ATLAS ROOFING CO. v. OCCUPATIONAL SAFETY COMM'N

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Argument of Mcneill Stokes

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-746, Atlas Roofing against the Occupational Safety and Health Commission and the related case Irey against the Commission.

Mr. Stokes you may proceed whenever you are ready.

Mr. Mcneill Stokes: Mr. Chief Justice and may it please the Court.

The issue in these cases involves whether our constitution allows the Federal Governments to issue fines against its citizens without the right to jury trial of their peers.

We submit that the clear command of the Seventh Amendment of United States Constitution expressly forbids it.

More fundamentally at issue is also the very bedrock of judicial power under Article 3 of the Constitution.

These cases take on particular importance because they are the first cases to come before this Court of the Occupational Safety and Health Act of 1970 and its enforcement structure which is unique.

The most obvious consequence of the Occupational Safety and Health Act’s enforcement structure is the United States Government seeks fines against its citizens administratively without the right to jury trial during any stage in the proceedings.

Under this most unusual enforcement structure of penalties, the inspector issues citations and fines turns civil penalties.

A citizen’s recourse is to another administrative agency, the Occupational Safety and Health Review Commission, which is still part of the Executive Branch of Government.

Unlike other penalty statutes, there is only limited judicial review in the Court of Appeals in all effect which are determined administratively are conclusive if supported by substantial evidence.

We submit that this executive agency, the delegation of power to this agency, violates the constitution in its relationships first to its citizens and that is providing a right to jury trial; and second in its relationships to Judicial Branch.

A ruling the petition’s favor will do no more than uphold the constitution as we have traditionally and historically known it.

We submit that a ruling in the Government’s favor will effect the most profound redistribution of power among the three branches of Government.

We are not asking the Court to expand on constitutional rights; we are merely asking the Court to recognize the traditional and historical right recognized by our Forefathers in the Seventh Amendment that a citizen has a right to jury trial when the Federal Government seeks a fine against him in whatever manner and whatever form it takes.

We ask no more than that and we submit that constitution will tolerate nothing less.

Now under OSHA, the Executive Branch of Government has been vested with plenary powers to determine and assess fines administratively without the right to jury trial and in violation of the Seventh Amendment, which provides that a citizen has a right to jury trial and suits at Common Law where the amount of controversy exceeds $20.

This particular provision is extremely clear and the history is extremely clear that a suit at Common Law totally and unequivocally embraces a fine sought by the United States Government.

At the time of the passage of the Seventh Amendment, both in England and United States, a citizen would have been afforded a right to jury trial when the government sought a fine against him.

In England and at the time of the passage of the Seventh Amendment and for years before, a fine would have been brought on the judicial side of Court of Exchequer and there they would have gotten the right to jury trial under the Common Law side.

As we have briefed in our brief, all the states, virtually all of the states would have granted jury trial for fines and forfeitures at the time of the enactment of the Seventh Amendment.

The history of this act or the history of this amendment, in England, was preserved in America under the Seventh Amendment in 1791.

Only in America did England ever attempt to the non- citizens jury trial and that was under the America’s Trade Act in the Courts of Vice-Admiralty, which historians tell us is one of the sparks that ignited the revolution and directly led to that provision to deliver -- that provision in the declaration of independence that said the Kind George has denied us jury trial in many cases.

Well, when Hancock’s ship, the sloop, Liberty was seized in Boston Harbor in 1767 along with its cargo, England also brought a case against him for an in personam fine of triple the amount of the goods.

Well, he hired a young lawyer defending him in those days, Boston Lawyer, John Adams, and Adam’s argument is just as valid before this court today as it was 200 years ago when he said the legislative authority by which this act is passed is grievous enough, but the way it is enforced with these executive tribunals makes it more penal than any of the statutes around.

He says “My client is not” -- and I am paraphrasing a little bit, he says, “My client is not tried by the law of the land by jury trial but by a single judge.”

And he says, “No matter how fair that judge is, it makes this act extremely penal and my client has lost a precious right, the right to jury trial.”

Well, in 1791, this right was embedded in the constitution for all Americans to come as it was passed and codified in the Seventh Amendment.

In response to a call in one of the foremost price against the constitution was originally drafted was the a preservation of the right to jury trial.

It is now in great jeopardy, because now 200 years later, the Federal Government is seeking fines against its citizens and exactly tribunals with much similar procedures as those courts of Vice-Admiralty.

But more fundamentally the issue in this case, is the very bedrock of judicial power.

The Third Circuit’s opinion, the Third Circuit opinion in the case of Frank Irey basically held that the United States Government can vest, Congress can vest, an administrative tribunal with enforcement powers, in this case penalties, and thereby eliminate the Seventh Amendment right to jury trial.

Implicit in this holding is that Congress and not the Court have the power to determine when and if a provision of constitution applies merely by vesting it in an administrative agency.

Judge Gibbons and the other three dissenters in that case, as they saw, stoutly pointed out that if Congress can determine by legislative fiat when and if a provision of the Constitution applies and thereby define the meaning of the words, suits at common law, what role do the Article III courts play.

He also pointed out that it would be an absurd speculum if the only branch of government, bound by the Bill Of Rights, would be the Article III courts.

And in commenting on the majority’s holding of their interpretation of Jones & Laughlin versus the National Labor Relations Board, he pointed out that if that case is interpreted for the breadths that the majority gave it, then undenounced to world of legal scholarship, that case affected the most profound and enormous redistribution of power of any case in the history of the United States.

Justice William H. Rehnquist: What’s your interpretation of the case?

Mr. Mcneill Stokes: Mr. Justice, our interpretation of Jones & Laughlin merely stands for this doctrine that Congress can vest an administrative agency with traditional acquirer roles that is the seize and desist power, which is an equitable injunction remedy and an incidental back pay remedy which is a classic restitutionary remedy.

But beyond that they cannot vest an administrative agency with powers that are judicial suits at Common Law.

Justice William H. Rehnquist: What if the NLRB in that case had ordered only back pay?

Would you say they would have had to go to the court and be tried to a jury?

Mr. Mcneill Stokes: If the back pay is a restitutionary type of remedy, I would say that would be permissible in that case.

If it arose in a situation where the NLRB add a seize and desist power coupled with back pay.

But in OSHA, you are dealing with a naked vengeance penalty where the government is putting a penalty on its citizens for past violation.

It is the void of any acquittal consideration, the void of any restitutionary element and the void of any compensatory element.

Chief Justice Warren E. Burger: Do you limit your argument to cases where the sanction is a money sanction.

Mr. Mcneill Stokes: We, in this case, we are not trying to invalidate any abatement powers of the court.

