, we were discussing about the 1 year or the 2 year and so forth, the length of the contract.

I don't think those things necessarily make a difference.

The point is whether Mr. Filarsky was undertaking that representation or that role in a manner that made him subject to other regular market pressures.

If he was performing a function and competing against other lawyers or other investigators performing that same function, then the point is there, you know, he isn't going to be as timid, because he's want -- going to want to do a good job.

And the same policy concerns that are present for a government lawyer aren't there for him as a private individual.

Justice Samuel Alito: Suppose a municipality were to -- or a State were to abolish all civil service rules and all the special rules and go back to employment at will for government employees, would that -- would that take with it the whole qualified immunity regime?

Michael A Mcgill: I don't think that it would.

In other words, is the question whether or not if we abolished the merit system or civil service system, would qualified immunity still be needed?

I think if that were the question, that -- well, that's a tough question to answer.

But it very well may not be, because part of the decision in Richardson here was -- it was -- they were operating within a different system.

Private versus public.

And if you start to make the public system look more like a private system, then it very well may be that immunity won't be needed at all.

Justice Samuel Alito: It seems strange, because the immunities -- at least some of the immunities -- long predate the establishment -- the institution of the civil service system.

Everybody is subject to market forces.

Every person who works is influenced by market forces to some degree, isn't that correct?

Michael A Mcgill: I think that that's correct, but when you have a civil service system, a merit system, it's not as easy to correct behavior as it would be for, say, a private person.

For, like Mr. Filarsky, if he was not performing at the level that the City of Rialto had hoped, he could be replaced, and quite easily.

For a government employee, though, there are obviously the civil service protections, and it's not so easy to do that.

Justice Sonia Sotomayor: --That's not true of most lawyers.

Michael A Mcgill: Pardon me?

Justice Sonia Sotomayor: Most lawyers are not part of the civil service -- internal lawyers are not part of the civil service system.

They're generally considered employees at will.

At least most of the circuit courts have so held.

Michael A Mcgill: I'm -- I'm not familiar with whether--

Justice Sonia Sotomayor: That they're policymakers, and as such, are not subject to civil service protections.

Michael A Mcgill: --Well, I -- I know that some subsections of lawyers within a government can be represented, so they -- they very well may have some protection.

But maybe it's not quite to the extent that more of the rank and file would have.

Justice Samuel Alito: Well, the political appointees within the United States Department of Justice are not protected by civil service, so should they lack immunity?

Michael A Mcgill: No, because they would -- they would get it under Harlow.

They would -- they would have immunity under Harlow.

Justice Samuel Alito: They are subject to market forces, aren't they?

Michael A Mcgill: They -- they very well may be.

And it may be for me to say that maybe they shouldn't have immunity; it's not needed.

But at this point, the law is in Harlow that they would receive it.

Justice Antonin Scalia: What if I told you that all the lawyers at the Department of Justice are regarded as being employed at will, and that all of them can be fired?

Do you think the rest of them don't -- don't have any protection?

Michael A Mcgill: I think that the answer would be the same; in that they very well may not need qualified immunity because those pressures and those concerns underlying immunity aren't there.

Justice Antonin Scalia: Wow.

That's going to be disappointing news for all those attorneys.

[Laughter]

Michael A Mcgill: I just want to go back and talk about the Petitioner's test a little bit, too, because the Court had some concerns about it and I share those same concerns.

And that's that the test requires a factual analysis.

You know, being temporarily retained in close coordination and supervision.

Those are highly factual questions that aren't going to bode well for early resolution of a case.

And a -- the lawyer is going to be able to plead around that test very easily and take the case into full-blown litigation and discovery and so forth.

So that -- that test is problematic.

In addition, as I understand it, the test is going to be extended well beyond attorneys.

The test results and anybody working for the government -- under, you know, close coordination or supervision, whatever that means, is going to get immunity.

So that is well beyond attorneys, to anybody.

Anybody who contracts with the government and meets that factual test is now going to have immunity.

And that's something -- that's a huge step that this Court, you know, should not take, especially when there is no historical basis for it and the policy concerns are not present.

But even if you apply that test to Mr. Filarsky, under these facts, Mr. Filarsky would not have immunity.

He wasn't temporarily retained.

He worked for the City of Rialto for 14 years as a business, for a profit.

He had many clients, and the City of Rialto was one of them.

It wasn't that he was temporarily retained.

So he doesn't even meet that element of the Petitioner's test.

Mr. Filarsky was not--

Chief Justice John G. Roberts: Are all of these -- are all of these objections applicable as well to the determination of whether there was State action from the attorneys' conduct?

Michael A Mcgill: --The -- the concerns about there being a factual inquiry?

Chief Justice John G. Roberts: Yes.

Michael A Mcgill: I don't think so.

As an attorney, I would have to certify in a pleading that the relationship between the person I'm suing and the government -- so I think there would have to be information put forth in the pleading that would establish that, and I don't know that one could simply make up State action for purposes of pursuing a 1983 action.

So it -- it may be that there is a factual inquiry, but I don't think it's as great or nearly as great as the temporarily retained or close coordination components to the -- to the Petitioner's test.

Mr. Filarsky was not performing a function that is uniquely governmental.

Investigating workplace misconduct is not a governmental function, or it's not a prototypical governmental function.

Chief Justice John G. Roberts: But your -- your objection is not that he was investigating workplace misconduct, your objection was that he was ordering people to tell your client to bring out stuff that was in his house.

Michael A Mcgill: Correct.

But it was under the auspices of a workplace investigation, if you will.

Chief Justice John G. Roberts: Yes, but telling people basically either execute a search or in effect executing a search, that is a uniquely governmental function.

Michael A Mcgill: Executing a -- a formal search by the government is something -- that's a role that the government performs, but I wouldn't say that -- I wouldn't equate, you know, executing a search with what occurred here.

Well, let me restate that, I guess.

What I mean to say is that--

Justice Antonin Scalia: You don't want to say that.

Michael A Mcgill: --Mr. Filarsky, the function, the role that he was performing was that of an internal affairs investigator.

Justice Antonin Scalia: Yes, but if -- if he did the same thing for a private company -- he could do the same thing for a private company.

Say, you know, you're going to get fired unless you substantiate your story by bringing the stuff out of your house.

That wouldn't be a search, an unlawful search; right?

It could have happened in the private company.

Michael A Mcgill: It could have.

Justice Antonin Scalia: Yes.

Michael A Mcgill: It very well could have.

And that's my point, is that what Mr. Filarsky did in his role was not uniquely governmental.

He wasn't performing a governmental function.

Justice Antonin Scalia: Well, there's very little that is uniquely governmental.

I mean, my goodness, if we denied immunity to all those acts that are not uniquely governmental, there would be very little immunity, I'm afraid.

Michael A Mcgill: Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Millett, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE PETITIONER

Ms Millett: Thank you.

Justice Breyer, your dilemma is -- is at the crux of why qualified immunity is appropriate here, because not only do you have the lawyer saying well, you'll be all okay but I'm going to be going down in this lawsuit.

You are going to have a duty to inform this client that in fact this will lead to litigation; you will be protected in your personal capacity, but guess what, litigation is going to ensue.

That can influence and -- and deter both lawyers' willingness to work for the government at these cut rates or pro bono rates -- subconsciously, the advice they give, and it can make the government not want to act on the advice, which is precisely what we want to protect.

Nothing like that was happening in Richardson.

The government was nowhere on the scene when the constitutional decisions being challenged -- they weren't even percipient witnesses in that situation.

The second -- second point I want to make is fiduciary duty doesn't change it other than it confirms that he's working in the interest of the government, but every agent has a fiduciary duty to their principal, and so you can't deny qualified immunity on that ground or you'll have a sweeping decision on your hands.

The market concerns, Justice Sotomayor, the test is not whether a warm body could be found to fulfill this operation if he won't do it.

This is a completely different market from Richardson, where there's only one client for prisons and that's the government.

Here, the government is competing for the services.

When it needs a skilled attorney, when it wants people of the caliber that the government service needs and deserves, it is competing.

And right now, as the Chief Justice recognized, a lot of times, including for Mr. Filarsky, that's done at discount rates.

These folks -- this is already a marginal decision.

If you want to talk about market decisions, then you're going to push that weight.

And if the answer is -- if you decide to take on this pro bono representation, or cut your rates out of public duty, and -- and the willingness to serve your government, guess what comes with it?

You alone will be holding the bag at the end of this for the governmental misconduct.

Section 1983 is supposed to deter governmental conduct.

It is not supposed to deter the reasonable advice given by lawyers to governmental clients.

If the Court has no further questions.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel.

The case is submitted.

Featured:

United States v. Home Concrete & Supply - Oral Argument

Fri, 20 Jan 2012 20:27:45 +0000

Case:

United States v. Home Concrete & Supply

Media File:

11-139_20120117-argument.mp3

Related Transcript:

11-139_20120117-argument.xml

Transcript:

ORAL ARGUMENT OF MALCOLM L. STEWART ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-139, United States v. Home Concrete & Supply.

Mr. Stewart.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

The disputed question in this case concerns the meaning of the phrase

"omits from gross income an amount properly includable therein. "

in 26 U.S.C. 6501(e)(1)(A).

More specifically, the question is whether an omission from gross income occurs when a taxpayer overstates his basis in sold property and thereby understates the gain that results from the sale.

In December 2010, after notice and comment rulemaking, the Treasury Department issued published regulations that interpreted section 6501(e)(1)(A) to apply in overstatement of basis cases.

Those regulations reflect a reasonable interpretation of ambiguous statutory language and they are accordingly entitled to deference under Chevron.

Chief Justice John G. Roberts: Well, but only if your reading of the Colony decision is correct, right?

If we think that Colony definitively resolved the question before you, the regulation can't overturn that.

Mr. Stewart: If the Court in Colony had interpreted the statutory language to be unambiguous or if the Court in Colony had issued an authoritative interpretation that Congress had then built upon, that would be correct.

But the Court in Colony stated that the language was, in its words, "not unambiguous".

Justice Antonin Scalia: Yes, but once -- once we resolve an ambiguity in the statute, that's the law and the agency cannot issue a -- a regulation that changes the law just because going in the language was ambiguous.

Mr. Stewart: I think -- I don't think that the Court in Colony purported to give a definitive definition of the phrase

"omits from gross income an amount properly includable therein. "

wherever it appears in the United States Code.

And the Court in the first paragraph of its opinion in Colony said

"The sole question before us is whether the taxpayer is subject to the extended assessment period under the. "

19 --

"under the Internal Revenue Code of 1939. "

And as the D.C. Circuit, for instance, pointed out in Intermountain, what we are interpreting now is the 1954 code.

It's true that, like the 1939 code, it includes the phrase

"omits from gross income an amount properly includible therein. "

but it also includes adjacent provisions that bear upon the meaning of that phrase.

Chief Justice John G. Roberts: Well, if they use the exact same phrase, and it's a fairly detailed -- it's not just a normal phrase they might use elsewhere -- I think it's reasonable to assume that that phrase came in with the baggage it carried from the Colony case; right?

Mr. Stewart: I think it's important to remember that the 1954 code was enacted in 1954, and the Colony decision came in 1958.

And so, I would take your point that if Congress had enacted the same language after this Court's decision in Colony, then the adjacent statutory provisions that we're relying on would be pretty indirect means of expressing an intent to change the law.

But what Congress was reacting to in 1954 was not this Court's Colony decision; it was reacting to a circuit conflict and trying to resolve that conflict.

Justice Antonin Scalia: Yes, but our -- our job is not to plumb Congress's psyche and decide what they had in mind.

It's to interpret the statute.

And if, as you acknowledge, it's a pretty obscure way to change the law from what we said it was, the law that's written there, that's a very obscure way to change it.

I'm inclined to think that the law stays the way it was.

Mr. Stewart: Well, let me -- let me point to the statutory provisions that I have in mind, to explain a little bit more fully why we think that the context in which the new provision or the 1954 provision appears bears on the proper interpretation of the disputed phrase.

It's at page la of the red brief, the appendix to the Respondents' brief.

And -- and the -- the general rule stated in subsection (a) is:

"If the taxpayer omits from gross income an amount properly includable therein which is in excess of 25 percent of the amount of gross income stated in the return, the assessment period is 6 years rather than 3 years. "

And it's important to recognize that for purposes of the Internal Revenue Code generally the term "gross income" is defined to include gains derived from dealings in property.

And in that sense, it might--

Justice Sonia Sotomayor: But that -- but that argument hasn't changed between the predecessor statute and this statute.

You made the same argument under the Colony statute.

It lost.

So you can't go back to that argument because it's already been rejected.

So what goes from that?

Mr. Stewart: --Well, if you look at subparagraph (i), Roman (i) -- or Roman (i) after the general rule, it says:

"In the case of a trade or business, the term "gross income" means the total of the amounts received or accrued from the sale of goods or services, if such amounts are required to be shown on the return, prior to diminution by the cost of such. "

goods -- "such sales"--

Justice Sonia Sotomayor: My problem with your argument as I read it in the brief, it's a bit convoluted, as Justice Scalia observed.

But if Congress intended to change Colony, it wouldn't just have created this subdivision (i); it would have changed the main statement.

So why don't we read this as simply saying: We accept whatever Colony said, and the only thing we're creating exceptions around are the following.

The exception argument--

Mr. Stewart: --As I say, I would agree that if Congress had passed this statute after the Court's decision in Colony, that this would have been a fairly oblique way to reflect an intent to change what the Court had done.

But Congress was acting in 1954, before the Court's decision in Colony, and it was reacting to a circuit conflict.

And I think it's just as fair to say that--

Justice Antonin Scalia: So this language would have one meaning if the very same language were adopted after our decision in -- in Colony, and a different meaning if it were adopted, as it was, before our decision in Colony?

Mr. Stewart: --Well--

Justice Antonin Scalia: That's a very strange approach to a -- to the meaning of a statute, it seems to me.

Mr. Stewart: --It -- it may be strange, but I think in a sense it's the Respondents who are striving for strangeness, in the following way--

Justice Anthony Kennedy: But -- but you're -- you're saying -- and I'm just trying to supplement Justice Scalia's question so you can continue to answer it.

You're saying that the split is somehow more obscure or more imprecise in its formulation than what Colony did.

You're saying that, oh, if Congress knew about Colony, they would have done it differently, but it was a split, this was close enough for government work.

That seems to be your argument.

And--

[Laughter]

Mr. Stewart: --No, I guess there are two things I'm saying.

The first thing I'm saying is in order to construe the statute we need to not put ourselves in -- attempt to put ourselves in the minds of Congress, but at least be aware of the state of the world at the time that Congress acted.

And in 1954, when Congress acted, there was the circuit split.

And if Congress had wanted to endorse the Colony rule going forward and apply it to trade -- to non-trade and business taxpayers as well as trades and businesses, the most natural thing would have been to change the word "amount" in the main rule to "item", to make clear that the main rule would apply only when an item of gross receipts had been left off the return altogether.

It also would have been natural, if Congress had wanted that rule to apply going forward, to change the term "gross income" in the main rule to say "gross receipts", because gross income--

Justice Anthony Kennedy: I still don't understand why the world was different after Colony addressed the split than before Colony addressed the split.

The issue is still the same.

Mr. Stewart: --I guess the way I would respond to your question, Justice Kennedy, is to say if you look at the statute in its current form, both the text of the main rule and the adjacent provisions that contextually bear on its meaning, than I think ours is by far the better interpretation.

And really, what Respondents--

Justice Antonin Scalia: Well, by far?

By a little maybe, and -- and I -- I might agree with that.

But -- but we're not writing on a blank slate here.

Mr. Stewart: --And what--

Justice Antonin Scalia: Indeed, I think Colony may well have been wrong, but there it is.

It's -- it's the law.

And it said that that language meant a certain thing.

And the issue is whether this is -- this change is enough to change the meaning of the statute.

And -- and I'm dubious about that.

Mr. Stewart: --I guess my main point is, we think our reading of the text is better, and what Respondents have going for them is the argument that, whether or not this is the way you would otherwise construe the statute, once Colony has said what the statute meant, the Court is bound by it.

And our point is that methodology doesn't really work with this provision, because the Court in Colony--

Justice Elena Kagan: Mr. Stewart, don't you have two arguments?

One is that the statute changed, but the other is that even the statute remains the -- even if the statute remained the same, Colony itself was a decision that found ambiguity in the statute, so you have the power under Brand X to go back to that statute and reinterpret it, if you will?

Mr. Stewart: --We do have the power under Brand X, but we -- we don't think that the Court needs to reach that question.

And when the Court in Colony said that--

Justice Elena Kagan: But if the Court thinks it has to reach that question because it agrees more with Justice Scalia than with you as to whether this statute stays the same, then you have independent Brand X arguments, don't you?

Mr. Stewart: --Yes, we do.

Chief Justice John G. Roberts: Well, about that argument, you rely very heavily on the fact that Justice Harlan used the term "ambiguous", right?

Mr. Stewart: Yes.

Chief Justice John G. Roberts: But he was writing very much in a pre-Chevron world.

I -- he was certainly not on notice that that was a term of art or would become a term of art.

And of course, I didn't know him, but my sense is he was very gracious and polite.

And you can see him saying: Well, that's a good argument, but.

He's not the sort of person who would say:

"This is it, this is it. "

I don't think you necessarily can take the use of the word "unambiguous" in his opinion to mean what it does today.

Justice Ruth Bader Ginsburg: But he did say that something was unambiguous and that was the little (i) that was added.

And he also said he wasn't taking any position on the '54 code; isn't that so?

Mr. Stewart: That's correct.

And the Court said that both at the end of its opinion and it also said at the beginning

"the only question before us is whether the extended assessment period applies under the '39 code. "

Chief Justice John G. Roberts: Is there -- is there a case where we applied Chevron deference to a pre-Chevron opinion, in other words saying, well, the Court looked at that but the Court said it was ambiguous and so we apply Chevron.

Mr. Stewart: I'm not aware of any case.

Obviously, Brand X is a recent decision of this Court.

And I would agree with you that it's -- it's perilous to kind of put a Chevron overlay on decisions that were issued before Chevron.

Justice Stephen G. Breyer: Even without Chevron -- I mean, even apply it; I would have thought the point of Brand X is you look at the language of the statute and you look at what Congress intended, and where they intended the agency to have power to interpret, you follow the agency.

And you could do that after the event if the basis for your decision is that it isn't clear.

But that isn't Harlan's opinion at all.

He goes and looks at what Congress meant, and what they meant is treat basis like you treat a deduction; and he gathers that from the legislative history.

And so I don't see the basis for saying now the agency still has power.

Now, forget that one.

I mean, that's one point you might want to address, but I may be too unique in that, in which case it's not worth your time.

Mr. Stewart: Let me give two -- let me give two responses to that, Justice Breyer.

I think in effect what Justice Harlan did for the Court in Colony was to construe the term, the reference to an amount of gross income, as though it meant item of gross receipts.

That was the practical effect of the Court's decision.

And I think two of the -- two of the adjacent provisions of the current code make clear that that's not a--

Justice Stephen G. Breyer: No, well, I didn't think that was the basis.

I thought the basis is that there are two kinds of things: One is you just don't put in some big category of stuff in your return, and the agency can never figure that one out.

And the other is where you don't state your deductions correctly.

And now, the cost of goods sold and the basis are difficult cases because of the way the -- the code defined "gross income".

It defines it in terms of gain.

But Harlan says they are like deductions for purposes of this statute.

That's how I read it.

But I have a different question.

You can pursue this one if you want.

What's really bothering me about this case, and I can't quite figure out the answer to this, is it seems to me when they filed that tax return in April of 2000 it was a terrible loophole, but these lawyers have the job of creating loopholes or at least trying to take advantage of them, okay?

And the IRS had told them this was okay.

Indeed, they had informal advice to that effect.

Now there's a -- you don't put the date of the year 2000 reg and I don't know if you are both talking about the same thing.

I was really surprised there was no date there.

Then what happens is after you lose in every circuit -- not you personally -- they lose in every circuit; and then in the year 2009 they say: Though we lost and though we told everybody this is okay at the time they filed the return, now we are going to pass a new reg and we are going to penalize them, taking all back this money 9 years later.

That seems to me pretty unfair.

So I would like to know just that answer.

Mr. Stewart: --Well, at the time that the 2009 regulation was promulgated first in temporary form, we had lost cases in two courts of appeals.

One was Bakersfield in the Ninth Circuit, but the court of appeals in that case said that because the statutory language was ambiguous the agency might be able still to promulgate a regulation that would get Chevron deference.

Justice Anthony Kennedy: And what was -- what was the date of that, of Bakersfield?

Mr. Stewart: That was in, I believe, either -- I believe 2008 was the Ninth Circuit decision in Bakersfield.

Justice Anthony Kennedy: Oh, okay.

Mr. Stewart: It was -- at any rate, it was before the -- the issuance of the regulation in temporary form.

A couple of months before the regulation was promulgated we had lost Salman Ranch in the Federal Circuit, but that was by a two to one vote.

At that time we had won this issue in four trial courts.

Justice Elena Kagan: But, Mr. Stewart, prior to this latest round of litigation, had the IRS ever said, ever given any indication, that it viewed Colony as not controlling any -- any -- any longer?

Mr. Stewart: Yes, I think probably the best indication of our -- the position in the intervening years, and we agree that there is a surprising dearth of law -- was the Fifth Circuit litigation in Phinney, P-H-I-N-N-E-Y, which was decided in 1968.

Phinney involved a situation in which the taxpayer accurately reported the amount of gross receipts, approximately $375,000, but misstated the nature of the receipts as proceeds of a stock sale rather than of an installment sale.

And the reason that that misstatement of the nature of the receipt made a difference was that it potentially affected the taxpayer's entitlement to take a stepped-up basis.

And so the court of appeals in Phinney said that was subject to the extended assessment period, that the misstatement of the nature of--

Justice Elena Kagan: And as a result of this case, the IRS suggested in any kind of guidance or rulings or anything else that it viewed Colony as an outdated decision?

Because, you know, I'm a taxpayer and I'm reading Colony, and I'm thinking the language of the statute is still the same; why wouldn't Colony control?

Mr. Stewart: --Well, I -- I think one reason you might think that is that if you were -- you -- the opinion was not oblivious to the fact that the 1954 code had been enacted in the meantime and the Court went out of its way to say:

"We are discussing only the 1939 code and we are not pronouncing on the meaning of the 1954 code, other than to note that our conclusion in this case is consistent with the unambiguous language of new 6501(e)(1)(A). "

"And as the D.C. Circuit explained in Intermountain, that is best read as a reference to subparagraph (i), which says that for a trade or business taxpayer "gross income" will mean gross receipts without an offset for the cost of acquiring goods and services. "

So--

Justice Antonin Scalia: If--

Mr. Stewart: --as a taxpayer you would at least be on notice that there was uncertainty as to the proper meaning of the -- the code.

Judge Boudin had written for the First Circuit in a case called CC&FW.

Operations in 2001 that it was at least doubtful whether the main holding of Colony carried over to the new -- the 1954 code.

That was certainly dictum, but it also flagged the fact that this was a subject of uncertainty.

And remember, the provision at issue here doesn't bear on the legality of the taxpayer's substantive returns.

The only question is whether the IRS has 3 years or 6 years to make an extended assessment.

So as of 2003, when 3 years from the date of the return had run for these taxpayers, I think the -- what was out there gave them notice that there was at least uncertainty whether Colony applied.

Justice Stephen G. Breyer: You say in your brief on page 4:

"In 2000 the IRS issued a notice informing taxpayers that Son of BOSS transactions were invalid under the tax law. "

And you cite without a date.

So I was sort of curious whether that particular cite came before or after they filed their return.

Mr. Stewart: I don't know whether--

Justice Stephen G. Breyer: And they say that -- and I -- in July 2000, 3 months after they were filed, the Commissioner reiterated his view:

"It has long been held that the extended statute of limitations. "

da, da, da,

"is limited to when specific receipts or accruals are left out of the. "

--"of gross income", which is basically the Colony statement.

Mr. Stewart: --Well, the--

Justice Stephen G. Breyer: Are you talking about the same thing?

Mr. Stewart: --No.

No, those were two different documents.

The two documents--

Justice Stephen G. Breyer: Okay.

So there are two different documents.

So -- so in July, they are telling the tax bar this is okay.

And what you say is this document here, which you refer to without a date, told them it wasn't okay.

Mr. Stewart: --Well, first of all--

Justice Stephen G. Breyer: I'd be rather curious if you could sort that out.

Mr. Stewart: --Well, the 2000 notice that the Respondents have cited, I think the -- the most important point to make about it is that it was the view of a single -- of the district counsel for a single district within the IRS.

Justice Stephen G. Breyer: I -- I know there are many ways of downplaying that.

But I am just curious as to what happened.

What about the one you cited?

When was that?

Mr. Stewart: I don't know the exact date in 2000, but it -- it has long been established that transactions lacking economic substance and transactions motivated purely for tax avoidance purposes may be disregarded from -- by the IRS.

That -- that was a preexisting proposition.

When we issued the notice with respect to Son of Boss transactions in -- in particular, that was simply the IRS's way of informing taxpayers that we regard this particular avoidance mechanism as encompassed by the general principle that transactions lacking economic substance--

Chief Justice John G. Roberts: Well, yes, that's the general principle.

But the point you made just a few moments ago is -- I think is responsive to that, which is: We're not talking about the merits; we're talking about a statute of limitation.

The whole point of a statute of limitation is some things that are bad are -- are -- are gone.

Mr. Stewart: --That's--

Chief Justice John G. Roberts: You can't go back to them.

Mr. Stewart: --That's correct, and that's the proposition that the Respondents are citing the different 2000 document for.

They are citing it as though it were a definitive statement of agency position as to the operation of the assessment period.

It -- it was not that.

It was a document issued by a single district counsel, and in a sense the -- the reference to Colony as continuing to -- as though it continued to govern the -- the 1954 code was dictum, because the district counsel even in that document stated that it would not be inappropriate to--

Chief Justice John G. Roberts: At what -- at what level of the IRS bureaucracy can you feel comfortable that the advice you are getting is correct?

Mr. Stewart: --Well, this--

Chief Justice John G. Roberts: A single district counsel, you go to there and say, what do you think?

And it tells you, and you say, well, that's fine, but I know you don't count, so I want to talk to your boss -- your boss?

Mr. Stewart: --This is not advice to the taxpayer.

That document was a memorandum from the district counsel to another IRS official.

The other IRS official was seeking guidance with regard to the question of whether we needed to get within the 3-year assessment period or whether it was appropriate to rely on the 6-year assessment period.

And although the district counsel cited Colony in a way that it suggested that it continued to control the operation of the 1954 code, the district counsel stated on the facts of this case it would not be inappropriate to rely on the--

Chief Justice John G. Roberts: So -- so what happened here is that the taxpayer came to the same conclusion as the district counsel of the IRS?

Mr. Stewart: --That's correct, but not -- didn't come to the same conclusion as the IRS did in litigating the case in Phinney, didn't come to the same conclusion as the IRS did in--

Justice Stephen G. Breyer: What about the -- that's the July.

What about this other, undated one.

Now, I notice what you say about it.

You say that it

"described arrangements that unlawfully purport to give them. "

--If I read that piece of paper, which I might -- you probably read it because you cite it -- will I come away with the impression, had, uh-oh, these loophole arrangements, Son of BOSS, which previously seemed to be okay are now not okay?

Is that the impression I'll have?

Mr. Stewart: --First I would say--

Justice Stephen G. Breyer: Is that the impression you had?

