REVERE v. MASSACHUSETTS GENERAL HOSPITAL

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ORAL ARGUMENT OF IRA H. ZALEZNIK, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: We will arguments next in the City of Revere against Massachusetts General Hospital.

Mr. Zaleznik, I think you can proceed whenever you are ready.

Mr. Zaleznik: Thank you, Your Honor.

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

The issue before this Court is whether a municipality is obligated by the Constitution to reimburse a hospital for the cost of medical treatment rendered to a person suspected of a crime.

Let me briefly summarize the facts.

On September 20th, 1978, the Revere police were called to respond to a reported burglary at a dwelling house in Revere, Massachusetts.

The police arrived at the scene, observed an individual leaving the home with a suitcase and a pillow-case, and this individual was later identified as one Patrick Kivlin.

As a result, the police sought to detain him, and Mr. Kivlin attempted to flee.

After repeated warnings and a warning shot, Mr. Kivlin was shot by a police officer for the City of Revere.

Unidentified Justice: That is when the Supreme Judicial Court of Massachusetts said he was under arrest, since that bullet hit him.

Mr. Zaleznik: Yes, Your Honor, except that the Revere police secured an arrest warrant from the Chelsea District Court, the local court of appropriate jurisdiction.

Unidentified Justice: Later on.

Mr. Zaleznik: Later on, after... while Mr. Kivlin was still in the hospital.

Unidentified Justice: When they picked him up off the street to take him to the hospital, was he arrested then?

Mr. Zaleznik: We would submit that he was not, other than in the practical sense that he was incapacitated and could not move away on his own.

But we would not contend that there is any meaning to custody at that stage.

As a practical matter, the suspect was in need of emergency medical attention, and the police officers for the City of Revere did the appropriate thing, they called an ambulance, the ambulance arrived and took Mr. Kivlin to the emergency ward at Massachusetts General Hospital.

Unidentified Justice: Does the record show why they took him to MGH rather than Boston City?

Mr. Zaleznik: It does not, Your Honor, except that geographically Massachusetts General Hospital is closer.

Unidentified Justice: Much?

Not very much.

Mr. Zaleznik: It depends upon the time of day, but I believe that as a matter of course--

Unidentified Justice: Does the time of day make the distance--

Mr. Zaleznik: --In terms of traffic conditions at the scene, Your Honor.

Unidentified Justice: --But at least Boston City was a municipal hospital.

MGH, theoretically, is a private one.

Mr. Zaleznik: Yes, that is correct, Your Honor.

Unidentified Justice: What was the reason for taking him to MGH, other than closeness in terms of traffic?

Mr. Zaleznik: I would think no other, Your Honor.

I believe that the judgment exercised in this regard was exercised by the ambulance driver.

Unidentified Justice: The result is that you are imposing this cost on a private hospital in contrast to imposing it on a municipal hospital.

Mr. Zaleznik: We are not claiming in this litigation, Your Honor, that it is the private hospital that must bear this burden.

We are simply saying, and the issue before this Court is whether or not the city must bear this burden as a matter of constitutional mandate.

Who bears the burden is--

Unidentified Justice: Aren't you weaseling the words there?

The city doesn't want any responsibility for it.

Let somebody else pay for it.

Mr. Zaleznik: --The decision of who pays is necessarily a legislative one, and properly belongs with the legislature or the Congress and not the courts, at least under the circumstances of this particular case.

Unidentified Justice: May I ask this question.

As a matter of Federal law, as soon as the person was shot, did the police or the City of Revere have any Federal obligation to him at all; could they just let him lie there?

Mr. Zaleznik: No, Your Honor, I would not contend that--

Unidentified Justice: What Federal obligation, if any, did they have to the man before they picked him up and took him to the hospital?

Mr. Zaleznik: --I believe that the police officers had the obligation to call the ambulance, to provide him with access to emergency medical attention.

Unidentified Justice: As a matter of Federal constitutional law?

Mr. Zaleznik: Yes, because I believe--

Unidentified Justice: What if when the ambulance driver picked him up and took him to the hospital, the hospital said:

"We are not going to take him unless we know who is going to pay the bill. "

Mr. Zaleznik: --Then that is not a deprivation of rights that Revere has visited on--

Unidentified Justice: But if that had happened... If that had happened, would the City of Revere had any further Federal constitutional obligation at that point in time?

Mr. Zaleznik: --I believe not, Your Honor.

Unidentified Justice: Not even to take him to some other hospital?

Mr. Zaleznik: I do not believe so.

