ROBERTSON v. WEGMANN
Legal provision: Reconstruction Civil Rights Acts (42 USC 1983)
Argument of Malcolm W. Monroe
Chief Justice Warren E. Burger: We will hear arguments next in Robertson against Wegmann.
Mr. Monroe, you may proceed whenever you are ready.
Mr. Malcolm W. Monroe: Mr. Chief Justice and May it please the Court.
Pertinent facts of this case are not in dispute.
The original plaintiff, Clay Shaw filled the suit under Section 1983 of the Civil Rights Act against Jim Garrison, then District Attorney of Orleans Parish in the state of Louisiana and certain alleged co-conspirators, including petitioner, a prominent New Orleans businessman.
Plaintiff claimed violations of his Constitutional Rights in connection with the district attorney’s prosecution of him for a New Orleans based conspiracy to assassinate President Kennedy and the district attorney’s subsequent attempt to prosecute Shaw for perjury.
During the pendency of his civil rights action, Shaw died.
He was a bachelor, leaving no spouse, child, parent or sibling, but only a will naming a friend as residuary legatee of his estate.
The executor of Shaw’s estate, the respondent here today, was permitted over objections of defendants to substitute himself as plaintiff.
Defendants moved to dismiss the action because it did not survive Shaw’s death under the law of Louisiana, under which law, there is provision for survival of actions in favor of the stated familial beneficiaries only.
Justice William H. Rehnquist: Is that because of the nature of the action or does that apply across the board to any?
Mr. Malcolm W. Monroe: There is a distinction in the Louisiana law of survivorship between actions for damage to property as opposed to personal actions.
As to all personal actions, Mr. Justice Rehnquist the limitation as to the rights of the familial beneficiaries are enforced and the further basis of course of that motion to dismiss was that under Section 1988 of the Civil Rights Act, the law of Louisiana providing for the limited survivorship must be applied to this action.
The District Court denied defendants’ motions and on interlocutory appeal, the 5th Circuit affirmed the District Court’s holding at a Federal Common Law of absolute survivorship of Section 1983 actions should be formulated since estate law to which the Federal Courts must look under Section 1988 does not permit this action to survive and is therefore inconsistent with the purposes of the Civil Rights Act.
Despite both Courts’ acknowledgement that the Civil Rights Act is entirely silent as to survivorship in 1983 actions.
This is a case which has been charged with considerable emotion, arising as it does from the assassination of a President of the United States and the subsequent prosecution by the district attorney of Orleans Parish of a well known New Orleans businessman for his alleged role in the alleged conspiracy to perpetrate that assassination.
The extent of that emotion is perhaps reflected by the referral by the Court of Appeals and respondent to Shaw’s injunction suit against a district attorney as constituting established facts in this case, although neither petitioner Robertson or Garrison’s other co-defendants in the civil rights action, who are defendants in that injunction suit and obviously any findings there could not be binding on them in this proceeding and also by respondents’ repeated references to the District Court’s characterization of the matter as one of the most bizarre episodes in American political and legal history and the Court of Appeals’ designation of the facts of this case as Kafkaesque, although this matter has been before both of those Courts simply on defendant’s motion to dismiss the complaint.
Justice Potter Stewart: Were all the defendants still living?
Mr. Malcolm W. Monroe: All of the defendants are still living, yes, sir.
Justice Potter Stewart: Is Mr. Garrison still the prosecutor?
Mr. Malcolm W. Monroe: No sir, he is not.
He has been in private practice for several years and is readying for a candidacy for the State Court of Appeals.
Justice Potter Stewart: He was the only state agent was he not?
Mr. Malcolm W. Monroe: There is one other friend alleged to be a member of his staff, Dr. Fadda, yes, sir.
Justice Potter Stewart: But your client is a private citizen?
Mr. Malcolm W. Monroe: That is correct, sir.
Justice Potter Stewart: He is and was?
Mr. Malcolm W. Monroe: That is correct sir.
Especially in light of this emotional background of the case, the holding of the two lower Courts, refusing to apply the state law of survivorship to this case pursuant to Section 1988, since that law would not permit this action to continue and instead fabricating out of new cloth, a federal common law of absolute survivorship brings to our mind the dissenting opinion of Mr. Chief Justice Burger in the Nixon case when he said Mr. Justice Holmes speaking of a tendency of great cases like hard cases to make bad law went on to observe the dangers inherent when some accident of immediate overwhelming interest appeals to the feelings and distorts the judgment.
These immediate interests exercise a hydraulic pressure which makes what previously seems clear and seem doubtful and before which even well settled principles of law will bend.