Mr. Stewart: --That notice would not say -- tell you anything relevant to the computation of the assessment period.

Justice Stephen G. Breyer: Okay, all right.

That's what I suspect.

Then look at the unfairness of this.

I'm not saying there aren't worse unfairnesses in the world, but nonetheless people spent a lot of money, the whole Bar has gone to an enormous effort.

Everything up through 2000 seems to say you can do this.

You have a case on point in the Supreme Court.

And then 9 years later, after continuous litigation, the IRS promulgates a regulation which tries to reach back and capture people who filed their return 9 years before.

Mr. Stewart: Again, I'm not quite sure what you mean by saying, would seem to say that you could do this.

I don't think there were any affirmative IRS statements that could lead people to believe that the Son of BOSS mechanism was okay.

Justice Ruth Bader Ginsburg: Can you clarify, Mr. Stewart, two things that Justice Breyer brought up.

One, he said that the IRS had given people advice that Son of BOSS was okay, it would work, this tax shelter, this tax scheme would work.

And then he said -- he suggested that a basis is like deductions, and you agree that overstatement of deductions don't get you the longer statute of limitations.

So why -- why should an inflated basis get you to 6 years when inflated deductions don't?

That's one question.

And the other question is, is it so that agents told people that Son of BOSS would work?

Mr. Stewart: No.

No, it's not true that the IRS had advised people that Son of BOSS transactions were okay.

It wasn't until 2000 that the IRS issued a specific document that said as a matter of agency policy they are not okay.

But again, that document was just a kind of case-specific application of the more general proposition, of the more general proposition that transactions lacking economic substance can be disregarded.

With respect to why the overstatement of basis is treated differently from the overstated deduction, that follows inexorably from the language of the code.

That is, Congress defined the conduct that would trigger the general rule as an omission from gross income, and because of the way that gross income is defined an overstatement of basis can lead to an understatement of gain, which in turn is taken into account in computing gross income.

A deduction may ultimately affect taxable income, but it doesn't affect gross income.

And so there would be no way of reading the statute to encompass that.

Now as to why Congress would have done this, I think a clue is furnished by subparagraph Roman (ii) which is at the bottom of page la, and it says:

"In determining the amount omitted from gross income, there shall not be taken into account any amount which is omitted from gross income stated in the return if such amount is disclosed in the return or in a statement attached to the return in a manner adequate to apprise the Secretary of the nature and amount of such item. "

And so that provides a safe harbor that says even if you fall within the general rule, even if you understated your gross income by more than 25 percent, if at some point in the return you gave the IRS adequate information to notice that the misstatement had taken place, you will be off the hook for the secure assessment period.

And I think that is highly relevant in responding to the policy concern that Justice Harlan identified in Colony.

That is, Justice Harlan said: The reason we think that Congress intended to restrict the statute to situations where an item is left off the return altogether is that those would be the most difficult for the IRS to catch; the IRS would be placed at a special disadvantage.

Here in subparagraph (ii), Congress has accomplished the same intent, but through a different mechanism.

That is, it's made the general rule sweep more broadly, but given taxpayers an out where the disclosures are adequate.

If I could reserve the balance of my time.

Justice Anthony Kennedy: Just on that point -- and we will find out in a minute -- is the Respondent going to say, well, it's always implicit that you have a basis; everybody knows you have a basis?

Mr. Stewart: I don't think that--

Justice Anthony Kennedy: So that's -- so that's necessarily what you are telling the government.

Mr. Stewart: --I don't think he will say -- I don't want to speculate too much on what he will say, but I think his position is an overstatement of basis could never trigger the assessment period because the item of gross receipts would have been adequately disclosed.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Garre, is it implicit that you always have a basis?

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE RESPONDENTS

Mr. Garre: Your Honor, our position is the one that the Court reached in Colony, which is that an overstatement of basis is not an omission from gross income.

What the Court held in Colony is that an omission -- an omission from gross income is where you leave out a specific taxable item or receipt.

We think the court of appeals got it right when it concluded that the statute of limitations on the statute -- on the tax assessments at issue expired in 2003 and rejected the IRS's extraordinary efforts to avoid that result by discombobulating this Court's decision in Colony and by seeking to retroactively reopen and extend the statute of limitations.

What the government relies on principally is the addition of subparagraph (i) in the code and that was added in 1954, before the Court's decision in 1958.

And I would like to make a few points about subparagraph (i) because I think it's the crux of the government's position.

The first is just the anomaly of their argument that by adding this subparagraph -- and it's on page la of the addendum to the red brief -- which explicates the definition of (a).

Justice Elena Kagan: Well, why do you think they added that paragraph?

Because it seems clear that there was a circuit split at that time about exactly this question and that this paragraph was a response to that circuit split.

So what else could Congress have meant by it?

Mr. Garre: Well, Your Honor, I think that's probably right.

It thought it was agreeing with the taxpayer side of the circuit split.

There is legislative history indicating that it also thought it was addressing the computational rule of how to get gross income, which factors into the 25 percent trigger.

I think what maybe is most important is this Court in Colony looked at the 1954 amendments at the suggestion of the government and concluded that its decision was consistent with the 1954 amendments.

That's in the last line of the decision.

Justice Anthony Kennedy: Were most of the--

Justice Ruth Bader Ginsburg: But that's got to -- that's got to refer to (i).

It can't refer to -- Harlan said two things.

He said: It's ambiguous, therefore I'm going to look at the legislative history to find out what the predecessor section means.

And then he says: I'm not going to speculate on what this new thing means, but I do want to point out that the result we reach in Colony is in harmony with the unambiguous language of 6501, et cetera.

The only unambiguous language that he could be referring to is in (i) because he's just -- he had said the earlier language was ambiguous.

Mr. Garre: Well, I don't -- I don't think so, Your Honor.

First of all, you are right, he referred to the whole 6501(e)(1)(A), which includes both subsections.

It is not clear that he was identifying subparagraph (i).

He could have well been referring to subparagraph (ii), along the lines of what my friend just spelled out, because much of the Colony decision was based on addressing the situation where the IRS is at a special disadvantage because something's been left out entirely.

And that really kind of gets to the heart of subparagraph (ii).

But the anomaly of the government's construction here today is that Colony would come out differently, because Colony doesn't involve a taxpayer involved in the sale of goods or service; it involved a taxpayer in the sale of real property.

So even though this Court in Colony said--

Justice Sonia Sotomayor: A real estate developer in the business of buying and selling property.

So I'm not sure that I buy your argument that it can't be goods and services, because that was the services of this particular company.

Mr. Garre: --Your Honor, the sale of real property, whether in parcels or otherwise, has always been treated differently than the sale of -- cost of goods or services, which really is a term art.

And if you go back at Colony, you can see that the Court referred to basis, referred to property, and that's precisely what the parties did in their brief.

The Solicitor General in his own brief framed the question presented as overstatement of basis in the sale of property.

That's the situation that we have here today.

The subparagraph (i) they are referring to is addressed to the specific situation of a trade or business involved in the sale of cost of goods or services, which is different--

Justice Anthony Kennedy: --And I was going to ask in conjunction with Justice Kagan's discussion, were the pre-Colony cases that involved splits, did most of those or any of those relate to the sales of goods and services or were they all real estate sales.

Mr. Garre: --Your Honor, the Uptegrove case did, the Third Circuit case.

But they involve -- the fact is they involved both the sale of property and the sale of goods and services.

And at that time no one was drawing this bright-line distinction.

Justice Anthony Kennedy: Well, but the Congress drew it, as I think is implicit in Justice Kagan's question, when it talks just about goods and services.

Mr. Garre: It did do that.

There was one reason for Congress to address that specific situation, in that there was a regulation that had defined "gross income" differently.

It's appended at the end of our brief and it was discussed in Uptegrove.

So there was a reason to single that out.

And I think that the more--

Justice Anthony Kennedy: The other reason, it was goods and services.

There is always FIFO and LIFO.

I mean, there's -- taxpayers who sell goods have inventory cushions, and so the IRS is very, very well aware that that kind of judgment is involved in all these statements.

It's not quite the same with basis.

Mr. Garre: --Well, Your Honor, I think it's the opposite if I understand your question, which is that taxpayers typically put more information which is going to put the IRS on notice when you are dealing with basis and the sale of property as opposed to the costs of goods and services, which involve many transactions and you are dealing with them in the aggregate.

When you are dealing with the sale of property, as in Colony and here, you are dealing with specific disclosures as to the basis.

Here if you look on page 151 of the JA, it lays out the adjustment in the basis.

And the same was true in Colony.

So to the extent that there is a distinction there, I think it cuts in favor of the taxpayer.

The problem for the government is all of the amendments in 1954 were pro-taxpayer amendments as relevant here and yet the government's conclusion is that by adding this subsection addressing the specific situation it meant to take away the general rule in a way that hurt taxpayers.

It's inconsistent with what this Court said in Colony because the Court--

Justice Ruth Bader Ginsburg: But why would they be redundant?

I mean, if the statute without little (i) meant what you said it meant, then there would be no occasion to put this in, because "omission from gross income" would refer to items of income items, period.

So what work does (i) do, if it just -- if the main rule, the general rule, is as you say it is?

Mr. Garre: --Your Honor, everyone agrees it's not redundant, even the government, because what it does is at a minimum, it has the computational effect of affecting the 25 percent trigger.

The amount to get to the trigger has to--

Justice Elena Kagan: But you agree that that's not why Congress passed that provision?

Mr. Garre: --Well, it's not clear, Justice Kagan.

The Federal Circuit in the Salman Ranch case cited legislative history that suggested it was trying to achieve just that result.

But I think the broader point I would make is, it's not at all uncommon for Congress to act to provide an answer to a specific situation that had come up by explicating it, and yet one doesn't conclude that in doing that it's intended to overstate -- override the entire general rule that's stated, particularly where it doesn't touch the language that's the subject of the general rule.

Congress didn't in any way touch the phrase interpreted in Colony, "omission from gross income".

And the anomaly gets even greater if you look at Congress's actions after Colony.

In 1965 Congress amended the heading.

Now, granted it's only a heading, but it amended it, the heading to the subsection, to mean "Substantial omission of items", which is perfectly consistent with Colony's interpretation, directly contrary to the government's interpretation.

In 1982 Congress re-enacted the same language, 26 U.S.C. 6229, which is the provision for partnerships, and yet it omitted the subparagraph (i) that the government relies upon as the transformative provision narrowing the general rule.

And so why on earth would Congress omit that subparagraph if it did the transformative work that the government suggests?

The government doesn't have a response except to say that they have to be interpreted the same way, which makes no sense given the emphasis it's placing on subparagraph (i).

I think the answer is, is subparagraph (i) just doesn't have and was never intended to have the transformative effect that the government suggests.

Whatever -- we can talk about what the Court meant in Colony, but I do think that it's critically important that Colony is entitled to full stare decisis.

In fact, it's stare decisis coupled with Congressional re-enactment.

The government describes the world after Colony, but the fact is if you go back and look, no one thought that Colony was just a ship passing the night that had only retrospective significance.

Everybody, including the IRS, appreciated that Colony was a landmark decision.

Justice Elena Kagan: Well, Mr. Garre where do you find evidence of that?

Because you cite some cases in your brief that end up not really supporting your position.

And as far as I can see there is only one case after Colony that deals with the question of whether Colony continues to govern after the 1954 amendments.

And that case, which is Phinney, seems to cut in the opposite direction.

So am I missing something?

Are there cases that favor you that say that yes, Colony continues to control?

Mr. Garre: I think what my response would be first as to Phinney, the Fifth Circuit has clarified that the government's construction of Phinney is just wrong.

Phinney was consistent with the Colony rule, it dealt with a particular application of it.

Justice Elena Kagan: Well, whatever the Fifth Circuit said about Phinney, when I read Phinney, it seems to me to cut in the government's direction if not to be entirely on all fours.

But I ask are there any other cases that you have that suggests that courts did think that Colony was continuing to be the governing rule?

Mr. Garre: If I could make one point on Phinney and then I will address the other cases.

I would ask you to look at the Solicitor General's opposition brief in Finney which recognized that Colony was the governing principle.

One would think that the government thought that Colony was just a shot in time and had no ongoing significance, they would have said that in the opposition brief in Phinney.

The Solicitor General accepted that Colony is the governing rule, as everyone did.

As to the cases, I think it's fair to say that no, we can't point to a case in the 1950's, 60s or 70s where they specifically confronted the question before the Court today.

But what I can say is look at the cases that we cite in our brief and all of those cases discuss this Court's opinion in Colony as if it continues to have lasting affect on the interpretation of the omits from gross income, and yet in the government's -- the IRS's own internal documents, we cite two, 1976 and 2000 where the IRS internally is treating Colony as a landmark decision which controls on a current going forward basis.

Justice Elena Kagan: Because what I was thinking, Mr. Garre, and tell me what you think the consequence of this would be, is that if I were a taxpayer and somebody came to me and said is Colony still the rule, I would have said, well, I can't tell you 100 percent.

I think you are good 70 to 80 percent, you know.

It's the same language, and there's Colony out there, and nothing the IRS hasn't said that Colony doesn't control, but I can't -- so I'm giving you 70 percent.

Do you win if that's the state of the world as I see it?

Mr. Garre: Well, I don't know how you would put a percentage on in affect whether Colony was a step I case or not.

Justice Elena Kagan: Well, in terms of what a taxpayer thinks, whether Colony continues to govern.

Mr. Garre: I think so.

I mean, I think, you know, the IRS's actions here really put taxpayers in an extraordinary situation.

I mean they are taking a decision of this Court that says an overstatement of basis, no, that's not an omission of gross income.

They are relying on the 1954 amendments to get around that.

Look at the Colony decision.

The Colony decision says the 1954 amendments, no this decision is perfectly consistent with those.

And here comes the government--

Justice Ruth Bader Ginsburg: And it also says before that, Mr. Garre, and without doing more than noting the speculative debate between the parties as to whether Congress manifested an intention to clarify or change this 1939 code.

So, not taking the position on whether the new section changes the code and the part that is in harmony, I can't see how that can be read to mean anything other than the (i), which is unambiguous, and certainly in harmony with the result in Colony.

Mr. Garre: --Justice Ginsburg, the government in Colony argued that the 1954 amendments compelled its interpretation which is the one that the Court rejected.

If this Court -- this Court must have considered that argument in reaching the opposite conclusion.

I think that you are right, that it's fair to describe that language as dictum.

But this Court has many times said that even if something is dictum, if it explicates the court's holding, the lower courts and this Court would give it a great weight.

Justice Ruth Bader Ginsburg: But as I read it, it doesn't say, as Colony controls, it's saying we are not going to take the position on what the 1954 code does, whether it clarifies or changes.

Mr. Garre: I think that the prefatory language there I think you're right, that's a fair characterization.

But ultimately what the court said was its holding was in harmony with the new statute.

And you can't reach that conclusion if you agree with the government's interpretation.

Justice Ruth Bader Ginsburg: But he says "unambiguous language", and he can't mean the general rule because he's already said that is ambiguous.

He's got to mean the new position, which is certainly unambiguous.

Mr. Garre: I don't think it has to be (i), Your Honor.

I think it could be subsection (ii).

We don't know which one he was referring to.

And the reason why it could be subsection (ii) is because a great deal of the court's analysis dealt with the question of whether the Commissioner was at a disadvantage.

I would like to address the rationale in Colony.

My friend has referred--

Chief Justice John G. Roberts: Before -- if I could just interrupt you, before you do so, to follow up on Justice Kagan's question.

Under our current regime, can you ever give more than a 70 percent chance?

Because you have, in the absence of a definitive Supreme Court ruling, the IRS can reach a different result and it can do that retroactively.

So, I mean, you don't disagree with that, right?

I mean, if we determine that Colony was ambiguous, the IRS can change the rule in Colony, and it can apply that rule, new rule, retroactively.

That's what our cases say, right?

Mr. Garre: --Well, we do disagree with it -- I mean, I certainly accept the Brand X part of that.

What we disagree with is that, A, the IRS has the authority to retroactively apply an interpretation of its statute, which gets to the meaning of 7805(b)(1); and, B, whether or not the regulation in this case on its face applies retroactively.

But I accept--

Justice Sonia Sotomayor: Well, they can't -- they can't change the interpretation of the statute, but they are the agency with expertise to define a term within a statute.

Why don't they have the expertise to define either what the words "gross income" mean or don't mean?

Mr. Garre: --Well, they don't have any leeway to overturn this Court's decision if that decision specifically addressed the question.

And that's the language of Chevron and--

Justice Antonin Scalia: Oh, if it is -- according to Brand X, it specifically addressed the question and said that there was no ambiguity.

But according to Brand X, if there is ambiguity, despite a holding of this Court, the agency can effectively overrule a holding by a regulation, right?

Isn't that what Brand X says?

Mr. Garre: --Brand X says that--

Justice Antonin Scalia: So the only question here is, as the Chief Justice put it, whether, whether indeed Colony meant by "ambiguous", ambiguous.

Mr. Garre: --I--

Justice Antonin Scalia: It depends on what the meaning of "ambiguous" is, right?

[Laughter]

Mr. Garre: --I don't think so, for this reason.

Because Colony -- at the beginning of the Court's decision, Justice Harlan in a gracious way, as the Chief suggested, pointed out that there could be some ambiguity in the text.

But then he went on to apply the traditional tools of statutory construction.

Justice Samuel Alito: I can hardly think of a statutory interpretation question that we have gotten that doesn't involve some degree of ambiguity, if we're honest about it.

We take a case where there's a conflict in the courts of appeals.

And so there was at least enough ambiguity in those cases for one or more courts of appeals to come to an interpretation that is contrary to the one that we ultimately reach.

So what degree of ambiguity is Brand X referring to?

Mr. Garre: Well, I would, I would think that Brand X refers back to Chevron and looks to the first step of Chevron.

What Brand X is looking to is whether or not -- it's really a step one or step two case.

And on step one, Chevron looks to whether Congress has addressed the specific question presented.

And if you look at the Court's decision in Colony, what Justice Harlan said was, Congress was addressing itself to the specific situation where a taxpayer actually omitted some income receipt or accrual in its computation of gross income.

And that would--

Justice Elena Kagan: Well, that was the specific situation, but then the question was how clearly did Congress speak to that specific situation.

And in order to get his result, Justice Harlan says first that the statute is -- that the statutory text is ambiguous, goes to a bunch of legislative history, and none of that legislative history actually speaks to the exact question before the Court, only by implication.

So if you look at the whole of the Colony opinion, it sure seems as though there's a lot of extrapolation going on and essentially a lot of ambiguity.

Mr. Garre: --Well, I would disagree with that, respectfully, Your Honor.

I think the holding of the Court -- and again, it's entitled to stare decisis effect even if this Court might approach it differently today under different modes of statutory construction otherwise.

The holding of the Court was that Congress addressed a specific situation of whether an overstatement of basis was an omission from gross income, and the Court said no.

Justice Elena Kagan: Well, in the end there has to be a resolution.

But the question is, what does it look like before you get to that resolution?

And -- and Justice Harlan is doing a lot of tap dancing there, you know, going to this Senate report, going to that House report, going to this colloquy, before he can come up with an answer.

Mr. Garre: He was employing the traditional tools of statutory construction, not just legislative history.

He talked about the structure and purpose and the patent tax incongruities created by the government position that an overstatement--

Justice Ruth Bader Ginsburg: But he did say -- he say he was looking to -- he said the text isn't clear; therefore, I look to the legislative history.

Mr. Garre: --And that's the tool of statutory construction.

Justice Stephen G. Breyer: I agree with you on that.

And I agree with Justice Scalia, actually.

There are many different kinds of ambiguity and the question is, is this of the kind where the agency later would come and use its expertise.

And you are saying here it was up to the Congress and looking at what they had in mind.

All right, maybe that's the base, best ground.

But suppose it turns out the majority think you are not right on that, okay.

Now, here's my question.

Assuming you are wrong on that, which I'm not sure you are, but assuming you are wrong, now we get to this regulation.

Here is my problem: One -- I have no doubt at some level it seems rather unfair, but that instinct is not enough.

The question is what -- what's the law?

A, you can say the word "open" doesn't include this case.

But we run into the problem that an agency has great authority to construe its own regulation.

B, you could say that, well, there's this statute out there that says don't apply it, and there are two routes there.

One is something to do with language, which I think you can think of, which seems to cut very much against you if read naturally, but you can strain it to read it in your favor.

And the other has to do with a parenthetical where, once again, although they left it out of their brief and they put in ellipses, I can see why they left it out because when you read it it's again ambiguous.

We run into the same problem.

Then you could say: Well, they are not supposed to do these things retroactively, either on common law administrative law grounds or something like that; they shouldn't do it; it's unfair.

And they'll say: But you see, it wasn't that unfair; a child of 2 would have known this was a loophole.

That's how they would have characterized it.

And the IRS never said anything, except for one district director in a different district that really encouraged or underwrote this kind of thing.

So it's not nearly as unfair as you think.

If you live by loopholes, you will die by regulation.

You know, something like that.

So looking at those four possible grounds -- and I can't think of a fifth -- you take your choice.

Which is the strongest, and how do you reply to the objection?

Mr. Garre: Well, I think you would first look at the language of the regulation and see whether or not--

Justice Stephen G. Breyer: "Open", that's the term.

Mr. Garre: --by its terms it applies retroactively.

This Court has made clear, it made clear in the Bowen case, that it is not retroactively unless there is a clear -- it's not retroactive unless there's a clear statement of retroactivity.

And our position is, whatever else is true, that what the effective date provision says and the preamble says, it's just unclear about whether it's retroactive or not.

Justice Antonin Scalia: I never thought that a revision of a statute of limitation was retroactive legislation, just as I've never thought that a provision altering rules of evidence for a crime, even for crimes that were committed before that alteration, is retroactive legislation.

Mr. Garre: Well, I--

Justice Antonin Scalia: You know, the crucial date is the date -- at least it's not -- well, you can extend the statute of limitations.

Mr. Garre: --I think it's retroactive in the worst way, for this reason: It at a minimum extinguishes an affirmative defense, the statute of limitations.

This Court recognized that in the Hughes Aircraft case.

Justice Antonin Scalia: So say it's unfair, but I'm not sure that the rule against, presumption against retroactivity, technically applies.

Mr. Garre: Well, again, I mean, I think if you look at Landgraf and the cases talking about what is retroactive, this regulation here if it is applied retroactively has the consequence this Court points to as the worst kind of retroactivity, which is extinguishing a valid defense in litigation and imposing new consequences for past actions.

Hughes Aircraft recognizes that, as do the many courts of appeals that we've cited in our brief.

Justice Sonia Sotomayor: Presumptively because you're saying that this is a new interpretation.

But the IRS is taking the position that the meaning hasn't changed; that it's just clarifying some ambiguity that the courts have had; not that it's had.

Mr. Garre: And with all due respect, the law in 2003 when the statute of limitations expired was Colony.

Even if the Court -- the agency had leeway to reinterpret it, it's changing the law.

And the reason why it's doing that is it's doing it retrospectively.

If you look at cases like Brand X, the theory is, you have one interpretation, and then the agency going forward can have another one.

In Brand X, the agency sought to apply its new interpretation prospectively.

Here, it's doing retrospectively, and when it does that, it changes the law.

Maybe the concrete example of that is--

Justice Sonia Sotomayor: There's too many presumptions in your answer.

The first is that Colony controls--

Mr. Garre: --No, no--

Justice Sonia Sotomayor: --which to me itself says it's not -- it's not interpreting the new statute--

Mr. Garre: --My point on that--

Justice Sonia Sotomayor: --whatever its footnote meant.

Mr. Garre: --No, my point on that was not that Colony controlled as a step one matter, it's that even if the government is right that Colony just said this is one permissible reading, it was the law as -- it was the permissible reading and the law until the government changed it.

And the government didn't change it, try to change it, until 2009.

The statute of limitations in this case expired in 2003.

And so if the government can adopt a new interpretation going forward, the question is can it apply that interpretation retrospectively during the timeframe in this case.

And our position on that is that they certainly haven't done so unambiguously.

And that -- as this Court said in St. Cyr, ambiguity means unambiguous prospectivity.

And the Court also, with Justice--

Justice Elena Kagan: Do you -- do you understand the preamble as part of the regulation?

Because if I look at the preamble, the preamble seems pretty clear to me.

It seems to me that your view that the government did not do this clearly enough must rest on looking at the regulation without the preamble.

Mr. Garre: --No, no.

I mean, the Court could, and certainly, I think you'd go first to the regulation.

And it says "was open".

The preamble says quote, "this is not retroactive".

It says it does not apply to open tax -- it only applies to open taxed years, and not to reopen closed tax years.

That's on 75 Federal Register 78, 898.

The government -- the way that the government gets there is to say that well, even though we passed the regulation long after the statute of limitations expired, because this case is pending, we can apply the new interpretation in determining whether the period closed long before we passed this regulation.

At a minimum, that's -- that's a highly strained if not convoluted way to get around retroactivity.

The way that the regulation's effective date and the preamble speaks about whether this is retroactive or not is really kind of nonsensical.

And I think at a minimum, the taxpayer ought to get the benefit of that.

And this Court should say that if the government really wants to do -- take the extraordinary step that it's taking here to retroactively reopen up the statute of limitations, it ought to do so in clear terms and not the convoluted way it's done here.

We also think that the -- the IRS just lacked the authority to -- to legislate -- to -- to pass a new interpretation on a statute retroactively.

That gets to the meaning of 7805, and whether -- which says

"regulations relating to a statutory provision enacted after the 1906 legislation which purported to strip the IRS of authority to act retroactively. "

whether the "enacted after" clause modifies regulation or statute.

And we think in context, it must modify regulation, because there's two types of IRS regulations: Regulations relating to statutes and regulations relating to internal IRS practices.

And what Congress said is internal practices, sure, you can operate retroactively when appropriate.

With respect to new interpretations of statutes, not retroactive.

That was landmark legislation as part of the Taxpayer Bill of Rights.

Justice Sonia Sotomayor: I take your point about the purpose, but you would have to ignore every rule of grammar that there is in order to read it your way, don't -- wouldn't you?

Mr. Garre: Not if you read regulations which relate to statutory provisions as -- as one thing.

Regulations which relate to statutory provisions as opposed to regulations which relate to IRS provisions.

And if you look at the legislative history, it's clear Congress was thinking about that distinction.

If -- if you do read that as one unit, then "enacted on or after" obviously modifies that.

I think you have to look at it in context in light of the purpose of it, to get to that conclusion.

But courts have adopted that conclusion.

The American Council on -- American College of Tax Counsel lays out those cases.

We think Judge Wilkinson got it right when he referred to IRS's position in this case as an inversion of the universe, and concluded that accepting IRS's position would

"stretch accepted administrative deference principles beyond their logical and constitutional limits. "

The IRS has the tools at its -- its disposal to identify tax deficiency and take appropriate action timely.

Congress acted in 2004 to respond to the precise situation precipitating this case with Son of BOSS transactions.

It amended 6501 not by changing the meaning of what's an omission from gross income, but by adopting a new provision which requires taxpayers involved in listed transactions like Son of BOSS to report many additional things, and saying that the statute of limitations did not apply at all if they didn't make those reporting requirements.

So going forward, the only impact of the Court's decision in this case is going to apply to everyday regular taxpayers who simply erroneously misstate or overstate the basis in the sale of a home or other assets.

There's no reason to take the extraordinary steps that the IRS takes -- asks you to take in this case to reach that conclusion.