We are merely saying, in the posture of these cases, they arrives in a posture wherein these case, they are monetary penalties, $5000 sought against Irey and $600 sought against Atlas Roofing Company.

We submit it is that violation that offends the constitution, the collection of monetary penalties, which are not at all incidental.

Of course, they could not be acquittal remedies under the classic doctrines that equity will not enforce a penalty and will not enforce criminal sanctions, particularly the penalty provisions.

We submit, as we’ve briefed, that there are no sense ancillary and that, in this case, they are primary, and as a matter of fact that’s all that’s being sought in these cases.

Chief Justice Warren E. Burger: Do you recognize that the administrative regulatory agencies can sometimes decide the questions involve not $5,000 but millions of dollars without the intervention of a jury trial.

Mr. Mcneill Stokes: Yes sir, we do recognize that and as did as I cited Professor Davis, in his plea, he said, they can involve regulatory orders involving millions of dollars, but they cannot asses $20 in a penalty, in Professor Davis’ plea that we have cited to.

There is great distinction, because if these cases arise on $5,000, but the same principle applies, no matter how it is if it’s in excess of $20, we submit to the Court.

Justice Potter Stewart: At what stage in this procedure, do you think jury trial attaches?

You haven’t really told us about the procedure and as you say it is normal, and I wonder, do you think the constitution would be satisfied if it provided a jury trial at any stage?

Mr. Mcneill Stokes: It’s, yes sir.

Justice Potter Stewart: Could you describe a little bit?

Mr. Mcneill Stokes: Mr. Justice, at any stage either under the normal regulatory penal powers, they either have to bring the penalties originally in court or they have de novo review.

Justice Potter Stewart: Before a jury.

Mr. Mcneill Stokes: In this case, neither is provided, as a matter it’s expressly stated that it will not be provided, but -- and it even has conclusions that the facts of the Commission are supported on substantial evidence.

In this case, it is not provided at any stage and this is --

Justice Potter Stewart: But your submission of the Seventh Amendment would be satisfied, would it, if the jury trial were provided either to try the original assessment of the penalty or by de novo review later at the end of the proceeding?

Mr. Mcneill Stokes: That’s profound Mr. Justice Stewart.

That is our position.

Justice Potter Stewart: The Seventh Amendment, in your submission, would be satisfied in either event, is that it?

Mr. Mcneill Stokes: Yes sir.

Justice Thurgood Marshall: Before whom, a court?

Mr. Mcneill Stokes: Before a court, an Article III Court.

Justice Potter Stewart: And a jury.

Mr. Mcneill Stokes: And a jury or a --

Justice Thurgood Marshall: Then you may --

Mr. Mcneill Stokes: A jury -- it doesn’t stipulate, of course, as to whether the local preserver would be an Article III Court, we would submit it.

Justice Thurgood Marshall: Or at District Court?

Justice Potter Stewart: At least a court.

Justice Thurgood Marshall: Court of Appeals even have a jury.

Mr. Mcneill Stokes: Court of Appeals would not have a jury.

Justice Potter Stewart: There is a Court of Appeals review now, isn’t there?

Mr. Mcneill Stokes: There is a limited Court of Appeals review where they have a substantial evidence test.

Justice Potter Stewart: Right.

Justice Thurgood Marshall: Universal Camera.

Mr. Mcneill Stokes: Universal Camera, but in Universal Camera there was no fines being sought.

No, of course, that was a National Labor Relations Board case.

In this case, there is a raw penalty, as arises in this particular case, $5,000 and the other one, $600.

In support of its position --

Justice John Paul Stevens: Mr. Stokes, going to your broad position that you can’t commit this power of executives, supposing, there were that two stage procedure, where there was, first, the determination of the violation and an order to comply; and then a refusal to comply with that order.

Could the Executive Branch then impose penalties for that by analogy to contempt for violation of an injunction without a jury trial?

Mr. Mcneill Stokes: There is a similar -- yes sir and that would be in a separate proceeding.

There is a similar proceeding to that under this act.

It has a most unusual thing in which a decision to contest can in fact subject you to cumulative penalties on top of that if the inspector comes back and says, “I don’t think you contested in good faith”, or if he says, “You didn’t abate”, then it can attach up to $1,000.

Justice John Paul Stevens: I understand that’s not directly involved, and I am wondering if your argument would cover that situation as well.

Mr. Mcneill Stokes: Well, that would be a separate proceedings.

You see that is backing up the equitable remedy.

Justice John Paul Stevens: But do you contend there would be jury trial required in that procedure?

Mr. Mcneill Stokes: Right, yes sir, Mr. Justice.

After the -- Mr. Justice Stevens that would be very similar to the Federal Trade Commission enforcement power, where they have to go to court for the failure to abate or the failure to comply with its orders.

Justice John Paul Stevens: But why wouldn’t there be, why wouldn’t the answer to the jury trial requirement be that that’s analogous to an equitable proceeding where there has never been a requirement of a jury trial and contempt for violation of the injunction?

Mr. Mcneill Stokes: Again, they are seeking a monetary penalty.

Now you may say that the -- you get a back pay award, which is an incidental restitutionary award, and that the penalty is still money but it is compensatory or restoring the status quo.

It was never a suit at Common Law.

But when you get to a penalty it was always a suit at Common Law, a classic suit at Common Low, which we have submitted in our briefs and we noted that the Government did not contest.

Justice John Paul Stevens: Well, violation of an injunction, the suit for money for violating an injunction would not be a classic suit at Common Law.

Mr. Mcneill Stokes: That could -- yes sir; that could be that it is not and that depending on the penalty, it would be in a nature of a contempt type of case.

Justice William H. Rehnquist: Well in your FTC enforcement proceedings, they go the Court of Appeals and if you disobey an order, the Court of Appeals, enforcing the administrative order, you are subject to contempt and you don’t have a jury trial in the Court of Appeals, do you?

Mr. Mcneill Stokes: On the contempt issue, but it’s my understanding that procedure is correct that you do not have a jury trial, but if you do not comply with the order of the Commission, you then face, I believe it is up to a $5,000 a day penalty, which is brought directly in court.

Justice William H. Rehnquist: In the District Court?

Mr. Mcneill Stokes: In the District Court, in the FTC regulations; it’s my understanding.

Now the Government, in particular --

Justice Thurgood Marshall: But, in your case if the ruling is that you seize and desist what you are doing, put your place in safe order, stop killing people, and incidentally pay $5,000 fine, you are not contesting the whole first part, you are contesting the last part.

Mr. Mcneill Stokes: It is the $5,000 fine which we --

Justice Thurgood Marshall: The rest is okay without a jury trial?