Unidentified Justice: You say that they have the obligation to pick him up and put him in an ambulance, but they don't have any obligation to make sure that the ambulance gets any place that will do him any good.

Isn't that a strange Federal obligation.

Mr. Zaleznik: The reason, I would submit, Your Honor, is out of the negative.

Were they to leave him lying on the street or were they to take him to the station house and attempt to undergo the normal booking procedures while he was injured and in need of medical attention, that would be a way of inflicting punishment upon him.

That is where, I believe, they would run afoul of the constitutional requirements.

Unidentified Justice: Could one not say precisely the same thing about leaving him in an ambulance unattended in a parking lot of a hospital?

Mr. Zaleznik: No, because as a practical matter the ambulance... the ambulance driver doesn't simply leave him there, and really the threat that you speak of is simply a hypothetical one.

Unidentified Justice: Yes.

I am asking not the driver, but the city.

You say that the city had the obligation to put him in an ambulance in order to avoid the risk that he would just suffer great pain on the street, I guess.

Mr. Zaleznik: Yes, Your Honor.

Unidentified Justice: But if he continues to suffer pain in the ambulance and there is no doctor around to alleviate that pain, does their duty terminate, or do they have a continuing duty until they find somebody who will take care of him.

That is what I was asking.

Mr. Zaleznik: I do not believe the duty is continuing, but it is a fact pattern that is not presented in this case as being--

Unidentified Justice: What is the duty?

Mr. Zaleznik: --The duty is--

Unidentified Justice: You say that it is not continuing duty, but what is it?

Mr. Zaleznik: --The duty is not to deny him access to medical attention.

Unidentified Justice: You say that that is not continuing?

Mr. Zaleznik: It is simply not to inflict punishment on him by refusing to--

Unidentified Justice: Then when he is carried to the hospital, and he sits out there and the hospital won't take him, and they put him out in the grounds and they leave him there; is that the end of the duty?

Mr. Zaleznik: --I do not believe that the city has a continuing obligation at that stage.

Unidentified Justice: I think you have bit off a little more than you are going to be able to chew.

The point is, if I understand your position, if you win the hospital will not get paid.

Presumably, they will just turn these people away.

So what happens as a result of the Federal constitutional duty then, don't they just sit in the parking lot in an ambulance?

Mr. Zaleznik: That danger is really a hypothetical one, and as demonstrated in the facts of this particular case, the hospital will not simply turn the people away.

The hospital is under a series of obligations.

Unidentified Justice: They had no guarantee they would be paid when this person was dumped at their door, did they?

Mr. Zaleznik: They had no guarantee whatsoever.

Unidentified Justice: They still took him.

Mr. Zaleznik: Nonetheless, they took him, and what's more under the facts of the case, they took him a second time fully a week after the Chief of the Revere Police Department notified them that Revere had no intention of paying this particular bill.

Unidentified Justice: Are there any Federal or State laws that require private general hospitals open to the public to take emergency cases, counsel?

Mr. Zaleznik: There is an express law in the Commonwealth of Massachusetts by statute which provides that any hospital with an emergency wing must provide emergency medical care to all those who need it.

The fact is, it is a matter of policy and custom, as well as law, that hospitals provide emergency medical care to those in need without regard to the source of payment.

That is the language of the particular statute.

Unidentified Justice: Is this hospital a tax-exempt organization, do you know?

Mr. Zaleznik: Massachusetts General Hospital is a non-profit organization, and if you look--

Unidentified Justice: There is some sort of a quid pro quo in your intimation that if you have got that kind of benefit, you take on some burdens like emergency treatment.

Mr. Zaleznik: --Necessarily, when the hospital opens its doors and says to the public that it has an emergency wing, it must necessarily provide the emergency services that are required.

The difference, and what may well have occurred under... had the hospital realized that Revere would not pay this bill, perhaps the hospital would not have permitted the patient to stay in the hospital for the full 10 days.

At that stage, after stabilizing him and giving him the emergency medical treatment, they could have transferred him to Boston City Hospital, or another publicly supported institution.

Unidentified Justice: Why should Boston City accept him?

Mr. Zaleznik: Because Boston City is a publicly supported institution.

Unidentified Justice: But it isn't a Revere hospital.

Revere is not part of the City of Boston, is it?

Mr. Zaleznik: But it is obligated to accept--

Unidentified Justice: It is fine for you to say that MGH should take care of the emergency, and then what, put him on the street?

Suppose that Boston City said, "We are full".

Mr. Zaleznik: --Boston City is under an obligation, as are publicly supported hospitals, to treat those in need.