We would ask the Court to affirm the judgment of the court of appeals to reject the IRS's aggressive position on administrative power, and put an end to a case that the taxpayer should have never had to file in the first place.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Garre: Thank you, Your Honor.

Chief Justice John G. Roberts: Mr. Stewart, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF MALCOLM L. STEWART ON BEHALF OF THE PETITIONER

Mr. Stewart: Thank you, Mr. Chief Justice.

I'd like to make three quick points.

First, Mr. Garre refers to the amended heading of section -- subsection 6501(e), which now states (e) refer to amounts and some to items.

Subsection (e)(2), which deals with estate and gift taxes, refers to omission of items.

And the legislative history makes clear that Congress chose that term precisely to make clear that the understatement -- or the overstatement or understatement of an item that was reported will not give rise to the extended period.

The second thing is that at autumn, Respondents argue that the phrase -- the phrase "amount of gross income" should be construed to mean item -- of gross receipts.

And they don't offer any real textual argument as to why that would be a sound reading.

Really, they rely exclusively on Colony.

But the Court in Colony said at the beginning of its opinion that it was pronouncing only on the 1939 code.

It said at the end of its opinion that it was not generally trying to construe the 1954 code.

And it stated that the relevant -- most relevant language was not unambiguous.

And I think the recognition of ambiguity is relevant in part because it sets up our Brand X argument, but it's also relevant because saying that a particular snippet of language is unambiguous is to recognize that its meaning may vary depending on context.

Chief Justice John G. Roberts: Mr. Stewart, I know you've got a -- your third point, and I want to let you get it out, but you mentioned Brand X.

Have we ever applied Brand X to one of our decisions?

Have we ever said an agency by regulation can alter or change one -- a Supreme Court decision?

Mr. Stewart: No, I mean -- Brand X was the first case that announced the Brand X principle, and the Court has not applied it since.

Justice Stevens--

Chief Justice John G. Roberts: That was applying it to a court of appeals decision.

Mr. Stewart: --That was applying it to a court of appeals decision.

Chief Justice John G. Roberts: We've never said an agency can change what we've said the law means.

Mr. Stewart: No.

Justice Stevens wrote a separate opinion in Brand X, suggesting that it might not apply to decisions of this Court, but the Court as a whole did not pronounce on that.

And then the third point I would want to make is that Mr. Garre referred to cases, and one IRS General Counsel opinion that were issued during the period between 1958 and 2000 that applied Colony to the current statute, but they did so in a very specific way.

That is, they relied on the aspects of Colony that talked about Congress's purpose to reserve the extended assessment period for cases in which the IRS was at a special disadvantage due to inadequate disclosure.

And those cases applied that language in elucidating current subparagraph (ii), which provides a safe harbor in cases of adequate disclosure.

Respondents' position goes much further, though.

Respondent is attempting to rely on Colony for the proposition that even if its disclosures were inadequate, the extended period still can't be applied to it.

And none of the decisions on which Respondents rely establish that proposition.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel.

The case is submitted.

Featured:

Holder v. Gutierrez - Oral Argument

Fri, 20 Jan 2012 20:27:44 +0000

Case:

Holder v. Gutierrez

Media File:

10-1542_20120118-argument.mp3

Related Transcript:

10-1542_20120118-argument.xml

Transcript:

ORAL ARGUMENT OF LEONDRA R. KRUGER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-1542, Holder v. Gutierrez, and the consolidated case.

Ms. Kruger.

Ms Kruger: Mr. Chief Justice, and may it please the Court:

Under section 1229b of Title 8, an alien who has not been a lawful permanent resident for at least 5 years, or who has not continuously resided in the United States for at least 7 years following admission in any status, is not eligible for cancellation of removal under the first prong of the statute.

That is true regardless of whether the alien can show that his parents, or any other third party, for that matter, did satisfy those requirements.

The Ninth Circuit alone among the courts of appeals has recognized a rule of imputed eligibility under section 1229b(a).

That rule is wrong for at least two reasons.

First of all, it is inconsistent with the plain text of the statute.

The touchstones of eligibility under section 1229b(a), LPR status, admission and residence, are all terms that are defined in the INA to refer to attributes that are individual to the alien seeking relief, attributes that cannot be satisfied by a third party.

But even if the statute were thought to be ambiguous with respect to this question, the Board of Immigration Appeals has interpreted the statute to mean that the alien seeking relief must personally and actually satisfy both durational requirements.

That interpretation is at the very least a reasonable reading of the statute, if not the only reading of the statute--

Justice Sonia Sotomayor: But did it make that determination as a legal matter or as an exercise of its discretion?

As I read its opinion, it felt that it had to come to that conclusion as a matter of law.

If we were to find--

Ms Kruger: --I think--

Justice Sonia Sotomayor: --the statute ambiguous, where has it explained its policy decisions independent of its legal conclusions?

Ms Kruger: --First of all, Justice Sotomayor, we don't think the statute is ambiguous, and so we don't think there's any reason to go to Chevron step two in this case.

But if you look at the board's decision In re Escobar in particular, I think the board makes clear that, although it thought the statutory language was clear, it also rested its decision on other considerations that are uniquely within the board's expertise.

It discussed how the imputation rule comports with the general policies of the statute, how it comports with the rule that the board itself has recognized over time that LPR status is something that's individual to a particular alien, and that the alien seeking relief has to individually, both procedurally and substantively, satisfy the eligibility requirements.

And it also noted that the imputation rule would create significant holes in the statutory scheme.

It would mean that an individual who may not even have been eligible for admission to the United States or lawful admission for permanent residence would nevertheless receive a significant benefit that goes along with that status.

Chief Justice John G. Roberts: You say that you think the statute is unambiguous, but it -- it doesn't address issues of imputation at all, does it?

Ms Kruger: It does not address issues of imputation.

Chief Justice John G. Roberts: Well, if it doesn't even address it, it seems to me the best you can say is that it's ambiguous.

Ms Kruger: Well, I don't think that a statute, as this Court has recognized, has to address every conceivable possibility in order to be unambiguous.

And this statute I think is unambiguous in that it refers to eligibility requirements that are by their nature as defined in immigration law individual to a specific alien.

Justice Ruth Bader Ginsburg: What about, there was -- wasn't there in the prior law a child domicile -- a child was able to satisfy the 7-year requirement based on the parent's domicile, which was deemed to be the child's?

Ms Kruger: Right.

The Respondents relied very heavily on three court of appeals cases that had interpreted the predecessor to this statute, former section 212(c), to allow imputation of the parents' domicile to a child.

Those courts relied on the common law rule that a child's domicile follows that of his parents.

And applying that rule, they allowed children to rely on their parents' domicile in the United States to satisfy the 7-year lawful unrelinquished domicile requirement in that statute.

Justice Antonin Scalia: I guess the child doesn't have any domicile except the parents; right?

Children who run -- run away from home do not acquire new domiciles, do they?

Ms Kruger: Under this Court's decision in Holyfield, the common law rule is that the child's domicile is determined by that of his parents, regardless of where the child resides in fact.

When Congress repealed former section 212(c) and enacted the current cancellation of removal statute, it removed any reference to the word 7 years unrelinquished domicile with two durational requirements that are at issue in this case.

Justice Anthony Kennedy: And -- and is that change alone sufficient for us to say that this is -- was a clear indication by the Congress of an intent or purpose to alter the imputation rule?

Ms Kruger: I think if this Court is willing to presume along with Respondents that Congress would have been aware of these three court of appeals decisions that were issued, it should be noted, very late in the life of a provision that had existed in more or less the same form since the Immigration Act of 1917, then the Court also must presume that Congress was aware that the basis for those decisions was the common law definition of the term "domicile", and that Congress meant what it did when it replaced "domicile" with three eligibility criteria that are defined terms in the immigration law and all of which refer to attributes that are individual to a specific alien.

Justice Ruth Bader Ginsburg: Does -- does a child who is not emancipated have the capacity to independently establish a residence?

Ms Kruger: Under the -- how the INA defines the term "residence" is an actual principal dwelling in fact.

So yes, a child will dwell somewhere in fact and can do so independent of the parent.

That is in marked contrast to the common law rule of domicile that this Court explained at length in its Holyfield decision and that the courts of appeals applied in interpreting former section 212(c).

Justice Anthony Kennedy: Can a parent ask for a permanent resident status for a 5-year-old child?

Ms Kruger: Yes, A parent could.

Justice Anthony Kennedy: So if you have two cases, one, two 5-year-olds.

One, as in this case, lives with the parent, but the application has not been granted or not been filed; and the other, the application has been granted, and they're treated -- they're treated differently?

Ms Kruger: I think that's right, Justice Kennedy.

And I think that that is the necessary corollary of the way the immigration system is constructed.

As a general rule, LPR status and admission are criteria that are individual to a particular alien.

To be sure, minor children of lawful permanent residents receive a high preference in the immigration visa system.

But there's no rule that says that children automatically receive the same legal status as their lawful permanent resident parents.

Justice Sonia Sotomayor: Assuming we don't accept Respondent's, what appears to be their argument, that being an LPR is not a requirement of the statute, if we assume that being an LPR is what triggers the availability for the Attorney General's exercise of discretion, how does that -- how does the imputation rule harm the statute?

The child has lived with the parents for 5 years, whether before or after -- well, after it wouldn't be an issue, but before the grant of LPR status.

How does that harm the purposes of the statute?

I thought the idea of the statute was to give individuals who had ties to the United States an opportunity to stay.

If a child's been with their parents for 5, 10, 15 years, what sense does it make to deprive them of the Attorney General's exercise of discretion merely because the administrative process has taken too long to give them something which they are going to get and which they've gotten?

Ms Kruger: I think it's worth separating out two different components of the cancellation of removal decision.

It is certainly true that it's an important criteria in determining whether or not an individual is entitled as a matter of discretion to cancellation of removal relief, how strong their ties are to the United States, what their family ties are and so on.

But it has never been thought that particularly compelling reasons for the exercise of discretion can overcome the plain threshold requirements for eligibility for the exercise of discretion under 1229b.

The difficulty with the imputation rule that the Ninth Circuit has recognized is that it undermines the plain requirements for those threshold determinations of eligibility, conferring an important benefit that goes along with long-time permanent resident status and long-time continuous residence after admission on individuals who not only did not receive the necessary formal authorization from immigration officials at the requisite time; they may not even have been eligible to receive those authorizations.

I think it's also worth noting that this statute is not the beginning and the end of discretion in the immigration system.

It is always true, and it certainly was the case when Congress enacted the statute in 1996, that immigration officials have the discretion not to bring removal proceedings in the first place, to terminate removal proceedings once they have begun, to defer action on the execution of a removal order; and current immigration and customs enforcement guidance makes clear that a minor receives particular consideration within the totality of the circumstances in determining whether or not prosecutorial discretion is something that should be exercised.

Justice Stephen G. Breyer: So how does it work?

How does it work?

Two legal permanent residents, a man and his wife, happen to show up in New York and they have a 6-month-old child.

What's the legal -- why doesn't the INS just take the child, ship him off?

I mean there -- is it just discretion?

Or is there some rule of law or regulation that prevents that from happening?

Ms Kruger: It will depend on the individual circumstances.

Justice Stephen G. Breyer: Well, no.

I have given you the hypothetical.

I mean, there we are.

Ms Kruger: Right.

Justice Stephen G. Breyer: That's all you know.

Ms Kruger: So Congress has taken some steps with respect to some subset of aliens.

The Respondent, for example, brings up the LIFE Act, and that is an example of where Congress has taken a step to--

Justice Stephen G. Breyer: I'm not asking for that.

I'm saying, what in the law -- that's all you know, all right?

There are -- you know the hypothetical.

I want -- one possible thing to say would be that child is -- is actually -- we are imputing that he is here for lawful permanent residence, too.

Every circuit has had some kind of imputation rule, and moreover there are other areas of law where I have found imputation rules in the immigration law, roughly three or four cases on that.

But they are -- they are not exactly comparable.

Okay.

So I just want to know what is it that prevents you from taking the child and shipping him off to China if we don't impute?

Ms Kruger: --Well, I think the answer is certainly not that we impute the admission of the child--

Justice Stephen G. Breyer: I'm not asking that.

That's another question.

I just want your best effort--

Ms Kruger: --So if there is--

Justice Stephen G. Breyer: --to give an answer.

Or I'm thinking that your answer is there is nothing, it is either imputation or nothing.

Ms Kruger: --Well, I think that--

Justice Stephen G. Breyer: And you don't want me to reach that conclusion.

Ms Kruger: --No, I think that that is incorrect.

There are certain provisions of law that would allow for the child to be admitted on an independent basis from the parents.

If a child is not admissible--

Justice Ruth Bader Ginsburg: If the supposition -- if the supposition is that the parents -- I think Justice Breyer's supposition was that both parents were LPRs.

The likelihood of a 6-month-old child being born in the United States and therefore being a citizen would be rather large.

Ms Kruger: --Well, that's certainly right.

It is also true that--

Justice Stephen G. Breyer: No, no.

That isn't my hypothetical.

[Laughter]

Ms Kruger: --Right.

The child in your hypothetical -- the child is not born in the United States, right?

If the child does not independently satisfy the criteria for admissibility, then the child has entered the United States illegally and remains here at the discretion of immigration officials.

Justice Antonin Scalia: But I suppose if they come with somebody else's 6-month-old child, they would have to send that child back to China, too, wouldn't they?

Ms Kruger: Well--

Justice Antonin Scalia: Which would be very sad, but that would be the law, right?

Ms Kruger: --Well--

Justice Stephen G. Breyer: Actually they came from Italy, in my hypothetical.

[Laughter]

Ms Kruger: --I mean, I think that Martinez--

Justice Antonin Scalia: They should not have sent him back to China, then.

Why did they do that?

[Laughter]

Ms Kruger: --I think that Martinez Gutierrez's situation I think is a good example of this.

He entered the United States illegally with the -- with his parents and remained here illegally until he was admitted as an LPR at the age of 19 as an adult.

Until that time there were no efforts to remove him from the United States and I think that that is fairly typical, but that is not because his parents' admission or their lawful status in the United States was imputed for Martinez Gutierrez, and there is no background principle in the law that would allow for such imputation of an individual formal authorization to remain in the country by immigration officials to be imputed from one to another.

Rather, the immigration system sets up a system in which a lawful permanent resident parent can seek to petition for an immigration visa on behalf of the child and facilitate that child's eventual adjustment to lawful permanent resident status, but it is not something happens automatically.

It's something that happens through a regular, orderly process.

Justice Anthony Kennedy: Can you give me an example of an instance in which the child who is the child of two lawful permanent residents cannot get lawful permanent resident status for himself at the age of 8, but that he can at 15?

I mean, what commonly happens between that period that would make him -- eligible only when he is 15, other than just as a matter of providing all the documents?

Ms Kruger: That would make him ineligible at the age of 15?

Justice Anthony Kennedy: Well, you -- the whole point here is that some children are given lawful permanent resident status and -- and some are not.

But I'm asking does the passage of time, assuming two lawful resident parents, ever make it so that a child who was formerly ineligible is now eligible?

He was ineligible at 5, but he is eligible at 14?

I mean, how does that work?

Ms Kruger: I think the most common scenario is one in which a visa number doesn't become available until the child is -- is--

Justice Anthony Kennedy: Oh, I know, a visa number.

But nothing -- nothing with -- with respect to the child's real status other than his -- where he is on the queue in the immigration department?

Ms Kruger: --That would be the most common scenario, is -- is where the child is in the queue, and they think -- Respondents placed a great deal of emphasis on the amount of time it takes for visa numbers to become available for both children and spouses of lawful permanent residents, but that has been a regular and acknowledged feature of the immigration system for decades.

The Congress that enacted IIRIRA in 1996 was well aware of the waiting times for these visa numbers.

It had before it proposals for reducing the backlog and it rejected those proposals.

It enacted in the cancellation of removal statute two eligibility criteria that do not turn on potential eligibility for receiving LPR status or admission to the United States, but instead turn on actually having received that formal authorization from immigration officials.

And I think that the best inference that we can draw from the statutory language is that Congress meant what it said; it attached special significance to that formal authorization, formal exercise of authority by immigration officials and not simply the potential for that exercise in the future.

Justice Elena Kagan: Ms. Kruger, you take a statute that doesn't say anything about imputation one way or the other, and you say that statute can still be unambiguous; and that would I think be true as a general matter.

But now you add to that statute a history and a tradition and a practice in immigration law of imputation of various kinds.

One is imputation of domicile in the way we talked about, but there are other imputations that occur throughout the field of immigration law.

Some cut for the alien, some cut against the alien.

In the world of that practice and tradition, are you at least in a sphere in which there is ambiguity, in which the agency essentially has discretion to decide whether it wants to impute in this way?

Ms Kruger: I think the answer is no, Justice Kagan, because the other circumstances in which imputation has been allowed under the immigration laws differ in very important respects from the imputation--

Justice Elena Kagan: But none of them are textually commanded, is that right?

I mean, they are all situations in which the agency has decided that there are good reasons to impute various factors.

Ms Kruger: --Well, I don't think that the only reason that the agency has allowed for imputation is that there is good reason as a general policy matter.

Justice Antonin Scalia: Counsel, I can't hear you very well.

Would you--

Ms Kruger: Certainly.

Justice Antonin Scalia: --crank up the thing or something?

Thank you.

Ms Kruger: I will try to speak more directly into the microphone.

The reason the -- the agency has allowed for imputation in other circumstances is with respect to certain inquiries that involve an inquiry into the alien's intent.

So, for example, the board has allowed for imputation under section 1182(k), which provides for discretionary relief from the Attorney General when an immigrant did not know or could not have known that they were inadmissible.

And the board has said that for those purposes the parents' knowledge of inadmissibility is imputed to the minor child.

So too in the context of abandonment of LPR status.

The board has said--

Justice Antonin Scalia: Excuse me.

That first one usually cuts against the immigrant, I would assume.

So if the parents know, the child knows, and the child normally would not know, right?

Ms Kruger: --Well, that's correct.

That's correct.

Justice Antonin Scalia: Yes.

Ms Kruger: But I think the critical point is that the agency has interpreted imputation of intent, of state of mind, to be permissible, in part for the same reason that the common law rule about domicile formed, which is that--

Justice Elena Kagan: So you think that all the imputations that exist in immigration law are all a matter of imputing intent?

Ms Kruger: --I think that that's -- all of the imputations that Respondents have pointed to concern state of mind type requirements.

They don't concern formal authorizations by immigration officials.

The board I think has been very consistent, certainly in the context of cancellation of removal, in not imputing the legal status of being an LPR or admission from parent to child.

And it's difficult to see any other examples in which such imputation would be permissible, in part because the background presumption of the immigration law is that those are both attributes that have to be individually achieved and the eligibility criteria have to be independently satisfied by each individual alien.

Justice Sonia Sotomayor: So why is a parent's fraudulent conduct imputed to a child?

There's no intent there.

The child obviously doesn't have an intent or couldn't have an intent to commit a crime.

So why is that imputed by the BIA, other than that it's a holding against the immigrant, which your adversary points out is not a very favorable outlook for the agency, it only imputes when it harms the immigrant.

But putting that aside, there is no intent involved in the fraud.

It's just the commission of an act.

Ms Kruger: Well, I think that where the imputation has come in, in the board's analysis is with respect to the state of mind and not with respect to the objective conduct.

Justice Sonia Sotomayor: What's the state of mind of committing an act, like a fraudulent act?

Ms Kruger: It's -- I think where this has come up is in the context of knowing that the -- that the alien is not in fact admissible to the United States, is generally where it's come up.

Justice Sonia Sotomayor: The child doesn't commit a fraudulent act.

Ms Kruger: But again, I think that the principle that the board has applied is that, because the child is presumed not capable of forming a requisite intent, the parent's intent is imputed to the child.

But I think for present purposes the critical point is, even in that context, what is being imputed is not a formal status conferred on an individual alien by immigration officials, or admission, a formal authorization to enter the country.

That is again conferred on an individual basis by immigration officials.

I think Respondents can identify no circumstance or no precedent for that time of imputation, and it's one that would be inconsistent with the basic structure of the immigration system.

Justice Ruth Bader Ginsburg: They do say--

Justice Anthony Kennedy: It's a little odd that the domicile is the more exacting of the two requirements and yet the Congress allowed imputation in the domicile case but not -- not in the residence case.

It seems almost backwards.

Ms Kruger: Well, to be--

Justice Anthony Kennedy: Congress enacts a more forgiving, less exacting standard, but then takes away the imputation.

Ms Kruger: --Well, to be clear, Justice Kennedy, Congress did not supply a definition of the term "domicile".

So the court of appeals opinions that Respondents are relying on followed the common law rule that says that a child's domicile follows that of his parents, but those courts applied that rule in very different ways.

Two courts of appeals permitted children to benefit from the domicile of their parents in the United States even when they were not even physically present in the United States for the full 7-year period, whereas the Ninth Circuit for its part applied that rule only where the alien child had been -- had entered the United States lawfully with his parents, according to the Ninth Circuit remains lawfully in the United States thereafter, and simply had become an LPR outside of the full 7-year period.

In crafting the current cancellation of removal statute, there is no reason to believe that Congress was aware of these three court of appeals opinions that were again decided very late in the life of former section 212(c).

But even if it had been aware of those decisions, it also would have been aware that by using defined terms in the INA that are defined in a way that is individual to the particular alien it was eliminating any reference to the common law rule.

Unlike domicile, there is no rule that says that a child's LPR status follows that of his parents or that a child's admission follows that of his parents.

Justice Stephen G. Breyer: I don't see how -- were you finished?

Ms Kruger: Yes.

Justice Stephen G. Breyer: I don't see how you can read the Lepe-Guitron -- that was one of the cases -- it seems to me clearly imputes residence as well.

They quote the earlier case from the circuit which said the 7 years of domicile have to come after their admission for permanent residence.

And then the dissent says: Hey, what about permanent residents?

And what they say is this case was different because in that earlier case the parents had never been admitted.

He came after he was married in this case and was here after his parents were admitted.

Now, I grant you they didn't explicitly say this, but I don't see how they reached their conclusion without it.

And then there is a different split in the circuits about the pro and con of taking on periods, you know, before the domicile, after, et cetera.

And that seems to be what Congress resolved.

So I think if you are talking about what was the law, the law was you did impute with -- you did impute for residence and then Congress sort of just doesn't deal with that and deals with a slightly different thing.

Is that a fair reading, or what do you think?

Ms Kruger: I don't think it is, but first I'd like to clarify that the Ninth Circuit had no reason to impute residence in Lepe-Guitron, in part because the alien in that case had resided in fact in the United States throughout the 7-year period.

I think Respondents make the argument that Lepe-Guitron was in fact imputing LPR status as opposed to residence in fact.

But I think that that is an incorrect reading of the Ninth Circuit's decision as well, and that's for the following reasons.

All three courts of appeals that Respondents rely on dealt separately with the threshold requirement under former section 212(c) that the alien be a lawful permanent resident.

None of those three courts permitted LPR status to be imputed from parent to child.

So where there was an explicit requirement in the statute that LPR status be obtained by the alien seeking relief, the courts were very clear in requiring that the alien before them independently satisfied that requirement.

In Lepe-Guitron, the Ninth Circuit acknowledged that under circuit precedent it had held that domicile requires an intent to remain permanently in the United States lawfully and said that that meant that the alien had to be in LPR status.

Lepe-Guitron said that with respect to children that intent to remain in the United States lawfully need not be an LPR status so long as their parents were lawfully domiciled in the United States.

If the Court has no further questions, I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Kinnaird.

ORAL ARGUMENT OF STEPHEN B. KINNAIRD ON BEHALF OF THE RESPONDENT IN NO. 10-1542

Mr. Kinnaird: Mr. Chief Justice and may it please the Court:

Children present special problems under the immigration laws and, as discussed, both the courts and the agency in various contexts have resorted to imputation to cure those problems.

Here the statute is silent as to imputation, and ambiguity arises as applied to the special circumstance of children who were minors during the years in question.

Chief Justice John G. Roberts: I don't know whether -- I am having trouble applying the concepts of unambiguous and ambiguous in this situation.

As far as I can tell, this is something that the statute just doesn't deal with, and I don't know that you characterize that correctly as ambiguous.

It's just kind of off the table.

Mr. Kinnaird: I think it's ambiguous as applied to this specific circumstance.

And the ambiguity arises because the requirements for which there is imputation, status and residency, are matters that are not within the capacity or the control of a minor.

A minor does not decide whether or when a parent will apply for LPR status for him or her.

He does not control the maintenance of that status over a period of years, and he also does not control where he resides.

Justice Antonin Scalia: Well, can you give any example -- the government says you can't -- of an instance where status is imputed, not intent, but just status; where the status that the parents have is automatically given to the child, or for that matter automatically taken away from the child.

Mr. Kinnaird: Section 212(c) imputed status, as the Ninth Circuit found.

The reason was that the requirement there was not just for unrelinquished domicile but lawful unrelinquished domicile, and therefore they had to reach back to the period in which the parent was an LPR--

Justice Antonin Scalia: But there -- there, you're -- what they are imputing is the intent to remain in the place, right?

And that's -- that's an intent.

That's imputing intent.

Mr. Kinnaird: --No, they also had to impute lawfulness, which meant that the parent had to be an LPR for that period or at least in some lawful status.

And in each of the three instances the parents were LPR's in the times in question.

So there definitely was a foregoing rule of imputation of status.

And I would submit that--

Justice Antonin Scalia: And the child would not have been lawfully there but for the imputation of lawfulness from the parents.

Mr. Kinnaird: --That's right.

Well, he would not have qualified for a waiver of removal.

Justice Elena Kagan: Mr. Kinnaird, I take it that the point you are making is the statute is ambiguous in the sense that its silence does not prevent the BIA from making this imputation if it wants to.

But the BIA clearly doesn't want to.

So where does that leave you?

Mr. Kinnaird: Well, I think if it is ambiguous, then the BIA actually has to exercise its discretion and grapple with that ambiguity.

And that is one of the fundamental problems that--

Justice Elena Kagan: Well, are you saying that the BIA needs to write an opinion that says, now we are doing Chevron step two analysis?

Is that what you are saying, that this is a matter of labeling?

Mr. Kinnaird: --I don't think it's a matter of magic words, but what it has to do is actually grapple with and recognize the ambiguity, at least in the alternative, and then exercise its discretion to say if this is a permissible construction of the act and there is another permissible construction, which of the two better serves the statutory purpose.

Chief Justice John G. Roberts: But it doesn't have to grapple with everything that's not there.

I mean, there are a lot of things that the statutes don't address.

Mr. Kinnaird: Agreed.

Chief Justice John G. Roberts: It seems to me that they don't have to grapple with everything that's there.

You just have to say this doesn't address it.

So whoever is asking for the affirmative, which is you, loses.

Mr. Kinnaird: I don't think--

Chief Justice John G. Roberts: You're saying: We think this law should allow -- should provide for this, should extend for this.

And it's one thing to say, well, the statute's ambiguous; it talks about children in one category but not another category, so the issue's there, we don't know what they meant.

It is another thing if it's something that's totally not on the table.

I mean, if you claim that the law required every minor to get $500 a year, you wouldn't say the statute was ambiguous about that.

You would say it doesn't have anything to do with it.

Mr. Kinnaird: --Well, that's right, Your Honor.

But I think the ambiguity arises here because the matters in question are ones not within the capacity or control of the minor, and that's been the traditional basis on which the BIA has looked for imputation.

And when you take into account--

Justice Ruth Bader Ginsburg: Your -- your argument, under your argument an alien, a child who would never acquired LPR status in its own right, could get a cancellation of removal based on the parents' status.

