SPOMER v. LITTLETON

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Argument of James B. Zagel

Chief Justice Warren E. Burger: We'll hear arguments next in 72-955, Spomer against Littleton.

Mr. Shapiro, you may -- Oh! excuse me, Mr. Zagel.

Mr. Zagel

Mr. James B. Zagel: Mr. Chief Justice and may it please the Court.

This is, as it was referred to in the previous argument the next case involving the State's Attorney if it would help the Court, I will give a brief outline of the standing of the various parts of the Seventh Circuit judgment and the appeals taken there from.

Seventh Circuit indicated that there would be equitable relief available if the case were proven against the two state judges.

That part of the Seventh Circuit appeal is the subject to the previous case.

The Seventh Circuit also indicated that there would be mandatory injunctive relief available against the State's Attorney of Alexander County and that part of the Seventh Circuit's Judgment is the concern of this case.

There is a third petition for certiorari filed on behalf of Peyton Berbling, the immediate past State's Attorney of Alexander County and his investigator Earl Shepherd and the Police Chief of Cairo, Illinois, Chief Meisenheimer.

That petition concerns the portion of the judgment having to do to the extent that it does with injunctions against --

Unknown Speaker: Is that pending?

Mr. James B. Zagel: That is pending.

The petition has not been ruled upon.

It -- that concerns whatever remains of the injunction with respect to Berbling and I suspect nothing remains.

Whatever remains of the injunction with respect to Shepherd and Meisenheimer but principally the third case is concerned with the damage, the holding of the Seventh Circuit.

The only two cases that are before this Court in terms of certiorari having been granted have to do with the injunctive relief.

Now the question has been raise during the course of the previous oral argument with respect to the fact that State's Attorney Spomer was not named as an original defendant in this case and that there are no specific factual allegations against him.

The brief for the Petitioner Spomer does not raise that argument and it was a decision by Mr. Spomer consistent with my advice to him that whatever defense he would have and whatever claim he would have with respect to the correctness of the Seventh Circuit's judgment on the basis of the carryover of the allegations of Berbling to allegations against Spomer that he should not and he is so decided that he should not raise that point.

The waiver that we make with respect to any claim that the allegations with respect to Berbling do not carryover to Spomer may give this Court an indication of how significant the basic underlying issue is both to the State's Attorney of Alexander County and to State Prosecutors generally in this country.

Unknown Speaker: Is this a jurisdictional problem?

Mr. James B. Zagel: I think it is not a jurisdictional problem.

Unknown Speaker: But if these claims -- if this people have never experienced anything at the hands of the latest prosecutor, is there any case of controversy between them and the prosecutor?

Mr. James B. Zagel: I think there is a sufficient case of controversy.

Unknown Speaker: Statutory claim under 1983 or 1984?

Mr. James B. Zagel: I think that there is a sufficient statutory claim against the office of the State's Attorney of Alexander County.

Chief Justice Warren E. Burger: In essence he wants to stand in Berbling's shoes in order to test out the underlying constitutional issue and the question really is whether that involves in a -- perhaps an advisory opinion?

Mr. James B. Zagel: I think not.

I am of course aware of the fact that such a contention can be made and it certainly an arguable one.

Unknown Speaker: You don't urge that your waiver is burdening on us, do you?

Mr. James B. Zagel: Oh! No.

I have done many things in the court -- course of my practice before courts of the last resort but words of binding cannot and have no power of words that I do not use.

This Court can despite the waiver made by Spomer decide that there exist no case or controversy.

I suggest that there are very sound reasons --

Unknown Speaker: What is there in the complaint that goes against the office?

Mr. James B. Zagel: There is -- the complaint is specific with respect to those actions that took place while Berbling was the State's Attorney.

Not all of the actions or not all the specific allegations have to do with Berbling himself.

Some of them have to do with the staff in his office.

It is true that in each of the allegations that Berbling's name is mentioned.

There are two things that ought to be pointed out to the Court.

The first is that there has been no allegation or no claim that despite the fact that one could be made that Spomer, the State's Attorney has changed any of the policies that Berbling exercised and in fact there is the affirmative act of Spomer in substituting himself for Berbling in this Court.