Mr. Mcneill Stokes: In this case, there was no contention that there was not abatement once the ditch was closed up immediately and it was never an issue in the case, in the Frank Irey case.

Justice Thurgood Marshall: And in the old traditional case where you get an injunction and damages, you say that in the second part you have that with jury and in the first part you don’t.

Mr. Mcneill Stokes: That would be our interpretation Mr. Justice Marshall.

In support of his position the Government cites the tax and immigration cases, where the doctrine that they can bypass the Seventh Amendment.

But in these tax and immigration cases, there are unique areas where the plenary power, congress has been recognized as complete and exclusive.

This power has traditionally been limited, even in those cases, to only these unique areas.

Now the Government urges that these cases be expanded.

Justice William H. Rehnquist: Why is the power that Government, under the Commerce Clause, so much less than its power under Tax Clause or under the Immigration Clause, if there is an immigration?

Mr. Mcneill Stokes: Mr. Justice Rehnquist, under the -- traditionally the Government has always had, the legislative part of Government executive part of Government, albeit all governments, have had the power to control its boards free from the interference of courts.

Also in taxation cases, they have always had this power.

In England, at the time of passage of the Seventh Amendment, a revenue case would have been brought on the revenue side of Court of Exchequer, but a fine and penalty case would have been brought on the judicial side of the Exchequer.

But only, in these cases particularly, the courts, as they have stated in these particular unique areas, have been careful to say, this is only confined to these unique areas similar with the legislative line or court line of cases, where Congress has plenary powers to deal with the District of Columbia and other territories in which that power has been upheld, because the Congress is then acting as a state with a concurrent jurisdiction of State and Federal.

But the --

Justice William J. Brennan: Mr. Stokes?

Mr. Mcneill Stokes: Yes sir.

Justice William J. Brennan: Going back to my brother Marshall’s question, what kind of trial would you have in the District Court?

What would be the issue?

Mr. Mcneill Stokes: There would be de novo review on the facts, which is very similar to the other statutes with which we are familiar with.

What comes to mind is the de novo review.

Justice William J. Brennan: No res judicata at all?

Mr. Mcneill Stokes: Not on the penalty cases.

It would be very similar to other de novo review as (Inaudible) the Coal Mine Safety Act as we interpret Coal Mine Safety Act to be.

Justice Byron R. White: Even though the administrative finding has been sustained on appeal.

Mr. Mcneill Stokes: That would be our position.

Justice Byron R. White: Well, let’s suppose that it has been tried out before the administrative agency and it goes to the Court of Appeals on the record, is that right?

Mr. Mcneill Stokes: It goes on the record, sir.

Justice Byron R. White: And it’s sustained.

Mr. Mcneill Stokes: It’s sustained.

Justice Byron R. White: And then you would say that the Government wants to sue you for occurrence and it’s de novo in the District Court.

Mr. Mcneill Stokes: If you do not give de novo review on the facts in the District Court --

Justice Byron R. White: That’s right, but you don’t have a right to jury trial.

Mr. Mcneill Stokes: That’s right, you have no right to jury trial and there is nothing left.

Justice Potter Stewart: I am following up my brother Brennan’s question, the issues would be at least two in your submission, whether or not there was a violation and that assuming there was a finding, there was a violation of what the amount of the penalty should be?

Mr. Mcneill Stokes: That would be opposition, of course, fines could be determined judicially since fines are traditionally determined judicially.

Justice Potter Stewart: Well, normally a jury assess damages and normally a judge imposes, if it’s in his discretion, to impose punishment, which would it be here?

Mr. Mcneill Stokes: It would be the fact of the violation.

The --

Justice Potter Stewart: It would be the fact of violation not the --

Mr. Mcneill Stokes: Yeah, the fact of violation.

Justice Potter Stewart: -- whether or not the monetary award was -- not what a monetary award should be or the penalty should be?

Mr. Mcneill Stokes: And Mr. Justice Stewart these are within the traditional realm of juries, the typical facts.

Justice Potter Stewart: Usually the jury determines the amount too, except when it’s a criminal punishment, then, where there is some exceptions in some states, in most of the states I think the judge determines what the sentence shall be.

Mr. Mcneill Stokes: Of course, in this Congress should --

Justice Potter Stewart: Well, which would it be here in your submission?

Mr. Mcneill Stokes: Well, in our original brief and in our original petition for certiorari, which was not granted on this issue, we took the position that a civil penalty is noting more than a penal fine, and certainly to a corporation.

There is no difference any $10,000 fine to a corporation, criminal fine than a $10,000 dollar civil penalty.

We are dealing semantics, but the effect is the same.

We would -- I would say this is fairly --

Justice Potter Stewart: But the court finally addresses you on that and we did not grant certiorari on that question.

Mr. Mcneill Stokes: Yes sir.

Justice Potter Stewart: But in any event on this question, the Seventh Amendment question, would it be open to the jury to decide how much the penalty should be in your view?

Mr. Mcneill Stokes: We would say that that would be up to Congress to determine, Congress, within its power, could say, that would be up to the judge, but as to the facts the Seventh Amendment, we say, is quite --

Justice Potter Stewart: Whether or not there was a violation.

Mr. Mcneill Stokes: That’s right.

Justice Potter Stewart: At least that much you think is triable by a jury under the Seventh Amendment.

Mr. Mcneill Stokes: That is our entire position.

And if not you are left with a device that circumvents the Seventh Amendment in a nice neat little package that says, well, initially we go to this administrative agency and then we go to the Court of Appeals and somehow the right to jury trial just evanescence.

And if it’s going to be done in this statute, then I submit, and we have briefed in our papers the administrative conference of United States in its recommendation to all other agencies that all other agencies get this power.

Justice Thurgood Marshall: Mr Stokes you keep saying being realistic.

If you go before District Judge and the District Judge, without a jury, puts a $5,000 fine on your client; that would be bad, right?

Yet if you go before a jury and the jury says that she should be fined something and the same judge is your $5,000 fine, you would not complaint, something wrong?

Mr. Mcneill Stokes: That is precisely our point Mr Justice Marshall.

Justice Thurgood Marshall: But it’s something wrong, you still get $5,000.

Mr. Mcneill Stokes: That presupposes that the jury finds us guilty and we have a right to a jury of our peers and the interposing of a jury between the judiciary albeit in this case; it’s not judges would like tenure; it’s administrators.

Justice Thurgood Marshall: I thought you misunderstood.

I was trying to get you to say the jury set the amount (Inaudible).

Mr. Mcneill Stokes: That would be our position sir.

Unlike the --

Justice Byron R. White: You wouldn’t think you would have any right to enjoin the administrative proceeding pending some jury trial?