Mr. Kinnaird: --I don't think that's right.

The Ninth Circuit did not address that, but I think the better reading of the statute, even if (a)(1) is somewhat ambiguous on that point, is that you have to be an LPR in order to seek cancellation.

And then for these durational requirements and the lookback to status, there you do imputation.

And the reason is twofold.

One, section 212(c) which it replaced was limited to LPR's.

The second is that there is a separate subsection, subsection (b) of that same statute.

I don't believe it's in the addenda provided to the courts, but it is cancellation of removal for certain nonpermanent resident aliens.

And the critical distinction between the two besides differences in criteria is that that one authorizes adjustment of status as well as cancellation.

Justice Anthony Kennedy: What would--

Mr. Kinnaird: So if you are not an actual LPR, you need to have adjustment of status to not be in a legal limbo.

Justice Anthony Kennedy: --Mr. Kinnaird, what would happen if the child remains with the grandparents in Mexico and his parents are living in Los Angeles for 6 years until they can afford to take him.

Is the parents' residence then imputed to the child so that when he moves to Los Angeles in year 7 he is deemed to have been there for 6 years?

Mr. Kinnaird: I think if there is a significant separation of that duration, I think there would be a question about whether you have the significant relationship between parent and child to warrant imputation.

But it is true that under former section 212(c), at least in two of the cases, they imputed residency when the child was not actually resident.

Justice Stephen G. Breyer: You had an example in your brief, I thought you might -- I thought it was an example of status rather than intent.

The example that you gave -- I took that way, tell me if I am wrong -- is where an alien comes in and wants asylum, and then you can't get it if you were resettled in another country.

And there are criteria -- country with a resettlement program.

And then that seemed like a status, a residence, where you resettled in the other country, were you not, that's his status, and then that's imputed to the child?

Mr. Kinnaird: That's right.

And the resettlement doesn't have any element of intent to it.

So it's not true that everything turns upon intent.

And I would also point out that under section (a)(1) it's not simply a requirement that there have been some grant of LPR status at some point and passage of 5 -- of 5 years.

The statutory definition of "lawfully admitted for permanent residence" includes a requirement the status has not changed.

And that requires domiciliary intent, because the BIA has interpreted that phrase to mean that you can change your status by intent and in fact the Department of Homeland Security has defended against cancellation claims on the grounds that there was abandonment during the 5-year period.

So if you had a child coming forth, you have to look in certain circumstances at least to the parent for intent of abandonment.

So I think this is an element where there is direct continuity from section 212(c).

It makes eminent sense.

And even if the BIA is deemed to have exercised its discretion here, I think its rule is patently unreasonable, and for a number of reasons.

First, they are not able to advance a single policy reason that would be favorable to non-imputation.

It destroys family unity and it forecloses eligibility for relief for even people like Mr. Martinez Gutierrez, who has lived here since the age of 5.

Justice Ruth Bader Ginsburg: There -- this Court has dealt in the constitutional context with parent-child relationships under the immigration law.

And let's take Fiallo v. Bell.

There the Court said: Well, it tells us that for married parents it's this way and for a child born out of wedlock that relationship is something else.

That could be considered quite arbitrary when the question is, is the child left orphaned, but the Court said, well, that's what the statute said.

It made that distinction, and the Court upheld it.

There are a number of cases where there is -- the statute does say, parent-child relationship, this is imputed, that is not.

The Court dealt with that in Miller and in--

Mr. Kinnaird: Yes, Your Honor.

I think Congress has the latitude to be -- to draw arbitrary lines.

I don't think the agency does if imputation is a permissible alternative.

I think they have to give a reasoned basis for denying imputation when it was the prior rule.

Chief Justice John G. Roberts: Isn't it -- why can't the BIA adopt or why doesn't the background principle apply that you are not entitled to admission unless you make an affirmative case for it?

You say, well, the -- the government hasn't advanced any policy reason on the other side.

Why isn't that the basic policy of the government?

Mr. Kinnaird: Well, I think they have to look to the actual statute and they have to give their own reasons, which I don't think they have done adequately as a matter of discretion.

Justice Antonin Scalia: Why isn't it -- why isn't it an adequate reason that they've come up with here and in their decisions that the prior word was "domicile" and a child's domicile is that of the parents, and that the word under the new statute is "residence" and the child's residence is not necessarily the residence of the parent?

That seems to me a perfectly valid reason.

Mr. Kinnaird: Well, I wouldn't say that's Chevron step 2 discretion.

But I think you also have to look to the fact that there was not only imputation of domicile; it required lawfulness.

And in imputing domicile they were also imputing residence.

So it's true the word domicile--

Justice Antonin Scalia: That may well be, but it's a different word.

Mr. Kinnaird: --It's a different word.

Justice Antonin Scalia: And the one word demands imputation, the other doesn't.

So I mean, I don't think you can say there is no -- no rationale basis given by the agency.

Mr. Kinnaird: Well, the rational basis comes in, if there is ambiguity and they are determining why, if it's a permissible construction, why it should be rejected or not.

Justice Sonia Sotomayor: One of the problems that I have is that I see the imputation as an equitable doctrine.

Mr. Kinnaird: Yes.

Justice Sonia Sotomayor: And to me that often means discretionary.

Mr. Kinnaird: Yes.

Justice Sonia Sotomayor: If it is that, discretionary, I -- I don't know what more the BIA has to say than 1229b(a)(2).

Isn't that an end run on stopping this continuous 7-year statute, or 10, whatever it is, if we are imputing a parent's residence, or any of the things that you are -- that the government said, the BIA said, in rendering its decision?

I mean, you can't force a court to impute -- the BIA to impute.

So what more do they have to say than: We don't think it's consistent with the statute, even if it is ambiguous to do this?

Mr. Kinnaird: Well, I would say the statute has an equitable purpose which allows imputation.

I do not think there is discretion if imputation is permissible, unless there is a rational basis in serving the policies of the act, to deny imputation.

And discretion does come in at the second phase, which is when the Attorney General determines whether or not the cancellation should be granted.

So we should bear in mind that this is a statute strictly for eligibility, simply to get to the phase where there is unreviewable discretion in the Attorney General to deny relief.

And this is a once-in-a-lifetime remedy.

You can only apply for cancellation once in your life.

So I think in the special circumstance of children who were minors during the period, who could not have controlled this status, could not have controlled their residence, this is an eminently reasonable rule that is backed by Congress.

Justice Sonia Sotomayor: What is so reasonable about a child who lives with their grandparents outside the country?

Why should their parents being in the U.S. be imputed to the benefit of that child?

I certainly understand it in your client's situation.

Your client is the one who has been here since 5 years old.

Mr. Kinnaird: Right.

Justice Sonia Sotomayor: So--

Mr. Kinnaird: And if -- and BIA, I think it would be reasonable to draw a narrower rule and we could prevail under that rule, but I think the rationale is family unity; that even though there are periods of residence where there is a dysjunction, the real reason is simply the operation of quotas.

And there was a historical practice of allowing imputation of residence.

Since you still have the family ties, I think imputation is permissible there, as long as you have this significant relationship.

Justice Anthony Kennedy: Mr. Kinnaird, I'm having trouble figuring out, is your view that non-imputation is just unreasonable per se, or is your view that they didn't explain non-imputation properly?

Mr. Kinnaird: They are alternative arguments.

They certainly didn't explain it.

I would also say it's unreasonable per se: One, because they have to deal with the fact of lack of custody and control.

That's been the basis for their abandonment decisions.

They have invoked imputation only to the detriment of the alien where the child has no intent whatsoever.

So there is no common law principle for imputing mens rea, for example, knowledge of inadmissibility to a child; no basis for really imputing an intent to abandon when the child has none whatsoever.

So at the very least, they have to explain that.

And because -- and the BIA has also not really taken into account, the nature of these is simply eligibility rules.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Kinnaird.

Mr. Rothfeld.

ORAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE RESPONDENT IN NO. 10-1543

Mr. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court:

So far as subsection (2) of the provision that we are talking about this morning, which is the provision that concerns me in the Sawyers case, we think that the government's reading is simply not a sensible approach to the statute.

And in that sense, our position is not that the statute is ambiguous.

We think that the statutory context and the particular meaning of the words that Congress used require imputation in the circumstances of this case.

I will start with the statutory background, where I think the government understates the nature of the prevailing settled rule that it applied.

Chief Justice John G. Roberts: We usually like to start with the statutory language.

Where is this issue addressed in this statute at all?

Mr. Rothfeld: Imputation as such, as has been said, is not directly addressed.

But the words that Congress used, the word "residence" and the words particularly "continuous residence", are words that Congress would have thought carried along with it the concept of imputation.

And the reason why that is so, I think it's necessary to start with a little bit of the background both of the statute and how those words have been interpreted in prior usages, Congress would have been aware of when it used them in the statute.

Under the prior relief provision here, section 212(c), the old provision, the courts, courts of appeals that had addressed it, had uniformly applied an imputation rule.

The government said -- it's three courts.

Two of those courts are the Second and Ninth Circuits, the largest immigration circuits that decide two-thirds of the immigration cases in the country.

So I think one can presume that Congress would have been aware of this rule.

And the government concedes that Congress didn't change the language of 212(c) because it was dissatisfied with imputation.

It had other purposes in mind altogether.

And so--

Chief Justice John G. Roberts: What does the statute say about imputation of individuals' residence to grandparents?

Mr. Rothfeld: --The rule -- it says nothing directly about it.

Chief Justice John G. Roberts: It says nothing about it.

So would you say the statute is ambiguous on whether or not residents' legal -- permanent residence status should be imputed to grandparents?

Mr. Rothfeld: Well, I think there could be circumstances in which imputation is appropriate when the child is in the custody of the grandparent.

But I'm focusing on parents because that's how the cases have been decided up to that point.

The BIA itself had said, prior to the enactment of this statute in the In re Ng case that -- which I think is the case the Justice Breyer had referred to -- it had said in so many words: The residence of the parent is imputed to child when the child is a minor.

Congress would have been aware of that when it use the word (2).

Justice Ruth Bader Ginsburg: What do you do -- what you do if the parents, the father is an LPR, the mother is not?

Do we then impute to the child the father's status?

The couple is not married.

Mr. Rothfeld: There are rules, common law rules, that the courts had applied in determining whose residence and whose domicile would be attributed to the child when the parents were not -- didn't have joint custody.

When the -- if we are talking only about residence--

Justice Ruth Bader Ginsburg: They have joint custody.

They live together.

They are just not married.

Mr. Rothfeld: --I think that -- again, the courts have applied -- if it we are distinguishing -- for purposes of residence, and I'm not talking bower the technical LPR status here when I use the term "residence", I am referring simply to kind of a general common law concept.

Justice Ruth Bader Ginsburg: I think it's agreed that LPR status would be necessary.

At least Mr. Kinnaird said that.

It goes to--

Mr. Rothfeld: We--

Justice Ruth Bader Ginsburg: --We are talking about the five-year period and the seven-year period.

The child would have to have LPR status.

Mr. Rothfeld: --We agree ultimately to get relief, the child has to have LPR status, and certainly under subsection (1) of the provision, which is not at issue in the Sawyers case.

That concerns five years of LPR status.

Subsection (2), which is all that I'm concerned with in Sawyers, because that's the only element of the relief provision in that he was deemed not to satisfy, concerns only the term LPR, as such; simply continuous residence in the United States.

And so the question of: would Congress have thought that residence, continuous residence is imputable from parent to child?

I think it would have for two reasons.

First of all, it would have believed that residence as a general matter is imputable.

The BIA had said to itself in the Ng case.

And as it -- domicile, which the government concedes was imputable, necessarily includes--

Justice Antonin Scalia: Excuse me.

Was residence at issue in that case?

Mr. Rothfeld: --It was indeed.

It was a firm resettlement case.

And the question was whether or not the alien had been a resident of Hong Kong.

And the parents were residents, and the BIA said: Well, the parents' residence is imputed to the child.

Justice Sonia Sotomayor: Just for factual correction, the record doesn't tell us whether he was living with his mother, Mr. Sawyers was living with his mother.

Mr. Rothfeld: That's correct.

Justice Sonia Sotomayor: And the answer to that is?

Is this is child living with a grandparent out of the country or not?

Mr. Rothfeld: The record doesn't reflect -- we don't know if he was living in U.S. in an unlawful status up until the point he became an LPR at age 15.

The record simply doesn't answer that question.

Justice Stephen G. Breyer: You are saying -- I just want to hear your whole argument here.

You are saying they would have had Congress as a background; the Ng case where they imputed the Hong Kong residence; the fact that you were about to say, that domicile necessarily includes residence.

And is there something else?

Mr. Rothfeld: That's the principle in -- that's correct.

But I can add to that a little bit that in the section 212 cases, in which domicile was imputed in -- as the government recognizes in at least two of those cases, the child was not in the United States for a portion of that time and, therefore, necessarily those courts must have been imputing not only domicile but residence.

And that is necessarily the case because -- residence is an element, a subset of domicile.

Justice Samuel Alito: What if he came to the United States at 15 from Jamaica, he was a resident of the United States before he came.

Mr. Rothfeld: As a -- as a legal matter.

Just as he was -- would have been domiciled in the United States.

Justice Samuel Alito: Would he be a resident of Jamaica, too, at that time?

Mr. Rothfeld: I think not.

I think -- I think our common law would have regarded him as a resident of the United States.

Justice Samuel Alito: If the father was living in the U.K., would he be a resident of the U.K.?

Mr. Rothfeld: There might be legal rules that -- that specify the physical presence is equivalent to residence for particular purposes.

But as this Court held in Holyfield, as the government recognizes in a domicile context, a child can be a domicile of a jurisdiction in which they have never set foot.

The -- the legal presumption is that the child is -- takes the domicile of the parent, and -- and residence is a necessary subset, as this Court has said long ago, before any of these statutes were passed.

Justice Ruth Bader Ginsburg: So can he be a resident without being a domiciliary?

Mr. Rothfeld: One can be -- yes, because the definition, as this Court said, of "domicile" is residence in a particular place accompanied by an intent to remain there indefinitely.

And so you have to have both.

You can't be a domicile without being a resident of the jurisdiction.

Congress would have been aware of that.

And when it used the term 212(t), imputation rule for relief in the immigration laws, that use of the term "resident" carries with it imputation.

I think that makes this -- so far as we're concerned, that makes the use of the term "continuous residence" in subsection B unambiguous and requires imputation.

Congress would have been aware of this.

There's no reason to think that the government concedes that Congress was not trying to change the imputation rule when it changed the terminology from "domicile" to "resident".

In fact, it's sort of perverse to say that Congress had -- achieved that purpose, because it was a -- this was a liberalizing change.

The reason that Congress -- it's quite clear from the statutory background why Congress changed the language from 7 years unrelinquished lawful domicile> ["] in the old 212(c) to

"continuous residence after admission in any status. "

in -- in subsection B of the new statute -- was to broaden the availability of relief.

Congress was confronted with a split in the circuits on the interpretation of the old rule, as to whether or not one could achieve unrelinquished domicile -- lawful unrelinquished domicile while not in an LPR status, because the BIA had taken the position that for -- to have lawful domicile, you have to lawfully intend to stay here permanently; you can't do that if you're not an LPR.

And therefore, Congress, confronting the split on circuits -- because some courts had rejected the BIA's view, Congress said okay, we're going to in subsection A of the new statute a requirement: 5 years LPR status.

Justice Samuel Alito: If Congress had wanted to use the term 7 years, what language would they have used, or what language should they have used?

Mr. Rothfeld: For -- for the child?

Well, I think--

Justice Samuel Alito: If they wanted (2) to mean that the alien must have actually -- that person -- unless the one who committed the crime later, must actually have resided in the United States continuously for 7 years--

Mr. Rothfeld: --I would--

Justice Samuel Alito: --in which they have actually lived in the United States for 7 years, what language should they have used?

Mr. Rothfeld: --For -- for an adult, the language that they did use, because I think "continuous residence" carries with it the requirement that the person be physically present in the United States.

Justice Samuel Alito: Or a minor.

Mr. Rothfeld: For a minor--

Justice Samuel Alito: That's to apply to everybody.

Mr. Rothfeld: --I -- I would think, given the context, of which imputation was the settled rule, that Congress would have had to indicate affirmatively that imputation was impermissible.

Just as if -- if Congress uses the term 212(c), knowing the context in which, as a universal matter, the domicile of the parents is attributed to the child -- one would--

Justice Samuel Alito: "Domicile" is a legal term.

You don't go around and -- if you meet somebody -- and say "where are you domiciled"?

You might not even say "where do you reside"?

But it's closer to being ordinary language.

Mr. Rothfeld: --Well, and -- and "reside" can have different meanings in different contexts.

There is a definition in the statute which the BIA itself has said does not apply to conditional uses of the term, so, you know, residence in its plainest sense -- I mean, as this Court said in the Savorgnan case, which is where Congress derived the reg -- the definition which is now in the INA -- that was the plainest use of the term "residence".

You know, unadorned.

And that was the statutory definition which says without regard to intent.

But when there's a conditional use, when it's continuous residence, as in subsection b of the statute, or permanent residence, necessarily one has to look at intent.

And therefore, that statutory definition cannot apply.

The BIA itself has said that expressly in the Wong case, which we discuss in our brief.

But so far as permanent residence is concerned, the statutory definition has no application because necessarily, one has to look to intent.

And so -- it's sort of a second -- secondary argument here.

But insofar as intent is essential for imputation, which is what the government says -- the government says the reason that -- the switch from "domicile" to "residence" matters is because domicile looks to intent, and residence doesn't.

But in fact, continuous residence does -- necessarily does look to intent because it's the intent to remain continuously or permanently--

Justice Anthony Kennedy: Is -- is there some advantage to giving parents an incentive to apply for early lawful permanent residence?

Because under your view, parents wouldn't have to bother to apply for it at all.

I'm -- I'm wondering about the consequences of deciding in your favor.

And the other one, quite distinct is, it seems to me that there probably would not be some floodgate of -- of imputed residence cases.

Mr. Rothfeld: --I -- I -- the only thing we're talking about here, of course, is -- is a particular relief from a removal provision.

And so certainly, the -- the expectation that the child someday down the road may seek relief from removal, become -- become an LPR and do something wrong is not going to induce parents--

Justice Antonin Scalia: Mr. Rothfeld, I'm -- I'm curious, how often -- this dispute here is simply about whether the Attorney General is permitted to cancel removal, right?

Mr. Rothfeld: --That is correct.

Justice Antonin Scalia: How often does our -- are applications for cancellation of removal granted?

I mean, is it a common phenomenon, or are we really talking here about just spinning it out longer so that the -- so that the person who will ultimately be deported can stay here that much longer.

Mr. Rothfeld: I -- I can't give you current statistics.

I think this Court said, I believe in the St. Cyr case, that a fairly -- substantial -- 40 percent or so of the cases are granted.

The Gutierrez case, in fact, the IJ would have granted removal and--

Justice Antonin Scalia: You think it's as high as 40 percent?

Mr. Rothfeld: --I believe that that's -- I wouldn't swear to that, Your Honor, but -- but it is a -- a significant percentage.

And again, Gutierrez is an example, that the IHA would have granted it but for the -- rejection of the imputation rule further on in the -- in the process.

And I think this is actually a kind of a significant point, which goes to what Congress would have had in mind.

We are only talking about not entitlement to relief, we're talking about entitlement to ask the Attorney General, in the exercise of his unreviewable discretion, to grant relief to deserving immigrants who would otherwise be forced out of the country by application of an inflexible rule.

Chief Justice John G. Roberts: I suppose one of the things you could take into account in exercising his discretion is whether we're actually dealing with a minor, or as I understand in this case, it's someone who is quite a bit older?

Mr. Rothfeld: He -- it is unreviewable discretion, yes, if you take anything into account -- and certainly, the nature of the family ties, the -- the background of the immigrant, all of those things are taken into account, but the question -- whether or not Congress when it passed this statute, knowing how section 212(c) had been interpreted, the prospect that Congress meant to--

Justice Sonia Sotomayor: Counsel, that's a very big assumption.

Yes, it's the two biggest circuits who have defined domicile and imputation, but it wasn't us, number 1.

And number 2, going back to Justice Alito's question, they didn't adopt the same word, "domicile", they changed it.

Mr. Rothfeld: --Well, I can give you--

Justice Sonia Sotomayor: And that's what the BIA was saying.

Mr. Rothfeld: --I can give you two responses to that, if I may, Justice Sotomayor.

First, yes, it is a presumption that Congress is aware of judicial decisions, but I think that presumption--

Justice Sonia Sotomayor: It can't be aware of all the judicial decisions.

Mr. Rothfeld: --No, but in this particular context, there's particular reason to think they would, because Congress, it is agreed, enacted this legislation to cure a conflict in the circuits involving the application of this cancellation provision.

And so there would have been particular reason for Congress to be aware of what the courts had done.

Chief Justice John G. Roberts: You -- you said you had two points in this -- do -- do you want to get your second out, in half a sentence?

Mr. Rothfeld: I -- I -- I can rest at this point, Your Honor.

Thank you so much.

Chief Justice John G. Roberts: Thank you.

Ms. Kruger, you have 4 minutes remaining.

REBUTTAL ARGUMENT BY LEONDRA R. KRUGER ON BEHALF OF THE PETITIONER

Ms Kruger: Thank you.

If I can make three quick points--

Justice Anthony Kennedy: The -- the Respondent said that the BIA gave no policy reasons, no policy justifications, for its -- for its interpretation.

Is that correct in your view?

Ms Kruger: --I don't think that that is correct.

The BIA noted -- to be clear, the BIA was I think heavily influenced by what it saw as the clear language of the statute, but it also noted that the imputation rule was inconsistent with a history of non-imputation of LPR status, and approached that -- treats LPR status as accorded to individual aliens.

Justice Antonin Scalia: But what do you respond to the point that lawfulness has been attributed, not just intent, but under the prior law, lawfulness was also attributed?

Ms Kruger: I think this goes back to the answer I was giving to Justice Breyer earlier.

Where former section 212(c) had an explicit lawful status requirement, which is the status of being a lawful permanent resident, no court of appeals allowed imputation from parents to child.

Their argument is a little bit more convoluted than that.

It is that because domicile, lawful unrelinquished domicile, was interpreted to mean the ability to form a lawful intent to remain permanently in the United States, and the Ninth Circuit said you could only form such an intent if you were a lawful permanent resident, that in Lepe-Guitron, the Ninth Circuit was therefore necessarily imputing LPR status from parent to child.

I think the more straightforward way to read the Ninth Circuit's decision is that it was imputing the intent to remain permanently in the United States from parent to child, based in part on the parents' establishment of the domicile, and based on the common law rule that the child's domicile follows that of his parents.

Chief Justice John G. Roberts: Counsel -- Counsel, in response to Justice Kennedy's question about whether they gave a policy reason, your answer was that they, you know, followed the history.

I'm not sure that's the same as a policy.

Ms Kruger: Well, in -- in addition to discussing the individual nature of LPR status, they also noted the consequence of the Ninth Circuit's imputation rule would be to permit a kind of end run around the substantive eligibility requirements for LPR status.

So theoretically, you could have an individual minor alien who's not eligible, who's inadmissible for adjustment of status who would nevertheless be accorded a substantial benefit of that status without regard to whether or not he could have received that status in fact.

I'd like to--

Justice Antonin Scalia: Is that the case under the prior law?

Ms Kruger: --Under the -- under former section 212(c).

Justice Antonin Scalia: Yes, if--

Ms Kruger: Again--

Justice Antonin Scalia: --So it's not unthinkable.

Ms Kruger: --No court had imputed LPR status the threshold requirement for relief under the -- under the predecessor statute from parent to child.

So it wasn't the case that somebody who was actually ineligible for -- for LPR status would nevertheless be eligible for waiver of removal under -- under that provision.

Justice Sonia Sotomayor: I just don't understand that argument, because they've conceded that you need the -- the child needs their own LPR status before it triggers--

Ms Kruger: Right.

And I think that concession--

Justice Sonia Sotomayor: --the residency.

Ms Kruger: --I think that concession is important for the following reason.

When Congress enacted the present cancellation of removal statute, it preserved that threshold requirement that you have to be an LPR in order to seek relief, but it added the durational requirement.

You had to have attained that status at least 5 years before you sought relief.

There's no reason to think, if there's no precedent for imputing LPR status in the first place, that there would be precedence for imputing LPR status going back 5 years.

One necessarily follows from the other.

If I could, I'd like to address the other proposition that Respondent Sawyers makes, that courts were necessarily imputing residence as an element of domicile.

That argument relies heavily on the 1967 regional commissioner decision dealing with firm resettlement.

If you look at that decision, you'll see that the regional commissioner focused very intensely on the minor alien's particular actions -- identity, documents that he received personally from the foreign country, his own schooling and to residence, and the degree to which the regional Commissioner rested on principles of imputation is entirely unclear.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Featured:

Vartelas v. Holder - Oral Argument

Fri, 20 Jan 2012 20:27:43 +0000

Case:

Vartelas v. Holder

Media File:

10-1211_20120118-argument.mp3

Related Transcript:

10-1211_20120118-argument.xml

Transcript:

ORAL ARGUMENT OF STEPHANOS BIBAS ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 10-1211, Vartelas v. Holder.

Mr. Bibas.

Mr. Bibas: Mr. Chief Justice, and may it please the Court:

As the government concedes, INA subsection 101(a)(13)(C)(v) added by IIRIRA does not expressly mandate retroactivity.

Under Landgraf, applying that new provision would attach new legal consequences to pre-IIRIRA offenses, penalizing both those who travel and those who don't.

Covered lawful permanent residents could not visit their parents abroad without being forced to abandon their children here.

They would be removed from the country or else confined here.

Either way, they would lose an ability they had under pre-IIRIRA law based on pre-IIRIRA offenses.

Thus applying the subsection to them would be impermissibly retroactive.

The settled expectations at issue here are those of round trips by lawful permanent residents, not, as the government would put it, one-way tickets or first-time entrants.

These are people who have structured their lives here.

They have homes, spouses, children, and careers here, and yet have a settled expectation that they will be able to maintain ties to visit aged and ailing parents abroad, to go to funerals and wakes and visit them in the hospital and surgeries.

Our amici, the NACDL brief, and the Asian American--

Justice Ruth Bader Ginsburg: As far as going forward is concerned, that's -- that's just the way it is, right?

Mr. Bibas: --Yes, because Congress has expressly changed the law post-IIRIRA.

The question is for those before IIRIRA, whether those settled expectations are being disrupted.

Justice Ruth Bader Ginsburg: Could they -- could they -- the -- the person who -- who is here and then the new law is passed, could that person have petitioned for discretionary relief before traveling?

Mr. Bibas: Yes, Your Honor, that is a possibility.

That is not the same as the automatic ability to travel, and in fact in this case the discretionary relief was denied.

It depends on a different set of factors from the automatic pre-IIRIRA ability to travel.

But it is a theoretical possibility in some cases.

Chief Justice John G. Roberts: So your expectations argument is that somebody trying to figure out whether to go ahead and rob the bank is going to say, well, if I do and I am caught and I am found guilty, I won't be able to take temporary trips abroad, so I'm not going to rob the bank?

Mr. Bibas: No, Your Honor.

First of all, you phrased it specifically as a reliance argument, which is an alternative.

Even the government concedes it is not a prerequisite.