Unidentified Justice: The emergency rooms... Why couldn't MGH say,

"We have a fine emergency facility here, even though you have to wait for 20 hours sometimes. "

Why couldn't they say, "We'll take emergency paying patients", period?

Mr. Zaleznik: Because State law says--

Unidentified Justice: Suppose you had no such State law, then what?

Mr. Zaleznik: --I think there is a common law obligation.

Unidentified Justice: What your argument implies, I am not saying it's wrong, is that maybe MGH should close its emergency wing.

Mr. Zaleznik: If it sought to avoid the outcome in this case, and if its appeals to the legislature to do something with regard to the specific facts of this case we are unveiling, that might well be their alternative.

Unidentified Justice: Don't hospitals accepting Medicare or federally funded patients have a requirement to provide certain emergency services?

I mean, aren't they required under Federal regulations to offer a certain range of services in order to qualify?

Mr. Zaleznik: Yes, Your Honor.

Under certain circumstances, hospitals that do accept Federal aid are required to provide treatment to indigents, and there are a series of legislative enactments in this area, but perhaps not one that satisfies this particular case.

Unidentified Justice: Let me try another hypothetical on you addressed at testing the Massachusetts Court's theory about arrest as soon as this fellow was hit with a bullet.

Suppose the policeman hadn't been such a good marksman, and instead of hitting this man, he had hit a tourist or a spectator, and that person was taken to the hospital and given all the same treatment.

Now we have removed the arrest there.

What about that situation?

Mr. Zaleznik: In that situation, assuming that the individual did not have a State law tort remedy against the individual officer, so that assuming that there is no fault, as there is no indication in this case that there was any fault on the part of the Revere police, the hospital is left in the identical situation.

An individual hurt, in need of medical attention, goes to the hospital and must receive treatment.

Unidentified Justice: Then this fanciful theory about being arrested when the bullet hit him is irrelevant in your view to the case?

Mr. Zaleznik: In my view, it is irrelevant and ought not to be viewed as dispositive by this Court.

If I may elaborate on your hypothetical.

Suppose Mr. Kivlin, the suspect, had had a gun, and in the circumstances of this case had fired a shot that hit that bystander prior to the time that the policeman felled Mr. Kivlin with his bullet.

Under that circumstance we would have had two ambulances, or two people in the ambulance, one suspect and one innocent bystander, left in the same position under the Supreme Judicial Court's formulation.

The suspect would have a guaranteed right to free medical care, and the innocent bystander clearly would not.

I think it demonstrates that the injured suspect in this case was in no different position from any citizen who is injured on the street and in need of emergency medical care.

I would like to address a threshold issue for a moment, that is, Massachusetts General Hospital's challenge to the jurisdiction of this Court.

According to Massachusetts General Hospital, only State law issues are involved in this case, and there is... or at least there is an independent and adequate State law remedy to support... State law grounds, excuse me, to support the judgment below.

This view rests on a single premise that the opinion below was based upon a State created implementing rule, a matter of State law, and that what the Supreme Judicial Court did was merely create a so-called implementing rule.

This viewpoint distorts the clean language of the opinion below as well as the State law precedents relied on by the Supreme Judicial Court in the court below.

The language of the opinion could hardly be plainer.

After rejecting all forms of State law contractual recovery, the court below held and I quote:

"We hold that the constitutional prohibition against cruel and unusual punishment embodied in the Eighth Amendment to the United States Constitution requires that Revere be liable to the hospital for the medical services rendered Kivlin during his first stay. "

Later in the opinion, in its section entitled "Eight Amendment", the court characterizes the position of the hospital as follows:

"The hospital argues that the prohibition against deliberate indifference to the medical needs of prisoners contained implicitly in the Eighth Amendment compels a government agency, or division responsible for supplying those medical needs, to pay for them. "

In response to this assertion, the Supreme Judicial Court responded with two words, "We agree".

The opinion below that Revere must be liable to the hospital is clearly a matter of Federal law and is clearly derived in the minds of the Supreme Judicial Court from the Eighth Amendment.

There can be no independent and adequate State law ground to support the judgment below since the Supreme Judicial Court held in the first part of the opinion that it would be illegal for Revere, under the circumstances of this particular case, to pay Massachusetts General Hospital.

Under the law of the Commonwealth, Massachusetts has strict rules against allowing any form of contractual recovery against a municipality unless the prerequisites to a valid contract are in place.

Therefore, the phrase that Mass. General uses in this context, its implementing rule, is simply a polite way of trying to reintroduce its theory of an implied contract, implied contract that requires that Revere pay the bill of Mass. General.

This theory was rejected by the court below.