Mr. Mcneill Stokes: There is some -- in the Beacon Theatres, a Dairy Queen trilogy, there is language that would indicate that there is a possibility that there would be --

Justice Byron R. White: Well, what’s your position; what’s your position?

Mr. Mcneill Stokes: We would say that that would be in discretion of the judge handling it, but in this case we would say that the abatement would go on.

There is some language that says that the acquittal side is in state until the judicial side, but we are saying if Congress did not provide, which of course is provided in here, which is fatal flaw.

We are saying that that would be, the whole realm would be, differed until after the administrative action is --

Justice Byron R. White: Did the statute sound like this when you would think the administrative proceeding should abate until the jury trial?

Mr. Mcneill Stokes: Correct -- no, we would say the administrative proceeding would go on and you would have de novo review.

I am sorry; I interpret it wrong.

Justice Byron R. White: So you wouldn’t say, in this case, you would have any right to enjoin an administrative proceeding until there is a jury trial.

Mr. Mcneill Stokes: I would not think that that would be right.

Justice Potter Stewart: Is it your claim that because of the failure to provide a jury trial at some stage of the proceeding here, this legislation is simply constitutionally invalid or is it your position that judicial decisions can sooner patch it up?

Mr. Mcneill Stokes: Mr Justice Stewart there is no provision in here for jury trial.

Justice Potter Stewart: But in other words, is it your position that -- under your submission should the Court hold this legislation to be invalid constitutionally and then leave it to Congress to enact some new law providing, at some stage, the gain at jury trial?

Mr. Mcneill Stokes: The penalty provision should be held unconstitutional without -- unless and until a jury trial is provided at some stage in the proceeding.

Justice Potter Stewart: By Congress?

Mr. Mcneill Stokes: By Congress.

Justice William H. Rehnquist: That would leave the abatement and all the other kind of orders perfectly constitutional, I take it.

Mr. Mcneill Stokes: Just like the National Labor Relations Board type of proceedings, seize and desist type of proceedings, and many others.

Now then, the Government has cited cases, such as Katchen v. Landy which arises under the Bankruptcy Act, in which a preference can be determined without a jury trial, but there a litigant has to voluntary submit hisself to that jurisdiction, similar can reasoning is on the sovereign immunity cases, where you go before the Court of Claims.

There a litigant has to voluntarily submit to that jurisdiction.

We say that these have no force and effect.

I would like to --

Justice Byron R. White: Do you suggest there is a right to a jury trial in connection with involuntary proceeding in bankruptcy?

Mr. Mcneill Stokes: Yes sir, in a preference, in a plenary action where you don’t have --

Justice Byron R. White: No, but how about just the matter of declaring a person bankrupt?

Mr. Mcneill Stokes: Well, there you go, you voluntarily submit, you are declaring bankrupcy or involuntarily.

Justice Byron R. White: [Laughter] I said involuntarily.

Mr. Mcneill Stokes: Involuntary preference where you are seeking --

Justice Byron R. White: Well no I am talking --

Justice William H. Rehnquist: (Inaudible)

Justice Byron R. White: Just when you all of a sudden find that the creditors have filed the petition, have you declared the bankrupt, and you say I demand a jury trial because this will -- the net effect of this would be to transfer all my property to the trusty immediately upon -- and so I demand the jury trial.

Do you think we have a jury trial for that?

Mr. Mcneill Stokes: You don’t have a jury trial for that.

These have been upheld, as I understand it, because of the acquittal nature of an accounting of the race in bankruptcy; it’s acquittal type of proceedings sir.

Justice Potter Stewart: It’s just part of history, is it?

Mr. Mcneill Stokes: Yes sir, it’s a traditional --

Justice Potter Stewart: The whole test as a matter of -- is a historic test, is it not?

Mr. Mcneill Stokes: Yes it is, yes sir.

Justice John Paul Stevens: Mr. Stokes is it part of your position that this kind of proceeding must be committed to an Article III Court?

Mr. Mcneill Stokes: Yes sir.

We would like to reserve, Mr. Chief Justice, the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Solicitor General.

Argument of Robert H. Bork

Mr. Robert H. Bork: Mr. Chief Justice and may it please the Court.

It’s apparent the acceptance of the Petitioner’s contention that a jury trial is required by the Seventh Amendment before any civil penalty maybe proposed under the act, would go a long way towards collapsing this program.

This should be remembered that we are dealing with an act that covers over five million work places and 65 million employees, and a jury trial requirement would make it effectively impossible to administer OSHA effectively and uniformly as cases would back up, jury trial cases would back up before more than 400 District Court judges.

I should correct one statement.

This tribunal, we are dealing with here, the Review Commission, is not an Executive Branch tribunal; it is an independent agency.

Now, there is a very good reason --

Justice William J. Brennan: Mr. Solicitor, you are not suggesting if the abutment of provisions are not valuable in the enforcement.

Mr. Robert H. Bork: They are valuable, but I think they are not as valuable as they -- nearly as valuable as they are with this penalty proceeding.

An employer -- now with 1300 compliance inspectors and 5 million workplaces in the country, it’s quite obvious that it would be -- the abatement procedures alone would not be terribly effective in achieving a national standard of health and safety in workplaces.

The employer has no incentive whatsoever to comply the mentary incentive, no private incentives to comply with the statute under these regulations.

Beforehand, you can --

Justice Potter Stewart: In addition to the penalties that Mr. Stokes was talking about, that is, just the imposition of $2,000, $3,500 whatever, and that’s what he was talking about that that requires a jury trial, as I understand it.

But then in addition to that aren’t there sanctions for failure of the employer to obey an abatement order which would be much more than in the nature of a contempt and therefore perhaps not triable by jury?

Mr. Robert H. Bork: Well, there are other sanctions.

Once the order has been enforced by the Court of Appeals, it is then enforced and there is a sanction in the nature of contempt just as there is in a Federal Trade Commission order.

Justice Potter Stewart: Yes, and they would be left untouched.

Mr. Robert H. Bork: They would be left untouched by this indeed they might be much more severe than any penalty provided here.

My point, Mr. just Stewart, in response to Mr. Justice Brennan, simply is that the existence of a civil penalty gives employers an incentive to comply before an inspector comes around and finds a violation and issues an abatement order.

Absent the penalty, the act would be much less effective, because the only way -- nothing happens to you until you have an abatement order and the Court of Appeals enforces, and then you comply, so that the -- so the penalty feature is an integral part of this statute and that’s why I say that acceptance of Petitioner’s argument would go a long way towards collapsing this program as an effective national program.

Justice Potter Stewart: I suppose as a matter of practical operation and administration of this statute nothing really happens until, in most cases at least, until an employee is injured or killed; that seems to be the case in these two cases.