Second, the right time to look at expectations is the moment before the law is enacted: Does one have an expectation at that point that one will be able to continue--

Chief Justice John G. Roberts: You are concerned under Landgraf, I think, with whether or not it disrupts settled expectations, and it just doesn't seem to me that this issue enters into the expectations at all when the pertinent act, which is the commission of the crime, not the pleading guilty, takes place.

Mr. Bibas: --No, Your Honor, I believe the practical impact is a new travel disability or penalty, just as in Landgraf.

The discrimination there had been illegal for decades, yet adding a new form of damages to it was impermissibly retroactive.

In Hughes Aircraft, filing false claims with the government had been illegal for years, yet broadening the class of people who could file suit and removing a defense -- no reliance possible at all, but there was a settled expectation that there would be no additional consequences attached to that.

Justice Samuel Alito: What is the difference between someone who commits the crime just before the act is passed and someone who commits the crime just after the act is passed?

The person who commits the crime just after the act is passed had the expectation prior to the passage of the act that if he did certain things he wouldn't -- he wouldn't have this consequence from his conduct.

Mr. Bibas: Congress of course has the power to change things.

But the expectation until an act is passed is that the consequences are fixed in time.

And if Congress decides that the potential unfairness is outweighed by the benefits of making the act retroactive--

Justice Samuel Alito: But the person who commits the crime just after the act is passed had the expectation prior to that time, that had -- if he did certain things in the future he wouldn't suffer certain consequences.

Mr. Bibas: --And yet Congress has -- has affirmatively warned and put everybody on notice that now there is this new consequence; you may be deterred by this new consequence; we may be punishing you by this new consequence, but the consequence has been announced.

Justice Antonin Scalia: Mr. Bibas, I have -- this is almost a question of personal privilege.

You -- you make your whole argument on -- on the basis of Landgraf.

So does the government.

You do not cite, the government cites but does not discuss the relevant portion of a -- of a later case which involved the same question, Republic of Austria v. Altmann.

I concurred separately in Landgraf because I thought that the test that the Court was using, upsetting settled expectations, was indeed the proper test for constitutional provisions forbidding ex post facto laws, which is where the Court derived it from, Justice Story's opinion in a New Hampshire constitutional case.

But I said in my concurrence that the proper test for -- for the other issue of retroactivity, namely, constitutionality aside, does this statute mean to be applied only in the future or in the past?

And for that I propose -- well, I'll read you what we said in Altmann:

"Our approach" -- which postdates Landgraf.

"Our approach to retroactivity in this case thus parallels that advanced by Justice Scalia in the concurrence in Landgraf. "

Quote, and it's quoting the concurrence:

"The critical issue is not whether the rule affects vested rights or governs substance or procedure, but rather what is the relevant activity that the rule regulates. "

"Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. "

"Most statutes are meant to regulate primary conduct and hence will not be applied in trials involving conduct that occurred before their effective date. "

"But other statutes have a different purpose and therefore a different relative retroactivity event. "

--"relevant retroactivity event".

And that is what we have here.

The -- the event that is sought to be regulated is entry into the United States, and it is clear that this statute applies only to prospective entry into the United States.

It doesn't apply to past entry so that those people who came in, in violation of this statute can be deported.

Now, why shouldn't we apply that rule in this case, as we did in the Republic of Austria case?

Mr. Bibas: No, Your Honor.

As a -- first of all, our reply brief discussed Altmann, and the majority of the Court has viewed that as limited to the foreign sovereign immunity context.

But taking your test--

Justice Antonin Scalia: Why would it be limited just to the foreign sovereign immunities context?

Mr. Bibas: --That -- that's the majority's approach.

But taking your test on its own terms, what you are pointing out is there is a future act--

Justice Antonin Scalia: Why do you say that's the majority's approach?

Mr. Bibas: --I'm sorry.

The majority in Fernandez-Vargas expressly said that Republic of Austria was in a sui generis context and that its holding shouldn't be extended to -- to Fernandez-Vargas.

Justice Antonin Scalia: Its -- its holding.

Mr. Bibas: Yes.

But to take -- to look at your test, you were pointing out that there is a future event which the government, practically its entire theory turns on that.

But even if there is a future event, there is a past event being regulated here, and the activity at issue under your test would be the pre-IIRIRA offense, not just the innocent post-IIRIRA travel.

What we have is future lawful travel, concededly lawful, nothing nefarious needs to be shown of it.

Justice Elena Kagan: Well, Mr. Bibas, how is it different then from a felon in possession statute, where you look at the past offense--

Mr. Bibas: Right.

Justice Elena Kagan: --and then you say, well, this man, because of that past offense, can't buy a gun in the future?

How is it different at all?

Mr. Bibas: Your Honor, there are five pertinent distinctions.

Permit me to unpack.

The first and most important is that the Landgraf test should have a broader scope than the ex post facto context in these criminal cases because Congress can override it expressly.

Since the ex post facto clauses disable both State and Federal legislatures from acting at all, the deprivation of the power must be narrow and careful so State and Federal legislatures can continue to regulate felon in possession or racketeering or the other crimes the government advances.

But Landgraf just tells Congress how to legislate.

It's a background rule.

So it's legitimate to have a presumption against retroactivity sweep more broadly, as Congress is free to override it and, as I will explain, does override it regularly.

Secondly, felon in possession is inherently dangerous conduct.

This is a protective law.

It's not just a punitive or deterrent law.

The third and related point is that felon in possession laws are tailored.

There is a nexus to a danger, a threat to people suffering firearm -- it's narrowly tailored.

Fourth--

Justice Elena Kagan: Well, why isn't the -- the government, Congress, making the exact judgment same judgment here?

If the activity to be regulated is entry and Congress is making a judgment that we do not want dangerous people to enter, and we're using the conviction, the prior conviction, as a marker for who was dangerous, and that's exactly what Congress has done in the felon in possession statute.

Mr. Bibas: --Your Honor, I believe the two are quite different.

Felon in possession is limited to firearms in the hands of proven dangerous people.

Here we have a law that says you can stay in the country indefinitely; we are going to discourage you from going abroad and leaving the country, because we will make it harder for you to come back.

That is not tailored at all to protecting the people inside the United States.

I would also point out that the felon in possession statute, as this Court noted in Heller, is part of a long tradition of forbidding such activity as a crime.

So it's hard to say there are settled expectations being upset by felon in possession laws.

And the final one is, Congress can do that simply by being explicit, and it has done so repeatedly in laws such as IIRIRA.

Elsewhere in IIRIRA, section 321(b) says the aggravated felony definition applies to convictions entered before, on or after the statute's effective date.

It knew how to do it; it did it more than a dozen other times in IIRIRA, as this Court noted in St. Cyr.

It didn't spell it out here.

The point of this--

Justice Sonia Sotomayor: The career criminal enhancements, instead of the felon in possession, and assuming your arguments, what limits can Congress put on anyone with respect to future conduct if it's going to be a burden?

Under your view, it stops people from traveling.

Career criminal statutes put on the distinct disadvantage of a longer sentence.

Mr. Bibas: --Yes, Your Honor, and as we noted in the criminal context, this Court in Witte and Gryger notes, it's a heavier punishment on the new crime because it's aggravated, because it's repeated.

And because Congress has more leeway in the ex post facto context and because recidivism enhancements have a long tradition, it's entirely legitimate.

There's no need to say that that's punishing the past offense because the future offense -- it -- it's permissible to increase it under the Ex Post Facto Clause.

And that's an inquiry that's different from the Landgraf test here, because all Congress has to do is spell out expressly: We want to apply this to convictions entered before, on, or after the statute's effective date, which it did in 321(b), which it didn't do here.

So if we were looking at the function of--

Justice Sonia Sotomayor: Does that argument that you just made go more to whether or not the BIA's conclusion that Congress intended to rescind the Fleuti decision -- but you assume that's what its intent was?

Mr. Bibas: --We've assumed arguendo because that's the premise of the question presented.

Justice Sonia Sotomayor: So if we assume that, if we assume that was Congress's intent, doesn't that start give you the conclusion?

If Congress tended to undo it, doesn't that prove that they intended to effective retroactively?

Mr. Bibas: No, Your Honor, it doesn't.

All the case law, the legislative history, and other discussion was about certain other aspects of entry doctrine that needed to be changed.

The discussion was express about saying: We're changing the definition from entry to admission, because we don't want people who snuck into the country outside of--

Justice Sonia Sotomayor: No, no.

Those go to the basic premise.

Mr. Bibas: --Right.

Right.

Justice Sonia Sotomayor: If you assume Congress intended to rescind the prior doctrine, isn't that proof itself that it intended to apply the statute retroactively?

Mr. Bibas: No, Your Honor--

Justice Sonia Sotomayor: To this conduct?

Mr. Bibas: --No, Your Honor.

Congress can intend to rescind -- to abrogate a statute such that it will have no effect going forward.

But as this Court noted in Landgraf, the -- the background default rule that the public and Congress expect is that new laws will apply prospectively.

That has the virtue not only of giving a clear background rule which -- against which Congress legislates, against which it did legislate in IIRIRA, but it also forces Congress to advert to the potential unfairness of retroactivity and decide that the benefits outweigh it.

That's what this Court said in Landgraf.

It makes perfect sense and that clear statement rule serves the function of having them smoke out into the open.

If you think it's beneficial to make this affect convictions in the past, just say so.

But it didn't.

So to go back to our primary point, with the practical impact or effect being a new travel disability, the government's argument seems to boil down to that, because there is one event that must happen after the statute's effective date, therefore there can be no retroactive effect.

Justice Elena Kagan: Well, that event is the event that the government cares about, which is the entry into the country.

It's not as though the -- you know, the government says -- just picks an event at random and -- and makes it the trigger mechanism.

The government has picked the event that it wants to regulate, which is entry.

Mr. Bibas: Yes, Your Honor, but this is an effect test, and under Martin v. Hadix and Landgraf, we have to take a commonsense functional view of what the effects are, the new legal consequences.

I--

Chief Justice John G. Roberts: I would have thought your answer to my colleague would be: No; what they want to regulate is the staying in the country, and they're trying to make that as uncomfortable as possible in order to encourage the individual to leave.

If he can't go to the, you know, the parent's party, the cousin's wedding or whatever, he is just going to leave, and then once he does, he can't come back.

Why would -- why would the government care -- it's a question for them, I'm sure.

Why would they care whether somebody that they don't want to be here stays here?

It seems to me the exact opposite.

So I would have thought your argument -- your answer would be, no, what they are trying to regulate is not the coming and going, but simply the staying.

Mr. Bibas: --Yes, Your Honor, you're right that, particularly given the strange way in which its written, it's hard to understand it as something other than a penalty and possibly a deterrent, but certainly a penalty based on past crimes, to make life uncomfortable.

And that does not speak of a protective, forward-looking exclusive function, if that's the test.

But to go back to the earlier point, if that were -- if we were to follow the approach Justice Scalia outlined, that would be the right response.

But we don't even need to get there because the primary test under Landgraf is not the point or function or purpose, but an effects test.

The effect, as the government concedes, is to force him to choose between his parents in Greece and his wife, children, career, and home here.

Justice Antonin Scalia: But there are a lot of -- but there are a lot of statutes which we interpret to be valid and not retroactive which have a substantial effect.

You can pass a statute altering the rules of evidence which have the effect of making someone who committed a prior murder convictable, whereas before he was not convictable.

And we don't just look to the effect and say, well, it has that substantial effect so it's operating retroactively.

We say, no, it's a rule of evidence that applies in the future and that evidence can come in.

That's the big problem with this other approach.

There are often adverse effects upon activities that occurred before the statute was enacted, but we still regard the statute as prospective only and therefore not subject to special rules for people who are affected.

Mr. Bibas: Well, setting aside the difference between the ex post facto context and the civil context, and there is the procedural distinction, which I know Your Honor didn't sign on to, it's also relevant that here it is directly expressly tied to a past conduct.

It's a precondition.

It's not even a piece of evidence or something one can draw an inference from.

It is a precondition for ineligibility under 101(a)(13)(C)(v).

And therefore it looks like the disability that Justice Story said, a disability has to involve future conduct.

But if it's expressly disabling future conduct, that's a penalty on past conduct.

The disability in St. Cyr of not being able to apply for future discretionary relief.

The disability in some other cases of this Court that we found after briefing and alerted opposing counsel to, Cummings v. Missouri and Ex parte Garland in volume 71 of the U.S. Reports.

Even though the law there forbade teaching in the future or holding office or preaching or being a member of the bar, the government's theory would say: Those are post-enactment things; just refrain from teaching; you don't have a vested right to teach.

This Court said: No; we recognize those are expressly targeted to punish the past membership in the Confederacy that triggers that disability.

And so the government's approach would render the Justice Story's disability category a nullity.

Chief Justice John G. Roberts: Does it matter in the examples that you just gave that admission to the United States is purely a matter of legislative grace, while we might conclude that teaching, being a member of the bar, whatever, is not?

Mr. Bibas: I don't believe that that is important.

That only matters for the vested rights argument, and this Court in Cummings said expressly it was dealing with a privilege.

So -- moreover--

Chief Justice John G. Roberts: I'm sorry?

Which privilege was that?

Mr. Bibas: --The privilege of teaching or the privilege of holding office.

So you can't rest on a right privilege--

Chief Justice John G. Roberts: I suppose that might have been regarded as such then, but not under current law.

Mr. Bibas: --Okay.

Well, another answer -- in St. Cyr the government made the same argument, and this Court said: Well, sure, Congress has the plenary power to change the rules any time it wants; just do it expressly.

The question is not whether Congress can, but whether it has in fact changed the rules expressly, to make that express tradeoff that the potential unfairness of retroactivity is worth it.

Now, the final point here, I believe there was some reference earlier to reliance in the offense.

And as the government concedes, reliance is not a prerequisite.

This Court can rule for Petitioner and not even bother with reliance.

But the presence of reliance here is an extra factor that supports -- that shows the retroactivity to be obvious and severe.

So the court of appeal's whole premise that reliance is necessary goes away.

The government concedes the court of appeals implicitly was wrong on that.

As a practical matter, our point is that defendants rely on the known consequences of offenses when they decide to plead guilty.

As this Court recognized in--

Chief Justice John G. Roberts: When they decide to plead guilty.

The operative issue here is when they commit the crime.

Mr. Bibas: --We don't claim that there is a reliance interest in committing the crime, but in the decision to plead guilty as a practical matter the defendants weigh a number of consequences.

And one of those is whether they might have a 4-month discount off their sentencing guidelines, which was the inducement here, and another one is will they ever be able to see their parents again.

Chief Justice John G. Roberts: So this -- so this--

Justice Anthony Kennedy: So you draw the line on -- your position is that only those who have entered a guilty plea are entitled to the presumption against -- non-retroactivity, but not those who have been found guilty?

Mr. Bibas: Your Honor, our primary position is that because reliance isn't necessary all of them benefit from it, because they all have settled expectations.

Justice Elena Kagan: How do you explain St. Cyr if reliance isn't necessary?

St. Cyr is all about reliance.

Mr. Bibas: Yes.

And at the end of this Court's opinion the Court said that the presence of this reliance made the retroactive effect especially obvious and sincere -- especially obvious and severe in St. Cyr.

That did not purport to overrule holdings in Landgraf and Hughes Aircraft where there had been no legally cognizable reliance.

So St. Cyr is an easy case because of the guilty plea because of the reliance.

But Landgraf and Hughes Aircraft didn't involve any reliance and there was still retroactivity because the settled expectations were disrupted because there were new consequences attached to pre-enacted conduct.

So regardless of whether there is reliance, there are settled expectations that are upset by a law whose function or point is to punish and deter misconduct based on past wrongs.

My client--

Justice Antonin Scalia: We are trying to figure out what Congress intended, right.

We're not talking about constitutionality.

We are talking about a rule that it's presumed that statutes are only prospective, right?

And your argument is the reasonable expectation of Congress when they passed this was that it would only apply to two people who, what, committed the crime or were convicted after the statute passed?

Just as a matter of statutory interpretation?

Mr. Bibas: --Yes, Your Honor.

Justice Antonin Scalia: Okay.

Mr. Bibas: That is the background default rule against which Congress legislates.

And in laws such as IIRIRA and SORNA and elsewhere, Congress spells out what it wants to apply to pre-enactment offenses to pre-enactment conduct.

That's the defeasible civil retroactivity rule that can reach more broadly than the ex post facto jurisprudence--

Justice Elena Kagan: Well, do you have any case in which a court has deemed its statute retroactive even though it wasn't triggered until the party took some further action?

Is there any case out there either from this Court or from another court where we've said it's retroactive even though it depends upon a future event.

Mr. Bibas: --Yes, Your Honor.

St. Cyr depended on applying for discretionary relief in the future.

He didn't have to.

Cummings depending on trying to teach or preach or hold office.

Ex parte Garland depended on trying to practice law in the future.

Those are all disabilities taking away a future ability based on a past wrong.

That's what the disability category has to mean if it's to remain meaningful.

And the government's approach would gut Justice Story's fourth category.

If there are no further questions, I would like to reserve the balance of my time.

Chief Justice John G. Roberts: --Thank you, Counsel.

Mr. Miller.

ORAL ARGUMENT OF ERIC D. MILLER ON BEHALF OF THE RESPONDENT

Mr. Miller: Mr. Chief Justice, and may it please the Court:

As the discussion so far this morning reveals, the Court's retroactivity analysis takes account of a number of different factors, but the one that is most significant and indeed in this case virtually dispositive is that the application of Section 1101(a)(13) to Petitioner was triggered only because he engaged in voluntary conduct that postdated the enactment of the statute.

Justice Elena Kagan: What do you think the trigger to be?

Because in your brief you kept on talking about the trigger being the trip.

And I would have thought that you would have talked more about the activity being the attempt to enter the country.

Mr. Miller: That's -- I mean they are closely connected together in time and they both -- but they both postdate the enactment of the statute.

But -- well, the thing that is being regulated by section 1101(a)(13) is the entry of aliens into the United States.

The statute sets out a comprehensive scheme for determining when an alien arriving at the border seeking to come into the United States should be regarded as seeking an admission.

So that's conduct that takes place in the future.

Part A of 1101(a)(13) sets out the general definition of admission and then (c) sets out a number of exceptions.

And so taken together they are part of a comprehensive effort to codify Fleuti in some respects and in particular Romanette (ii), the 180-day provision is actually a fairly generous codification of Fleuti probably extending beyond what would have been regarded as a brief trip under Fleuti.

Chief Justice John G. Roberts: Counsel, I have to -- I just don't understand this statute.

This is somebody we would not allow into the country.

And yet the only thing we say is: You can't leave.

I just don't understand how that -- how that works.

Mr. Miller: I think there are two points to be made about that.

And the first is that that is a feature of the statute at large.

That exists even with respect to post enactment criminal convictions.

Chief Justice John G. Roberts: Right.

Mr. Miller: And the second, I think to understand it, it's helpful to look at the history.

The distinction between grounds of inadmissibility and grounds of deportability goes back all the way back to the 1917 Act.

In that statute, a single crime of moral turpitude was the basis for inadmissibility but was generally not a basis for deportability unless it had a-one-year sentence and was committed within five years--

Chief Justice John G. Roberts: Well, I know, and I understand that there is a limitation on actually deporting the person.

But here I think the one thing you want the person to do is leave.

Maybe for a particular event, but maybe he will decide to stay in Greece if once he's there for the -- but it seems very odd to say: We are going to show you how much we don't want you here; we are not going to let you leave.

Mr. Miller: --I think what the -- history shows that it's the crossing the border that has always been regarded as a legally significant event.

This Court's cases recognizing--

Justice Ruth Bader Ginsburg: It wasn't before.

We -- I think we have held that an immigration lawyer is obliged to tell a defendant facing a criminal charge what the legal consequences -- what the immigration consequences will be.

And here, suppose before the -- at the time of the plea in this case, the attorney had said, once you've served your time, you will be able to take brief casual trips.

That would have been after his advice, right?

Before IIRIRA, I mean.

Mr. Miller: --Well, I think, I think the most important point about the consequence of the plea is that as an immediate result of the plea under pre-IIRIRA law, so at the time he pleaded guilty in 1984, he made himself inadmissible.

So that is not anything that has changed.

So he knew that he was--

Justice Ruth Bader Ginsburg: I meant to use "lawyer" talking to his client, and the client wants to know: Before I enter this plea, what will be the consequence for me?

And the question that is asked is: Will I be able to visit my mother in Greece?

What should the lawyer -- what should the lawyer at that time have answered?

Mr. Miller: --I think the lawyer should have said: By pleading guilty, you are making yourself inadmissible to the United States.

Under--

Justice Stephen G. Breyer: Rosenberg would have been the law.

Fleuti.

And the answer to the question would have been: Yes, you can make trips abroad, wouldn't it?

Mr. Miller: --That's right.

And I think you might also have said that under a current law, you will not be regarded as seeking an admission if you take a brief, casual, and innocent trip.

But the change in the law--

Justice Elena Kagan: Well, that's what is going to be important to the person, right?

It's not inadmissible and all the legal terms.

It's: Am I going to be able to make short trips to visit my mother?

Yes, you are going to be able to make short trips to visit your mother.

And then you wake up the next morning, and Congress has passed a statute, and now you are not able to take short trips to visit your mother.

So something very real has happened to the life of this person.

Mr. Miller: --That's right.

I mean, and there is no question but that there is a serious consequence as a result of the change in the law.

But the Court has made clear in Landgraf and in a number of other cases that even uncontroversially prospective statutes can impose burdens.

Justice Stephen G. Breyer: That's true, but in St. Cyr, as I read it, on pages 322 and 23, the Court focused directly, not on the crime point of time, but the time of the guilty plea.

And what the Court says there is that a person who is thinking of pleading guilty might well have taken into account the fact that he could ask the Attorney General later when he's about to be deported to exercise discretion in his favor.

So that's -- as I read those pages, you can say, I'm not reading them correctly, but that's how I read them.

And then, having read them that way, I thought the question in this case is whether the person who is sitting at the table and deciding whether to plead guilty or not is likely to think, well, if I plead guilty, I can always ask for discretion.

That's St. Cyr.

Well, if I plead guilty, I can still visit my aging parents and grandparents, a matter that could be of importance to some people, as opposed to whether I will never see them again.

Now, that seems to be the question.

Is the second as likely to be in the person's mind as the first?

And to tell you the truth, I don't know the answer.

I mean, maybe it would be.

There isn't that much chance of getting discretion.

It might be important to some people to visit their aging parents and grandparents.

So, go ahead.

Answer the question.

Is the one more important than the other?

And if not, why not?

Mr. Miller: I think you have correctly described the reasoning of the Court in St. Cyr, and I think that that reasoning highlights two ways in which this case is significantly different.

And the first is that in St. Cyr it was the guilty plea, the conviction that was legally significant under the provision is of IIRIRA at issue there, and the Court emphasized that a guilty plea is a quid pro quo, it has to be knowing and voluntary.

The Court cited Santabello against New York, a due process about guilty pleas.

And then the one difference in this case is that the legally significant event here--

Justice Stephen G. Breyer: No, but I -- isn't my question the key question?

Now you can answer that no.

But I, I mean, I suppose you could prove that the only thing that mattered to LPRs who plead guilty, the only thing that mattered was visiting their parents and grandparents, a matter I doubt; but, you can say, even on that situation, it would make no difference.

Or you could say, I think the one is as important as the other.

Or you could say they are not.

I just want to get your full answer, your whole answer to my question.

Mr. Miller: --The conclusion to the first part of the answer is that it wouldn't make a difference because what matters here is not the guilty plea, what triggers the application of 1101(a)(13)(C) is the underlying criminal conduct.

Justice Elena Kagan: You are quite right, Mr. Miller, as a formal matter that that is true, that that's the words of the statute.

But how many times has the Department of Homeland Security tried to declare a person inadmissible on the basis of the commission of a crime without putting into evidence either a conviction or a guilty plea?

Mr. Miller: I don't have any--

Justice Elena Kagan: I can't imagine that it's like more than on one, you know, five fingers of your hand.

I mean, that's the way people prove crimes in this area, isn't it, by convictions or guilty pleas.

Mr. Miller: --Well, I would say that -- this is a statue--

Justice Elena Kagan: Or after trial or convictions by guilty pleas.

Mr. Miller: --The statute is being applied by, in the first instance, by customs officers at the airport or at the land border crossing.

They have access to a number of databases which include not only records of convictions but also things like arrest warrants.

And an arrest warrant by itself would not, not be enough to show that a person had in fact committed an offense, but it might trigger some further inquiry from the customs officer that would lead to finding out more information or perhaps getting an admission from the person.

Justice Elena Kagan: If, as a fact of the matter, the way the commission of crime is proved in this area is through showing a conviction, does your distinction stand up at all?

Mr. Miller: I mean, there is still, I think, a significant formal distinction and then there is also another important distinction from St. Cyr which is that that was the case where as a result of the guilty plea plus the change in law, the person there faced immediate deportability with no prospect of discretionary relief.

And the Court said that there is a clear difference for purposes of the retroactivity analysis between the possibility of deportability and a certainty of deportation.

Here, not only is he not deportable, but there is no immediate consequence for him at all.

The statute only has any effect on him when he engages in the post enactment travel.

And I think--

Justice Ruth Bader Ginsburg: What about the characterization?

It would seem to me to make common sense, yes, the trigger is that he has gone abroad and is returning.

But the target, they say, was the crime.

That's why the law -- the law really doesn't care about the travel back and forth; what it cares about is this person was convicted of a crime.

Mr. Miller: --Right.

I don't think that's correct, Your Honor.

And I think that highlights one of the distinctions between this case and Cummings against Missouri and ex parte Garland.

In those cases, you had statutes that were nominally prospective in application, but the Court actually said that we think that what is really happening here is the statutes are imposing punishment for completed acts.

To the extent there was any doubt in those cases themselves, this Court discussed them both in Harisiades v. Shaughnessy and said that it viewed them as cases about punishment.

Justice Sonia Sotomayor: But isn't that the case here, meaning -- it goes back to the Chief Justice's question, which is, what they're trying to do is punish those individuals, those LPRs who have committed this kind of crime, by not letting them travel or come back in.

That's really what their argument is, is, you are imposing a punishment, a disability for having committed the crime.

You're not imposing a disability merely for the act of traveling.

Mr. Miller: I mean, I think when you look at the statute as a whole, you see that it's a -- the comprehensive regulation of crossing the border, which has always been regarded as a legally significant event.

There are six subparts to 1101(a)(13)(c).

Five of them have nothing to do with past conduct.

They're about the -- the nature of the trip and -- and what the alien is doing as he's coming in.

And then you have -- have this one, which is of a piece with the long history of drawing a distinction between inadmissibility and deportability.

And I think it recognizes--

Chief Justice John G. Roberts: What -- what is the -- what is the policy underlying the rule that doesn't allow somebody who has lawful status here to go to his grandmother's funeral--

Mr. Miller: --I -- I--

Chief Justice John G. Roberts: --and come back?

It's going to take four days.

He goes, he comes back.

What policy supports prohibiting that travel?

Mr. Miller: --I mean, I -- I think it reflects a -- a judgment on the part of Congress over many, many years that it is one thing to say to an alien, all right, we're not going to go and try and find you and take you and kick you out of the country.

It is quite another to say you may freely cross our borders -- even after having left, you may come back, and we're -- without any inquiry.

Chief Justice John G. Roberts: Okay.

They're two different things.

But I don't know that you've articulated what the policy is to prevent -- prohibit somebody from doing that.