Therefore, there is no State law ground upon which to rest the judgment below.

Rather the judgment below clearly rests upon the Supreme Judicial Court's erroneous interpretation of the United States Constitution.

With respect to the standing issue, I would suggest to the court that the prudential concerns behind the standing doctrine ought to operate to deny Mass. General the right to raise the constitutional rights of the suspect in the context of this particular case.

In this case, based upon the record, no rights of the suspect were violated, and the only threat, if indeed there is one, comes from the implied threat of Massachusetts General Hospital not to treat in future cases.

Unidentified Justice: Mr. Zaleznik, are we in a position to impose our rules as to standing on the highest court of the State?

Mr. Zaleznik: In this circumstance, in the context of this case, Your Honor, this Court is free to judge by Federal rules of standing, since it is clear in the court's footnote in the opinion below that it was applying Federal laws of standing.

Therefore it is a Federal question that this Court is free to consider.

Had they applied State law rules of standing, then I would agree, Your Honor, the issue would be foreclosed.

But under these circumstances, I think the issue is open to this Court.

Unidentified Justice: Which footnote is it that you rely on for that?

Mr. Zaleznik: This is footnote No. 7 on pages 26 and 27 of the record appendix.

Unidentified Justice: Thank you.

Mr. Zaleznik: The citations are to the Barrows case and to a treatise on the Federal Courts by Professor Wright.

Unidentified Justice: Of course, they also say in that footnote that there was no standing question raised or argued in the briefs and they deem it waived.

Mr. Zaleznik: Yes, Your Honor, but nonetheless submit that the issue is properly before the Court.

The Supreme Judicial Court, when it ruled that the Eighth Amendment itself contains an obligation to pay on the part of Revere, went beyond anything that was argued in the court below.

What Mass. General argued in the court below was that the constitutional duty involved created the duty upon which to rest an implied contract.

So that they only invoked the Constitution as creating this duty of the municipality to the hospital, and then the right to force payment was resting as a function of implied contract.

Therefore, since the issue was not framed the way the Supreme Judicial Court framed it and there is no opportunity to raise a standing question in this fashion, I believe this issue is still properly before the Court.

Even if this Court were to not accept that contention, I would submit that the issue is properly before this Court because the Supreme Judicial Court, although it suggested that the issue was waived, nonetheless proceeded to decide it.

Having decided the question, the issue is now properly before this Court.

Unidentified Justice: Let me ask you a question about that.

Supposing we agreed with you on your standing argument, and we concluded that Mass. General has no standing to raise the Federal constitutional question.

Should we then not ourselves refuse to reach the merits of the Federal constitutional question, and merely vacate the judgment and send it back to the Massachusetts Supreme Judicial Court, and let it determine whether as a matter of State law there is standing?

I think you are arguing we do not have jurisdiction to review the merits of the Federal issue.

Mr. Zaleznik: My argument is not an Article 3 argument, Your Honor.

Unidentified Justice: Well, but even if it is prudential, you are saying, as a matter of our own prudential rule, we should not address the matter.

Mr. Zaleznik: Yes, but--

Unidentified Justice: Isn't that like saying that, in effect, the Massachusetts Court has given an advisory opinion on a Federal constitutional question?

Mr. Zaleznik: --In the context of this particular case, it was not an advisory opinion, Your Honor.

They clearly decided the question, and if it were up to this Court, then the Court is free to simply reverse the judgment below, and there is no need for a remand in this context.

Unidentified Justice: Supposing the State had a procedure whereby its Supreme Court could render advisory opinions, and they were asked to render an advisory opinion on this very issue.

They said,

"The bill has been paid in this case, but we want to set the law for the future. "

They said,

"As a matter of Federal Eighth Amendment law, these bills must be paid by the city. "

This Court couldn't review such an advisory opinion, could it?

Mr. Zaleznik: That is correct, Your Honor, but in this circumstance the issue of standing was heard and determined as a matter of Federal law.

Unidentified Justice: Right.

Put you are saying that we should reverse their determination of standing.

It seems to me, once we do that, we should not have the power to go forward, or maybe I miss your argument, and decide the merits.

Mr. Zaleznik: At that point, I believe the judgment should be reversed.

Unidentified Justice: At least he is right.

Mr. Zaleznik: My only disagreement is whether or not there should be a remand at that particular stage to the Supreme Judicial Court.

The only issue that they decided was one of Federal law, and I believe that there is no need--

Unidentified Justice: But you are telling me that they decided two issues of Federal law.

One, the merits; and two, the standing question.

Mr. Zaleznik: --Yes, Your Honor, but they decided standing simply as a matter of Federal law.