Mr. Robert H. Bork: I think probably is the case, but I cannot speak with authority to that.

Justice Potter Stewart: I mean with that many --

Mr. Robert H. Bork: But that would draw the attention of a program which has a relatively small number of inspectors.

Justice Potter Stewart: Well, maybe it comes out of informer or something, but generally, these are not -- are these just routine, and are there any just routine inspections?

Mr. Robert H. Bork: Yes there are.

There are some routine inspections but obviously where there has been an injury; it is like to draw the attention of the --

Justice Potter Stewart: And that’s I think what happened in both of these cases.

Mr. Robert H. Bork: Both of these cases.

Justice Lewis F. Powell: Mr. Solicit General, is there any history of unions, for example, in various plats, acting in the role of informer?

Mr. Robert H. Bork: I do not know, but I assume there is -- I am certain that they are -- I do not have an example at my command but I am certain that that takes place.

Justice Lewis F. Powell: Mr. Solicitor General, my understanding is that routine inspections are routine; they are regularly conducted --

Mr. Robert H. Bork: They are, but --

Justice Lewis F. Powell: -- on a very extensive basis.

Mr. Robert H. Bork: Well they are.

Yes Mr. Justice Powell.

I was suggesting that, you would get to a employer faster if there has been a serious accident.

Justice Lewis F. Powell: Right.

Mr. Robert H. Bork: And the --

Justice Lewis F. Powell: May I ask this question?

After there has been an evidentiary hearing before the law judge, and let’s assume, employer wishes to appeal to the Commission, and they had appealed as a matter of right.

Mr. Robert H. Bork: No, as I understand the scheme of the Commission, it may review or may not, but then the employer -- if the Commission does not review, I understand the employer has an appeal to the Court of Appeals.

Justice Lewis F. Powell: Yes, but he then appeals from the decision of the law judge.

Mr. Robert H. Bork: That’s, as I understand it Mr. Justice Powell.

Chief Justice Warren E. Burger: Mr. Solicitor General, in National Independent Coal Operators case last year against the Secretary of Interior.

I don’t recall whether you are with that or not, but there was no question raised in that case here about the right to a jury trial where there was an administrative penalty, only the question of whether explicit findings were required.

I noticed you cite that case but your friend does not.

How do you think that varies on this case?

Mr. Robert H. Bork: Well, I think of there is another case like that the Turner Elkhorn case where the same lack of a challenge to a scheme of this sort was present.

I do not think the Court addressed it directly, and therefore, I think we have been assuming that the Seventh Amendment poses no bar in these cases, but those cases don’t directly assess, they just assumed it.

I would like to say that there is, in this case, it seems to me both history, I think there is a square conflict between the petitioners and ourselves about what history shows.

And there is also a long line of decisions in this Court which we think squarely governed this case.

Chief Justice Warren E. Burger: Let me interrupt you once more, Mr. Solicitor General.

If your friend prevails here, then someone in future can certainly raise this question of the jury trial with reference to the Coal Mining Safety Act.

Mr. Robert H. Bork: I think it’s entirely true that a number of regulatory schemes will --

Chief Justice Warren E. Burger: I was just standing the opinion, our last year’s opinion, it has no reference to it, because obviously the parties didn’t raise it.

Mr. Robert H. Bork: Well, as we know, the Eastern District of Kentucky now is I think very backed up with penalty cases.

Acceptance of this contention in a society, which intends to regulate the environment and the safety and health and other matters, would really I think pose an impossible problem for the courts in the future.

If regulation, all civil penalties had to move through jury trials, I don’t think the federal jurisdiction system could handle it.

Chief Justice Warren E. Burger: Assuming that your position is correct as applied to the limits of the penalty in this case under this statute, do you think that would be true without reference with the amount of the penalty?

Mr. Robert H. Bork: Yes Mr. Chief Justice, I don’t think the amount of the penalty is the crucial factor.

I think the crucial factors here are the -- this is a public right case rather than a private right case.

It’s not a litigation between the two individuals which is, somebody has attempted to move into an administrative agency.

You can do some of that I think under the constitution but there maybe limits to how far Congress can go there, but this is a public right case.

Secondly, I think I will advance, what I think is a solid although perhaps somewhat noble proposition, but I think it’s solid in history that the Seventh Amendment was never intended to apply to a case in which the Government was a party.

And thirdly, I think, it is also true that the penalties here are intertwined with equitable remedies and in itself, there is a great discretion over the size of the penalty, and is intertwined with the abatement action and supports the abatement action.

So I think that under the Jones & Laughlin case or under the Katchen case, I think that line of cases too support this; those are three reasons why I think -- I don’t offer any of those propositions that is that it’s a public right case where the Government is a party and that it’s intertwined with an equitable remedy.

Perhaps, those three propositions do not completely exhaust the field of the Seventh Amendment and explain all practices.

But we author them as analytical factors, and when we look at, you might think they are the major analytical factors come out of the history and of the cases, and I think when you look at them, you discover that this case lies right at the core of the kind of case that may be moved by Congress into administrative adjudication.

Justice William H. Rehnquist: Well, your public right analogy, it seems to me, that creates a rather strange hiatus, because you have a -- when the government proceeds against the person criminally, they clearly, the defendant clearly has the right to jury trial under the Sixth Amendment.

When a private individual pursues another private individual for damages in the federal courts, you can see that the Seventh Amendment guarantees that jury trial, and yet, you are having this kind of intermediate classification, no jury trial.

Mr. Robert H. Bork: That’s quite right Mr. Justice Rehnquist.

I think if we look -- One reason that is historical and the other reason is a policy region.

We are flattening in conflict petitions on the history and we would refer the Court to the history as developed in the article by Frankfurter in Corkan (ph), which appears, is cited at page 81 of our brief, and many other places, which shows that historically, in this country, both civil and criminal penalties were administered by magistrates and by non jury means, before the revolution and after the revolution.

Often a fine is up to 500 pounds which was quite a good deal of money in that time.

So, historically I think we have recognized a public policy area, a public right area where no jury trial was required and the reason for that historically and today, I think, is quite plain, and that reason is that we want speed of administration, we want informality, we want expertise in the tribunal, which we have develop her in this Review Commission and we want uniformity of decisions, when we are administering a public right policy across the nation.

Justice John Paul Stevens: Mr. Solicitor General, if your argument is valid, I think it would follow, would it not that Federal Trade Commission could be given the power to imposed penalties for price fixing?

Mr. Robert H. Bork: Penalties for -- Federal Trade Commission could be -- civil penalty?

Justice John Paul Stevens: Yes, of $10 million.

Mr. Robert H. Bork: I beg your pardon.

Justice John Paul Stevens: Of $10 million, because the amount is irrelevant.