Mr. Miller: I mean -- other than, you know, referring you to -- to the history and to -- to the idea that has been reflected -- this Court has recognizes that control over the border is a core sovereign prerogative that lies at the heart of Congress's immigration power.

And I think--

Justice Antonin Scalia: Well, I suppose you could say that there's a -- a likelihood of quite inequitable enforcement if indeed you adopt a position we're going to pick up all of these people and send them away.

That's not going to happen.

It'll -- it'll be hit and miss.

And on the other hand, you can enforce it rigorously and equitably upon everyone if you only forbid reentry to those people who want to come back in, and they'll have to, you know, give their names to Immigration, and you can check on -- on this status.

That seems to me a sensible reason.

Mr. Miller: --That's right.

And--

Justice Stephen G. Breyer: So why do you -- as I read the statute, it isn't even clear whether it overrules Rosenberg v. Fleuti.

I mean, they talk about admission, but admission after all could be, we have an exception for the 4-day trip.

That's what the Court said effectively in Rosenberg v. Fleuti.

So Congress certainly wasn't clear on what policy they're following.

I would have thought that.

You can disagree with that.

But I -- but the part that's still gnawing at me: 95 percent of the people plead guilty.

All right.

You know.

Everybody pleads guilty.

Or about.

And now the -- the consequence that this ex post enacts is he can't take the 4-day trip.

And you keep saying well, a 4-day trip requires action on a person's part.

Right.

Of course it does.

So why does that matter?

I mean, the fact is he can't take the 4-day trip.

A 4-day trip requires action.

You have to buy a trip -- ticket.

You have to get on a plane.

So--

Mr. Miller: --I think -- if I could just first address the -- the question of whether the statute in fact ever gets Fleuti, and just to be clear on that -- the question presented assumes that it does.

The Petitioner isn't challenging that.

And the board in the Collado-Munoz decision has explained why the -- the statute in fact does have that effect.

And I -- I think the significance of this post-enactment conduct, the significance of the trip, is illustrated there by this Court's decision in Fernandez-Vargas, which -- which made clear that when you have -- when the application of the statute is within the control of the person to whom it's being applied, because he has to do something after it comes into effect -- there, it was choosing to remain in the United States and becoming subject to the reinstatement of a prior order of removal -- here, it's taking the travel.

But that goes a long way towards establishing that it -- it doesn't have a retroactive effect, that it's regulating future conduct.

Another--

Justice Sonia Sotomayor: Prior to the Fernandez case, the illegal act remained.

And so that was within your control.

But the -- you can't undo an illegal act that you've done to be able to travel.

The act is now part of your background.

And so there's nothing in your control to change that act once the statute has passed.

Mr. Miller: --Well--

Justice Sonia Sotomayor: So you're -- you're carrying that around as a disability.

Mr. Miller: --In Fernandez-Vargas, the -- the conduct that subjected the alien to the application of this -- this procedural -- disadvantageous removal procedure -- was remaining in the United States.

And it's true that that conduct was unlawful, but for purposes of the retroactivity analysis, the Court didn't focus on whether it was lawful or unlawful.

What matters is that it was conduct that was in the future, that that was after the statute was enacted.

And so here, although the -- the trip is not unlawful in that sense, it is future conduct, and here as in Fernandez-Vargas, there is ample warning -- which was another point the Court emphasized in that case -- ample warning that the statute would be applied to people who engaged in that conduct.

I -- I do want to address your--

Justice Elena Kagan: It -- it can't be right that it's "any" future conduct.

If -- if there's a trigger mechanism that is entirely random, you know, it's -- you can be deported if you've committed a crime of moral turpitude in the past, but not until you go to the movies on a Saturday.

Surely that would not change the analysis.

Mr. Miller: --I think that's right, Your Honor, and I think the -- the reason it wouldn't -- is reflected in some of this Court's -- in the ex post facto analysis.

If you have a statute that for example makes it a crime to have engaged in certain conduct in the past, and then, you know, something -- some commonplace utterly trivial activity in the future, I think a court looking at that would say, this is not -- although it is nominally prospective -- this is really a statute aimed at punishing the prior conduct.

Justice Antonin Scalia: No.

I -- I don't know -- I think it would be prospective and unconstitutional because it's irrational.

I mean, not -- not everything that's unconstitutional is unconstitutional -- not everything that is unconstitutional is not prospective, it seems to -- or do you think that's so?

If it's -- if it is unconstitutional in violation of the ex post facto law, the statute has to be pro -- has to be prospective.

I'm sorry, has to be assumed not to cover that prior conduct.

Is that right?

Mr. Miller: I mean, I think -- the hypothetical statute I was describing I think would violate the ex post facto clause under the sort of analysis that this Court used in Smith v. Doe.

Justice Antonin Scalia: Okay.

And if it does, it automatically has to be interpreted not to cover that, by reason of the presumption that--

Mr. Miller: You mean -- if you mean a parallel statute in the civil context.

Justice Antonin Scalia: --Yes, yes.

Mr. Miller: I -- I -- I think that's the best reading of -- of Landgraf.

And I think under the analysis suggested in your concurring opinion in Landgraf, I think you'd want to look at that statute and say this is really a statute that's aimed at regulating the -- the past conduct, and that -- that has a retroactive effect.

So -- to -- to finish that thought, I think I would just say that there is a narrow category of cases where you have what is informed, a prospective regulation that's really aimed at -- aimed at burdening or punishing a past act.

But this is not that.

Justice Elena Kagan: And how do we separate those two?

How do we decide that this is not that, and that it's instead something else, that it's a regulation of future conduct?

Mr. Miller: I -- in the criminal context, the Court has used the analysis of Kennedy v. Mendoza-Martinez to figure out whether a statute is -- is imposing punishment for past conduct.

And that looks at a number of factors.

And the most important factor under that test, the Court has said, is whether the statute appears to be related to a legitimate prospective regulatory purpose.

And so that's why, for example, statutes like 922(g), the felon in possession statute, which was, I would point out, amended back in 1996 to add misdemeanor crimes of domestic violence which had not previously been something that would subject one to a firearms disability.

That was added.

Every court of appeals that has considered the question has held that it doesn't violate the ex post facto clause, and I think implicitly has held that it does in fact reach that conduct.

Justice Antonin Scalia: Even -- even if you had pleaded guilty to spousal abuse?

Mr. Miller: I'm not aware of any cases--

Justice Antonin Scalia: Yes.

Mr. Miller: --specifically addressing that question, but -- but yes, because there you have a statute that is regulating future conduct, it only applies to somebody who engages in the future conduct.

The sex offender registration laws are another example of -- this Court has upheld that kind of law obviously imposes a very significant burden of people on the basis of prior conduct, but the fact that there is some burden by itself does not mean that the statute is retroactive.

Nor does it mean that it is appropriately viewed as imposing a disability.

I mean I think that the Court in Landgraf quoted Justice Story's formulation of a disability as referring to statutes that impose a disability in respect to transactions that are already passed.

So it is not enough that there used to be something that you could do and now in the future you are not going to be able to do that.

That is not a disability in the relevant sense, and if it were the Court would have a very difficult line-drawing problem to figure out why it is that statutes like 922(g) are okay, or sex offender administration laws, or any number of--

Justice Stephen G. Breyer: --That's -- that's why I think the Chief Justice's question and the ambiguity of the statute are relevant.

Like with SORNA you would apply it backwards, because that's a pretty clear intent.

I don't know about you know, like, "three times and you're out" statutes, et cetera.

But -- but here you have a disability on the ones -- the disadvantage to the person pleading guilty, the problem on the one hand, and on the other hand you have the policy that with a -- fill in the blank -- with a statute that doesn't talk about it, but simply uses a new definition of admission or admissibility.

That's -- do you want to say something about that.

Mr. Miller: --I think, if you are -- if you're -- if you are asking whether Congress has specifically addressed the temporal scope of the statute, we -- we -- we acknowledge under St. Cyr that it hasn't.

And so that's why we're at--

Justice Stephen G. Breyer: More than that -- I'm ignoring -- more than that, I'm saying what's the policy on the other side?

The policy that favors the retroactivity despite the fact that the person might not have pleaded guilty?

And that's why I was interested in the Chief Justice's question and also the ambiguity of the language in the statute that they used.

Mr. Miller: --I think that the -- the policy is Congress was trying to redefine -- they were replacing the old term of entry and replacing it with a new concept of admission, they're trying to redefine a comprehensive scheme for treatment of aliens arriving at the border.

And you have to look at all the parts of it together as a scheme that was to be applied going forward, when people arrived at the border in the future, after the enactment of the statute.

If there are no further questions--

Chief Justice John G. Roberts: Could you go over again for me your distinction of St. Cyr?

Mr. Miller: --I think it's twofold, Your Honor.

The first is that in St. Cyr the legally significant event was the conviction, the guilty plea.

Here the guilty plea is significant because it makes Petitioner inadmissible but that was true under current law.

Chief Justice John G. Roberts: You don't argue that -- that the significance of what the individual is giving up makes a difference?

Mr. Miller: That's our second point, is that -- St. Cyr said there is a big difference between immediate deportability and the potential--

Chief Justice John G. Roberts: Is there a difference in terms of what they face if they don't plead guilty?

I've always had difficulty with St. Cyr on the notion that say, someone pleads -- is facing, you know, 10 years, and they plead -- plead guilty to 2 years.

The -- the reason they did that was to, you know, avoid one of these -- positions.

It seems to me it is to avoid 8 years.

Mr. Miller: --I -- I--

Chief Justice John G. Roberts: And I just wonder if the relative significance of what is at issue under the immigration law is something we can take into account, or if St. Cyr prohibits that?

Mr. Miller: --No, I think it is certainly appropriate to take into account, that however -- however significant the application of Fleuti might be to aliens, it's on a different order of significance from--

Justice Elena Kagan: Well, Mr. Miller, the Solicitor General actually represented to us -- in the Judulang argument used that as an example, the Fleuti case, as something that people doing pleas did think about and did rely upon.

Mr. Miller: --Well, I -- I think -- we don't question that that's something that people might have -- have been aware of, and have been thinking about, but it not something that was bargained for in the plea agreement, because it's not something that is affected by the plea agreement.

The statute here is triggered by the post-enactment conduct of entering the country, but also by the -- the pre-enactment conduct of committing the crime.

And as Petitioner has acknowledged, there isn't any reliance in the state of immigration law when you choose to commit the crime.

So I think that's -- that's a difference from the scenario that was addressed in Judulang.

Chief Justice John G. Roberts: Thank you, Mr. Miller.

Mr. Bibas, you have 6 minutes remaining.

REBUTTAL ARGUMENT OF STEPHANOS BIBAS ON BEHALF OF THE PETITIONER

Mr. Bibas: Thank you, Your Honor.

I would like to make five points.

The first one is the statute is poorly tailored to any protective or forward-looking effect.

As the Court has noted, its perverse effect is to discourage people from leaving the country, to keep them in.

So any idea that the purpose is to get them out doesn't square with the way the statute is written.

As Justice Ginsburg noted, while the post-IIRIRA innocent travel may be the trigger here, the obvious target is the pre-IIRIRA offense.

The statute is tied to misconduct.

The natural inference of making this conduct not just a piece of evidence but a prerequisite is that it is the misconduct that is being penalized.

Second, the impact we suggest is the relevant test.

The impact is a penalty.

It is a disability based on a past act that Mr. Vartelas is now helpless to undo.

That is all that is required under Landgraf.

If Congress thinks it important, it can expressly require retroactivity.

But it hasn't done so.

Third, let me make clear that we have alternative theories here.

Reliance is something that makes the case worse.

It is something that exacerbates the problem, makes it obvious and severe.

And our amici, the NACDL brief, points out very movingly how important these kinds of considerations are in immigrants' decisions to plead guilty.

Here for example, my client received a 4-month discount off his sentencing range.

It's entirely plausible to believe that immigrants in his situation might value the ability to stay in the same country with their 4-year-old and 2-year-old child as much as 4 months in jail.

But our broader theory is that the violation of settled expectations is sufficient whether or not there is reliance.

The settled expectations that one has of planning one's life in this country and yet having relatives abroad one will tend to or care for their business, etcetera, that is sufficient.

Just as in Landgraf and Hughes Aircraft Company there were no legally cognizable reliance interests in discriminating or in submitting false claims, but changing the penalty is enough.

Fourth, this Court's decision in St. Cyr I believe strongly helps our case.

The first reason is that it imposed a disability, a disability on filing in the future for discretionary relief, but as a practical matter it is burdening past conduct.

Secondly, St. Cyr didn't purport to change the holdings in Landgraf and Hughes Aircraft Company that those are other ways of showing impermissible retroactivity.

The logic in St. Cyr is ineluctable that because you are burdening a decision, a decision that, as the Court and the amici in St. Cyr noted, matters greatly and factors into the plea bargaining calculus, that the retroactivity is especially obvious and severe.

And let me note that St. Cyr was decided under this same statute, a privilege, not a right, a privilege that Congress can abrogate at any time.

That did not influence this Court's holding at all.

The right-privilege distinction is dead in this area of law.

If there is a privilege under IIRIRA to apply for discretionary relief, there is a privilege to not be subject to the disability on one's traveling and returning.

Finally, let me talk about the criminal-civil line.

My my brother here introduced Smith v. Doe and mentioned some of the sex offender cases.

I've explained why the criminal cases in ex post facto are different, but let me go into some more detail.

The Court is well familiar with Smith v. Doe.

That was a civil case that Doe attempted to turn into a criminal case under the very demanding standard in Kennedy v. Mendoza.

But that's a very uphill fight.

As the Court's opinion recognized, the court must be very deferential before turning something facially civil into criminal because then it's categorically forbidden and it comes with the criminal procedure protections in the Bill of Rights.

That's not what we are doing now.

We are not trying to say this law is forbidden.

Smith v. Doe involved a law where the court's opinion said on its face: The legislature made it retroactive; it says it's retroactive.

Federal law SORNA is expressly retroactive in section 113(d).

IIRIRA is expressly retroactive.

That's a different inquiry, where you're asking does the Ex Post Facto Clause forbids something that is expressly retroactive, does Mendoza-Martinez turn it into a criminal case?

Versus here, where it's not retroactive.

All Congress has to do is spell it out.

If this Court adheres to its previous jurisprudence, the guidance to the drafters across the street is clear: Just draft the statutes the way you have always been doing it, say before, on, or after effective date.

Justice Samuel Alito: Do you think we have the authority to tell Congress how to draft its laws?

I thought what we were doing was trying to infer what they intended.

Mr. Bibas: Yes, Your Honor.

Justice Samuel Alito: Do we send them a drafting manual?

Now, you can do this, but you can only do it if you do it -- if you follow the steps that we've prescribed.

And we've said this over and over.

It seems to be completely unfounded.

Mr. Bibas: Your Honor, this Court has said that it's important to adhere to its traditional tools of statutory construction because it's a settled background rule against which Congress legislates, which it is aware of.

Justice Antonin Scalia: You think Landgraf is clear and settled, and you are over there in Congress and you say: Boy, I know how this statute is going to come out under Landgraf.

Mr. Bibas: Yes, Your Honor.

Justice Antonin Scalia: Better than I am.

Mr. Bibas: Let me explain.

This Court decided Landgraf 2 decades ago.

A few years after Landgraf, Congress passed IIRIRA in 1996.

IIRIRA contains express retroactivity provisions that go hand in glove with the Landgraf presumption.

And then Congress passed SORNA, to which my brother alludes.

SORNA in 2005 likewise in Section 113(d) says: Yes, this sex offender registration shall apply, the Attorney General can apply it to people with pre-SORNA convictions.

Congress understands the Landgraf presumption.

In those statutes and others it has legislated against it.

It can continue to do it because this Court should continue to use its traditional tools--

Justice Antonin Scalia: Well, that can be explained because Congress understands that, who knows whether it's going to be held to be retroactive or not; if you surely want it to apply you better say so.

If that's the rule you want us to adopt, that's okay.

Mr. Bibas: --Yes, Your Honor, and a clear statement rule has that virtue, as I believe Your Honor is well aware.

For all those reasons, we ask this Court to reverse the judgment below and remand.

Chief Justice John G. Roberts: Thank you, counsel, counsel.

The case is submitted.

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Monroe v. Pape - Oral Argument, Part 1

Thu, 19 Jan 2012 22:54:59 +0000

Case:

Monroe v. Pape

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Transcript:

Argument of Donald Page Moore

Chief Justice Earl Warren: Number 39, James Monroe et al. versus Frank Pape et al.

Mr. Donald Page Moore: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Moore.

Mr. Donald Page Moore: -- may it please the Court.

This case is here on a writ of certiorari to the U.S. Court of Appeals for the Seventh Circuit.

Petitioners are seeking reversal of the judgment of that court which affirmed a judgment of the District Court for the Northern District of Illinois dismissing petitioner's complaint for damages, which alleged a violation of revised statute Section 1979, which is a portion of the Civil Rights Act of April 20th, 1871.

Section 1979 of course, provides that every person who, acting under color of law, state law, violates the Federal Constitutional Rights of any other person within the jurisdiction of the United States, shall be liable in an action at law, suit in equity or other proper proceeding for relief.

We invoked that statute in our complaint.

We invoked that the -- the jurisdiction of the District Court under 28 U.S.C. Section 1343, subsection 3 which explicitly confers original jurisdiction in the Federal District Courts for actions of the type defined by revised statute Section 1979.

The defendants move to dismiss our complaint on the ground that it failed to state a cause of action and the district judge allowed that motion dismissed, the Court of Appeals affirmed.

The petitioners in this case are James Monroe, his wife Flossie Monroe, and their six children.

Five of the children, I might add are named Stevens, they are the stepchildren of James Monroe, the children of Flossie Monroe by a prior marriage.

All six children of course are the children of Flossie Monroe.

The defendants here are Deputy Chief of Detectives Frank Pape of the Chicago Police Department, the second ranking officer in the Detective Bureau of the Chicago Police Department, 12 John Does whose names we did not know at the time of filing of the complaint, but whom we alleged were officers of the Detective Bureau acting under the orders of the Detective Bureau and of Deputy Chief Pape.

Finally, the City of Chicago was named as a party defendant.

The complaint which -- at least in its factual allegations must be taken as true here, I suppose, alleges the following facts.

Chief Justice Earl Warren: We'll recess now, Mr. Moore.

Featured:

Monroe v. Pape - Oral Argument, Part 2

Thu, 19 Jan 2012 22:54:59 +0000

Case:

Monroe v. Pape

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39_19601108-argument-2.xml

Transcript:

Argument of Donald Page Moore

Chief Justice Earl Warren: Mr. Moore, you may proceed.

Mr. Donald Page Moore: Thank you Your Honor.

Mr. Chief Justice, may it please the Court.

Our complaint in the District Court alleged the facts in Count 1 and it alleged the following facts.

On October the 29th of 1958, the petitioner, James Monroe, his wife, who was also a petitioner, Flossie Monroe, and their six children, who were also petitioners here, were at home in their Chicago apartment asleep in their beds, and at 05:45 that morning, the respondent, Deputy Chief of Detectives, Frank Pape and 12 other police officers from the Detective Bureau of the Chicago Police Department entered their -- entered the Monroe home through the front and rear doors.

Chief Pape and two other officers went down the corridor and entered the Monroe bedroom.

At that point Mr. and Mrs. Monroe were asleep in their beds.

Flashlights were shined on the faces of Mr. and Mrs. Monroe.

One of the officers ordered James Monroe to get out of bed.

A gun was pointed at Mr. Monroe when this command was given.

Mr. Monroe got out of bed.

He had been sleeping with no clothes on.

He was naked.

He was told if he didn't move fast, he would be shot and he was told to get into the living room.

Justice Potter Stewart: And all we have --

Mr. Donald Page Moore: Mr. --

Justice Potter Stewart: -- in this case is the complaint, the allegations of the complaint?

Mr. Donald Page Moore: That is correct Your Honor.

Mr. Monroe went into the living room.

He stood in the middle of the living at the command of the police, he was still naked.

Immediately thereafter, another officer ordered Mrs. Monroe to get out of her bed.

She said I don't want to do it because I don't have any clothes on.

I'm paraphrasing the complaint now.

The officer insisted that she get up.

He grabbed her by the arm and started to pull her out of the bed.

As she was being pulled from the bed, she -- she grabbed a blanket off -- off the top of the bed and drew it in front of her.

And she was also compelled to go into the living room.

At about the same time, other officers were awakening the six Monroe children and herding them into the living room.

Meanwhile, still other officers began an exhaustive search of the premises.

It commenced in the Monroe bedroom when one of the officers went into the closet there and he pulled all the clothes off the hangers, examined each one separately and threw each garment on the floor.

Still other officers went through the various chests of drawers and other pieces of furniture in the apartment.

They pulled out the drawers, they dumped them on the floor, and I suppose we may infer from the complaint although it is not expressly stated, they then examined the various articles which had been dumped on the floor.

While the children were being herded into the living room, one of the officers, for reasons which are not stated in the complaint, kicked James Monroe, Jr. who is a four-year-old child.

And young Jimmy Monroe fell down and he started to cry.

Pape was in the living room at this point and he was addressing questions to Mr. James Monroe.

Pape had this flashlight in his hand that had -- he had shone in the faces of the sleeping couple when he first entered the bedroom.

And as the Deputy Chief of Detectives would ask these questions at Mr. Monroe, he was striking or punching this flashlight into the stomach of the naked man while his children and his wife looked on.

For reasons which are not alleged in the complaint, one of the officers, I believe it -- it was Deputy Chief Pape, had occasion to strike Robert Stevens who was the stepchild of James Monroe knocking him to the floor and thereafter to -- pushed Houston Stevens, the brother of Robert Stevens, down to the floor in such a way that he fell across Robert's body.

The daughter in the Monroe family, Jacqueline Stevens, panicked and she rushed to the back door.

An officer was standing near the backdoor.

He stepped in front of Jacqueline.

It is alleged in the complaint that Jacqueline's intent at this time was to get out into -- out of the apartment into a hallway to reach a telephone so that she might call someone and get help.

The officer near the backdoor stepped in front of her and pushed her down to the floor.

The officers then completed an exhaustive search of the premises.

This included among other things, taking razorblades and slitting open the mattresses on the various beds in the apartment as well as the other incidents to the search that I have described.

After some time, James Monroe was permitted to dress, and then his hands were cuffed together and he was led out to an automobile which was parked near the apartment.

He was placed in the automobile.

He was driven eventually to the Central Police Headquarters of the Chicago Police Department where he was taken up to a place of detention.

And he was there interrogated from time to time, subjected to intermittent interrogation, I believe it is the way it was phrased in the complaint.

And from time to time, he was placed on exhibition in police line-ups to which witnesses and other police officers come to view various individuals who are within the power of the police at that time.

After 10 hours, Mr. Monroe was released from custody.

He was not charged with a crime.

He has never been charged with a crime from that day to this.

It was alleged that during this 10-hour detention at the Central Police Headquarters, Mr. Monroe was refused permission to call his family.

He was refused permission to call his attorney.

No charges were placed against him.

He was refused any information as to what charges would be placed against him.

Of course, he could not, as we alleged in the complaint, make bail because no bail had been set because no charge had been filed.

In short, the allegations make out a classic case of incommunicado detention.

It's the same thing that happens in all of these cases that this Court has had before it so -- so very often in the coerced confession situation.

We alleged that the officers never had any intent of bringing Mr. Monroe before a judge promptly and that he was not arrested for this purpose.

We further alleged that in the building where Mr. Monroe was held for this 10 hours, there were four branches of the Municipal Court of Chicago with jurisdiction to receive criminal complaints and admit prisoners to bail and that elsewhere in the city there were 16 other branches of the Municipal Court with similar jurisdiction, and we have identified each one of these branches by number in the complaint.

We contend that having alleged these facts, and specifically invoked Title 28, Section 1343 to support federal jurisdiction and Revised Statute Section 1979, which defines our cause of action.

Our complaint should not have been stricken but that the defendant should have been required to answer it and we should have proceeded to trial.

Chief Justice Earl Warren: Mr. Moore, by what means did the police gain admission to the apartment?

Mr. Donald Page Moore: The -- the phrase in the complaint, Your Honor, and I believe that's in paragraph 10 (a) of the complaint, which is the second paragraph on page 3 of the record, is that the defendant, "broke and entered the apartment".

Now, that is all that the complaint itself says.

If I were to go in more detail, I would have to go outside the record.

As a matter of fact, one means was used at the front door and a different means was used at the back door.

I think it couldn't prejudice the defendants if I informed the Court that the back door was not broken down.

It's conceivable that the door was pounded on and someone came and that somebody said, "Police, let us in", in the case of the back door.

Of course, that's -- that's the words of the record but I don't think it's prejudicial to the city since it negates the inference that the back door was broken down.

We believe that we have alleged the three elements which are required by Revised Statute Section 1979 which are quite simple.

First of all, the plaintiff must be a citizen or other person within the jurisdiction of the United States and at page one of the record, paragraph 2 of Count 1 of the complaint, we alleged that the plaintiffs are citizens or other individuals within the jurisdiction of the United States.

So we believe that we have satisfied that requirement of the statute.

The statute requires that the acts complained of must be committed under color of a state law, statute, ordinance, regulation, custom or usage.

In paragraph 6 of the complaint on page 2 of the record, we allege that the defendants were acting under color of the statutes, ordinances, regulations, customs and usage of the State of Illinois, County Cook, City of Chicago.

And in support of that conclusion we have alleged in paragraph 3 on page 1 of the record and in paragraphs 4, 5 and 7 at page 2 of the record, that these officers were on duty, they were acting in the course of their official duty, they were acting subject to the orders of the Detective Bureau, that they were led by a Deputy Chief of Detectives, that they were acting in the name of the City of Chicago on behalf of the City of Chicago, that they were carrying official badges and identification cards which were furnished to them by the City of Chicago for the purpose of identifying them as the agents of the City of Chicago, that they were acting within the scope of their employment.

And we believe that this makes out a case of color of law as that statutory phrase was defined in Screws versus The United States, 325 U.S. and Williams versus The United States, 341 U.S. and we contend in the Classic case the decision of this Court in 1940 or 1941.

Screws held that if a person acts under pretense of law, then he has acted under color of law.

If he is a servant of the state going about the state's business, he has acted under color of law even though his acts may be in violation of applicable statutes or constitutional provisions of the state.

Screws, of course, was a case where a Georgia sheriff beat a negro prisoner to death and it's perfectly clear that such acts were a violation of Georgia law.

Nevertheless, the sheriff was held to have acted under color of law within the meaning of Title 18, Section 242.

Justice Felix Frankfurter: Because does -- Screws -- the Screws case arise under the statute we're now considering?

Mr. Donald Page Moore: No sir.

It arose under 18 U.S.C. Section 242 which was then, I believe, Section 20 of the old criminal code.

Justice Byron R. White: That's a criminal.

Mr. Donald Page Moore: That is correct, Your Honor.

It was a criminal prosecution.

However, the language of Section 242, which is where the Screws statute is now found in the Code, is very similar.

Justice Felix Frankfurter: Is it the same?

Mr. Donald Page Moore: Not precisely, Your Honor.

For example, Section 242 does not require that the Act be done under color of state law, if memory serves me correctly.

It merely says under color of law.

This is not so with regard to Revised Statute Section 1979 where the word state is inserted.

However the -- outside of that, I believe that the color of law phraseology of Section 242 is precisely the same.

If memory serves me correctly, there are two, its color of a statute, ordinance, regulation, custom, or usage.

And as this Court pointed out in the Screws case, the opinion of Mr. Justice Douglas, I believe it's in a footnote at page 99 of 325 U.S., the two sections are modeled on each other.