There is no State law of standing intertwined with that opinion.

Unidentified Justice: It is sort of pendant jurisdiction.

Mr. Zaleznik: Excuse me.

Unidentified Justice: Sort of a pendant jurisdiction.

Mr. Zaleznik: But it was not raised at any point in the proceeding--

Unidentified Justice: If it wasn't raised, it is not here.

Mr. Zaleznik: --I agree that the only issue before this Court--

Unidentified Justice: It wasn't raised, and the Massachusetts Supreme Court just went completely off, what, base, and decided a Federal question which they had no right to decide, either one of them.

Is that your position, because if that is your position, you don't win.

Mr. Zaleznik: --They had the right to decide, but we believe that they decided in both circumstances in an erroneous fashion.

Ultimately, the broad issue as to whether there is any obligation to reimburse the hospital is a policy question, and this policy question ought to be directed towards the State legislature or perhaps even to the Congress, and not to the court.

This is a matter of State law, not constitutional law.

I would respectfully submit that there is no constitutional entitlement to the funds in these circumstances.

Since there is no constitutional entitlement to reimbursement, I would respectfully request that this Court reverse the judgment of the Supreme Judicial Court of the Commonwealth of Massachusetts.

Thank you.

I reserve any remaining time to rebuttal.

Chief Justice Burger: Mr. Broad.

ORAL ARGUMENT OF MICHAEL BROAD, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Broad: Mr. Chief Justice, may it please the Court.

The initial question in this case is in fact the question of jurisdiction and the question of standing.

The Petitioner, of course, has the burden of establishing that jurisdiction.

Nonetheless, the Petitioner comes to this Court arguing now that the hospital lacks standing.

The hospital suggests to the Court that on the basis of that allegation and that argument, the Court should properly dismiss the writ of certiorari, accepting the Petitioner's claim that there is no standing in the Federal sense.

I suggest that the resolution ought to be to dismiss the writ and not to reverse the court below, because, of course, the State court is freer to fashion a broader rule of standing than the Federal court would be.

Unidentified Justice: But your point contends, as I understand it, Mr. Broad, that the Massachusetts Supreme Judicial Court didn't do that.

By citing Barrows against Jackson, they simply followed or intended to follow the Federal rule of standing.

Mr. Broad: I think in order to determine what the court in fact did, Justice Rehnquist, we might look very closely at that footnote 7 on page 26 of the Appendix to which my Brother has already referred.

The footnote consists of two, and only two paragraphs.

The first paragraph acknowledges that there may be a question of standing but finds it waived, clearly as a matter of State law, citing the applicable State rule of appellate procedure.

My Brother construes the second paragraph as a decision on the Federal question of standing, and I firmly disagree.

The second paragraph starts out,

"Furthermore, standing to litigate constitutional issues is sometimes granted to persons. "

The court is making clearly the observation that it would not be unheard of, as a matter of jurisprudence, for a third party to have standing in a case like this, but I find nothing whatsoever in that paragraph that suggests that the Supreme Court purports to decide or in fact has decided that issue.

Indeed, the two references in the paragraph to which my Brother has already referred, the two Federal references, are preceded by a C cite and a CF cite, and I suggest that is not the way that the court would have decided the Federal issue, if it purported to do so.

So on the basis of that--

Unidentified Justice: We have to get out the Blue Book of citations to decide whether there is an adequate and independent State--

Mr. Broad: --I suggest that what the Court has done is decided it as a matter of State law, Your Honor, pointing out in passing, and this is not so uncommon for a State court--

Unidentified Justice: --Which State law were they passing on?

Mr. Broad: --The waiver question, Your Honor, as a matter of State law.

Unidentified Justice: Which State law?

Mr. Broad: Whether as a matter of State law, the question of standing can be waived.

Unidentified Justice: You said they were passing on State law, and I am asking you which State law.

Mr. Broad: I am not saying, Your Honor, a State statute.

I am saying a State rule of procedure and a State rule of waiver.

Unidentified Justice: Common law?

Mr. Broad: It is in part common law.

It is in part codified in the rules of appellate procedure 16(a)(4) cited on the bottom of page 27.

Where the Federal court might properly decide that a standing issue is jurisdictional and can never be waived, the State court may properly take a different approach, and that is exactly what has happened in this case.

In fact, in other cases, the Supreme Judicial Court has expressly declined to follow Federal rules of standing.

In this case, where the State Court parted company with the Federal rule, with the Federal approach, I submit, is on the question of waiver, and found that that issue had been waived.

Unidentified Justice: What makes you think that that is parting company with the Federal rule?