Mr. Robert H. Bork: Oh, I think amount probably is relevant Mr. Justice Stevens, at least I have never seen a case in which the amount was thought to be relevant.

For example, Helvering against Mithcell.

A tax assessment and then an additional assessment for fraud of 50% which amount at about $365,000, which this Court held as a civil penalty.

And it was administratively imposed through a tribunal, the Board of Tax Appeals, which has an adjudicative structure just like the OSHA structure.

Justice John Paul Stevens: Would you do agree that your argument would apply with equal force to the Federal Trade Commission imposing a penalty for price fixing?

Mr. Robert H. Bork: I think it would Mr. Justice Stevens.

Justice Potter Stewart: So far as you know Mr. Solicitor General, has the Government ever before taken the position even argumentatively that the Seventh Amendment does not apply to any civil action in which the United States is one of the parties?

Mr. Robert H. Bork: No, so far as I know that position Mr. Justice Stewart was evolved in my office primarily by Mr. --

Justice Potter Stewart: Somebody got a very bright idea over in your office, then you just pursued it.[Laughter]

Mr. Robert H. Bork: He got a very bright idea and then left for England with me to argue the basic.[Laughter]

Justice Potter Stewart: Because that’s in a very extreme position and a fascinating one, I must say or it’s contrary to at least a good deal of dicta in this Court’s decisions and another court’s decisions.

Mr. Robert H. Bork: Oh!

Yes, it is that we recognize --

Justice Potter Stewart: And contrary to good many assumptions that we have made, isn’t it?

Mr. Robert H. Bork: I think it is Mr. Justice Stewart, but I think that the demonstration, that our case doest not rise a (Voice Overlap).

Justice Potter Stewart: Oh, I know, but if you spent about half of your brief on that proposition, then it’s an extraordinary one.

Mr. Robert H. Bork: It’s extraordinary, but I think Mr. Justice Stewart if one looks at the way the set of the memo is framed.

The preceding guarantees of jury trials.

It obviously applied to private litigation in the states.

The proposals from the states for the Seventh Amendment only apply to the private litigation.

Thomas Jefferson, rely heavily upon the Virginia Declaration of Rights which is confined to private litigation.

Thomas Jefferson proposed, as we noted in our brief, a jury trial for every tax, every imbursement, every penalty that was rejected.

I think the history is fairly clear; I think it’s unambiguous.

Chief Justice Warren E. Burger: We do not need to accept your broad sweetening argument in order to sustain your position, do we?

Mr. Robert H. Bork: No Mr. Chief Justice, that’s why I pointed out that we have three propositions, all of which point in the direction of sustaining these judgements below.

Justice Thurgood Marshall: Mr. Solicitor General, one other point, if we have to have a jury trial, do you agree that it has to be an Article III Judge?

Mr. Robert H. Bork: I don’t think so Mr. Justice Marshall, because I would hate to see the law developed in a way, that is, there must be a jury and there must be an Article III Judge, because I think with the regulation that exist in the society and the one that fairly predict will come to exist in the society, that would be a terrible blow to the federal judiciary.

It would make it impossible, for example, for alternative types of tribunals to be devised to deal with repetitive factual claims of relatively simple nature and I don’t think that federal judiciary could handle the flow of litigation that regulation would then generate.

Justice John Paul Stevens: Mr. Solicitor General it only be impossible that the extended penalties were imposed in the first instances, isn’t that true?

Mr. Robert H. Bork: Well, what I think Mr. Justice Stevens that that’s going to be a fairly useful feature because -- unless we multiply the number of enforcement personnel enormously.

It is simply impossible to deal with these wide ranging factual problems, as I say in 5 million workplaces, unless there is some incentive to comply other than the fact that an agent showed up and issued -- and an abatement order issued.

Justice William H. Rehnquist: You say you would hate to see the law developed in this way but what we are talking about is a historical provision adopted in 1791 and it is not a broad general provision at all.

It is not like the Due Process Clause; it’s really a question of is it or isn’t it.

Isn’t it rather than something we had a great del of discretion in deciding whether it should or should not.

Mr. Robert H. Bork: No, no, quite right Mr. Justice Rehnquist.

I did not mean to suggest that; I was replying to Mr. Justice Marshall’s question of whether if a jury trial provided, it would have to be provided in an Article III form, and I was simply saying that I hope the law would not develop in that way because I do not think the federal Judiciary can handle it, but I am quite agree with you that the history and the cases controlled.

It is not that whole.

Justice William H. Rehnquist: Are you suggesting in response of Justice Marshall’s question that we could say a jury trial is required and you would nonetheless have the administrative law judge, someone of an ire.

Mr. Robert H. Bork: I would hope Mr. Justice Rehnquist that that position could be sustained in another case because of the reason I gave to Mr. Justice Marshall, but that isn’t a case we have before us today.

I think it’s rather clear in terms of history and in terms of the prior cases that no jury is required in this case.

Now the petitioner’s contentions, I must say, are kind of like a loose canon, because they don’t really draw out the implications of their arguments, and the acceptance of their arguments really have extraordinary results.

For example, there is, in their brief, a contention that somehow the Commerce Clause is not a very plenary power; it’s a plenary power but it’s not as plenary other powers.

It’s a metaphysical argument that I will follow with great facility, but that under other powers Congress may delegate to administrative adjudication, factual determinations just like this.

But they may not under the Commerce Clause because a Commerce Clause is something that’s stronger enough to do it.

And then they argue that if it’s something that could be an Article III case or controversy and it’s a commerce power, not only do you need a jury, but you need an Article III form, which I think is quite wrong.

And I should point out that not only is it quite wrong, but everybody have been overlooking that argument for all these years because if it’s true, then all of the agencies based on the commerce power are in constitutional have been for years.

That is, you could not have the ICC, the SEC, the FTC, the CAB, the FCC and so forth, all of the Commerce Clause agencies.

Justice William H. Rehnquist: You couldn’t have them imposed civil penalty.

Mr. Robert H. Bork: No, It’s there argument, I believe Mr. Justice Rehnquist it is broader.

They say if it’s a case or controversy, then you can’t take it out of an Article III tribunal, unless you are using a power other than the Commerce Clause.

Now, it’s a complicated argument and one does not follow all of its steps but nevertheless that’s where it comes out, which means jury or no.

All of these factual determinations being made by all of these agencies under the Commerce Clause are being unconstitutionally made if they look like a case or controversy.

Justice Thurgood Marshall: Well, I thought what it was that the agencies could do anything that an Equity Court could do.

What couldn’t do what a lower court would do.

Mr. Robert H. Bork: Well, Mr. Justice Marshall that maybe their point or maybe that they have two points, but it seems to me that at one point in their reply brief beginning about page 33 I think.