Unknown Speaker: This sounds like a case with somebody is charged with a crime of murder and his successor comes in office and says, I'm also guilty.

Mr. James B. Zagel: Well, I don't think so.

I don't think so.

I think the one in the --

Unknown Speaker: Is there anything in this record that shows that the successor in office intends to do what the other man did?

No, it's not in this record.

Mr. James B. Zagel: Well, yes.

I can see that point but I --

Unknown Speaker: Doesn't that cut you off?

Mr. James B. Zagel: What?

Unknown Speaker: Doesn't that cut you off?

Mr. James B. Zagel: No, I think.

I think not.

Unknown Speaker: Record-wise?

Mr. James B. Zagel: No, I think not.

Chief Justice Warren E. Burger: We'll resume there after lunch.

You may continue.

Mr. James B. Zagel: Mr. Chief Justice ?-

Unknown Speaker: [Interruption]

Chief Justice Warren E. Burger: We'll allow you little extra time.

Counsel, you seem to have been interrupted, Mr. Zagel.

Mr. James B. Zagel: Thank you Mr. Chief Justice and may it please the Court.

To return to the point that we have departed before, so far as I can tell in the brief period of time that I have had to review materials and I find none, I find almost no decided cases on the point.

The only indication I have with respect to substitution of parties is a line in (Inaudible) on Supreme Court practice which indicates that the substitution is based on the assumption that the successor will continue the policy which was responsible for the litigation and that if that policy is not to be continued it is the burden of the substituted official to make a motion and to prove that the case is moot and I've indicated before that there is nothing in this record nor there -- will there be on the part of my client to indicate that he would change the policies which are alleged to have been exercised by his predecessor.

Unknown Speaker: Do you mean that your client says he would do all the things that were alleged in this complaint?

Mr. James B. Zagel: I think that my client's position is that his policy would not deviate from the policies of his business.

Unknown Speaker: My specific question that he intends to do the type of things that are alleged in this complaint?

Mr. James B. Zagel: I think his -- I think he would concede that he would do the acts that is alleged that his predecessor states --

Unknown Speaker: Well, does he -- admits them that the allegations are true?

Mr. James B. Zagel: I felt purposes of this litigation, in some --

Unknown Speaker: Well, I'm asking, does he admit them?

Mr. James B. Zagel: Yes.

Unknown Speaker: Not for the purposes of this litigation does he admit them or not?

Does he intend to do these things?

Mr. James B. Zagel: It's my -- to answer that question I would have to go outside the record which I'm willing to do but I would have to --

Unknown Speaker: I didn't ask you to go outside the record.

But what if the allegations as alleged amount to a crime under 242?

Mr. James B. Zagel: Well, if the allegation is ?-

Unknown Speaker: (Voice Overlap) as he says he is going to violate the Federal statutes?

Mr. James B. Zagel: Well, if they do constitute a crime under the civil rights act and one of the points that was made, one of the points so suggested is that if the allegations of the client are true, one of the appropriate remedies for the plaintiffs below who wants to seek federal prosecution of the State's Attorney.

That is one of the alternative remedies and if the policies that are being followed by this State's Attorney and by his successor constitute federal crimes then there should be federal prosecution.

Chief Justice Warren E. Burger: And I suppose, concerns say that your posture is necessary to try to preserve this litigation for the larger issue that you've talked about before lunch?

Mr. James B. Zagel: Yes, it is.

It is necessary not only to preserve the litigation generally for the larger issue.

I rather suspect that the policies followed in -- by Berbling and stripping of the general conclusory allegations.

The policy is followed by Berbling with as a practical necessity be followed by Spomer.

Unknown Speaker: Well, the thing that bothers me Mr. Zagel, in so far as the this is a 1983 suit, 1983 in terms creates an action only against and I'm reading it, "Every person who under color and so forth subjects or causes to be subjected, any citizen to a deprivation of rights, etcetera."

And I don't see how this pleaded as a 1983 action.

The successor comes within it.