Mr. Broad: Perhaps I have over-spoken, Your Honor, and it is certainly not essential to my argument that that would be parting company, just that it is clearly presented here in the first paragraph solely as a State law issue.

I suggest, therefore, that because it is open to the State court to adopt a rule of standing that allows waiver, whether or not the Federal court would have done the same thing under those circumstances, is fully appropriate for a State court as a matter of State law.

It would be improper for this Court, with all respect, to reverse the State court on that ground and tell the State court that it had to do something different, that it had to follow a different rule because perhaps that would be the Federal rule.

In the rest of the decision in this case, the hospital suggests that the State Supreme Court was recognizing, implicitly or explicitly, certain special circumstances in Massachusetts that ought to govern the resolution of this case.

My Brother has stood before the Court this morning... this afternoon, I am sorry, and announced that this is a question that should be decided as a matter of policy, and we agree.

We think it was decided as a matter of policy and that the decision below fully reflects the State policies.

In Massachusetts, unlike most states, there is both a State Rate Setting Commission that sets hospital rates, that fixes the rates that we can charge, and there is also a revenue account that places a ceiling, a limitation on the aggregate gross revenue of a hospital.

So that in two different ways, a hospital's revenue are severely curtailed by the State.

Recognizing that fact, which has received an incredible amount of publicity in the State, and recognizing also, as the Supreme Judicial Court did in the early section of this opinion, that none of the traditional elements of the State common law would have provided a payment rule, it was, we submit, fully appropriate for the Court to go on and ask the obvious next question, which is, at least, given the current financial circumstances in the State of Massachusetts and the fact that hospitals, such as the Massachusetts General Hospital, have found it necessary to impose, for example, wage and salary freezes, that some hospitals have started laying off employees--

Unidentified Justice: Is the City of Revere overloaded with money?

Mr. Broad: --Overloaded with money?

Unidentified Justice: Is it?

Mr. Broad: I don't know the answer.

I suspect the answer is no.

But what the City of Revere is trying to do in this case, Your Honor, is to shift its burden, its obligation on to the hospital.

We think that is inappropriate.

It certainly would be open to the City of Revere, if it felt it desirable--

Unidentified Justice: First we have to know if there is an obligation to shift, don't we?

Mr. Broad: --That is true, Your Honor.

I think I heard counsel very clearly start out this afternoon by acknowledging that there is at least some obligation to do at least something to provide treatment.

I suggest that he stopped too soon in expressing that obligation, and that, for example, merely picking up the injured party who was, by the acknowledgement of the Revere police... this appears in the Appendix at page 11, that Revere police came to the hospital and informed hospital personnel that the suspect was then under arrest.

Unidentified Justice: Are you talking now, Mr. Broad, about a Federal constitutional obligation?

Mr. Broad: A Federal constitutional obligation.

Your Honor, not to be deliberately indifferent to the medical needs of a person in custody.

I think the State Supreme Court took that underlying constitutional obligation as essentially undisputed.

Yes, Revere argues a bit about whether the person was really in custody or not in this case, and the State court disposes of that rather quickly.

Unidentified Justice: Perhaps questions from the Bench have side-tracked you from what I thought was your argument that this is basically a State law ground ultimately that the Supreme Judicial Court has taken.

I had not understood you at this point to be defending the Federal constitutional basis.

Mr. Broad: I think Your Honor understands my argument correctly and has stated it, in fact, quite well.

All I'm pointing out is that I think in fashioning the State rule, the State implementing rule, that the State Supreme Court could legitimately have in mind the burden of protecting the underlying constitutional argument.

Unidentified Justice: But you are here to defend an opinion of the State Supreme Court, the highest court, that there is a Federal basis for the obligation, a.

Federal constitutional basis for the obligation that you have talked about; is that not so?

Mr. Broad: That is not how I would read the opinion.

Unidentified Justice: What is the Eighth Amendment discussion about?

Mr. Broad: I think, Your Honor, that what the State Court did was to fashion a rule to protect an underlying constitutional right, without saying that the particular implementing rule was itself required by the Constitution.

It is not unusual, Your Honor, to see in cases a question of remedy, and the essence of structuring a remedy is, of course, making a choice among various alternatives that might be open.

Unidentified Justice: But wouldn't you think, if it were an implementing rule that is State-based, assuming that the Justices of the Supreme Judicial Court of Massachusetts know how to write opinions as well as everyone else, that that would have appeared in the first part of the opinion, where you are talking about various State law bases for recovery, not as your opponent has quoted, the first two sentences of the section called 5a, where they say,

"The hospital argues the prohibition against deliberate indifference compels a government agency or division responsible for supplying those medical needs to pay for them. "

Then they say, "We agree".