Petitioner is here today before this Court seeking to neutralize the past hydraulic pressures in this case and to restore the subtle principles of law which had been bent by the Courts below.
We may start then with the basic principle that there has never been any Common Law Rule, federal or state of survivorship of personal actions.
Thus we submit survivorship of an action is quite different from the matter of recoverable damages which was the question we believe sought to be presented to this Court in Jones vs. Hildebrandt and as to which they have been established federal rules which the Federal Courts have chosen to follow rather than state rules as was the case when the 3rd Circuit in Basista vs. Weir.
As to survivorship of actions however, we reiterate there has never been any such federal rule to be utilized.
A further basic principle recognized by the 5th Circuit in its earlier Brazier vs. Cherry is that any amelioration of the harshness of the principle of abatement of actions upon death of the injured person must come from legislation.
That is certainly as much an American rule as is the need for legislative authority for the award of attorney’s fees which was acknowledged by this Court in Alyeska Pipeline Service Company vs. Wilderness Society.
Turning then to the Civil Rights Act, it also spans beyond question that Congress made no provision for survival of civil rights actions under 1983.
Both Courts below readily conceded that point as have all Courts for as we are aware, which have considered this question and certainly this Court in Moor vs. County of Alameda also recognized the silence of Congress as to survivorship of 1983 actions.
On the other hand, Congress did speak explicitly when it enacted 1988 to provide that when there is such a gap in the provisions of the Civil Rights Act, a common law, as modified and changed by the Constitution and the statutes of the state of the forum so far as the same as not inconsistent with the Constitution and laws of United States, shall be extended to and govern the cause.
Thus as the Appellate Courts in the 4th Circuit in Dean vs. Shirer, the 5th in the Brazier case, the 6th in Hall vs. Wooten in opinion written by the present Solicitor General and the 7th in Spence vs. Sterris have all recognized that Congress in enacting Section 1988 of the Civil Rights Act had adopted the state law of the forum as the Federal Law or Federal Common Law of survivorship of civil rights action.
Amicus in its brief filed with the Court, simply clouds the issue we submit by referring to choice of law rules.
Since they only apply when there is no such congressional mandate as Section 1988.
This Court so recognized in the Moor case, when in considering Section 1988, it said that this meaning Moor, is a wholly different case from those in which lacking any clear expression of congressional will, we have been called upon to decide whether it is appropriate to look to State Law or to fashion a single federal rule in order to fill the interstices of Federal Law.
In the instant case we submit, accordingly involved statutory interpretation and not choice of law rules.
This Court should cast aside these false issues which have been injected and follow we submit, the submitted clear language of 1988.
The only qualification which Congress stated in that section was that the state law not be inconsistent with the Constitution and laws of the United States.
Justice Byron R. White: Suppose some state has not modified the Common Law at all, then that is the end of the matter I think?
Mr. Malcolm W. Monroe: Mr. Justice White, we would submit so.
Justice Byron R. White: And that the Common Law Rule just could not possibly violate this one proviso you just spoke of?
Mr. Malcolm W. Monroe: We submit sir that under the direct dictate of Congress in 1988 that that law of the state would have to be applied since the law is entirely silent as to survivorship.
There is no rule at all to which the Court can turn and it is a matter…
Justice Byron R. White: The only common law the statute refers to is state common law, right?
Mr. Malcolm W. Monroe: I would say so sir.
Justice Byron R. White: And although I suppose that if the state by a judicial decision changed the common law, it would be acceptable?
Mr. Malcolm W. Monroe: That is an interesting…
Justice Thurgood Marshall: Do you have a state common law in Louisiana?
Mr. Malcolm W. Monroe: No, sir.
Justice Thurgood Marshall: I did not think so.
Justice Byron R. White: So in Louisiana would you say that only the common law rule could apply?
Mr. Malcolm W. Monroe: No, sir as I think you would look to the law of the state as enacted by the Constitution and statutes of that state sir.
Justice William J. Brennan: Yes, but my Brother White’s question was what if it is not changed by Constitutional statute, but by judicial decision of Louisiana, then what do you do?
Mr. Malcolm W. Monroe: I would say sir that if that were the rule in Louisiana, I would think that under 1988, it would have to be applied.
Justice William J. Brennan: Well, now which, the judicial decision or the, is that it?
Mr. Malcolm W. Monroe: Yes, sir.
Justice Potter Stewart: The law of Louisiana, however and by whom that were declared?
Mr. Malcolm W. Monroe: That is correct, sir.
Justice William J. Brennan: But that is not what the statute says?
Mr. Malcolm W. Monroe: I believe so.
Justice William J. Brennan: What it says is as modified and changed by the Constitution and statutes of the state wherein the Court having jurisdiction is held?