Mr. James B. Zagel: I think the successor comes on limit so long as the successor.

Well -- my answer

(Voice Overlap) he couldn't possibly have done anything alleged because he wasn't in office.

Mr. James B. Zagel: No, my answer --

Unknown Speaker: At the times those things were arrested and done.

Mr. James B. Zagel: My answer is really is twofold.

The first part of the answer, these are basic contention.

That these allegations if stated against Spomer directly instead of had to continued an office, if Berbling continued an office would not state a cause of action under 1983 in any of them.

It -- it's a secondary position not to the extent that they do are found to state an action. That they would state an action against the successor in office, the substitute party so long as there is no declaration and the burden is upon him to make a declaration.

That he is going to deviate from those policies.

Unknown Speaker: So if he has said that -- if he has said he is going to continue the policies if he hasn't done it he is threatening to do it.

Mr. James B. Zagel: Well, so, yes, that would be a status although I tend to think that there has been no material change.

So far as I'm aware in Alexander County since December when Spomer took over.

It might also be said that the Seventh Circuit that at the time the ruling was issued it should have been apparent to the Seventh Circuit that Berbling would not be an office after December 5 because he did not run for re-election.

Chief Justice Warren E. Burger: It appears that the Seventh Circuit was designed to keep the litigation alive as you are today here?

Mr. James B. Zagel: I think so. I think so.

Justice William H. Rehnquist: Of course the Seventh Circuit's opinion is kind of done before December 5, wasn't it?

I mean there wasn't new when they decide?

Mr. James B. Zagel: Yes.

Yes, although it could be the term at the time they issued that opinion that the Berbling would not succeed himself in office.

It was impossible for him to succeed himself an office simply because he had not filed for re-election in the filing date is in -- was the previous December.

With respect to the merits of the case, there has been some discussion as to whether the argument that is offered here and I suppose with respect to both petitioners, this one and the one in the previous cases whether the argument is one of immunity or one of scope of remedy.

For purposes of this petitioner, I don't think it makes a great deal of difference.

How you view it simply because whether you view it as an immunity argument or as a scope of the remedy argument that position of the petitioner -- State's Attorney is taking is that this kind of remedy, this mandatory injunction could under no circumstances in any case ever be appropriately issued.

So whether the argument is phrased in terms of scope of the remedy or absolute immunity, its functional purpose from our view is precisely the same.

I might add also that although I think that -- and I agree with the position of the petition the previous case, with respect to the appropriateness of the remedy directed against the judges, I would submit that the argument of the States Attorney is still stronger than that of the judges.

Essentially, what the Seventh Circuit would force the United States District judge to do is to exercise a supervisory jurisdiction over both a trial judge and the state prosecutor.

I think it is improper that it does either but I might say that at least when it comes to exercising supervisory jurisdiction over the state trial judge the United States District judges doing something that is not too far remote from what he is expected to do with his own docket.

Because the Federal trial judge of course makes decisions as to bail and so on and so forth.

When it comes to exercising supervisory, excuse me, supervisory jurisdiction over the State's Attorney, the Court is crossing into the realm of prosecutor.

And I think for reasons that we have stated innumerable times in our briefs it is the function that cannot be effectively performed by most judges and for those few judges who could effectively perform it.

It would be highly inappropriate to do so.

I might add also, that the reason that this ruling is so particularly crucial for prosecutors throughout the nation is that there is aside from situations like those in Cairo, Illinois.

There is in this country a large number of groups of people who have severe quarrels with the way criminal justices run whose quarrels generally fall on the side of their viewed insufficient prosecution.

And we submit that there is a very realistic possibility that if the judgment of the Seventh Circuit, this remedy is allowed to stand that we will open a real Pandora's Box with respect to suits against prosecutors.

Now, the Pandora's Box argument is a common one I think that at least half the litigants who argued cases involving basic principles of law will use a variation of the Pandora's Box argument saying if you do this then the walls will all fall down.

And perhaps there is a hyperbole in that argument in most cases.

I think not in the case of the prosecutor.