There is no intimation that there is any bridge there between the constitutional obligation and the result.

Mr. Broad: The transition there, Your Honor, I agree, may be a bit choppy.

If I could refer the Court to the top of page 29 of the Appendix, and the bottom of page 28, this is the part of the opinion where the Court is really getting into the discussion of the issue as opposed to the preliminaries.

The Court says that the person in question was brought to the hospital as a prisoner... I am reading from the bottom of page 28... and that Revere has a legal duty to supply him with necessary medical care.

Then it goes on to say:

"To ensure the prisoner's right to medical care. "

I think that speaks of implementing,

"to ensure medical care, Revere must be held liable to the hospital. "

Notice, Your Honor, that the two citations that follow that are citations to State cases, not to Federal cases, not to Federal constitutional cases.

So I would suggest that perhaps the Court would not have reached that question if it had not been concerned with ultimately protecting an acknowledged Federal constitutional right, but that a State Court ought to have greater latitude to fashion the means for protecting the right than perhaps a Federal Court would, because obviously the intrusion that a Federal Court can justify into the State sphere is limited, and this Court has held that repeatedly in cases like Milliken versus Bradley.

Unidentified Justice: Why couldn't the Court have simply said that when a policeman, who is not a Federal officer in Massachusetts, shoots anyone there is an obligation to take care of their own.

That would be totally State law, wouldn't it?

Mr. Broad: That would be.

Unidentified Justice: It wouldn't be any of our business by which gyrations they arrived at that conclusion, would it?

Mr. Broad: But it could be put as a matter of State law.

It could also have been put, that hypothetical, as a matter of Federal constitutional law.

But the next question is, is it open to a State Court, as opposed to the Federal Court, to go a step further and specify the means by which the prisoner's medical treatment is to be guaranteed.

Certainly, the State Supreme Court had to realize that it would have been open to a prisoner whose constitutional rights were violated to bring an action under, for example, 1983.

In such a case, we might have expected to see in the State Court repeated inquiry into the particular special circumstances of each of the individual cases.

Unidentified Justice: What about the Chief Justice's earlier question that he missed the culprit and shot an innocent bystander, the same policeman, Revere wouldn't be responsible for that bill, would it?

Mr. Broad: There is no underlying constitutional obligation to provide care for an innocent bystander.

So I agree, Your Honor, under this opinion--

Unidentified Justice: So the thug gets protection and an ordinary citizen doesn't get it.

Mr. Broad: --Generally, Your Honor, when a person is in custody--

Unidentified Justice: It may be in general, but that is not normal.

Mr. Broad: --Your Honor, I suggest--

Unidentified Justice: That is not generally held.

Mr. Broad: --In Harris v. McCrea, this Court very clearly held that the government does not in general have an obligation to provide funding to allow its citizens to exercise what may otherwise be their constitutional rights.

But there are cases of this Court, and the cases are legion in the lower Federal courts, in which the State has clearly been found to have an obligation and an obligation to pay to ensure the constitutional rights of a very limited class of people, and I am talking about those people who are in State custody, in State institutions or in State schools for people who are mentally disabled.

Unidentified Justice: But tell me what your argument is.

If I heard you correctly, you said there are a multitude of cases in Federal District Courts on that, and this is a State Court decision.

Mr. Broad: That is correct.

Unidentified Justice: Not a Federal Court decision, which is the point we have been trying to get through to you.

Mr. Broad: I suggest that anything, Your Honor--

Unidentified Justice: You say that it is no different.

Mr. Broad: --I suggest, if anything, the State court ought to have greater deference and greater opportunity to fashion the rule than a Federal Court would.

Yes, this is clearly a State Court decision.

If this were a Federal Court decision, then I think this Court would be required to review it quite closely and carefully.

Unidentified Justice: You had better stick to this one, and not try to decide other ones.

Mr. Broad: I think that would be the case if it were a Federal Court decision, because the Federal Court would have had to limit carefully its intrusion into State affairs.

But in a State Court decision, that is not the case.

Unidentified Justice: Mr. Broad, may I ask you a question about the opinion that begins the Eighth Amendment discussion and has the footnote 7 about waiver in it, and then they say, "We agree".

The argument,

"The hospital argues that the prohibition against deliberate indifference. "

and so forth, "includes an obligation to pay".

Your opponent, as I understood his argument, said that the reason there shouldn't be waiver, as the Court says in the footnote, is that you really didn't make the argument that the Massachusetts Court said you made.