Mr. Malcolm W. Monroe: Mr. Justice Brennan, I would assume of course that we would have the situation say in this case that for whatever reason, the Supreme Court of Louisiana would reach a different interpretation of the Civil Code Article 2315 and has been the case today.
I would say then that if the highest Court of the state in construing or interpreting the law whether it be Common Law or Statute, to say that there is no survivorship whatever.
Justice William J. Brennan: The statutory changed for purposes of 1983?
Mr. Malcolm W. Monroe: I would say so sir.
Justice Potter Stewart: That would be the statute as construed by the highest Court of the state.
Mr. Malcolm W. Monroe: Precisely, sir.
Justice William H. Rehnquist: Otherwise you would have one rule in Louisiana and another rule for the other 49 states I presume?
Mr. Malcolm W. Monroe: I think that is quite possible and I think that is true.
As far as I know, Mr. Justice Rehnquist, I readily concede as far as I know the survivorship law of Louisiana is the only state in enacting qualifications to the survivorship rule which follows the federal pattern which you find throughout the federal statutes in designating familial beneficiaries who have that right.
Now, there are some I think 22 states which have enacted…
Justice William H. Rehnquist: My question was directed more to this difference between the Civil Law which I understand pertinent in Louisiana and to depend entirely on code provision and the other 49 states which have more or less of common law and ascendance and the idea of the seamless web where there is no statute to common law presumably governed?
Mr. Malcolm W. Monroe: Yes, I understand sir.
That certainly would be you would have to look at the statute law of Louisiana to the same extent.
We submit that all of the Courts being in agreement that the Civil Rights Act is silent as to survivorship of 1983 and that there is a void in that respect, it runs counter to all basic tenets of logic to say that the Louisiana law providing for limited survivorship is inconsistent with that Act.
There cannot be any inconsistency with something which does not exist.
Justice Byron R. White: Do you think it would be wholly inappropriate to absent 1988 to construe that the statute as providing for survivorship?
Mr. Malcolm W. Monroe: Absent 1988, Mr. Justice White, I think you would bring into play those doctrines which Amicus discussed at considerable length in its brief about the Rules of Decision Act and the choice of law which of course is being debated all the time and it is causing this Court and other Federal Courts considerable problem as to the choice of law and what law to apply.
So I think absent 1988, this Court and other Federal Courts would have to be guided by those principles and that of course is one of the tenets we are holding forth today that with 1988 that one must follow the dictate of Congress and one does not look to the choice of law rules.
Justice Byron R. White: Of course, 1988 does not speak specifically of survivorship, does it?
Mr. Malcolm W. Monroe: No sir, all gaps and I think Congress was being all encompassing.
Justice Byron R. White: Do we have to look for example to state law to determine the question of immunity of government officials under 1983?
Mr. Malcolm W. Monroe: 1983, the question of immunity again, I think might be analogized…
Justice Byron R. White: It is not mentioned in 1983?
Mr. Malcolm W. Monroe: No, sir, it is not, but I think it maybe analogized to my point about recoverable damages.
There you already have a well established body of law as to immunity.
There is I think a Federal Common Law.
Justice Potter Stewart: And that is Federal Law.
Mr. Malcolm W. Monroe: Yes, sir, Federal Law, so therefore, you do not have a void or a gap in the Federal Law, would be my position.
Justice Byron R. White: It is time to read that in 1983?
Mr. Malcolm W. Monroe: Yes, sir, I think you can sir, Mr. Justice White because the premise of 1983…
Justice Byron R. White: So there are some things that you misconstrue into a statute.
Mr. Malcolm W. Monroe: No, 1983 starts off by saying in effect that when it commands the Courts to apply its jurisdiction under the Civil Rights Act in accordance with the Federal Law.
Justice Potter Stewart: It says laws and you think that includes, laws generally connotes written statutes and do you think laws means and includes --
Mr. Malcolm W. Monroe: It has been interpreted by this Court, I think in immunity cases as I recall.
Justice Potter Stewart: I do not know if there was --
Justice William J. Brennan: I thought we have just said that the immunity under 1983 was a matter of construing 1983?
It was Common Law.
It is just a matter of statutory construction.
Mr. Malcolm W. Monroe: Well, it could be approached from the matter of construction of the statute.
I think some of the cases would indicate to me that they consider that as being an existing rule of law.
Justice Potter Stewart: Pierson v. Ray did not refer to 1988 at all?
Mr. Malcolm W. Monroe: No, sir.
That is my point.
I think that rightly or wrongly, I think that the Courts have gone that way is my point sir.