I forget which one came first.

The Court of Appeals for the Third Circuit, Picking against Pennsylvania Railroad, the Court of Appeals for the Seventh Circuit, in Geach against Moynahan and a number of other Courts of Appeals have inferred from this footnote in the opinion of Justice Douglas in the Screws case that the two provisions are in pari materia at least on the color of law provision.

We can see no distinction between this case and Screws, between this case and Williams, which was a case where a special police officer of the State of Florida participated with several other individuals in beating a confession out of a criminal suspect and was then prosecuted and convicted.

This Court affirmed in 341 U.S.

Justice Potter Stewart: In Screws there had been a -- an arrest which was perfectly lawful under the local state law, had there not?

Mr. Donald Page Moore: That is correct, Your Honor.

But I don't believe that -- that this is a valid ground for distinguishing the cases.

It seems to me that it's more shocking, not less, if an arrest is made without probable cause, and that the operative fact in each instance is the fact that the individual involved is acting in the course of his official duties.

Justice Potter Stewart: Well, I was only addressing myself to that issue.

You're now discussing the meaning of that phrase under color of law.

And the arrest, at least, in Screws had been in conformity with state law.

Mr. Donald Page Moore: That is correct, Your Honor.

I -- I would assume, although I do not know, that the arrest that was involved, however, in Williams against the United States was without probable cause.

I -- I seriously doubt that the law of Florida, which was the state in which the facts of Williams occurred, authorized special police officers and other individuals to arrest a person and instead of taking him to a jail or to a shed or to a police lock-up or to a judge, to take him to a shed on the premises of a private employer and there conduct a fair investigation.

Now, respondents have argued that Screws should be overruled.

I think that this would not be a good idea.

I would like to point out to the Court that in addition to what we have stated about Screws in our reply brief, that the Congress, in enacting the Civil Rights Act of 1960 at page -- at Section 601 (a) of the Act, employed the color of law phraseology in defining the duties of voting referees.

One of the duties of a voting referee in the language of the statute is to report to the Federal District Court findings as to whether an individual has been, "deprived or denied under color of law the opportunity to register to vote".

This seems to me to reinforce our contention that since the color of law holding in Screws and Williams is simply a matter of statutory interpretation, that Congress could have changed it had it wished to.

Congress did not.

Instead Congress used the very similar phrase that was defined in Screws and in Williams over again, just this year.

This seems to me a congressional ratification of this Court's construction of that phraseology in Screws.

Justice Felix Frankfurter: What about the statute in -- in Williams?

Mr. Donald Page Moore: Same statute, Your Honor.

Justice Felix Frankfurter: It's not the same statute.

Mr. Donald Page Moore: Well, there were several statutes involved in Williams, Your Honor.

Justice Felix Frankfurter: Well, the Williams case to which you referred --

Mr. Donald Page Moore: The Williams case to which our --

Justice Felix Frankfurter: -- what was the -- what was the statute?

Was that a statute of color of law or a state action?

Mr. Donald Page Moore: Well, both, Your Honor.

Both elements --

Justice Felix Frankfurter: But it's different.

They're different phrases, with different history.

Mr. Donald Page Moore: Unless my memory is playing tricks on me, Your Honor, in Williams against the United States it was Title 18, Section 242.

Now, in United States against Williams, it was Section 241 was involved.

And of course, I have no reference to that case because that involves conspiracy.

Justice Felix Frankfurter: I haven't (Inaudible).

I was referring to your Williams case --

Mr. Donald Page Moore: Yes, sir.

Justice Felix Frankfurter: -- which was not a color of law but a state -- involved that is something that's state action and those were different concepts.

Mr. Donald Page Moore: Well, Your Honor knows more about these cases than I do when I --

Justice Felix Frankfurter: Well you -- you should've read them all recently.

Justice William O. Douglas: Well, the Williams that you're referring to is the one on 341.

Mr. Donald Page Moore: That's correct Your Honor, 341 U.S. at about page 90.

Justice William O. Douglas: 90 -- 97 and we there did apply the color of law.

Mr. Donald Page Moore: That's correct but wasn't that prosecution under Section 242, it was -- it was --

Justice William O. Douglas: Yes.

Mr. Donald Page Moore: -- clearly my understanding that it was and therefore necessarily in holding that the -- the conviction was proper.

This Court must have held that the action was under color of law.

As a matter of fact, there is some language about this action was under the aegis.

I recall that specific word in the majority opinion of state authority and it was part of – and that the special police officer involved there had a semblance of official authority under Florida law because he was in a different position from a private citizen under Florida law.

So, if my recollection is correct then the prosecution was under Section 242.

Justice Felix Frankfurter: Do you think there's a difference between purporting to act under the authority of a statute to which maybe bad and purporting to act under color of law which has been defined from the state law?

Mr. Donald Page Moore: Well, I would -- I would say that there might be a difference but it's a difference which is irrelevant given this course -- Court's holdings in Screws and Williams.

And I would urge that regardless of the opinion which anyone may have now as to the wisdom of the majority holdings in Screws and Williams nevertheless by failing to change the statute although this Court specifically suggested that if Congress disagreed, it could change the statute.

By failing to change it, Congress has in effect ratified the holding in Screws and by using the same terminology or something very closely akin to it in the Civil Rights Act of 1960, Congress has even more explicitly ratified or endorsed the holding in Screws.

Justice Felix Frankfurter: Do you think when we get a permission to Congress to change the law and they don't accept our offer that shows they've rejected it, is that it?

Mr. Donald Page Moore: Well, not necessarily Your Honor but -- but the language that the court used in the Screws case is highly suggestive.

It said at pages 112 to 113, “We're not dealing constitutional interpretations which throughout the history of the court and wisely remained flexible and subs -- subject to frequent reexamination, the meaning which the Classic case gave to the phrase under color of any law involved only a construction of the statute.

Hence if it states a rule undesirable in its consequences, Congress can change it and our contention is Congress did not.

Instead it used the same phrase all over again in a new section of the same statute.

This certainly does not indicate any congressional hostility to the holding in Screws on that point.

Finally, the constitutional violation which is the third requisite to a cause of action under the statute, we believe is supplied by the allegation of the facts coupled with the allegation at record page 9, Count 1, paragraph 18 that the aforesaid acts of the defendants constitute a violation of the constitution and laws of the United States in that plaintiffs and each of them were deprived by the defendants in each of them of their right to be secure in their home against arbitrary unreasonable searches and seizures.

We invoke the unanimous holding of this Court in Wolf against Colorado which was reaffirmed, vigorously reaffirmed by a majority of this Court in the decision of last June, Elkins against United States and we further note that even the dissenters in Elkins, I do not repudiate Wolf rather, if memory serves me correctly, they -- they thought Wolf meant a little different something but nobody indicated that Wolf should be overrule.

And Wolf, this Court held that an unreasonable search or seizure by a state officer, at least did the search or seizure violated the core of the Fourth Amendment was a violation of the due process clause of the Fourteenth.

And in Elkins of course, this Court said that in Wolf we unequivocally and unanimously held that, “unreasonable searches or seizures by state officers violates Fourteenth Amendment due process.”

Now, it -- it seems to us that we have simple statute.

It lays out three things which we must allege.

We have alleged them all unless Screws and Williams are repudiated or unless Wolf and Elkins are repudiated then we have stated a cause of action against the individual officers.

Of course, we have gone further and we have alleged that the City of Chicago is liable.

We have – and they moved to dismiss on the grounds that -- well, what happened here was simply something done in the course of -- the performance of the governmental function and therefore as a matter of Illinois law and impliedly as a matter of federal law, we are immune from tort liability.

And this of course is -- is the doctrine of sovereign immunity rearing its weathered head in this case.

We -- we start with the premise that there is no question but what Congress has the power if it chooses to make a municipality liable for the Fourteenth Amendment violations of its police officers acting within the scope of their employment, on behalf of the municipality.

And in our brief, we invoked the opinion of Chief Justice Stone in United States against California, 297 U.S. and the opinion of Mr. Justice Frankfurter in California against the United States, 320 U.S. where it seems to us that this is implicit in those cases.

Indeed it is exquisite.

The first California case involved $100 statutory penalty under the Safety Appliance Act against the State of California for mis-running, one of its railroads in some particulars.

The second California case involved whether -- the question whether the State of California was subject to the Shipping Act to 1916.

In each instance, the State of California said, "We're a sovereign.

We're immune."

It further said, "We're not specifically named in the statute therefore it doesn't apply to us."

The court aptly remarked that these were federal statutes that California was not the enacting sovereign.

There's never been a presumption that a political subdivision is not to be included within a liability frame by a statute unless that political unit was the enacting sovereign.

And in each instance, it held that the State of California was subject to the statute.

Then we go on, assuming the congressional power to do this and we suggest to the court that in adopting the Act of April 20, 1871, Congress did make municipalities liable.

We suggest first that the doctrine of respondeat superior which is very old, which is very socially useful and which is something that -- that lawyers absorbed into their bloodstreams with their first law school course in torts is implicit in the provisions of the Fourteenth Amendment and is implicit in the Civil Rights Act which was passed the Civil Rights Act of 1871 with the title, “An Act to enforce the provisions of the Fourteenth Amendment.”

The Fourteenth Amendment prohibits action by states.

Congress passed the Civil Rights Act of 1871 to enforce the Fourteenth Amendment.

I don't -- unless its -- I don't know that it follows QED but we suggest that therefore it make sense at least prima facie to hold that the Civil Rights Act to 1871 is applicable to the subdivisions, the corporate subdivisions of a state.

We go further, we -- we point to the legislative history of the Act of 1871 and we point to the language of Representative Shellabarger who was the principal sponsor of the 1871 Act where he says that this Act is remedial, it's an aid of human liberty, it is to be construed liberally.

That's at page 23 of our brief.

Representative Shellabarger said the largest latitude consistent with the words employed is uniformly given in construing in effect such statutes as this.

This was the opening speech in the debate on the Civil Rights Act of 1871 by its sponsor.

Justice Felix Frankfurter: Is -- is that all you found in the legislative history on this subject?

Mr. Donald Page Moore: On -- on this subject of --

Justice Felix Frankfurter: Under the specific question whether municipalities are to be made liable?

Mr. Donald Page Moore: No, Your Honor.

We found --

Justice Felix Frankfurter: Is that all you found?

Mr. Donald Page Moore: No, we found much more --

Justice Felix Frankfurter: Is that (Voice Overlap) --

Mr. Donald Page Moore: -- Your Honor.

This is all we found on the question of what the Congressman thought about whether this Act was remedial or penal.

Justice Felix Frankfurter: What I mean, specifically?

Mr. Donald Page Moore: Specifically Your Honor, I -- I would call your attention --

Justice Felix Frankfurter: You found detailed legislative history dealing with this various subject?

Mr. Donald Page Moore: Yes, I did Your Honor and --

Justice Felix Frankfurter: Did you -- did you set that forth in your brief?

Mr. Donald Page Moore: Yes sir.

At --

Justice Felix Frankfurter: Where?

Mr. Donald Page Moore: -- pages 29 to 30 Your Honor.

Justice Felix Frankfurter: But did you set forth the origin, the original statute which had a provision in -- then which -- which was not concurred in by the House and all that?

Mr. Donald Page Moore: Yes.

In the footnotes Your Honor at page 30, we discussed the Sherman Amendment to which you have reference and --

Justice Felix Frankfurter: That specifically granted?

Mr. Donald Page Moore: Yes, but an entirely different situation.

In that footnote, we also explained why we think the Sherman Amendment is not relevant to this statute.

Justice Felix Frankfurter: Well, I -- alright.

Mr. Donald Page Moore: If -- in the -- the Sherman Amendment was an amendment which was thrown in at the last minute by Senator Sherman of Ohio after the Act of April 28th that had already passed the statute and as Congress was driving toward adjournment.

Senator Sherman sought to introduce, did introduce and the Senate adopted an amendment to the statute which provided that the victims of the mob violence of private individuals might have a remedy in action against “every city, county or parish” in which the damage occurred.

It could have a remedy against the city or county.

The Senate adopted this Amendment.

The House rejected it, refused to concur.

The Senate adopted it again.

The House again not concurred, whereupon a substitute measure which became Revised Statute Section 1981 was put in there.

Justice Felix Frankfurter: Leaving out all reference to municipalities.

Mr. Donald Page Moore: That is correct Your Honor.

Justice Felix Frankfurter: And speeches against -- even the constitutionality of that along the wisdom of imposing this.

Mr. Donald Page Moore: But the --

Justice Felix Frankfurter: Is that true?

Mr. Donald Page Moore: At least one speaker Your Honor and that is Representative or rather Senator Stevenson of Kentucky.

Justice Felix Frankfurter: But in the House, wasn't there serious speeches against this liability?

Mr. Donald Page Moore: Yes, Your Honor.

They -- the speeches centered around the notion that -- that some of the Representatives had that this would be a violation of governmental immunity to taxation.

However, most of the speeches were directed to the obvious unconstitutionality at least to some of the congressman, it was obvious, of giving a federal remedy under the Fourteenth Amendment to action -- for damages suffered as result of action which was not state action but which was private action.

And some of the congressman I believe pointed out to the Fourteenth Amendment that it prohibited only state action.

The Fourteenth Amendment of course says no state shall and most of the barrage of criticism which the Sherman Amendment faced was based not only on this constitutional objection, but on -- on the obvious injustice or what seemed to them the obvious injustice are subjecting the city to liability for actions, not of persons over whom the city had direction and control but over private individuals who were not the employees of the city and not subject to it's disciplinary controls in the same sense that a police officer may make.

Justice Felix Frankfurter: And you think a general remarked by Congressman Shellabarger of -- about construing this thing liberally is more controlling and more helpful to this Court to consider than the serious debates which referenced the municipal liability around -- against it, not only on constitutional grounds but on grounds that followed it?

Mr. Donald Page Moore: Well, I -- Your Honor, yes, because I don't believe what Your Honor has said quite correctly characterizes this serious debate.

I would point out first of all that the people who were up in arms about the Sherman Amendment.

And again the Sherman Amendment is a very different thing from Section 1 of that Act.

Justice Felix Frankfurter: (Voice Overlap) but it did deal with municipal liability.

Mr. Donald Page Moore: Yes, it did.

Justice Felix Frankfurter: The subject was raised.

Mr. Donald Page Moore: It certainly was, Your Honor.

Justice Felix Frankfurter: Objection was made to holding a municipal liable -- municipality liable for anything.

Mr. Donald Page Moore: That -- that is correct Your Honor.

Justice Felix Frankfurter: Alright.

Mr. Donald Page Moore: However, I would point out that the people who made this objection where people who were opposed to the civil rights bill as a whole altogether and I would point to the language of Justice Douglas for the court.

Justice Felix Frankfurter: But their objection prevailed and those who sponsored the Civil Rights Amendment yielded to those objections.

Mr. Donald Page Moore: They yielded to --

Justice Felix Frankfurter: And still more significant, not less significant.

Mr. Donald Page Moore: I think not Your Honor because -- you know you can point to a particular statement by any one individual in that --

Justice Felix Frankfurter: But that's what you did when quoted Shellabarger's general remark.

Mr. Donald Page Moore: Much more important than the remarks of a dissident democratic opponent of the Act Your Honor.

Justice Felix Frankfurter: Now what the dissident's objections were yielded to?

Mr. Donald Page Moore: They were yielded to with regard only to the Sherman Amendment which was directed at private action by private individuals.

We cannot look into the minds of the individuals who went along with the objections to the Sherman Amendment and assume that they picked up isolated statements by Senator Stevens -- Stevenson and relied on nothing else in the entire debate because there were policy objections to municipal liability for private individuals.

There were all sorts of constitutional objections of which this was only one.

And it was not stressed into the debate nearly so much as the -- as these other questions.

Justice Felix Frankfurter: Your reading of the debate -- on your reading of the debate, would you deny that there were policy objections to holding the municipality at all.

Mr. Donald Page Moore: I'm -- I do not understand the question Your Honor.

Justice Felix Frankfurter: Do you -- does your reading of the debates in both Houses not encounter objections to holding the municipality at all liable?

Mr. Donald Page Moore: Yes, yes, we do encounter those objections most articulately stated by Senator Stevenson.

But, they weren't everybody's objections and they weren't on Section 1 of the bill which is our section.

Now, I would suggest to Your Honor that the remarks of the opponents of a bill – well, we cited the Schwegmann Brothers case.

Now, that is not precisely applicable because here, the opponents did prevail on the amendment but that is a very different thing from assuming that Congress without saying so, met that there was to be no municipal -- municipal liability anywhere.

No congressman for or against the bill ever said that there could be no municipal liability under Section 1 of the bill in spite of the fact that Representative Shellabarger who I supposed we must assume was more carefully listened to than any other congressman who --

Justice Felix Frankfurter: Pardon (Voice Overlap) --

Mr. Donald Page Moore: -- supported -- sir?

Justice Felix Frankfurter: Why isn't that?

Mr. Donald Page Moore: Because he made the lead off speech and as you go through that legislative history, Shellabarger keeps popping up to answer questions.

Justice Felix Frankfurter: And he tried them by popping up to answer them.

Mr. Donald Page Moore: Well, it's -- it's possibly Your Honor.

I don't suppose we can prove it one way or the other.

Justice Felix Frankfurter: That's what I was suggesting.

Mr. Donald Page Moore: I would however point out to the court that that Congress did one thing that the Congress as a whole articulated one thing just about seven weeks before it passed the Act of April 28, 1871 when it adopted on February the 25th, 1871, “An Act to prescribe the form of the enacting and resolving clauses of Acts of Congress and rules for the construction thereof.”

This statute among other things defines certain general terms.

It has been referred to on occasion as the Act of Congress in -- in prescribing its own dictionary in the Article by Justice Frankfurter in 47 Columbia Law Review.

This dictionary statute said among other things that the word person maybe construed to apply to bodies corporate and politic unless the context otherwise indicates or unless the text otherwise indicated.

It's a -- the grandchild in that statute now says conte -- context then it said text.

Now our basic position is this.

The Act makes every person liable.

The Congress said, a person maybe construed to include bodies politic and corporate everybody in 1871 who had any legal training whatsoever must have assumed that bodies politic and corporate meant cities in our Appendix D to this complaint.

We've listed a whole rap of the statutes, creating cities, we quoted one, creating Scottsboro, Alabama.

And we listed a whole rap of other ones and every single one of this statute says that the City of Chi -- of Scottsboro shall be a body politic and corporate with power to sue and be sued.

When they used those words bodies politic and corporate they must have been thinking inter alia at least of cities.

And they used the word person in the Civil Rights Act of 1871.

Therefore clearly, this Court meant without doing violence, I suggest to the history of -- of -- that session in the Congress which happened 1871, hold that person here means body politic and corporate, i.e. cities.

City of Chicago was created as a bodies politic and corporate back in the 1830s.

It's still a bodies politic and corporate.

Now, we have this and we have the further question which is more significant it seems to me which is raised by the prior holding of this Court in the Holmes against City of Atlanta and Douglas against the City of Jeannette, where implicit in those cases is a holding the municipal corporations can be made parties-defendant in an action under Revised Statute Section 1979.

Both of those cases were actions under Revised Statutes Section 1979, equity actions.

In both of those cases it was held explicitly in the opinion, Douglas against the City of Jeannette and by necessary implication in the Holmes case where this Court merely entered a short order affirming that a city was subject to the provisions of Revised Statute Section 1979.

That must mean that a city is within the phraseology every person because the Act makes every person liable to an action at law, suit in equity or other proper proceeding for redress.

If the defendant is not a person, you have no cause of action under the Act I would suggest.

And yet everyone has always assumed that a municipal corporation is liable -- in an action in equity or an injunction under this section of the statute.

How can -- it -- its difficult for me to understand how you can hold that a city is a person in equity and not a person at law particularly difficult when we look back to what the sponsor said, the statute is remedial in its purpose to be construed liberally.

We are to give it the largest latitude consistent with the words employed.

Then we looked to the dictionary statute where Congress has expressly said that when we use this word unless the text of the statute indicates otherwise.

It may be construed to indicate a body politic and corporate.

View -- viewed in conjunction -- viewed in conjunction with the contemporary understanding of the word person which we have outlined, the -- the first case so far as I know under this statute was North Western Fertilizing Company against the Village of Hyde Park in which a District Judge sitting right in Chicago held that a corporation was a person who can bring suit because otherwise it could not be a person for purposes of being a defendant.

And I might also point out that the defendant, the North Western Fertilizing Company was in fact a municipal corporation, it was the Village of Hyde Park which is of course now is part of Chicago but what it was then a village and that nobody even suggested that it wasn't a -- that it wasn't a person for purposes of being a defendant in that action.

Again it was an action in equity and not law of course.

Now, all we're suggesting here is that on the law -- on the technical history of the phraseology of this Act, there is ambiguity that -- that there is room here for this Court.

There is sufficient ambiguity, sufficient doubt so that this Court can look to the policy factors which inherent in a claim of sovereign immunity, a claim of immunity from a particular statute of the United States by the City of Chicago and we have gone on at some length for this reason on the policy issues which are at stake.

We have pointed out that this Court has consistently criticized the doctrine that every legal scholar publishing anywhere in this country today, there maybe exceptions but I don't know of them, has attacked the doctrine because it's unfair, because it works terrible injustice.

Because a -- because a family like the family of James Monroe has no remedy that means anything unless it can sue the City of Chicago.

The civil damage provisions of that statute do not mean a thing unless there is a financially responsible defendant in the case, when as lawyers generally speaking will not represent clients unless they can make money doing it.

If a plaintiff's lawyer can make money, bringing actions, a cause of actions can be an immense, an immensely effective tool of public policy.

One has to look only at the -- at the Federal Employers' Liability Act to see how plaintiff's lawyers because they know they can hit for money have gone out, they've gone after these cases and they brought these actions and as a result to the verdicts they're getting, the railroads have evolved immense safety programs.

Justice Charles E. Whittaker: What do you mean by they've gone after these cases?

Mr. Donald Page Moore: What I mean Your Honor is that they -- that they have sat in their offices and been alert when these cases came to them.

Justice John M. Harlan: Sometimes they don't sit in their offices.

Mr. Donald Page Moore: Well that is correct Your Honor but I think -- we submit that injury suffered by railroad workers as a result of the negligence of his employer are no more important, no more hurtful socially than injury suffered by innocent individuals as a result of the unconstitutional acts of local police officers.

The -- the lawyers --

Justice Potter Stewart: It make no difference -- does it make any difference where they're innocent or not?

Mr. Donald Page Moore: Well, it makes this very practical difference Your Honor and -- and I think this is important.

A guilty defendant at least in many insistencies has a forum in which he try out the question of right in their home law in is area of procedural due process as it respects actions of police officers is made in cases mostly where defendants are guilty that they're trying to suppress evidence, they're trying to suppress confessions.

At least and I think this, a not inconsiderable value, at least a murderer from whom a confession is extorted has the satisfaction, if his lawyer is good and his trial is fair of -- of having someone say what has been done to him is wrong.

Having it said formally and officially.

I -- I believe Professor Carl talks about the sense of justice which is important and which is satisfied by a formal official determination (Inaudible) an innocent person doesn't.

An innocent person is bereft of any practical remedy because -- if as usually happens, he's poor, he can't get a lawyer.

If he is poor, the states attorney, the prosecuting authorities are not going to pay much attention to him usually.

And he is not charged with anything.

There is nothing to suppress.

If this family has no remedy here, and this means an effective remedy.

Then for practical purposes it has no remedy at all.

Now I think there is sufficient ambiguity in the background of the statute so that this Court may without engaging in broad side legislation which of course he cannot do.

So that it may consider these policy factors.

It has certainly considered them in other cases for example in United States against the AMP Trucking Company, this Court considered policy factors when it read respondeat superior into a criminal statute.

Although respondeat superior was not written in the language of the statute and it used -- it used as part of the support for its reasoning and imposing what the dissenters called vicarius criminal liability as part of its support, it referred again to this dictionary statute.

Now, it seems to me that if in encouraging employers to police their employees is this important in the area of complying with the Interstate Commerce Act, it is this important in the area of protecting the fundamental civil liberties of four individuals who are not going to get protected under other circumstances.

And it seems to me I again that this Court can't -- has enough leeway in the background of the statute so that it can consider this policy considerations.

I would like if the Court please to save 5 minutes for --

Chief Justice Earl Warren: You may.

Mr. Donald Page Moore: -- rebuttal.

Chief Justice Earl Warren: You may.

Mr. Drebin.

Argument of Sydney R. Drebin

Mr. Sydney R. Drebin: Mr. Chief Justice, members of the Court.

If we were to take final argument of counsel at its face value, I would presume that I have already confessed error in this particular case that he has already secured a judgment against Pape and that unfortunately he cannot collect the judgment and that is all there is to this case.

But, I don't think that the problem is quite that simple.

I think there is more to it than merely a confession in this case.

The Civil Rights Act has been on the books since 1871 and then all that time there have only been four cases before this Court involving the Civil Rights Act, true enough, there have been other statutes but there have only been four cases in 1871 involving the Civil Rights Act.

And in none of those cases has this Court had occasioned to test or to examine or to determine the constitutionality of the Revised Statutes of 187 -- of 1979.

The last time that this case was before this Court was in 1951, that involved an equity proceedings to restrain the introduction of illegally seized evidence in the state criminal action.

And this Court through Mr. Justice Frankfurter discussed the Wolf case that counsel has discussed today and said that all legal seized evidence although contrary to the Fourteenth Amendment is not admissible or rather it is up to the state court to determine whether it is admissible.

I think that it is necessary at this time.

Counsel asked in his petition for certiorari that you grant this petition to test the constitutional right of freedom from arbitrary police invasions of the home.

Let us examine this statute and let us determine whether or not it is constitutional.

Let us determine for -- the Fourteenth Amendment let us see how it does apply to this particular statute.

Section 1 of the Fourteenth Amendment says, "No state shall make any law nor shall any state deprive any person of life, liberty or property."

Way back in the olden days, way back in 1875, this Court in a case, United State versus Cruikshank, first interpreted in language in the Fourteenth Amendment and at that time this Court determined that the only obligation resting upon the United States it to see that the states do not deny the right.

This -- the Amendment guarantees but no more the power of the National Government is limited to the enforcement of this guarantee.

And then we have the Civil Rights case in which of the same language was expressed.

And this Court has always had heard -- adhered -- adhered to the general principles laid down in these two cases.

Mr. Justice Black in Screws versus United States which is the subject which is so much discussed in this case said the fact that a prisoner is assaulted, injured or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the constitutional laws of the United States.

The Fourteenth Amendment did not alter the basic relations between the states and the National Government.

Our National Government is one of delegated powers alone.

Under our national system the administration of criminal justice rest with the states except as Congress acting within the scope of those delegated powers have created offenses against the Unites States.

And Mr. Justice Frankfurter has also expressed the same thought and that United States versus Williams, the first one, 341 United States 70.

So that I do think that the general principles as to the delegation of power by the National Government and to Congress has agreed upon by every member of this Court, it is only when we come into the twilight zone.

It is only when we find these certain principles to specific facts that we come into difficulty.So that brings us to the question of this Civil Rights Act.

Counsel has misquoted, I'm sorry to state, the language of the Civil Rights Act.

He said the Act provides that there is a violation of any right.

That is not true.

The Act provides that if there is any deprivation of any right and there is whole of a difference in the world for -- between a violation and a deprivation.