They are really arguing that factual determinations of a case in controversy nature must be made in Article III tribunals and may not be removed under the Commerce Clause although they could be removed for reason which are not apparent under the revenue power or under the immigration power I thought.

Justice Thurgood Marshall: I should say, they say that and that closes up all the agencies, and say that --

Mr. Robert H. Bork: I think that’s what, they have loosed upon in their argument.

Justice Byron R. White: Well it didn’t sound like the argument you were thinking, your colleague was making this morning.

Mr. Robert H. Bork: That is quite true Mr. Justice White but I think it is in the brief and I thought I had mentioned the fact that the argument is somewhat diffused and I think they have implications that haven’t been analyzed fully.

But in any event, on the history point I must -- there is no time to argue it orally, I must ask that the Court refer to the Frankfurther in Corkan (ph) article which establishes I think beyond the doubt that civil penalties, much larger than this in the real money of the time, were regularly and routinely administered without juries in colonial times and after the revolution.

Justice John Paul Stevens: Is that article applied in personam of judgements as well as (Voice Overlap) that you are pointed at.

Mr. Robert H. Bork: Oh yes, oh yes, they were -- I understand Mr. Justice Stevens but the fines and penalties and so forth being administered were in personam and they were regulatory.

Regulating hunting and fishing, liquor, and a variety of other fields of endeavor.

So I think the history is quite clear.

I think it’s also quite clear that the case law is against petitioners.

Jones & Laughlin, of course, is a case which I think is directly on point here because, as I have suggested, the money penalty here is as intertwined with the equitable remedies here as was the case in Jones & Laughlin.

So that the rationale of Jones & Laughlin directly applies here.

In addition Jones & Laughlin suggest, as we said in, Southall Realty and Curtis against Loether that if it’s a public right case, an administrative agency case, you still don’t need a jury and that’s true here also and Jones & Laughlin, of course, is an administrative determination made by a tribunal or by an agency set up under the Commerce Clause.

So it is not at all one of these other powers which petitioners find so much more powerful than they find the Commerce Clause.

Helvering against Mitchell, I would quite suggest, is directly in point also has an administrative structure and a procedures for fact finding which is almost identical to that here, and for that reason, I think the history and the policy and the case law all suggest affirmance of this case.

Petitioners have largely ignored that their reply to our argument about American legal history is to ignore the Goldschmidt Report and to ignore, which is cited in our brief, and to ignore Frankfurter in Corkan (ph), and they discuss instead of American legal history, the practice in English Court of Exchequer.

Their reply to our policy arguments, I think, is essentially to declare that practical matters are unworthy of discussion in the constitutional context.

I think they are not.

In their argument on the law, insofar as it proceeds from Article III, is unique and would have devastating results for administrative agencies.

Insofar as it proceeds by distinguishing the cases, I suggest that the distinction has not been made that this case is identical to any number of cases.

Justice William J. Brennan: General I can’t think it -- but I don’t see it cited and I need at least what was the case in which we held a petty offense is subject to not more than six months in prison maybe tried without a Jury.

Mr. Robert H. Bork: Well, that’s a case Mr. Justice Brennan, which his case my memory be, but that was the case that came up in argument, the Muniz against Hoffman case, which was the question of criminal contempt.

Justice William J. Brennan: Can you help me out; can you remember another that (Voice Overlap).

Mr. Robert H. Bork: Well I think about; I think about to be able to help you out sir.[Laughter].

Well it says here to the last name is Hamlin (ph), Mr. Justice Brennan.

Justice William J. Brennan: Hamlin (ph)?

Mr. Robert H. Bork: Hamlin (ph) (Inaudible), but I remember we discussed that in the Muniz against Hoffman case.

And that raises an additional point I think that ought to be made.

There would be ought to be some congruence between the Sixth Amendments and Seventh.

It’s quite clear here that if Congress had decided to be really Tribonian about these matters.

It could have provided for six month imprisonment and no jury would have been required.

Muniz against Hoffman suggests where a $10,000 contempt sanction, criminal content sanction against the union, was upheld is not requiring a Jury trial under the Constitution.

That cases suggests that, had these penalties, $600 and $ 5,000 against cooperations, bill accessed criminally, there probably would not have been in the jury trial and it surely cannot be that we have the paradox that a Congress precised to proceed with a civil action rather the criminal action, thereby finds itself hampered and the greater procedural protections are required because it decided to give us a civil action instead of a criminal action.

Justice Potter Stewart: Well they have lost full of paradoxes and the fact is as the Seventh Amendment guarantees a jury trial in civil actions and other provisions of the constitution guarantee a jury trial in criminal cases and other provisions of the constitution, at least implicitly based upon historic reasons, do not provide for a Jury trial in a contempt action.

Now the Court has subsequently said that if the imprisonment is longer than six month, there is a jury trial in the contempt action, but generally speaking historically there never was a jury trial in action for contempt of Court, and this suggests history.

Mr. Robert H. Bork: That’s quite true.

Justice Potter Stewart: Not logic maybe and maybe paradoxical but it’s history.

As also it evolves the specific provisions of the Constitution of the United States for better or for worse; maybe they are paradoxical, maybe inconsistent, but there they are.

Mr. Robert H. Bork: My point Mr. Justice Stewart was that it would be paradoxical and that the paradox need not be created.

It need not be created not because of the Sixth Amendment but need not be created because of the history of the Seventh, which aside from our argument that the Amendment never applies when the Government is a party.

Clearly, I think, the history shows that where public right is concerned, these kinds of penalties have been imposed without a jury trial throughout our history, and my primary reliance is upon history and up on the decisions of this Court, Mr. Justice Stewart rather than upon an inference in Sixth Amendment.

I don’t believe in multiplying paradoxes.

Needlessly, and I am really pointing out that I think this paradox need not be created.

Justice John Paul Stevens: Mr. Solicitor General, with your emphasis on history I wonder because it was really not discussed in the briefs and I am not sufficiently familiar to know, does the history of the Seventh Amendment indicate perhaps that one of the concerns of that amendment was the relationship between the Federal Government and the States and one reason was that the one thing the drafters of the amendment were concerned with was the problem with excessive federal power, and mightn’t that be relevant to our problem here?

Mr. Robert H. Bork: It might be; there is no discussion anywhere, so far as I am aware Mr. Justice Stevens there is no discussion in the drafting or the framing of the proposals that go into the Seventh Amendment, nor in the ratification debates of the Seventh Amendment.

There is no discussion of anybody’s fear of the Government as litigant, and that this is, in any way, designed to confine, to cure or to safeguard that.