We submit there is nothing in the legislative history of the Civil Rights Acts to support the proposition that when Congress enacted Section 1986, in 1866, Section 1983 in 1871 that it intended that there should be an absolute survival of actions under the Civil Rights Acts.
To the contrary, the survivorship law of Louisiana is not inconsistent with the Civil Rights Acts, we feel is demonstrated by the action of Congress itself in 1871 in enacting Section 1986 when it rejected a Senate amendment and a subsequent committee version, both of which included a very broad absolute survivorship of actions provision.
Instead 1986, as adopted by Congress provided as explained by representative Shelabaga, the floor manager for the Bill for a limited survivorship actions under both Sections 1986 and Section 1985 which are the sections of the Ku Klux Act specifically aimed at the Acts of invidious discrimination of the Ku Klux Klan which so often resulted ultimately in death and which was certainly the prime motivation behind the enactment of the so called Ku Klux Act in 1871.
If the purpose and policy of Congress were in fact that regardless of the provisions of State Law to be applied under 1988, there should be absolute survivorship of actions under 1983.
It seems obvious to petition at least that Congress would have required the same result as to actions under Sections 1985 and 1986.
However, again representative Shelabaga recognizing that under Common Law, there is no survivorship of actions for a wrong to the deceased person, praised the limited survivorship clause of the amendment which became Section 1986 and advised his colleagues in the house that it operates as to actions under Section 1985 which was Section 2 of the Bill as well as those under Section 1986 which was Section 3 of the Bill.
He went on to explain that that clause was in his words “intended to secure it,” that is the right of action, “to the family of the deceased, to the exclusion, for example of the creditors just as all statutes do in the case where death occurs from railroad negligence.
If Congress had intended that there be all encompassing unlimited survivorship Section 1983 actions as the Courts below have held, Congress would simply have so provided expressly.”
It has been asserted that the deterrence objective of the Civil Rights Act of 1871 requires rejection of the Louisiana law of limited survivorship.
Here again it is inconceivable to petitioner that any such objective of Congress was so strong as to permit the Federal Courts to refuse to comply with the dictates of 1988 to follow and apply this state law of survivorship when Congress itself adopted 1986 as in that section, a very similar, limited survivorship of 1985 and 1986 actions.
Certainly any objective of deterrence which Congress had in mind would have been even stronger we submit with respect to the types of invidious class action embraced in those latter sections of the Act than would be so as to merely a state action type of violation prescribed by Section 1983.
The same analysis it seems to us is also appropriate with the argument of Amicus that Louisiana’s survival statute must be rejected as being inconsistent with the complete justice theme of the Civil Rights Acts.
In fact, not only does Section 1986 restrict the survival to certain designated beneficiaries, but unlike the Louisiana statute, it goes further and the federal act also limits those beneficiaries to a recovery of only $5,000.00.
Thus, we submit the Louisiana statute cannot be said to be out of tune with the federal complete justice theme.
Moreover, Louisiana statute is entirely consistent with every other Federal statute which has provided for survivorship.
Thus, whether the injured party is a railroad worker, the seaman, the lord of the admiralty, a longshoreman harbor worker, or one killed on the high seas, his action upon death survives only in favor of certain designated familial beneficiaries, not a friend remembered in decedent’s will as residuary legatee.
Congress has accordingly directed, we submit, a course of action to be followed by the Federal Courts in this action and that is fill the interstices of the Federal statute with the State Law of survivorship, adopt as Federal Law or Federal Common Law if one will, the Louisiana law of survivorship.
Congress having spoken as it did in Section 1988 with respect to adoption of State Law, and having been otherwise entirely silent as to survivorship of Section 1983 actions, the view of this Court in Alyeska as to award of attorney’s fees in a civil rights action is appropriate here.
That is the Civil Rights Acts do not contain the necessary congressional authorization for the Courts to formulate a federal common law of absolute survivorship.
As this Court said in Chevron Oil vs. Usan, interpreting a provision in the Outer Continental Shelf Lands Act very similar to Section 1988, Congress made clear provision for filling in the gaps in Federal Law.
It did not intend that Federal Courts fill in those gaps by creating new Federal Common Law.
The several arguments advanced by respondent in Amicas as well as by the Courts below as to the need for uniform and absolute survivorship of civil rights actions are policy matters, we submit, which are properly addressed to Congress.
It is respectfully submitted that the law of Louisiana as to survivorship of actions should have been followed and applied by the Courts below to this action pursuant to Section 1988 of the Civil Rights Act and that since plaintiff left none of the designated familial beneficiaries in whom this action could survive, this action should be dismissed.
Chief Justice Warren E. Burger: Mr. Wegmann.
Argument of Edward F. Wegmann
Mr. Edward F. Wegmann: Mr. Chief Justice and May it please the Court.