There is presently in the State of Illinois, at least several groups, who are complaining vigorously that although they have not sued yet about what they consider to be insufficient efforts by the prosecutors not to proceed in given cases.

The most prominent of which in our state is the Citizens for Decent Literature who are complaining bitterly about the failure of various prosecutors to move against literature they consider obscene.

There is a group of people who claim to represent rape victims who are concerned about the policies of prosecution with respect to rape cases.

There are groups that complain about the prosecutions with respect to environmental cases.

And I suspect that if the ruling stands up most prosecutors who have adopted a policy of declining of anything.

Any violation of criminal statues involving in dispute between a tenant and a landlord, I suspect that both the tenants and the landlords will be in Federal Court claiming improper prosecution.

And I might add further that purely apart from the question of whether a Federal Judge could administer this rather a mammoth remedy that is called for.

There is the -- the basic question and I suppose this is an argument that speaks more to an immunity argument than to anything else.

There is the basic question of forcing the prosecutor to spend his time in Court and defend his policies with respect to discretionary declamations of prosecutions.

The plain fact of the matter is that I don't think any prosecutor that could long function if he had to depose on declamations of prosecution.

I doubt that there is a prosecutor in this nation who prosecutes more than a fraction less than one-half.

Certainly, more than a fraction of the cases that are brought to him -- would he have to come to Federal Court and explain this declamation in each and every one of these cases?

Even if the case is not made, even if the petitioner fails to make his case so the plaintiffs fail to make their case.

The enormous burden on the prosecutor, I think would be a sufficient to justify, as it does in other areas, the application of an absolute immunity doctrine.

And it is clear I might say.

It is clear that the Seventh Circuit contemplated that the Federal District Court would address itself to individual decisions.

There is a certain selective blindness exercised by the respondents in this case with respect to what exactly they won if you want to use that word in the Seventh Circuit.

And I quote from the language on the -- of the Seventh Circuit's opinion that said, "an initial decree might set out the general tone of rights to be protected and require only periodic reports of various types of aggregate data on actions on bail and sentencing and disposition of complaints."

The Court expressed and I quote, "Complete confidence in the District Court's ability to set up further guides is required and if necessary to consider individual decisions" which appears at page 415 of 468 F.2d.

So we are in effect talking about review of individual decisions to or not to prosecute.

There has been citation of authority in this Court in which Federal Courts have exercised what might be called a pretrial supervision over state prosecutor by enjoining him from proceeding in a particular case.

I state as we have stated in the briefs that this is a far different thing from exercising a general power to force the prosecutor to prosecute a case in a certain way and I might add that the complaint was not limited simply to the initiation of criminal proceedings.

There were elements in the complaint that said that the prosecutor didn't present the case competently.

Perhaps, the closing argument didn't appeal to the plaintiffs.

Or perhaps the way a witness was examined didn't appeal to the plaintiffs.

You're talking about very detailed regulation of the way a prosecutor tries his case and that is what the Seventh Circuit.

And certainly what the plaintiffs contemplate.

The fact of the matter is that those cases in which preliminary injunctions have been granted prior to trial or at least that has been suggested that it might be done are really no different in effect than a form of accelerated appellant review.

So the Court saying in advance that this prosecution, this particular prosecution is brought in such bad faith or for such obvious harassment purposes that we're going to stop it now.

And the basic premise is that if we did not stop it now, we would just have to reverse it later.

But it is still a review of an individual case.

As I suggest in the brief, there are available and I think superior remedies, superior to that suggested by the Seventh Circuit.

Indeed, I would say that each of the remedies considered by the Seventh Circuit including the most draconian one of all which is to say reversal of convictions of people who were properly prosecuted because the prosecutor refuses to proceed against other people.

I think that even that remedy is preferable to the remedy that is involved in this case.

It seems to me what the Seventh Circuit did was take upon itself or if not take upon itself convey a power to the Federal District judges that no court should under any conditions ever exercise and that is the power to prosecute.

The Federal judge simply should not service a prosecute.

Either in State or Federal Court and I think that that is what the Seventh Circuit opinion amounts to as a command to the Federal Judge that if certain cases are proven.

