PUERTO RICO v. BRANSTAD
Ronald Calder was a native of Iowa working in Puerto Rico, He was charged with first degree murder and attempted murder. After posting bail, he fled to his home state. Puerto Rico submitted a petition to Branstad, Iowa's governor at the time, to extradite Calder for court proceedings. Branstad refused.
Do federal courts have the power to order governors to fulfill obligations under the Constitution's Extradition Clause in Article IV, Section 2?
Legal provision: Article 4, Section 2, Paragraph 2: Extradition Clause
Yes. The Court overturned its decision in Kentucky v. Dennison (1861) which had rendered federal courts powerless to enforce the Extradition Clause. The unanimous Court concluded that the precedent in Kentucky was "the product of another age" and "fundamentally incompatible with more than a century of constitutional development."
ORAL ARGUMENT OF LINO J. SALDANA, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-2116, Puerto Rico again Branstad.
Mr. Saldana, you may proceed whenever you are ready.
Mr. Saldana: Mr. Chief Justice, and may it please the Court:
Petitioner in this case requested extradition of Mr. Ronald Calder, who was charged with murder and attempted murder, and is a fugitive from the courts of justice in the courts of Puerto Rico, and had fled to Iowa.
The Governor of Iowa denied extradition.
The commonwealth filed a complaint in the District Court for the Southern District of Iowa seeking a writ of mandamus directing the Governor to extradite Calder.
The writ was refused.
The Court of Appeals affirmed.
The case is here on certiorari.
The issue is whether or not the Federal courts have power to order the governor of a state to extradite a fugitive from justice in the courts of Puerto Rico who has been accused of murder and attempted murder.
There is no dispute in this case that the extradition request made by Puerto Rico fully complies with all statutory and constitutional requirements.
There is no dispute, either, that the duty of the Governor of Iowa to extradite Mr. Calder is an absolute duty, both mandatory and ministerial, under the Constitution and the statute.
All that is at issue here is whether the court, the Federal court, may command the governor to obey that duty, or whether the governor may violate it with impunity.
Now the facts are as follows.
Mr. Ronald Calder on... in 1981 drover his car into a married couple in a parking lot of a grocery store in Puerto Rico.
The husband was injured but survived.
His pregnant wife was killed, as well as her unborn child.
The justice... a judge, I'm sorry, of the Superior Court of Puerto Rico, after a preliminary hearing, found probable cause to charge Calder with murder and attempted murder.
This was done after a hearing, as I said, in which the judge heard testimony from sworn witnesses, and in which Calder was represented by counsel.
The witnesses, the eyewitnesses, told the judge that Calder had deliberately run his car over... drove his car into the couple, attempted to run down the couple with his car, and that after the wife was down, he repeatedly run over the body, her body, with his car.
Mr. Calder was freed on bail after the District Attorney filed informations against him for these two alleged crimes, and he failed to appear at two successive hearings in the criminal case.
And the court... another judge in the district... in the Superior Court ordered him to be arrested, issued a warrant of arrest, after declaring him a fugitive.
He was found in Iowa, his native state, and there a request was made to the Governor of Iowa that Calder be extradited.
The request of the Governor of Puerto Rico was... fully complied with all the requirements, both statutory and constitutional.
In spite of that, an extradition hearing was held.
Unidentified Justice: Iowa was his home, was it not?
Mr. Saldana: Iowa was his home, yes, sir.
Unidentified Justice: Do you know why so low a bond was imposed under a murder charge?
Mr. Saldana: In Puerto Rico, you mean, sir?
Unidentified Justice: Yes, in Puerto Rico.
Mr. Saldana: Well, he was first charged with manslaughter, and a small bond was requested from him.
Apparently, what the court felt was that there was no danger that he would not appear.
And he was working in Puerto Rico as an air controller.
And only $5,000 bond was required from him.
That's about all the explanation I can give Your Honor to that.
Unidentified Justice: I suppose there isn't any explanation.
But it strikes me as a low bond on a murder charge.
Mr. Saldana: Yes, it is.
The Governor of Iowa in the... on the basis of the extradition hearing, denied the request for extradition.