I would like to say at the outset that in response to Mr. Justice Rehnquist’s question with respect to the fact that Louisiana has the Civil Law and not the Common Law and the adoption by the Courts of the State Law if the State Law is hospitable to the plaintiff’s action, it is of no consequence that we deal with the Louisiana Civil Code and that Article 2315 of the code is our survival statute.
All concerned agree that if you are going to interpret 1988 to mean that the State Law must be applied, the statute that would applied would be Article 2315 of the Civil Code and the action of the plaintiff would abate.
We very briefly stated our position with respect to the application of the State Law is that the State Law applies solely and only if through the application of the State Law, the action will be allowed to survive.
That any inhospitable statute or state survival statute is not to be applied because of the very simple fact that the trend and the theory of the Civil Rights Laws is for the actions to continue despite the fact of the death of the plaintiff.
Justice William H. Rehnquist: Well, then you are not arguing based on 1988 because I do not see anything in there about trend or hospitable or that type of language?
Mr. Edward F. Wegmann: I do not think I have any doubt but to argue on the basis of 1988.
Justice William H. Rehnquist: Well, I thought that in 1988 if you look at your own brief on page 6, the language of the statute that it says in effect, the Common Law as modified and changed by the Constitution, statutes of the state wherein the Court having jurisdiction of such civil or criminal cause is held so far as the same is not inconsistent with the Constitution laws of the United States shall be applied.
Do you not have to show that the Louisiana statute is inconsistent either with the Constitution of the United States or with a law of the United States?
Mr. Edward F. Wegmann: Yes, sir, I agree with that and this is exactly what Judge Wisdom of the 5th Circuit did in affirming the decision of the Trial Court.
Justice William H. Rehnquist: That maybe a matter of opinion as to whether he did it or not.
How would you do it?
Mr. Edward F. Wegmann: I would do it exactly in the same fashion.
Justice William H. Rehnquist: That it is inconsistent with 1983?
Mr. Edward F. Wegmann: Yes, sir, because you will find that all of the Circuits which have considered this question have applied the state law solely and only because that State Law was hospitable to the action and allowed the action to continue.
This is the only case which I have been able to locate in which the State Law is inhospitable to the continuance of the plaintiff’s claim as a result of which the 5th Circuit did not apply the Louisiana law.
Justice William H. Rehnquist: How about applying statute of limitations?
Mr. Edward F. Wegmann: We had one instance.
I think it was the Lefton case in which the state statute of limitations was 10 days.
The Court refused to apply this state statute because they said that it was ridiculous.
It was not anybody’s intention to deprive a citizen of their rights through a 10-day statute of limitation.
Justice William H. Rehnquist: But you have had other case in which more normal statutes of limitations have been applied, have you not?
Mr. Edward F. Wegmann: The more normal statutes of limitation would be one, two and perhaps four years and they do vary from state to state.
Justice William H. Rehnquist: And have those not been applied under 1988?
Mr. Edward F. Wegmann: But we do not here have a question of the statute of limitations.
Justice William H. Rehnquist: Why is survival different than statute of limitations if you are going to turn you argument on 1988?
Mr. Edward F. Wegmann: Well, the statute of limitations does not have to end to this case because this case was filed before Shaw died.
We do not have to contend with the statute of limitations.
Justice Thurgood Marshall: Mr. Wegmann, getting back to the other one, had there been familial descendants, the Louisiana statute would not have been inhospitable, would it?
Mr. Edward F. Wegmann: No, sir, it would not.
Justice Thurgood Marshall: So you are saying the statute is inhospitable because of the facts of a particular case?
Mr. Edward F. Wegmann: Yes, we can say that.
It is inhospitable because Shaw did not leave heirs, Shaw was not married.
He could be penalized because he did not marry?
Is he to be penalized because his parents died before him?
Justice Thurgood Marshall: The statute did not prevent him from getting married and did not prevent him from leaving the heirs?
Mr. Edward F. Wegmann: No, sir, I did not say that it is.
Justice Thurgood Marshall: I mean the statute is inhospitable to use your language solely because there were no heirs.
Mr. Edward F. Wegmann: There were heirs.
He died testate, but there were no familial descendants, ascendants or collaterals required by Article 2315 of the code.
Justice Thurgood Marshall: Well, you do not understand what I am talking about and that is the reason…
Mr. Edward F. Wegmann: He did have a family. He did have some collaterals.
He had some nephews and nieces who survived.
Justice Thurgood Marshall: So the reason the statute is in trouble is because of him?
Mr. Edward F. Wegmann: If I might finish sir.
If he had not died testate, but had died intestate, there were collaterals who were there to inherit the action.