You have to preempt the decision of the prosecutor in State Court.

If there are no further questions, I would like to reserve the balance of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Wiseman.

Argument of Alan M. Wiseman

Mr. Alan M. Wiseman: Mr. Chief Justice and may it please the Court.

We name Peyton Berbling as the defendant in our complaint.

He was the -- then State's Attorney.

His term of office ended December 4 of 1972 which was after the Seventh Circuit decision.

Mr. Spomer, on his own, substituted himself as a defendant in this case in so far as the appeal is concerned.

Justice Thurgood Marshall: Where is that in the record?

Mr. Alan M. Wiseman: It is -- well, it is in Mr. Spomer's brief Your Honor where he specifically said that he substituted himself pursuant to the rules of this Court.

Justice Thurgood Marshall: It is not in the record?

Mr. Alan M. Wiseman: Other than that, no Your Honor.

There is no -- nothing in the record to indicate when Mr. Berbling’s term of office ended --

Chief Justice Warren E. Burger: I suppose that could be traditionally noticed by the Seventh Circuit, wouldn’t it?

Mr. Alan M. Wiseman: Yes.

Unknown Speaker: Or he can't -- can he judicially notice the fact that he substituted himself?

Mr. Alan M. Wiseman: Well, I think Mr. Spomer is conceding that fact and I think that the Court can take note of that.

Justice Thurgood Marshall: Well, could I put myself in there too while we’re at into some procedure?

Mr. Alan M. Wiseman: Well, Your Honor the normal procedure would be that we were to substituted the other side as a party.

We do not do that.

I would suggest that the case has not necessarily have to be deemed moot in so far as the states of attorney is concerned, if the Court chooses to for two possible reasons.

One, Mr. Spomer substituted himself and he is apparently conceding that he is continuing the practices of Mr. Berbling.

The second is that an investigator employed in the State’s Attorney’s office, a man by the name of Mr. Shepherd is still employed by the State’s Attorney’s office.

His -- Mr. Shepherd’s petition is pending before this Court in conjunction with the petition of the previous State’s Attorney.

And it could be stated that Mr. Shepherd’s conduct is continuing and Mr. Spomer as his supervisor who has ultimate responsibility for the conduct of his subordinates is therefore a proper party at this time.

I would submit however that in order for us to proceed against Mr. Spomer, it would be necessary for us to investigate the facts to see that the concession apparently made by the State’s Attorney is true and demand our complaint.

Justice Thurgood Marshall: Suppose the judge here dies tomorrow and another judge is appointed, it’s still live case?

Mr. Alan M. Wiseman: I do not believe so Your Honor.

At that -- all those facts --

Justice Thurgood Marshall: The difference being what?

Mr. Alan M. Wiseman: The only difference that I see is, one, that the State’s Attorney has made this concession and two, that if a subordinate whom we are charging --

Justice Thurgood Marshall: Where is that concession in the record?

Mr. Alan M. Wiseman: It is only in the record of this argument by the counsel for the State’s Attorney.

Aside from the issue of whether it is moot against the State’s Attorney, I would like to proceed to the merits of the case.

Unknown Speaker: May I ask this before you do whether Shepherd is -- has been employed by the present State’s Attorney?

Mr. Alan M. Wiseman: Yes.

In that -- that is in the record in this way that we alleged in our complaint that he is employed by the State’s Attorney and there is nothing in the record to indicate that he has terminated his employment and --

Unknown Speaker: So he has an agent?

Continuous?

Mr. Alan M. Wiseman: Yes, Your Honor.

Unknown Speaker: And so far as your complaint was against his actions as an agent of the State’s Attorney, there is a continuity then?

Mr. Alan M. Wiseman: Yes.

Unknown Speaker: But isn’t the issue of by Carriers’ Liability under 1983 somewhat unsettled?

Isn’t that kind of injecting a new element into the case if you have to rely on that?

Mr. Alan M. Wiseman: To a certain degree, it is Your Honor but since we are seeking the equitable relief, a superior is responsible for the conduct of his subordinates and whether it’s by acquiescence or active participation in the conduct of the subordinate.