At the hearing, evidence was admitted to... by the declarations and testimony of Calder, of Calder's companion at the scene of the crime, of the alleged crimes, and of Calder's attorneys, to the fact that the Puerto Rico courts were unable to administer properly justice in this case, in Calder's case.
Calder and his other two witnesses stated that there was a prejudice against white American men like Calder, and that, under those circumstances, the trial--
They also brought hearsay evidence to the effect that witnesses had been bought... bought off in Puerto Rico in some cases, and they attacked in that way the integrity and the quality of the justice of... that is afforded by the Puerto Rico courts.
Now, the Governor of Iowa tried to intercede on Calder's behalf in some plea bargaining between Calder's attorneys and the Puerto Rico prosecutors.
They were bargaining on whether to accept a plea of guilty from Calder on a lesser charge, and also, whether a sentence of probation would be imposed.
The prosecutors conditioned all plea bargaining upon Calder's voluntary return to Puerto Rico.
And the governor then tried to intercede and had some talks with Governor Romero of Puerto Rico.
These talks failed, and thereon, the Governor of Iowa denied extradition.
The Commonwealth filed a complaint in the District Court seeking a writ of mandamus against the Governor of Iowa to order him to extradite Calder.
The court refused to issue the writ.
It held that it was bound by the decision of this Court in Dennison... in Kentucky v. Dennison; that the Federal court had now power to order the state governor to extradite Calder.
The United States Court of Appeals for the Eighth Circuit affirmed that judgment reluctantly, stating that the reasoning and the underpinnings of the Dennison case had been undermined, had been eroded to such a degree that the court... the only court empowered to do so, the Supreme Court, should reconsider it.
Unidentified Justice: You agree, Mr. Saldana, don't you, that we would have to overrule Kentucky against Dennison to rule in your favor here?
Mr. Saldana: --Yes, sir.
Unidentified Justice: Mr. Saldana, why is that... why is that so?
That is so only if you insist that Puerto Rico is a state within the meaning of the provision here.
You have a statute that purports to require extradition to either a state, a district or a territory.
Might now the power of the United States be different insofar as its ability is concerned to require a state to extradite to a territory, than it is with regard to its power to require a state to extradite to another state?
Mr. Saldana: --Well, the power of Congress to enact the extradition act is based on the implied power of Congress to implement the extradition clause.
Unidentified Justice: Well, maybe this statute, insofar as it might apply to Puerto Rico, is not an implementation of the extradition clause of the Constitution but is an implementation of Congress' power to govern territories.
Mr. Saldana: --Well, that power cannot justify the Congress ordering a state to extradite a fugitive to a territory.
It would operate for Congress to direct a territory to extradite to a state, or to extradite to another territory.
But the power of Congress to implement the clause as it did, ordering a state to extradite a fugitive to a territory, must rest on something other than the territorial power.
It rests on the implied power of Congress, under the very... under the extradition clause itself, to implement that statute.
And for... history reveals that the extradition statute was approved in 1793 a few years after the Constitution was ratified; and the people and the Congressmen who were there were, many of them were members of the Convention, lawyers and framers of the Constitution, who had at least drafted the Constitution and participated in the process of ratification.
Now it has long been considered... it is really beyond question... that this contemporary interpretation of Congress, of the meaning of the extradition clause, is valid, and that it shows that Congress, in the extradition... that the extradition clause of the Constitution goes beyond states, beyond the 13 states of the Union; that it includes other entities like territories, like the Commonwealth, like the District of Columbia.
Now we may not have... it may not be necessary to decide that question, because the statute, as Justice Scalia points out, imposes the duty of extradition upon the Iowa State Governor.
There is no problem, no doubt, that it is a valid statute.
And there is no doubt that it applies to Puerto Rico.
Before 1952, this Court so expressly held.
And after 1952, it is also clear that the extradition act was undisturbed in its application to Puerto Rico.
Unidentified Justice: But that statute was in effect at the time Kentucky against Dennison was decided, wasn't it?
Mr. Saldana: I'm sorry, I did not hear you.
Unidentified Justice: I thought you were referring to the statute of 1793.
Mr. Saldana: Yes.