Justice Thurgood Marshall: Well, that is not before us, is it?
Mr. Edward F. Wegmann: No, sir but you are asking me about…
Justice Thurgood Marshall: All I am saying is you are saying because of a peculiar fact of this case, this statute is unconstitutional?
Mr. Edward F. Wegmann: I do not say that the statute is unconstitutional.
Justice Thurgood Marshall: Well, what do you say?
You are saying it does not bar you?
Mr. Edward F. Wegmann: I say it does not bar me from continuing.
Justice Thurgood Marshall: And if it does not bar you then by what do you continue?
Mr. Edward F. Wegmann: I continue because wearing my hat as executor of Clay Shaw’s succession, I have been allowed by the Trial Court to substitute myself as a plaintiff in this damage suit and the Trial Court in a very well reasoned opinion affirmed by a second well reasoned opinion with no emotion in it despite the remarks of petitioner to that effect has held that because the Article 2315 of the Louisiana Code is inhospitable to the application of state law that it does not apply and we bring into play the Federal Common Law which Mr. Justice Stewart spoke of and the Appellate Court in its opinion made the direct pronouncement to the effect that the Federal Common Law is alive and well and it is the Federal Common Law which was applied both by the Trial Court as well as by the Appellate Court.
Chief Justice Warren E. Burger: On your theory, if he had left his entire estate to Ford Foundation, let us say, your legal position would be the same, would it not?
Mr. Edward F. Wegmann: Yes, sir, it would.
Chief Justice Warren E. Burger: But are not survivorship concepts generally, although not strictly and literally, but generally based on some traceable connection between the decedent and the survivor.
(Voice Overlap) and the others --
Mr. Edward F. Wegmann: There have been six statutes as a rule for the protection and the taking care of the descendants or the dependents of the individuals who may have been injured or killed by virtue of negligence of some third party, ordinarily that is the case.
But as I said before, if Shaw had died intestate, there are nieces and nephews surviving him.
They were beneficiaries in his will, but it so happens as it is so often the case in life, his closest friend was closer to him than those collaterals, aunts, uncles, nieces and nephews and so he left his good friend, named his good friend as the residuary legatee which is our Louisiana term of his succession, one of the assets of which is this cause of action.
Justice John Paul Stevens: Mr. Wegmann, following up on the Chief Justice’s question, supposing he left the will he did leave and had also been survived by a son and in his will he said I do not want my son to have any benefit from my estate.
Under your theory of the case, who would own the cause of action?
Mr. Edward F. Wegmann: Well, your hypothetical is a little difficult to answer, Mr. Justice Stevens because of the fact in Louisiana, we have what is known as the Law of Forced Heirship and I can only disinherit my descendants for these specific reasons which are enunciated in the code.
Justice John Paul Stevens: Let us say you had those reasons available.
Mr. Edward F. Wegmann: In succession procedure and it is next to impossible.
Justice John Paul Stevens: It is theoretically possible, is it not?
Mr. Edward F. Wegmann: Theoretical yes, from a practical standpoint, no.
Justice John Paul Stevens: Which law would prevail, the Federal Common Law that I take it you say gives the right to the estate or the Louisiana statute that says it goes to the son?
Is that not the kind of question we have here…
Mr. Edward F. Wegmann: I do not know that I understand your question.
You are saying assume that he had a son and he disinherited that son?
Justice John Paul Stevens: Or he maybe just said in the will, I want this cause of action to be prosecuted by my estate, not for the benefit of my son, but for the benefit of my collateral heirs and under Federal Common Law, would that wish prevail?
Mr. Edward F. Wegmann: Yes, sir.
Justice John Paul Stevens: Even though under Louisiana law, there was a son available who could claim under 1988?
Mr. Edward F. Wegmann: Assuming that he did comply with the requirements of the code and the disinheritance of a son.
I have to make the assumption because we do have our Law of Forced Heirship which we are very proud of and which is very difficult to avoid.
Justice John Paul Stevens: The reason I asked you a question, maybe that is improbable hypothetical, but if we accept your theory of the case and there are I suppose, there will be possibilities of conflict between the Federal rule as to who should get the surviving cause of action and the state law.
The State Law might provide as I say the son gets the claim and under your theory, as I understand it goes to the estate?
Mr. Edward F. Wegmann: Yes, because he died testate and using your hypothesis, he said I want this claim to be processed by my executive for the benefit of my residuary legatee.
Justice John Paul Stevens: And there is some kind of a federal basis for our doing this, for giving preference to the estate over the person of the Louisiana statute says should have the case?