He would have a duty, I believe to stop that conduct and precedent for this is a -- that I’m familiar within a Seventh Circuit decision is Schnell versus City of Chicago in which the Superintendent of Police was named as a defendant in that case solely because he was responsible for the conduct of his subordinates.

Chief Justice Warren E. Burger: Do you see any similarity between the kind of continuing monitoring that the Seventh Circuit has prescribed here?

And the continuing monitoring and that the Sixth Circuit prescribed in Gilligan against Morgan?

Mr. Alan M. Wiseman: Your Honor, frankly I’m --

Chief Justice Warren E. Burger: Or perhaps the National Guard case where the Sixth Circuit sent the case back to the District Court to prescribe the proper weapons and methods and procedures for the National Guard?

Mr. Alan M. Wiseman: I -- we are not seeking relief that extensive.

What we are seeking is, one, that the State’s Attorney not turn a deaf ear to complaints of blacks simply because they’re black.

He refuses simply to take the evidence of a black complainant.

Second, he is refusing to prosecute whites when the victims are black simply because the victim is black.

What we’re seeking is a prohibitory injunction to keep him from using race as a criterion in the exercise of his office.

And as the Seventh Circuit has suggested so far that a reporting system indicating the disposition of cases is -- might be a start.

It would be for the District Court after hearing again the case in a trial in a way in the credibility of the witnesses and the parties to then determine what would be appropriate relief at the first instance.

We would assume that a -- once a Federal Court issued an order compelling the State’s Attorney not to use race as a factor in the exercise of his office that the State’s Attorney will abide by that order.

It is only if he disobeys that order that further relief comes in to being.

The situation in Cairo is that as a result of the efforts of blacks to free themselves of the shackles of the discriminatory conduct of the white merchants and public officials that they have been the targets of white criminal conduct, assaults and batteries occur frequently in the course of their peaceful parading to demonstrate against this.

They are assaulted and battered by whites.

And what happens?

They then complain to the State’s Attorney.

And what does he do?

He refuses to take any evidence.

He refuses to investigate.

We brought this action under 1981.

In 1981 specifically says all persons shall have the same right to give evidence and to the full and equal benefit of all laws and proceedings for the security of persons as white persons.

That is precisely what we’re charging that the State’s Attorney has violated that he is --

Unknown Speaker: That he didn’t give your clients the protection of the criminal law?

Mr. Alan M. Wiseman: Yes, and that he refuses to do what the Federal statute requires and that is for him to give all persons the same right to give evidence as white persons.

He is refusing to allow them to give evidence although he allows white persons to give evidence when they are the victims of black criminal conduct.

Chief Justice Warren E. Burger: Does the Governor of Illinois have any supervisory power over a local prosecutor as for example the State of New York provides?

Mr. Alan M. Wiseman: To my knowledge, the State’s Attorney is an independent office and to my knowledge he is not subjected to the control of the Governor.

Chief Justice Warren E. Burger: And even be removed by him as they can in New York?

Mr. Alan M. Wiseman: Not to my knowledge.

Unknown Speaker: Well, how about the case last term.

The Linda R. or Linda S. case on standing, (Inaudible) -- the Court holding the lack of standing in a person to complain that a criminal law was not being enforced so as to protect her?

Mr. Alan M. Wiseman: Well, I think that in this case Your Honor, the blacks who have sued are complaining not only that the law isn’t being enforced but that this State’s Attorney that is really the predecessor State’s Attorney would refuse to take evidence or investigate.

In that sense, the State’s Attorney's conduct (Voice Overlap).

That the same -- that that proposes the same question as was dealt with last term?

Mr. Alan M. Wiseman: Well, I submit Your Honor that because this is a pattern in practice case in which the conduct of the State’s Attorney in refusing to take evidence of --

Unknown Speaker: Could've been more -- no any more pattern than there was in this case last term?

Justice Thurgood Marshall: It was Dallas, Texas where the State’s Attorney just said no.

Mr. Alan M. Wiseman: Well, I suggest Your Honor at least in the circumstances of this case that we have stated the necessary allegations for a claim under Sections 1981 and 1983.