Unidentified Justice: And that statute was in effect at the time that Kentucky v. Dennison was decided.
Mr. Saldana: That's right, sir.
And the Dennison decision interprets both the Constitution and the statute.
And it did interpret both together because the statute and the Constitution are coterminous.
They speak in the same language.
They use the same words.
They must be read in pari materia.
And it is impossible for this Court to decide the statutory issue without reaching the Constitutional issue.
So both... they are inseparable.
Unidentified Justice: Mr. Saldana, not that it matters, but what position do you hold in the government of Puerto Rico?
Mr. Saldana: I am special counsel in this case.
Unidentified Justice: I mean, I notice on the brief that everybody has a title but you.
Mr. Saldana: That's right.
Unidentified Justice: And I was just wondering, you're authorized to speak for the government?
Mr. Saldana: Yes.
Unidentified Justice: Thank you.
Mr. Saldana: Well, we feel that no case, or few cases at least, would better demonstrate that Dennison should be overruled that this, the present one.
First, the Dennison decision leaves the governor free to violate with impunity his duty to extradite, the duty that is imposed both by the Constitution and by the statute.
Ronald Calder has been able to find precisely what the extradition clause and the extradition statute intended to prevent.
He has found an asylum, a free asylum, in Iowa.
And he has been able to avoid altogether responding for his alleged crimes.
He has obtained what really amounts to an immunity in Iowa.
That violates the concern of the extradition clause, the concern that was at the core of the extradition clause, to... which is the protection of law and order within the respective borders of each state and defeats and frustrates the administration and enforcement of criminal law in every state.
The result, of course, is unsound, and is contrary to the express mandate of the Constitution and of the statute.
Second, the Dennison rule, as seen in this case, the result it has in this case, is that it frustrates and defeats, also, the concern of the extradition clause for comity and respect between states.
This case shows how the Dennison rule invites precisely the kind of friction, the kind of disagreements and retaliation that the clause, the extradition clause, was designed and intended to prevent.
Unidentified Justice: Well, Mr. Saldana, the State of Iowa in its brief suggests, as a last argument, that Puerto Rico isn't entitled to use the clause or the statute at all, because you aren't a state; that you're a territory.
Mr. Saldana: Well, Your Honor, that argument really is not in point.
Because, as I explained awhile ago, Puerto Rico is invoking both the Constitution and the statute, and it does so because of the fact that it believes that the Constitution of itself, on its own power, extends to Puerto Rico, the constitutional clause involved here, the extradition clause; as do the other clauses, the privileges and immunities, and the full faith and credit clauses.
Because those clauses are designed to create a national unity within the federation, the American federation.
And there is a need to extend those provisions to a state like Puerto Rico that is so near--
Unidentified Justice: You say it's... Puerto Rico is a state?
Mr. Saldana: --Well, it's a state not in the sense that it is a state of the Union, but it is a state that is joined with the United States by a compact, and has the degree, the same degree, a similar degree, of autonomy and independence as the other states of the union.
Unidentified Justice: Do you think just any territory of the United States could employ the extradition clause?
Mr. Saldana: I think so, sir, I think so, yes.
I think so because--
Unidentified Justice: Even though that isn't what the clause says.
Mr. Saldana: --The clause refers only to states of the union.
But for functional purposes, and for historical reasons, the clause should be read to extend, of itself, to states, to other entities like the Commonwealth and the territories.
However, it did not--
Unidentified Justice: Maybe it should be written that way, but why should it be read that way if it wasn't written that way?
Mr. Saldana: --Well, it wasn't written that way, but it was interpreted by the members... by Congress at an early date when the object and scope of the clause was common knowledge.
And the Congressmen who dealt with the statute, the 1793 statute, which has not been substantially changed until today, interpreted that clause to mean that it extends to the territories.
At that time there were two territories, the territory northwest of the river Ohio and--
Unidentified Justice: Well, it didn't need to interpret that clause to pass that statute.
But it did; it said any state or territory, the extradition statute does.
And so you may claim protection of the statute, may you not?
Mr. Saldana: --Yes.