Mr. Edward F. Wegmann: I think we are on a tangent because we are dealing…
Justice John Paul Stevens: I am just trying to figure out what kind of questions are around the corner if we accept your theory of the case.
This is not the only case in which a plaintiff in the 1983 action is going to die certainly.
Mr. Edward F. Wegmann: I am quite aware of that.
Justice Byron R. White: Does your theory of Forced Heirship apply where only a parent survives and the siblings?
Mr. Edward F. Wegmann: Yes, sir, if the ascendant is a forced heir.
Justice Byron R. White: And the sibling also if there is only a brother?
As I recall your statute…
Mr. Edward F. Wegmann: Collaterals are not forced heirs, no.
Forced heirships are ascendants and descendants.
Justice Byron R. White: Suppose then a sibling survived.
Mr. Edward F. Wegmann: Forced heir?
Justice Thurgood Marshall: What do you call an administrator of the will and in Louisiana it is a funny name?
Mr. Edward F. Wegmann: We call it a succession.
We call it the succession of Clay L. Shaw.
We do not refer to it as an estate.
We do not have a final decree as you have in the Common Law States.
We have what is known as a judgment of possession recognizing the heirs as such and placing and putting them into possession of the decedent’s succession sometimes immediately, sometimes after administration depending upon the size of the succession and the involvements.
Justice Lewis F. Powell: Mr. Wegmann, the Chief Justice asked you whether the opposition would be the same if the estate had been left to the Ford Foundation and your answer was in the affirmative.
I suppose it would be the same also if the entire estate that had been led to the Ku Klux Klan?
Mr. Edward F. Wegmann: I am afraid it would have been.
It would be yes.
Justice Lewis F. Powell: I think it would have to be.
Mr. Edward F. Wegmann: Yes, sir I have to be consistent.
It is of no consequence who the residuary legatee of the estate is, rather the succession.
Justice Lewis F. Powell: It would not precisely be compatible…
Mr. Edward F. Wegmann: It would make it even worse Mr. Justice Powell.
Supposing by some strange whim of faith he had left, he had named the very nefarious Mr. Jim Garrison as his residuary legatee; my position would have to be the same.
Justice Potter Stewart: Probably the plaintiff would have dismissed the lawsuit though, is it the end?
Mr. Edward F. Wegmann: I am afraid so this plaintiff would have.
Justice John Paul Stevens: Mr. Wegmann, let me go back to Mr. Justice Rehnquist question about statutes and limitations.
Now, I understand there is no limitations issue in this case, but your theory is as I understand it is that you do not look to State Law if the State Law does not facilitate recovery?
Mr. Edward F. Wegmann: I was asked that question repeatedly in the Circuit Court when I argued this case and one of the justices could not just simply could not believe what my response was because I think it is just that simple and it is simple proposition as stated by Professor Theus in this Louisiana law review article which I cited to you that if a State Law allows the action to survive it is hospitable and the State Law is applicable.
If the state law abates the action it is inhospitable and it does not apply.
Justice John Paul Stevens: But would you respond in terms of the statute limitations.
If an action is brought say five years after it accrued and there is a four-year State Statute Limitations in the state now that would tend to defeat the claim and under 1988, I had thought we would then look at the State law to see if that Statute of Limitations apply.
Would you agree that we look at the State Law in that circumstance or would you say now because it is not hospitable?
Mr. Edward F. Wegmann: I am sure you would.
Justice John Paul Stevens: You would look it, but why do we look the State Law and in limitation situations, but not in abatement situations that is what I do not understand?
Mr. Edward F. Wegmann: I can only give you what I have read of the cases and apparently the reasoning is that where the Statute of Limitations of the State is for a reasonable period of time, in Louisiana it is one year, in Mississippi I believe it is two years as I recall over in Georgia it is four years, it is quite simple, it construes these to be reasonable periods of time.
Justice John Paul Stevens: Well, then why do we not apply the same test in abatement and say is the State Statute dealing with survivorship a reasonable Statute, if it something that says no Civil Rights action shall ever survive why we obviously would not look to it.
Mr. Edward F. Wegmann: I think I could best give you the Appellate Court’s reasoning in that regard and that was Judge Wisdom established a three-step procedure which he said we should follow.
He said is the Civil Rights Act deficient in furnishing a remedy for vindication.
That is the first step.
He said then if the act is deficient we look to State Law.
He then said if State Law is available we must insure that State Law is not inconsistent with Federal and Constitutional Law.
Taking that three step procedure he held that there was a gap because 1980, the statute does not provide for survival, a survival line.
He said that it is deficient and we look then to the State Law, but he said the State Law is inconsistent because the theory of Congress in enacting the Civil Rights Acts was to see to it that the Federally guaranteed rights of the Citizen were protected.