All of the discussion is about proposals which purport to save the jury trial in suits between man and the man which we think is a phrase that only means private litigation, or in suits respecting property.

Now, of course, the suits respecting property dropped out; it was never proposed by Madison when he drafted the beginning of the Seventh Amendment.

So that this idea that somehow the Seventh Amendment was to protect the citizen against the Federal Government I think is quite wrong.

There is no suggestion in the debates about that and in fact, as Frankfurter in Corkan (ph) pointed out, I hate to keep coming back to that article, but it is the mind of information of this subject.

The column is -- Pardon me Mr. Chief Justice.

Chief Justice Warren E. Burger: Well, that we -- go ahead.

Mr. Robert H. Bork: The column is worth, entirely used to government litigation in which fines and penalties were imposed for regulatory purposes without a jury, because they wanted the speed they wanted uniformity.

Chief Justice Warren E. Burger: Were these matters of speed and convenience underlying the decision of Congress when they passed the Trucker Act and The Federal Tort Claims Act to have no juries in those cases which are, of course, are strictly civil cases, aren’t they?

Mr. Robert H. Bork: They are indeed.

The argument is made Mr. Chief Justice that those were not suits at Common Law, because the Government has sovereign immunity.

I am not entirely persuaded by that argument, but, for example, if you sue the Government in the Court of Claims and the Government counterclaims for an amount much, much larger than your original claim, nevertheless no jury is required, and that counterclaim, of course, has nothing to do with sovereign immunity.

Justice William H. Rehnquist: But that again is justifiable on a quite independent grounds that frequently when you are counterclaim sued, you can be treated as if you had brought the suit in the first instance, that you maybe subject to many rules that you wouldn’t be subject to if the counterclaim were entirely independent of the original suit.

Mr. Robert H. Bork: Well, I think, Mr. Justice Rehnquist that that would probably not be the case if one sued in equity and somebody came back with a damage action and the first party wanted a trial as to the damage action.

But, in any event, my real point can be illustrated in another way, which is, for example, the renegotiation litigation.

It comes from Renegotiation Board into the Court of Claims; it’s only a question of whether the government, as a contract, is paying too much or not; no jury trial.

I don’t know that that kind of thing can be explained.

We have got lots of practices of that sort.

Justice William H. Rehnquist: But that isn’t a classical action for damages?

Mr. Robert H. Bork: Well, I don’t know Mr. Justice Rehnquist in what sense that is not a classical action for damages.

Certainly that is not a classical action for damages and therefore not a suit at Common Law, as the Seventh Amendment requires Mr. Justice Rehnquist, then I think it’s quite clear that these penalties here are also not actions for damages and are not suits at Common Law.

Justice William H. Rehnquist: Well you can treat it as an actual reaffirmation of the contract; the Renegotiation Board then.

Mr. Robert H. Bork: Well, one can, I suppose, apply that term to it but the fact is that the government is going for money from a contractor and no jury is required; no jury is required in the government’s counterclaim.

There are lots of these things which I think are best explained by the fact that the government is a party, but this Court need not accept that principle in its totality to decide this case, because I think all of the three principled discussed here point to the fact that this case is at the core of Congress’s power to move the dispute into administrative adjudication.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Stokes.

Rebuttal of Mcneill Stokes

Mr. Mcneill Stokes: We have, in our brief, cited the People versus One 1941 Chevrolet, I believe, where the Supreme Court of California went through this same exercise and they went through every state in which they determined that a suit for fine and forfeiture would have been an action that Common Law trialed by a jury.

I believe they cite some eleven states in the actual cases in which that occurred.

As for the policy, I think the majority said it best, in the Third Circuit opinion, and Footnote 11, I believe, it was, when the said they couldn’t understand why do novo review was not provided, because it is that the de novo review far from using it; it is the availability of the remedy, and there they analogize to a local fire department that a citizen would hope he would never have to use it but he takes comfort in knowing it’s there.

Now we have cited that there are only less than 50 cases a year hitting the Court of Appeals under the limited review.

It’s a mere speculation but I question whether there would be a title wave as the Government would have us look at and in penalty, in de novo is, albeit there is only 1.2%, as we also cited in our brief, of all the penalty and forfeiture cases with all the statute that have de novo review now, including the liquor forfeiture cases under the 19/75 statistics.

Justice Thurgood Marshall: I understand the Government’s position to be that the possibility of a fine would be persuasive to augment reading the act and following it, and that wouldn’t be true if the only penalty would be if he violated the act and everything in the world went wrong, then eventually if the Court of Appeals around to it, he would be put on an order, and his, the Government’s position, that the they first does tend to make the employer follow the act.

Mr. Mcneill Stokes: Mr. Justice Marshall so does every other --

Justice Thurgood Marshall: You agree to that, don’t you?

Mr. Mcneill Stokes: Yes sir.

So does every other criminal penalty for which jury trial is provided.

I mean, any other penalty sir?

Justice Byron R. White: What’s your understanding of the law in a criminal case where the only authorized penalty is a fine?

Mr. Mcneill Stokes: Of $500 is that -- and it’s even that --

Justice Byron R. White: Well, that’s unconstitutional, what’s the constitutional rule?

Suppose there is a statute that says that the only penalty for this crime is a fine and you can fined up to a million dollar.

Mr. Mcneill Stokes: We would take the position of that as unconstitutional; that is certainly more than a petty fine which is my understanding of the case as has been defined that the $500 range.

I could be wrong Mr. Justice White on that.

Justice Potter Stewart: The test is whether or not it’s a petty offense?

Mr. Mcneill Stokes: Yes sir.

Justice Potter Stewart: Mr. Stokes you call our attention to a case called People against Chevrolet or Plymouth or something, I don’t find it in your brief.

Mr. Mcneill Stokes: It’s in our reply brief, sir.

I am sorry.

Justice Potter Stewart: In your reply brief?

Mr. Mcneill Stokes: Yes, sir I am sorry.

When the Government cites that this would collapse the penalty structure of the Occupational Safety and Health Act of 1970, but more fundamentally it may very well collapse a realistic Seventh Amendment right against when the Government seeks fines against its citizens.

You know we are not dealing here with the balancing as Mr. Justice Rehnquist pointed out, we are dealing with Jury trial.

When all is said and done, it gets down to this, you either have the right to jury trial when the Government seeks a fine against you or you don’t have one.

I really believe that this case is going to stand as a high water mark beyond which the executive police power, Government cannot go without providing jury trial or be the breach of interdict that creates a virtual title wave of similar legislation.

We submit that OSHA is the breach of interdict.

we would hope that dict would be applied in this case.

Thank you very much, it’s at People; it’s Page 7 in our brief.

Justice Potter Stewart: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.