And once the statute applies, as we claim it does, then as I stated a second ago, the constitutional issue raised in the Dennison case as to the interpretation of the clause, of the extradition clause, must also be reached by this Court, because the statute and the Constitution--
Unidentified Justice: If we... if we interpreted the statute differently than the Dennison case did, we wouldn't have to reach any constitutional issue at all.
Mr. Saldana: --But the statute, Mr. Justice White, the statute repeats the words of the Constitution.
Unidentified Justice: Except it's got the word "territory" in it.
Mr. Saldana: Yes, but we are concerned here with not only whether territories are covered but what kind of duty is imposed on the state governor to extradite.
Unidentified Justice: Well, isn't there some indication in the Dennison case that the court actually thought the statute imposed a duty, but only a moral duty.
Mr. Saldana: That's right.
Unidentified Justice: And that it wasn't an enforceable duty, and wasn't intended to be enforceable.
Isn't that what the Court said?
Mr. Saldana: That is right.
Unidentified Justice: So that's a construction of a Federal statute.
Mr. Saldana: The Court interpreted both the Constitution and the statute to mean that.
And as a matter of fact Chief Justice Taney said, the Constitution leaves the performance of the duty to the fidelity of the governor to the Constitution of the United States.
It is not a legal duty; it's a moral duty.
And the statute necessarily does so, necessarily leaves the duty as one which is unenforceable, which is a moral duty.
So it is impossible, I respectfully submit, to decide this case on the basis of a statutory interpretation, without reaching the Constitutional question involved.
Unidentified Justice: That may be, but not because Puerto Rico is a state, but because in order to interpret the statute as being mandatory, since it applies to both states and territories, you would have to contravene Kentucky v. Dennison, whether or not Puerto Rico is a state.
I mean, I'm quite... it's an uphill battle to convince me that when the Constitution refers to states, and says states, and elsewhere it refers to territory, it makes no difference between the two.
So it seems to me that if Puerto Rico comes under this statute, it comes under it as a territory, not as a state, which--
Mr. Saldana: Well, that's an alternative ground for reaching the Constitutional question.
But the Constitutional issue--
Unidentified Justice: --I'm not anxious reach the constitutional question.
I mean, I would as soon avoid it.
But it may well be that you can't read the statute the way you want to read it, or you couldn't read it to be mandatory for territories and permissive for states, because it doesn't purport to distinguish between the two.
But I hope you will tell me we don't have to reach it because Puerto Rico is a state, because I don't think you will persuade me that Puerto Rico is a state.
Mr. Saldana: --Well, if you interpret the Constitution narrowly and literally, with all due respect, you're right, Justice Scalia.
If you interpret the Constitution functionally and from an historical point of view, you may not be right as to that point.
But again, I say it's unnecessary to decide that issue, because there is the alternative ground whether Puerto Rico is a state today or a territory, it is covered by the statute.
And the case can be decided under the statute.
But in deciding the statutory issue, this Court will have to reach the constitutional issue.
Unidentified Justice: Why?
Mr. Saldana: Because they, both the statute and the Constitution, read... must be interpreted in a--
Unidentified Justice: Well, what if there were no extradition clause at all?
Do you think Congress could have passed the extradition statute?
Mr. Saldana: --I don't think so.
Unidentified Justice: But Mr. Saldana, is it not true that even if we read the statute in your favor and say the constitutional clause doesn't reach it, there remains the constitutional question decided in Dennison, whether a Federal court has the constitutional power to order a governor to perform this duty.
That's a constitution question, isn't it?
Mr. Saldana: That is right.
Unidentified Justice: And if you win on the statute, we must then reach that constitutional question.
Mr. Saldana: That is right.
Chief Justice Rehnquist: Thank you, Mr. Saldana.
We'll hear now from you, Mr. Appel.
ORAL ARGUMENT OF BRENT R. APPEL, ESQ., ON BEHALF OF THE RESPONDENT
Mr. Appel: Mr. Chief Justice, and may it please the Court:
I think I can best assist the Court today with a three-part presentation about the extradition clause.
First, I would like to engage in a brief survey of its history, with special emphasis on the constitutional foliage that has grown up in the extradition area in the absence of judicial intervention.