I think that the question may be then that the extent whether this Court or Federal District Court should restrain itself from exercising the authority that is present under the Civil Rights statutes and I think first we have to start with the proposition that this Court has in the past decided a number of cases in which it has enjoined pending state prosecutions.

I suggest that the standards that have been established in those cases in which the office of the state has been exercising bad faith and in which there was immediate irreparable harm have been met in this case.

I think the doctrine of quasi-judicial immunity because of the prior cases of this Court is not, it has already that resolved.

I don’t believe this case -- the interference by a Federal Court by issuing such an injunction will infringe upon the lawful exercise of the discretion of the State’s Attorney.

First of all, discretion is not unlimited.

It is limited to abiding by the law and not to stick to anull the constitution in the laws of the United States.

This is not an isolated case in which we have a disgruntled litigant complaining that he did not have his attacker or assailant prosecuted.

Instead, we are claiming that across the board, black complainants do not get relief.

It does not involve discretion at all when the State’s Attorney says I’m not going to take evidence of -- from blacks when they are victims of white criminal conduct.

It will moreover, when the judege -- when the State’s Attorney refuses to prosecute simply because the victim is black does not involve discretion at all either.

There is no relief in the State Courts in this situation where the State’s Attorney refuses to take evidence.

You cannot appeal to a State Court for relief.

Where the State’s Attorney refuses to investigate or refuses to prosecute, you cannot go to a State Court for relief.

The -- one suggestion that Mr. Spomer has made in his brief is interestingly it odds in the petition of Mr. Berbling.

Mr. Spomer suggesting that a cause of action in damages is preferable to equitable relief.

Mr. Berbling of course is taking the opposite position in his petition before the Court.

I would suggest that damages would not be -- would not solve the problem because it would not prevent the ongoing discrimination.

What you could have in a situation where you had an action and damages is that the white citizens who are against the black -- efforts to free themselves collecting the defense fund.

And every time the State’s Attorney is found liable in damages, they pay it off but in the same sense, they manage to maintain their supremacy.

They manage to avoid prosecution.

I would suggest that that would not be a way to solve this problem.

The basic relief that we are seeking is on a prohibitory nature that race not be used as a criterion in the exercise of office.

I think again that it would be premature to determine what precisely is the appropriate relief because I think the District Court must hear our evidence first and then fashion what would be considered appropriate relief by it.

In summary, when citizens are deprived of access to the criminal justice system, the fabric of a civilized society disintegrates and I submit to Your Honors that is what is happening in Cairo.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Wiseman.

You have about six minutes left Mr. Zagel.

Rebuttal of James B. Zagel

Mr. James B. Zagel: I have --

Mr. Zagel before you get started, if by any chance you lose this case, are you going to pay the cost?

Mr. James B. Zagel: (Inaudible) who is going to pay the cost?

Yes, my client can pay the cost?

Unknown Speaker: Yes.

Mr. James B. Zagel: Yes, that is the customary rule on this (Inaudible).

Unknown Speaker: Is it customary for a party too?

Mr. James B. Zagel: It is --

Unknown Speaker: Do you admit that you are a party for the purpose it cost?

Mr. James B. Zagel: Of Spomer?

Yes, he is.

Yes.

Chief Justice Warren E. Burger: Does the Court accepts the view -- that he is a party?

Mr. James B. Zagel: Yes.

No, that would be the natural assumption that if we were to lose the case, Mr. Spomer will get a little bit of from the clerk of the Court for the cost then he would pay it.

With respect to the point on substitution, I just point out the Rule 483 of this Court provides for automatic substitution in these cases.

One point that was made by Mr. Wiseman is that, and it generally has been and I suppose a perfectly acceptable tactic for him in the course of argument as to -- is to minimize although I don’t think he can do so successfully what the nature and scope of the Seventh Circuit’s remedy.

In one of the words he used is that that somewhere will have to start and this is just the start at determining what the relief has to be granted.

It’s really not the start that so much concerns us.