Justice John Paul Stevens: Well, is it not the same reasoning applicable to my four-year Statute Limitation, precisely?
Mr. Edward F. Wegmann: As I say I can only refer you to the left in case in which the Statute of Limitations was 10 days and the Court said that it was unreasonable.
Justice John Paul Stevens: It has to be reasonable.
I note that we assume that.
Mr. Edward F. Wegmann: I am injecting the reasonable in there.
Justice John Paul Stevens: But why does not your argument also say we want to apply a four-year statute limitation?
I just do not follow your reasoning?
Maybe I am missing something.
Mr. Edward F. Wegmann: Because the Courts have said that we want these Civil Rights claim to go forward.
I had the same problem.
I did not enjoin Garrison once.
I sought to enjoin twice.
I sought to enjoin Garrison prior to the first trial.
I was faced with Danbrowski.
Danbrowski this Court said applied only to the protection of my First Amendment Rights.
The Trial Court in granting my temporary restraining order adopted my argument.
If the Central Government was here to protect my First Amendment Rights why was not it here to protect all of my federally guaranteed rights.
My first injunction request was flatly denied.
We went to trial, but then when this malicious District Attorney came along subsequent to the trial of the case, we had a 40 day trial.
We had a unanimous 12-man verdict of acquittal within less than an hour after a 40-day trial.
On the very next working day Garrison himself goes in and files a Bill of Information against Shaw charging that he committed perjury when he took the witness stand to defend himself and testified that he did not know and had never seen or was he ever acquainted with Oswald.
The State Court refused to suppress, refused to dismiss.
I went in the Federal Court and sought the gain and injunction.
Fortunately by this time, we had Younger versus and Harris and Perez versus Ladesma and I was able to convince the Trial Court that I had those special circumstances which would enable that Court to enjoin that Second State Court Criminal Proceeding and the verdict and the judgment of that Trial Court in that second injunction suit was maintained again by the Fifth Circuit and this Court refused writs.
This is not the first time the Shaw Case has been before this Court.
After the first injunction, a suit was filed and denied.
I filed a very substantial jurisdictional statement seeking relief from this Court.
I have been fighting this thing since March 1, 1967 and I say to this Court that despite counsel’s statements to the contrary sure there is emotion.
This man’s federally guaranteed rights were maliciously violated.
This man was used as nothing more than a conduit to an adversary preceding for the trial the Warren Commission Report.
Chief Justice Warren E. Burger: Even if we accept all that it is totally true, it does not really reach the fundamental question in this case, does it?
Mr. Edward F. Wegmann: Yes, sir it reaches it for the reason and that the intent of Congress and the intent of the Courts is to prevent people like Garrison for misusing his public office, to stop conduct which is more similar to what we might term a Police State than a democracy and to protect those rights to the fullest extent even after the death of the plaintiff.
Chief Justice Warren E. Burger: The voters of Louisiana have done something about that already, have they not?
Mr. Edward F. Wegmann: Fortunately they are going to have an opportunity to do something about it again because now he is running for the bench and God willing he will be defeated as he was last time he ran for the bench.
I had a lovely argument onlined here for you, but I think that I have given you my position.
Well, let me say one more thing.
Counsel for the petitioner made mention of the fact that the findings of fact in the injunction suit where the Court specifically found that Shaw’s constitutional rights had been violated were not binding upon the defendants in this civil proceeding.
I am not here asserting that those findings are binding upon these defendants at this time.
I am here telling the Court that in addition to the fact that you must take my complaint for the purposes of this appeal as being factually accurate in every respect, you have another basis for taking it as factually accurate and taking as a statement of fact.
The fact that Shaw’s federally guaranteed rights were violated because it has been judicially adjudicated that such is the fact and I submit to you that it is a simple procedure.
We can theorize.
We can analyze.
We can analogize.
If the State Statue allows the action to survive, the State Statute is applied and this is what the Civil Circuits which have considered the question have done.
The Seventh Circuit did it recently in Byrd versus Johnson decided in December of 1977.
If the State Statute is inhospitable it does not apply and we use this Federal Common Law which is alive and well.
I submit to you.
Justice Byron R. White: And this Court of Appeals is the only one to have applied that second doctrine?
Mr. Edward F. Wegmann: So far as I know, yes sir.
They found that the State Law was inhospitable and hence refused to apply the State Law and instead of I applied the Federal Common Law.
I submit that the petition should be denied.
Chief Justice Warren E. Burger: Do you have anything further Mr. Monroe?
Rebuttal of Malcolm W. Monroe
Mr. Malcolm W. Monroe: We submit the matter and if it please the Court?
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.