Second, I'd like to take a look at the court as an institution, and ask ourselves question: Would it be preferable for this Court to intervene and make extradition decisions rather than the governors of the state as a matter of constitutional policy?
And then finally, I'd like to take a quick survey of the facts in this case, in which the State of Iowa has a fundamentally different presentation to make than does Puerto Rico.
First, let's look briefly at the history--
Unidentified Justice: I think that's probably how Marbury v. Madison was argued, too.
Mr. Appel: --I read Marbury--
Unidentified Justice: It lost there.
Mr. Appel: --I read Marbury yesterday.
And we'll get back to it, because I think it has some relevance, Justice Scalia.
The history of the--
Unidentified Justice: You spent most of the day reading it?
Mr. Appel: --Only a part of it, Justice.
The history of the extradition clause is, first, that the courts have consistently stayed out of its interpretation; not simply the Federal courts, but the courts of all 50 states.
And there's some 8,000 state-years of accumulative experience have stayed out, and have not intervened under state constitutions which deal with extradition as well.
And as a result, in the absence of this judicial intervention, an executive common law tradition of interpreting the extradition clause of the Constitution and the state constitutions has developed.
And what that executive common law tradition is basically is that the... the extradition clause in the Constitution does establish a general principle to be applied when states request that a fugitive be delivered up.
And the language is, of course "shall".
Just as the First Amendment says Congress shall pass no law.
And the full faith and credit clause says, full faith and credit shall be given.
And that has been recognized by all the governors.
And extradition occurs on a routine basis, day-in and day-out.
The question in this case is what happens at the edges of the doctrine.
Every constitutional bone has cartilage on the edge.
And that's where we are in this case.
We're at the very edges of the doctrine.
And the question is, who decides when to extradite and when not to extradite, and under what conditions?
And the governors have come up with the following executive common law tradition.
As I said, first it's generally a duty to extradite.
However, where there is a serious question of the safety of the individual in the demanding state, extradition may be denied.
Where there's a question of--
Unidentified Justice: What's the source... how can you tell what this common law tradition is?
Are there governors' statements and that sort of thing?
Mr. Appel: --There's a smattering of case law.
And admittedly, I must say, some of the case law is fairly oblique.
Because the governors' statements are not necessarily sweeping judicial statements.
In general, it's a summary executive proceeding.
There isn't findings of fact and conclusions of law, or anything like that.
But my sources on these, if you look through Moore, Spear and Scott, which are the key extradition treatises, they present to you circumstances in which states have declined to extradite.
And if you look at South Dakota v. Brown, the latest Supreme Court case... California Supreme Court case... there's a canvass.
My bottom line point, however, is that this executive tradition has developed over a hundred years in interpreting... over 200 years, really... in interpreting that constitutional provision.
Secondly, informal mechanisms of resolution of extradition disputes have grown up.
There's a National Governors Association, of course.
And there was reference to discussion between the governors of these states with respect to this extradition matter, and that occurred in this case.
There's a national association of extradition officials, and they put out these manuals and pamphlets and so forth.
And they get together and debate and discuss extradition questions.
So there's been... in the absence of judicial intervention, which has been gone from the environment for 200 years, these informal mechanisms have grown up.
Unidentified Justice: xxx needn't perform what otherwise would be his duty?
Mr. Appel: Well, as to how to deal with the--
Unidentified Justice: Well, that's what it amounts to in this case.
Mr. Appel: --Well, our interpretation, of course, is the governor has done his duty; and that the governor--
Unidentified Justice: Well, he needn't carry... he needn't extradite.
Mr. Appel: --And that's our interpretation of the Constitution, that's correct, that while--
Unidentified Justice: Sometimes he has to and sometimes he doesn't?
Mr. Appel: --Well, that's correct, just like the First Amendment says Congress--
Unidentified Justice: Well, are you defending the judgment that... are you defending Kentucky, the Kentucky case, that there is no power to make a government extradite?
Mr. Appel: --I think that prong of Kentucky v. Dennison has been much chipped away.
Unidentified Justice: Well, I know, but how about my question?
Mr. Appel: Am I saying that this Court has no power?
Unidentified Justice: Yes.
Mr. Appel: Yes, I would say that.