And also there is a whole difference in the world between old Section 20 of the Criminal Code and the present Civil Rights Act.

In the first place, the old Criminal Code, Section 20 uses the word willfully, it gives a specific intent.

The Civil Rights Act does not contain the word willfully.

There is no specific intent.

The old Criminal Code provided according to the constitution and laws of the United States are surprisingly and I say surprisingly, our present Civil Rights Act does not tell us what constitution and what law -- right -- laws must be violated.

It does not say of the United States.

It merely says the constitution and the laws.

What constitution and what laws are we are to violate.

Are we to violate the laws of every one of the states?

Is that what constitution had in mind or the territory as it says.

We surely cannot imply that is a violation of the Fourteenth Amendment or any other Amendment or statutes passed by the Congress.

As -- this question was discussed in great detail in the Screws case here.

There, Mr. Justice Frankfurter decided that this Section 20 containing the words will --

Justice Felix Frankfurter: I didn't decide -- I didn't decide anything on that.

Mr. Sydney R. Drebin: No, no.

Pardon me.

I'm sorry.

Mr. -- Mr. Justice Douglas decided.

That the words willfully --

Justice William O. Douglas: I had -- I had some help in that case.

Mr. Sydney R. Drebin: I did not hear you.

Justice William O. Douglas: I had some help.

Mr. Sydney R. Drebin: Yes, I -- I know that.

And it was a very difficult case.

As a matter of fact, it were stalemated and that's -- in a particular case, four-to-four, a very, very interesting case.

However, in that particular case Your Honor discussed the question of willfully and determined that that was a specific definition of specific intent because looked -- hooked up with that was the phrase, the constitution and laws of the United States.

The dissenting opinion in which Mr. Justice Frankfurter took part -- took issue with the question of willfully and stated that in -- there is -- in their opinion a specific intent of willfully, take it in and of itself is non-sufficient.

If such is the situation in the Screws case involving the criminal section, what is the situation in this case where two of the linking words in the Screws case is missing in the present, mainly, willfully, and the fact of violation of the constitution and the laws of the United States.

I claimed that Section 8 -- 1979 is unconstitutional.

First, because it is an unlawful deligation of rights and secondly because it is so vague and indefinite, it is unenforceable because of these two provisions.

The Civil Rights Act is not corrective.

It is not prohibitive legislation.

It does not deal with state action but rather with the individual action unsupported by any state laws or rights.

It is primary and direct.

It gives one individual a cause of action against another, and it is my contention that Congress does not have that power under the Fourteenth Amendment.

Then we come to the specific question of whether or not, the acts of Frank Pape were under the color of any statute or ordinance.

It is admittedly, the constitution and statutes of the State of Illinois and the ordinances of the City of Chicago prohibit unreasonable search and seizures and assault and unreasonable detention.

So that Pape, although he was a police officer of the City of Chicago, neither acted nor purported to act under color of any statute or ordinance.

Rather, he acted in direct violation of the state constitution and the state statutes and the ordinances of the City of Chicago.

Pape who was merely a private trespasser and this Court has long held that the violation of a state law does not create a federal cause of action under the Fourteenth Amendment.

We start with the only old case of Barney versus the City of New York, a 193 U.S. 430 decided in 1903 in which the Court held that the federal courts under the Fourteenth Amendment do not have jurisdiction over state action.

And then we have this Snowden versus Hughes case, an Illinois case, 321 U.S. 1 decided in 1943.

That was a case in which the State Canvassing Board refused to certify one who had been nominated as a state representative and he filed a suit under the Civil Rights Act.

And this Court held that he did not have a cause of action.

And Mr. Justice Frankfurter, in concurring in this particular opinion stated, the question whether action of State Canvassing Board is state action, that is the question.

It is not to be resolved by abstract considerations such as the fact that every official who purports to ill power conferred by a state in pro tanto, the state otherwise, any illegal discrimination of a policeman on the beat with the state action for purposes of suit in a federal court, hiding that language is very (Inaudible) in this particular case.

Otherwise every illegal discrimination by a policeman on the beat would be state action for purposes of suit in a federal court.

I would like to discuss in great detail Screws versus United States which apparently is the basis for complaint of the petitioners.

And in that case, Mr. Justice Douglas said, "We are not dealing here with a case where an officer not authorized to act nevertheless takes action.

Here, the state officers were authorized to act -- to make an arrest and to take such steps as when necessary to make the arrest effective.

He acted without authority only in the sense that they used excessive force in making the arrest effective."

That is not the situation in the case at bar.

In the case at bar, every act of Captain Pape and every other one of the officials was the illegal furnishing section.

They did not have a search warrant.

They did not have a warrant for arrest.

They arbitrarily went in there and seized these people.

So therefore, the Screws case is not an authority for the facts in the case at bar.

The Screws case was a criminal case under a criminal act.

It involved the United States Government.

It was a suit between the United States and a criminal.

The cause of action in the case at bar is private between individuals.

In the Screws case, they acted under color of law.

It had a warrant for his legal arrest.

They did not act under color of law.

He did not have a warrant.

His conduct did not come within the statute.

Justice Hugo L. Black: Was he without power to arrest without a warrant?

Mr. Sydney R. Drebin: What?

Justice Hugo L. Black: Does he have power as anything that indicates whether he has the power not to arrest without a warrant?

Mr. Sydney R. Drebin: He does not have --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Sydney R. Drebin: -- the power.

The statutes and constitution and the ordinance specifically provide that he must have a warrant before he can arrest except when the act -- the criminal act is in view or except in those cases where a crime has been committed and he has reason to believe that this individual is the one who committed the crime.

Those are the only instances in which --

Chief Justice Earl Warren: Has there been a crime committed in this case?

Mr. Sydney R. Drebin: There -- there had been, yes.

Chief Justice Earl Warren: And were they seeking to connect this man up with it?

Mr. Sydney R. Drebin: Yes.

Yes.

Right.

He was put --

Chief Justice Earl Warren: Oh, I suppose they would claim they had probable cause, wouldn't they, that he was there?

Mr. Sydney R. Drebin: Well, that is not in the record.We filed -- we filed a motion to strike his complaint.

Chief Justice Earl Warren: But if they did have the probable cause, they could've gone in there, could they?

Mr. Sydney R. Drebin: That is right.

Because a -- a murder had been committed, the wife of the murdered man pointed Monroe out as the criminal who killed his wife -- or husband.

That is not in the record and we are taking the record as we find it and we contend that in this particular case, he had no warrant and therefore, it was not justifiable.

Also, their Section 20 as I said creates an offense against the United States.

The Civil Rights Act creates an offense by one individual against another individual and his action was not an offense against the United States.

The United States is not a party in this particular case and that is the large -- the great distinction between the Williams case and the Screws case and the case at bar.

Chief Justice Earl Warren: Are the officer -- are the officers amenable to this act?

Mr. Sydney R. Drebin: What?

Chief Justice Earl Warren: Are the officers amenable to this act?

Mr. Sydney R. Drebin: What act?

Chief Justice Earl Warren: One where we have under review here?

Mr. Sydney R. Drebin: In my opinion, they're not.

Chief Justice Earl Warren: Pape is not -- they're not subject to it.

Mr. Sydney R. Drebin: Under the Civil Rights Act?

Chief Justice Earl Warren: Yes.

Mr. Sydney R. Drebin: In my opinion, he is not.

In my opinion, he -- he is not acting under any color of law.

He is not acting under any statute.

He is not -- he is merely a tortfeasor.

He is in no different position than every stranger around the street.

He came up to --

Unknown Speaker: (Voice Overlap)

Justice Charles E. Whittaker: You want to describe the -- that the color of state law to mean acting legally?

Mr. Sydney R. Drebin: I mean, not legally.

I mean that -- that the Fourteenth Amendment had in mind in Section 1979 which is a Civil Rights Act should be construed to mean that the only time an individual has a cause of action is when the police officer or if when the state has a passed an act contrary to the Constitution and when the State has passed an act contrary to the Constitution and contrary to the Fourteenth Amendment, then the state comes into play.

Justice Charles E. Whittaker: If that is your -- if it is your view, (Inaudible) that one is not acting under color of state law unless he is acting within the law?

Mr. Sydney R. Drebin: That is right.

Justice Charles E. Whittaker: Then -- then how do you explain -- what meaning do you give to color of state law?

Mr. Sydney R. Drebin: Color of state law is custom and usage.

That's where custom and usage comes in.

In my opinion, you talk of violation of a statute or color of law.

That is custom and usage where although there is no written law, certain things take place within the state.

We must bear in mind that the Civil Rights Act was enacted shortly after in the freedom of the displaced.

And that all these legislations that we are talking about, is in order to protect the free slave as a United State citizen.

And it seems to me from the cases are that it was directed primarily to the southern states.

It is only in the last few years that the lawyers in Chicago and other northern cities had begun to spread the theory of the Civil Rights Act to incidence occurring in the north and where color is not a question.

I do not believe that is the basic theory under which this original Civil Rights Act was passed.

Justice John M. Harlan: In other words, what you're really arguing is that the Civil Rights Act --

Mr. Sydney R. Drebin: I cannot -- I cannot hear you Mr. --

Justice John M. Harlan: -- in your view -- what you're really arguing isn't the Civil Rights Act under your view is limited to the racial issue, is that it?

Mr. Sydney R. Drebin: I do not -- that is what -- no, that was the purpose of this enactment and -- but the Civil Rights Act is directed for the Fourteenth -- let's put it this way, I think the Civil Rights Act is unconstitutional because it's in violation of the Fourteenth Amendment because the Fourteenth Amendment goes only to action by the State.

The Civil Rights Act --

Justice John M. Harlan: Well assuming -- assuming for a moment that the Act is constitutional, could you give us an illustration of what would be reached by this Act or something that we'd reached by this Act under your view, how should you interpret it?

Mr. Sydney R. Drebin: Yes.

Let us presume for the sake of argument at the State of Illinois passed the statute legalizing searches and seizures where the -- even though they are unreasonable, then that statute would be unconstitutional in violation of the Fourteenth Amendment.

The Fourteenth Amendment according to the early cases is merely prohibitive.

The state must act first and if the state acts in contravention of the Fourteenth Amendment, then the Act, the state act is unconstitutional and can be corrected by the Federal Government.

Justice Charles E. Whittaker: Isn't this what you're really saying, if I understand you, you're saying that a state or its provisions may not be held liable for the act of an officer unless he is acting within the course and scope of his power.

Mr. Sydney R. Drebin: That is right, as -- as long as that supplements the --

Justice Charles E. Whittaker: In other words, to make for liability, he must be acting within the law.

Mr. Sydney R. Drebin: That is right.

Justice Charles E. Whittaker: Then why I would like to hear you saying, would Congress then say or use the phrase color of state law rather than in obedience to state law?

Mr. Sydney R. Drebin: I -- I thought, Mr. Justice Whittaker that I had explained it.

If not, I'm sorry.

Justice Charles E. Whittaker: Perhaps did you now?

I -- I just want to understand this, your -- your argument, I guess.

Mr. Sydney R. Drebin: In the north, there was not such a thing as custom or usage.

As we understand it pertaining to violations of personal rights.

In the olden days shortly after --

Justice William O. Douglas: Well, that'd be a matter of proof, wouldn't it?

Mr. Sydney R. Drebin: No, I presume you're right there.

But let us presume for the sake of argument that that is true.

Chief Justice Earl Warren: Mr. Drebin, I think you should stand close to the microphone --

Mr. Sydney R. Drebin: I'm sorry.

Chief Justice Earl Warren: -- so that everyone could hear you better.

Mr. Sydney R. Drebin: I'm sorry.

Now --

Justice William O. Douglas: Oh, you come down, you could -- you think Williams -- the Williams case, that 341 was wrong, wrongly decided?

Mr. Sydney R. Drebin: The majority opinion, yes.

Justice William O. Douglas: Yes.

Mr. Sydney R. Drebin: I -- I must say --

Justice William O. Douglas: You -- your -- your line of thought follows the line of thought in the dissents as I --

Mr. Sydney R. Drebin: That is right.

Justice William O. Douglas: And I read your brief because nothing that they could do to extort a confession could be done in accordance with the law of Illinois therefore it could not be in -- within the color of law of Illinois because any Illinois court would have -- have rejected the confession therefore you say under color of law means in accordance with the law.

Mr. Sydney R. Drebin: Also in the course of a custom.

Justice Charles E. Whittaker: Well, the custom was the same thing, it -- I assume that using what this common law sense that has so long existed, it's the common law of place.

Mr. Sydney R. Drebin: That's right.

That's right.

But also there is this distinction, Mr. Justice Douglas, in regard to the Screws case, the Screws case was a criminal case.

The United States was a party.

The Civil Rights Act gives the cause of action for -- to one individual against another.

Justice Charles E. Whittaker: Why may not that be done under Congress' power to implement the Fourteenth Amendment?

Mr. Sydney R. Drebin: Because the Fourteenth Amendment states that no state shall -- the Fourteenth Amendment is prohibitive.

Now, when you say the Fourteenth Amendment says no state, no state, no state, it is -- it is a prohibitive provision and as this Court has so often said, the -- the courts may -- must wait until the state has acted illegally under the Fourteenth Amendment before it connect but when it does then the Federal Government can act and not before that.

Justice Charles E. Whittaker: So that is not, as I understand your argument, that the state merely put long inquisition to act under color of this law because he must act to the act in obedience to this law.

Mr. Sydney R. Drebin: That is right.

That is -- that is my contention.

Chief Justice Earl Warren: You don't contend that city action is not state action, do you?

Mr. Sydney R. Drebin: No.

We -- I never thought of it just that way, Mr. Chief Justice.

Of course, the city is a subdivision and a creation of the state.

Chief Justice Earl Warren: Yes.

Well I say you don't make any distinction between --

Mr. Sydney R. Drebin: No.

Chief Justice Earl Warren: -- city action and state action?

Mr. Sydney R. Drebin: No sir.

Counsel argues the Wolf case and says that the Wolf case along with the Elkins case was controlling in this particular case.

I do not believe that is so.

I think that he's only half quoted the Wolf case.

True, that Wolf said, the Wolf case said that unlawful -- unreasonable search and seizures come within the purview of the Fourteenth Amendment and that there he stops, he -- he proceeds no further.

But the Court went on to say that being so still it is within the power of the state whether or not this illegally seized evidence will be admitted in evidence.

So therefore in my opinion, neither the Wolf case nor the Elkins case have any weight in the situation that we are now discussing.

I would also like to discuss the question of the City of Chicago liability.

I would like to call Your Honors' attention to the fact that in Illinois, we have a statute Section 1-15 of the Illinois Revised Cities and Villages Act which defines the liability of the City of Chicago as far as the initial -- as far as liability for wrongful acts or for negligent act, not awful, from negligent acts that the police officer during the scope of his employment.

And in the case of Gaca versus the City of Chicago, in 411 Ill.141, the Illinois Supreme Court held that statute constitutional and therefore it declared the public policy of the State of Illinois in regard to the liability of the City of Chicago insofar as his police officers.

And it's a case of indemnity and it's a case of indemnity only where there is negligence and there is no liability on behalf of the city where the action of the officer maybe lawful.

And then to -- after they got the case, there was a case of Karas versus Snell, 11 Ill.2d 233 which is further construed, Section 1-15.

And there, a police officer who is off duty and drinking in a bar, attempted to arrest someone.

He pulled his gun, shot him and blinded him for life.

Karas filed a suit against Snell and the City of Chicago.

On motion, the City of Chicago was dismissed.

And by the way, originally the acquisitions of -- the allegations of the complaint was lawful conduct on behalf of Snell.

When the city was dismissed from the action, they amended their complaint to one of simple negligence, and by agreement, a judgment was entered in favor of Karas against Snell for $169,000.

At which time, Karas then sued the City of Chicago under Section 1-15 of the Indemnity Clause and we contended in a motion to strike that complaint that we were not liable unless the policeman was on duty and he was not negligent.

The trial court denied our motion and judgment was entered for over $200,000 including interest.

The Illinois Supreme Court reversed that judgment and said that Section 1-15 is a statute of indemnity.

It's not one of first liability upon the City of Chicago and that therefore, the City of Chicago had the right to go to trial and to prove, number one, that Snell was not a police officer and -- I mean, that Snell was not on duty at the time he committed the acts and further that the acts were done willfully.

So that in Illinois today, the City of Chicago is not liable for the willful conduct of a police officer.

And the allegations of the complaint in this particular case are one of willfulness.

Justice Charles E. Whittaker: Now may ask you in that connection (Inaudible).

Is that because of the willfulness or because of the governmental immunity?

It's Irrespective -- the Court says that it's irrespective of the liability of the police officer.

In other words, we -- the police officers re -- presumed.

Justice Charles E. Whittaker: That he realized that irrespective of his liability but is the city's immunity borne of the fact that the police officer's conduct was willful or is it borne of sovereign immunity?

The city's exemption is liable?

Mr. Sydney R. Drebin: You mean in the Karas case or in the case at bar?

Justice Charles E. Whittaker: I -- I thought you were talking about the Karas case.

Mr. Sydney R. Drebin: I am talking about the Karas case.

Justice Charles E. Whittaker: Well, that's -- that's right.

Mr. Sydney R. Drebin: In the Karas case, in my opinion, the liability of the city created by statute is not based upon governmental immunity.

It is based upon a direct relationship between the police officer and the city.

That is the reason that the State of Illinois held the act constitutional.

They said that it was in fact additional compensation to the police officer.

So that under the Karas case today in Illinois even though a governmental immunity, the City of Chicago cannot be liable for the negligent acts of a police officer unless the police officer has been acting within the scope of his authority and unless the police officer was negligent in performing his duties.

In summary --

Justice Charles E. Whittaker: Do you -- do your really mean that -- you really mean that a police officer in Chicago acting within the course and scope of his authority commits a wrong that the City of Chicago is liable?

Mr. Sydney R. Drebin: Not today.

Justice Charles E. Whittaker: Is --

Mr. Sydney R. Drebin: It is not --

Justice Charles E. Whittaker: As I --

Mr. Sydney R. Drebin: It -- it only is liable by way of the statute.

It is not liable under the common law today.

Now the (Inaudible) case is one that the counsel discusses but we do not accept that (Inaudible) case and then further it only abided or directed or respectively in the future and not in the past.

In conclusion, I would like to impress upon Your Honor that this is a good time to review the constitutionality of the Civil Rights Act to determine whether or not it is in violation of the Fourteenth Amendment and then to whether it is vague and unworkable, because it is lacking the words willfulness and with -- does not tell us what constitution and what laws are being violated such as in Section 20.

And then two, I would like to have Your Honors determine, first, if you determine the way I hope you will determine the issue and decide that color of law and statute as set forth in the Civil Rights Act, applies to violation of the state action and state statutes only be in light of Section 14th -- Amendment Fourteenth and therefore, there is no cause of action declared.

Justice William O. Douglas: If I had -- if I have misunderstood, you would hold this with the proper cause of action, properly alleged even with complaint of Negroes against a southern municipality or southern state or is it?

Isn't that what you meant to imply?

Mr. Sydney R. Drebin: No sir.

No sir.

Mr. Justice, (Inaudible) --

Justice William O. Douglas: But you were going to say that the color of law meant something different up north than it's there in the south.

Mr. Sydney R. Drebin: I was trying to explain the purpose of the passage of the Civil Rights Act.

I've tried to point out that the Civil Rights Act, the first original Civil Rights Act, the Enforcement Act and the present Civil Rights Act enacted in 1871.

It was enacted shortly after the prohibition of slavery.

And that the cases tell us that the purpose and the intent of those Acts were to guarantee to the Southern Negro the right do the same as a white citizen be in the south.

And then I went on to say that the purpose of the original enactment of these statutes did not apply to the northern states because in the northern states, we do not have many of the custom and usages that were prevalent in the southern states immediately after slavery.

Today, I have (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap) applied all in the northern state?

Mr. Sydney R. Drebin: What?

Justice Felix Frankfurter: I mean, this -- does this statute only applies (Inaudible)?

Mr. Sydney R. Drebin: No sir.

No sir.

But the purpose -- what I'm driving at is the purpose of the Act.

What was the purpose of it?

And it seems to me that when I read the cases, the purpose was to give equal citizenship, to all citizens of the United States.

Justice Felix Frankfurter: Let me ask you a question.

Suppose that the legislature of Illinois passed a statute which set forth in detail what was done in this Court, was charged in the complaint had said any police officer may do the following acts and then set forth what was done in that complaint.

Then the police officer go there and acts under that statute, is that somewhere in the statute?

Mr. Sydney R. Drebin: Yes, it would've.

Yes it would.

In my -- in my opinion, there would be a state statute, a direct violation of the Fourteenth Amendment.

It is -- in my opinion, it will be not -- be necessary for this Court to come to the question of whether or not the City of Chicago is liable if they decide that the trial -- the trial court and the Circuit Court of Appeals properly dismissed the complaint.

Thank you.

Chief Justice Earl Warren: Mr. Moore.

Rebuttal of Donald Page Moore

Mr. Donald Page Moore: Mr. Chief Justice, may it please to Court.

I will not respond to any of the contentions of -- of the respondents.

I think that underlying the -- the issues in this case of course is an issue of federalism of -- of federal state relations and I think basically an issue of judicial philosophy.

I -- and on these two basic issues, I would like to suggest what I have thought about in the -- almost two years we've been working on this case.

It -- it seems to me first of all that on the federalism issue, it ought to be noted that the position for which we are contending is not a position which if taken will violate or detract from any legitimate public interest of any state.

Indeed, if the states are able to secure the assistance of federal judges and federal juries in supporting their articulated public policies, I am sure that they will be happy and not unhappy because every state constitution forbids what has occurred here.

Secondly, I -- I would like to stress -- we so often think that -- I so often think, that of a person who goes into a court and argues for a civil liberties position is -- is often thinking -- thought of a person who -- who is going in and pleading for a kind of judicial activism, for judicial conduct which is really policy making, which is legislating, which is imposing the -- the subjective preferences of the judges upon the rest of society.

I would like to emphasize that our whole position here is not one which calls for this kind of judicial activity but is -- we are pleading here, it seems to me, on the most important issues in the case were judicial self-restraint.

We are saying whatever you may think of this statute or of the philosophy which called this statute into being, nevertheless, Congress did make the decision, and this congressional will should be respected and it seems to me that insofar as we are calling for what must be called legislation in this case, we are calling for interstitial legislation.

We are calling for the Court to make a decision on this issue of municipal liability where Congress has not expressly stated anything one way or the other and where whichever way this issue was decided.

Legislation will be done, law will be made and we can only point to the Congress which enacted the bill to the tradition in which that Congress acted.

And ask the Court as it was of course has been often asked in the past, to feel in terms of our case the thrust of that tradition.

Now, if the suggestion of course is that that tradition was anti-southern or pro-Negro or something like that.

I'd like to call the Court's attention to our Appendix B, subsection 1.

We anticipated the argument in which we've laid out about 15, maybe not that many, maybe only 10 quotes in the legislative history on this precise issue.

I'd like to call the Court -- Court's attention to the tradition that must have been felt by -- by Representative Beckley the initial quote in that subsection.

When he said this bill is not to protect Republicans only in their property rights, liberties and applies with Democrats as well, not the colored only but the white also.

Yes, even women and children and all classes will be benefited the like because we are simply contented for good government and righteous law and down the line it goes.

Justice Felix Frankfurter: Righteous law, that's a very simple thing to apply automatically, you can always know where a law is righteous, is it?

Mr. Donald Page Moore: Well, Your Honor, we know what that Congress thought was righteous.

Justice Felix Frankfurter: You do?

Mr. Donald Page Moore: Surely we do because they told us --

Justice Felix Frankfurter: Are you really --

Mr. Donald Page Moore: -- Your Honor.

Justice Felix Frankfurter: -- a party who -- but they told -- to my reading they told just the opposite.

To my reading of the legislative history, they said that color of law means in defiance of an enactment or a customary practice of the state, means in defiance -- not in defiance of it but in obedience to it.

Are you -- why do you make this case simpler than it is Mr. Moore?

Why do you make this case simpler than it is?

How can anybody with all respect read the legislative history of this statute and not at the lowest say that Congress did not mean to give right from the federal court where a person acts in of -- in defiance of a state law.

There is an overwhelming body of legislative history to that -- to that conclusion.

Why do you make this thing simpler and make it appear that all we have to do is just read the statute and all is -- all is well.

Mr. Donald Page Moore: I'd love to answer that que -- I'm dying to answer that question, Your Honor --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Donald Page Moore: -- but my light is on.

Justice Felix Frankfurter: Well, the Chief Justice will decide.

Chief Justice Earl Warren: Well, if it doesn't take too long to answer it.

Mr. Donald Page Moore: Well, it's -- it -- it's hard to -- to describe the whole history of these enactments and --

Justice Felix Frankfurter: If I may say so, you haven't set it forth in your brief.

Mr. Donald Page Moore: That's my quote, however, Your Honor not --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Donald Page Moore: -- of Congress.

Justice Felix Frankfurter: I'm simply stating historic facts that you have not set forth the history which showed this great momentum behind this legislation that there were to be no right except when there is the im-- the matter of state action, of state laws, of state practice behind it.

Mr. Donald Page Moore: Your --

Justice Felix Frankfurter: You read it one way and I read it the other way.

All I'm suggesting is that you make this case much too simple.

Mr. Donald Page Moore: I think -- I think Your Honor with all respect that I do not.

Justice Felix Frankfurter: Alright.

Mr. Donald Page Moore: I -- I point to the (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap) it's much simpler for me.

Mr. Donald Page Moore: Well, hear me out Your Honor.

I point to the legislative history of this statute which historically has been labeled a Ku Klux Klan Act, an Act against mass bands of violent men, and I asked you how any congressman could have possibly thought that any state in this nation would ever authorize by its laws, the actions of this mobs and yet obviously, at least where there were some collaboration between officers of the state and this mass bands obviously Congress intended to hit that.

Justice Felix Frankfurter: Yes, but don't -- the law has a colloquial name and the fact that it's called a Ku Klux Klan, the Ku Klux statute doesn't mean that it was concerned merely with mob rule.

Mr. Donald Page Moore: Not merely with mob rule Your Honor but in part, it was also Your Honor directed and some of its people said so, some of it supporters said so.

Justice Felix Frankfurter: It was directed against the Black Codes.

That was the stimulus to the legislation.

Mr. Donald Page Moore: Your Honor, with all respect, I believe that that is not an accurate characterization of the legislative history of the Act of April 28th, 1871.

We must turn to the globe of course.

Justice Felix Frankfurter: I -- I didn't say it was restricted to that.

I said the impulse to it was the Black Code statutes enacted doing all sorts of things and it was deemed that it will act under those then you can bring action against it and have ultimately this Court hold that the legislation under which you seek shelter is unconstitutional.

Mr. Donald Page Moore: Your -- Your Honor, with all respect and I hate to disagree with Your Honor.

Justice Felix Frankfurter: Why shouldn't you.

Mr. Donald Page Moore: But -- but --

Justice Felix Frankfurter: That's a --

Mr. Donald Page Moore: This is not --

Justice Felix Frankfurter: What is it counsel?

Mr. Donald Page Moore: This is not a correct characterization --

Justice Felix Frankfurter: (Inaudible)

Mr. Donald Page Moore: -- of the legislative history of the statute.

Justice Felix Frankfurter: I'm sure we can dispose of it until (Voice Overlap) --

Chief Justice Earl Warren: Oh, sure enough.

I could (Inaudible)

Mr. Donald Page Moore: Thank you Your Honor.

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