Is that correct?

Mr. Broad: I was not trial counsel, Your Honor, so I don't know what happened at that argument in the case.

But in reading the brief, I think it may be, in all candor, a little bit unclear exactly what argument was made.

It is clear that the hospital raised the Eighth Amendment, I think correctly it should have been the 14th Amendment, I would probably say, with an idea of alerting the State Court to the fact that there was an underlying responsibility--

Unidentified Justice: But he says the argument was that the Eighth Amendment created a duty to take him to the hospital, but that gave rise an implied contract to pay, and that as of State law you can't have such an implied contract.

Mr. Broad: --That is not stated at least so clearly in the brief, Your Honor, to be able to determine which way it came down.

I would suggest that consistent with the opinions of this Court, insofar as it may not be entirely clear whether we have a Federal law decision, a State law decision, or some amalgam intertwining the two, that it would be appropriate for this Court to remand the case to the State Supreme Court under a Minnesota versus National T approach, and suggest respectfully that the State Court might clarify that issue, because as this Court has observed--

Unidentified Justice: That way it stands on a State Court opinion, which gives the State Court the right to decide a Federal standing point.

Mr. Broad: --I suggest, Your Honor, that the Federal--

Unidentified Justice: Doesn't it?

Mr. Broad: --I don't believe, with all respect, that the Federal standing question was decided in this case.

It may be that we are reading that note differently, but I think it was decided--

Unidentified Justice: But there is a possibility.

Mr. Broad: --That might also be.

Unidentified Justice: Should we leave that possibility there?

Mr. Broad: You might also... If it is unclear to the Court what the basis was for that section of the decision, it might also be remanded under a national--

Unidentified Justice: Frankly, it is not unclear to me, but I can only speak for one.

Mr. Broad: --I understand.

I would like to address, at least briefly, some questions that were raised by the Court in the City's argument, the question of other obligations that might exist for the provision of care by the hospital.

My Brother made a reference to a State law, by which I assume he meant the patient's bill of rights in Massachusetts... Massachusetts' general law is Chapter 111 Section 70(e)... which in fact did not become effective until the year following the events that gave rise to this case and, therefore, as at least a technical matter, has no bearing here.

But I would like to read the first words of the relevant section of that part of the statute that talks about the right of a hospital patient.

It gives the hospital patient the right to prompt lifesaving treatment, not emergency treatment, prompt lifesaving treatment in an emergency.

Clearly the State Legislature in that statute has cut out a much more circumscribed area of medical care than my Brother would have suggested, I think, in his argument.

In our brief, we have also cited relevant sections from the Medicare Hospital Manual at footnote 58 on page 34 of the brief, where the Federal government, at least an agency of the government, very clearly takes the position that medicare payment may not be made for services provided to prisoners because the State or other governmental agency is already responsible for their medical care.

In general, the position of the hospital is, first, that the Court ought not reach the merits because it should find that the State Court was free to have decided the case under State rules of standing, but that, as argued by the Petitioner, this Court ought not to proceed to decide this case, the standing question on the merits, should accept the allegation of Petitioner, and should dismiss the writ for lack of standing.

But if the Court were inclined to go further, we suggest, first, that the decision is not a constitutional decision, but is an implementing decision.

While the State Courts do not have the authority to misinterpret the Constitution, they should clearly be allowed the authority to craft a remedy that might be somewhat broader than a Federal Court could do in seeking to protect the underlying constitutional rights, in order to protect in advance and make it unnecessary for a prisoner later to bring an action for damages, clearly a less satisfactory alternative.

Finally, insofar as there may be some disagreement among Members of the Court, or some uncertainty in the mind of the Court as to the exact basis of the decision on either point, whether State or Federal, the hospital suggests in conclusion that that it would be more appropriate to ask the State Court what was intended than to presume to tell it.

Chief Justice Burger: Do you have anything further, Mr. Zaleznik?

REBUTTAL ARGUMENT OF IRA H. ZALEZNIK ON BEHALF OF THE PETITIONER

Mr. Zaleznik: Just one point, Your Honor.

My Brother points to a single sentence at page 29 of the Appendix and at page 779 of the Opinion as justifying reading the court below as creating a State implementing rule, but that sentence was followed by two sentences saying that inadequate funding will not excuse the deprivation of constitutional rights, and that even though a payment may be in violation of a State or local law, it will not avail Revere of any relief.

So that it is clear that what the court below did was to base its ruling on an erroneous interpretation of the Federal United States Constitution, and not any sort of State law implementing remedy.

Thank you very much, Your Honor.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.