Unidentified Justice: Has no power to order a governor?
Mr. Appel: Has no power under the constitutional scheme, because that was not anticipated.
Unidentified Justice: You know what you're asking for?
A haven for any criminal from Iowa.
Any criminal charged with a serious... all he has to do is run to Puerto Rico.
Is that what you're advocating?
Mr. Appel: What I'm advocating is that the governors have authority to interpret that constitutional provision.
But the Governor of Iowa has no interest in harboring fugitives, murderers and all this kind of stuff on a regular basis.
The Governor of Iowa routinely extradites.
Unidentified Justice: [inaudible]
Mr. Appel: Affected by the facts, yes, exactly.
And I think that the Governor of Iowa, if the case were presented--
Unidentified Justice: He thinks this is a manslaughter case.
Mr. Appel: --That's right, or less.
Unidentified Justice: You mean when you drive over a pregnant woman three or four times, that's manslaughter?
Mr. Appel: Well, that's what's alleged in the affidavits, of course.
Unidentified Justice: Well, that's all you have to go on.
Mr. Appel: Well--
Unidentified Justice: That's all you have to go on under the extradition act.
Well, again, I'd like to know, you think the governor, anytime he wants to, can refuse extradition, and that he may not be ordered to extradite by a Federal court?
Mr. Appel: --That's correct.
Unidentified Justice: Well, Mr. Appel, what about cases like ex parte Young?
Do they have any relevance, do you think?
Mr. Appel: I think we need to perhaps distinguish between practical power and interpretation of the extradition clause.
Our view is that when the extradition clause was put into the Constitution, as it's been interpreted over the years, the courts have said, judicial people stay out; hands off kind of policy.
It wasn't designed for us to intervene.
If you're talking about power itself, and does this Court... can it issue orders and so forth and so on, that's a different matter.
And let me make it very clear: I'm here to say, the Governor of Iowa of course is going to follow whatever order this Court comes down with.
We're not challenging in any kind of physical way whether the Court can enforce its own mandates.
Unidentified Justice: The question is just whether that aspect of Dennison is valid today.
Mr. Appel: Right, right.
Unidentified Justice: It grew up a long time ago in different circumstances.
Mr. Appel: --Right.
Unidentified Justice: And the Court has gone a long way since then--
Mr. Appel: True.
Unidentified Justice: --in saying that Federal courts generally have power to enforce--
Mr. Appel: Surely true.
And I think... I think much of that underpinning, in terms of the rationale in Dennison, has been undercut today; no question about it.
But that doesn't mean... that doesn't necessarily turn the interpretation of the extradition clause upside down.
In fact, it was never contemplated that the judiciary become intensively involved in these kind of extradition--
Unidentified Justice: --Well, didn't Dennison say that there was an absolute duty, a ministerial duty, on the part of the governor to comply with the extradition request?
Mr. Appel: --Dennison did say--
Unidentified Justice: And I read it as turning only on the question of whether Federal courts had the power to enforce the ministerial duty.
Mr. Appel: --Dennison did say that.
In the governor's opinion, that was dicta.
And indeed, this very Court, in Taylor v. Taintor, which was decided in 1873, declares... and I'm just reading from the case... where demand is properly made by the governor from one state, the duty is not absolute and unqualified.
It depends on the circumstances of the case.
And it goes on to use the term "discretion".
So the court has been across the board on that issue.
But I would submit to you--
Unidentified Justice: Well, if you're going to defend on the case, the Dennison case involved the slave act.
Mr. Appel: --That's correct.
Unidentified Justice: Which you agree that doesn't apply today.
Mr. Appel: Oh, well, obviously there's no slavery today.
Unidentified Justice: I hope you do.
I don't want to get down off the bench.
Mr. Appel: Of course not.
Of course not.
Unidentified Justice: Getting back to my other point, the State of Iowa says, Calder has been charged by Puerto Rican authorities with murder in connection with an automobile accident.
Do you agree with that?
That is was just an automobile accident?
Mr. Appel: There's never been any fact finding in this case, Justice Marshall.
Unidentified Justice: Well, do you agree that it was just an automobile accident?