It’s where the finish is and no one has denied yet and no one has ever offered a credible argument that the limits of this doctrine are very broad indeed and I might add that even the start has to be a substantial burden on any prosecutor.

Even a hearing has to be a burden on the prosecutor and the discovery practice as well.

That too is a burden and an unreasonable one.

Unknown Speaker: If a prosecutor brings or refuses to bring a criminal or say brings a criminal prosecution in circumstances where he ordinarily wouldn’t embrace it because of race, would you suppose he violates 1981?

Mr. James B. Zagel: He may.

He may violate 1981.

And what if he does it knowingly, willfully and does he violate 242?

Mr. James B. Zagel: Yes, he may.

Unknown Speaker: So he always has a criminal sanction over him.

Any way if he intentionally and willfully conducts himself?

Rebuttal of Alan M. Wiseman

Mr. Alan M. Wiseman: Precisely.

Unknown Speaker: Well, that cuts -- he -- that cuts both ways I suppose that it does put the injunction in a different light if all this -- if what he is enjoined from doing or is not acting intentionally and willfully based on race?

Rebuttal of James B. Zagel

Mr. James B. Zagel: Well, if you view it again solely as an immunity argument rather than as a remedy argument.

Yes, I suppose one could say that since --

Unknown Speaker: One file that had it both ways, as well as a remedy and --

Mr. James B. Zagel: Well, I think that the two basic points are these, if the -- what the State’s Attorney is doing constitutes a Federal crime in violation of 242.

Unknown Speaker: Well, isn’t after all, I gathered from what your opponent said that all they were claiming and all of the protection against were intentional and lawful acts based on race.

Nothing -- not a mistake or maybe not?

Mr. James B. Zagel: Yes, that’s correct.

That is their point.

Unknown Speaker: And I take it that if you take that literally, it means that 242 would be violated by these acts?

Mr. James B. Zagel: Yes, if you take it literally.

Unknown Speaker: And the -- well, doesn’t that put the injunction and issue in a different light too, if you are enjoined only from acting intentionally?

Mr. James B. Zagel: Well, I think it does.

Unknown Speaker: Certainly, you wouldn't -- would you say, the immunity reaches the court?

Mr. James B. Zagel: Well, that’s precisely my point.

If you view it solely as an immunity matter, no, my answer to your question is no.

Unknown Speaker: No, immunity is not (Voice Overlap).

Then the question is whether equity should enjoin it?

Mr. James B. Zagel: Yes.

Unknown Speaker: And ordinarily you’d say equity doesn’t enjoin the crime, our commission of the crime.

Mr. James B. Zagel: That’s correct.

Unknown Speaker: That the -- here you have a high policy federal statute?

1983 and 1981?

Mr. James B. Zagel: Yes.

You also have as I --

Unknown Speaker: In 1983 having been held to be exempt from one of their restraints on a Federal Court?

In the injunction.

Mr. James B. Zagel: Yes.

In that respect, basically I supposed my argument then goes -- to that’s the scope of the remedy rather than immunity.

I think that that is inherent and the fact that I have made to concessions which considering the fact that this brief was filed, not only in behalf of Spomer but on behalf of the National District Attorney’s Association as well.

I think a very substantial concession be, if the that there would be, if the allegations were all true, remedy and federal criminal prosecution which I think is perhaps the greatest single deterrence.

And secondly, we would be willing to concede that if there has to be any remedy at all, between private parties in a Federal Court that that remedy rather than be the injunction be damages. I tend to think that there is a strong immunity argument against damages as well.

What I am trying to impress upon the Court is the degree of opposition and the degree perhaps of maybe outright terror would be the best word with which a state prosecutors would view proceedings under the Seventh Circuits opinion.

Unknown Speaker: The idea would be, it wouldn't that it might not be so hard to defend themselves but I mean, it might not be so hard to win but it will be terribly burdensome defending himself against perhaps a series of unsubstantiated charges?

Mr. James B. Zagel: Yes.

Yes.

There’s one final question I would answer with respect to the Governor’s power.

The Governor has no power in Illinois at all over the prosecutor and nor does the Attorney General except to nolle prosequi a criminal charge.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.