Mr. Appel: --That's the... there clearly was an automobile accident, yes.
Unidentified Justice: Automobile accident, when you deliberately run over somebody?
Mr. Appel: That was the allegations in the affidavits presented in support of probable cause.
Unidentified Justice: Is there anything to disprove it?
Mr. Appel: Yes, there's an entirely--
Unidentified Justice: Is the woman dead?
Mr. Appel: --Absolutely.
Unidentified Justice: And the baby's dead?
Mr. Appel: Undisputable.
I'd like to move on to the question of why was bail so low, which is a good--
Unidentified Justice: Kentucky v. Dennison, by the way, not only involved a fugitive slave problem, but also in 1860, right?
Mr. Appel: --That's true, of course.
Unidentified Justice: At a time when, if we had said we had had the power to compel it by the states, it's not at all clear that the states wouldn't have laughed at us, right, until after the Civil War.
Mr. Appel: That's quite true, isn't it.
Unidentified Justice: You don't think that maybe things are a little different now, and we should reconsider whether that case was unduly influenced by the times in which it was decided?
Mr. Appel: No question that things are a little different now.
But it seems to me, as a matter of constitutional policy, the courts ought to stay out of these matters.
And I'd like to move on to my second--
Unidentified Justice: Well, I'm suggesting that the policy was a very pragmatic one; that the times were such that the Court might not have thought it could have made a different decision stick.
Mr. Appel: --Let me try and justify Kentucky v. Dennison on other grounds, other rationale, if I may, Justice Scalia.
The issue in this case is simply a shifting of power from governors to the judiciary.
If the judiciary decides to administer the extradition clause, there will be play in the joints.
There's no such thing as a ministerial constitutional provision.
And just as the full faith and credit clause, for instance, says, full faith and credit shall be given, the courts have engaged in a process of interpretation of when that clause applies and when it does not apply.
Secondly, of course mandamus doctrine allows for all kinds of equitable defenses.
It's not... the mandamus is not granted in an automatic fashion.
That's what Marbury v. Madison says in passing, good government requires, and so forth and so on.
And so what we're going to do--
Unidentified Justice: But those defenses would not pertain to whether indeed it was just an automobile accident or an attempt... or a murder.
And they wouldn't pertain to whether there is a good system of justice in the state to which the individual is sought to be... they would pertain to quite different factors that the governors usually don't worry about.
Mr. Appel: --Well, suppose... let me give you a fact hypothetical.
Supposing there was a lynch... lynch mob mentality in a jurisdiction.
And there mobs in Puerto Rico, if I get back to the record, from our perspective.
Supposing the governor had good evidence that this person gets extradited, and there's going to be a lynching.
Or there's a serious question of the physical safety of someone.
Under the extradition clause, must a governor, simply by looking at the affidavits on its face, and the fact that he's a fugitive, must a governor in all instance extradite?
Answer: I don't think so.
And I don't think this--
Unidentified Justice: In the '20s and '30s, I can give you thousand cases where that was just what happened.
Mr. Appel: --I suspect so, and it might happen again in the future, unfortunately.
Unidentified Justice: Was that all right.
Mr. Appel: No, extradition should not have been granted in those instances.
Unidentified Justice: Oh, we should have left them up there.
Well, it's a little--
Mr. Appel: Well, a number of governors declined to extradite on just those facts.
It's our footnote 7, the Pennsylvania case.
Unidentified Justice: --A case?
Mr. Appel: There's a case out of Pennsylvania, yes, there is where a governor... a judge, actually, a court, declined to extradite under those circumstances.
Unidentified Justice: Well, you said the governor.
Mr. Appel: Well, I'm sorry.
Unidentified Justice: That's right.
I know you're wrong.
I had a few of those cases.
Suppose we overturned Kentucky and said, yes, governors may be ordered to do their duty under the extradition clause.
I take it you don't think the case is over even then?
Mr. Appel: Oh, it is not.
Unidentified Justice: Because?
Mr. Appel: Well, if we look at the way the shape... the way this case is framed.
It's a petition for a writ of mandamus.
And it characterizes the duty under the extradition clause as ministerial, and then says that the governor looked at materials outside the sufficiency of the affidavits accompanying the warrant and the fact that he's a fugitive.
No factual dispute on that.
The governor did consider material outside the scope of the stack of papers.
No question about it.
And what Puerto Rico has said is, bzzz, that's illegal right there.
Mandamus, you cannot consider matters outside the question of whether or not he's substantially charged and whether he's a fugitive.
Our position is, oh, yes, yes, because of this executive common law tradition, you can consider the safety of the individual.
Unidentified Justice: Well, so the case wouldn't be over.
Mr. Appel: Right.
Unidentified Justice: But the case would be over in this Court.
Mr. Appel: Well, it would be remanded back to the District Court for appropriate proceedings.
Unidentified Justice: So those issues, if you've got them, would be open in the district court?
Mr. Appel: That's correct.
Unidentified Justice: And it didn't sound very much like the lower court would be too sympathetic with your position.
But they may be.
Mr. Appel: Well, we haven't had any development of it--
Unidentified Justice: Right.
Mr. Appel: --because we relied on Kentucky v. Dennison, and the motion to dismiss and all this.
Unidentified Justice: Well, why is mandamus the only conceivable remedy for the demanding state if Kentucky v. Dennison were to be overruled?
I mean, couldn't you just bring an ordinary 1983 action against the governor?
Mr. Appel: I think it would be very difficult to bring a 1983 action and obtain a compulsive remedy of getting ahold of the individual.
But I do want to speak to alternative remedies.
First, the Congress of the United States has acted in this extradition area.
It has not passed a mandamus statute authorizing district courts or this Court to issue writs of mandamus for fugitives.
It's passed a mandamus statute, you're all familiar with it, 1361, which authorizes mandamus against Federal officials; and there's been much litigation about that in the Heckler case and so forth.
Unidentified Justice: Yes, but isn't there an easy explanation for that?
They couldn't do that without defying the last sentence in the Dennison case?
Mr. Appel: Of course.
Of course, that's right.
But you see, that's the Catch-22 situation.
It's the fact that this doctrine has been historically established, and this constitutional vegetation has grown up.
And Puerto Rico's argument is really a constitutionally violent one in the sense that it strips away all these informal mechanisms, and strips away the fugitive felon act, which is Congress' method of approaching the problem.
Unidentified Justice: But your informal mechanism, as I understand it, is that the governor of the asylum state should be free to decide whether the jurisprudence of another state... or the governor of another state is equipped to protect the extradited defendant from lynching.
And you're suggesting there's enough danger of lynching around a different... one state or another that we should simply ignore the constitutional command.
Mr. Appel: We're not ignoring the constitutional--
Unidentified Justice: Well, but that's your policy argument.
Mr. Appel: --No, no.
No, the question then is what is the constitutional command.
I mean, it's like a First Amendment argument saying, well, you know, the First Amendment says, Congress shall pass no law.
And then we say, fire in the theater, and we pass a Congressional regulation saying you can't do that.
It's a question of substance.
And I don't think there's such a thing as a ministerial constitutional duty.
Unidentified Justice: Don't you think that sometimes the governors' determinations about whether to extradite a particular individual may be affected by what kind of press coverage the case has gotten?
Mr. Appel: Surely.
Unidentified Justice: And how he thinks he'll fare in the next election if he should extradite this individual?
Mr. Appel: I suspect--
Unidentified Justice: And that problem is eliminated by having the... if indeed there are mandamus discretionary equitable kinds of considerations that should be taken into account, wouldn't they better be taken into account by a life-tenured Federal judge on a mandamus action, who doesn't have to worry about what the electorate would do the next time around?
Mr. Appel: --A couple of difficulties, I think.
First, the governors have access to all kinds of informal channels of communications that may not be available to a sitting Federal judge.
They get on the phone, they call the other governors.
They have frank and candid discussions about it.
Unidentified Justice: They can oppose the extradition if they want.
They can come into the court, I assume, and provide whatever information those informal channels would yield.
Mr. Appel: But of course, the reaction, if that were the law that the Federal courts were going to be involved, is, the governors are just going to more or less hand the issues over to them.
I think we want to encourage this informal method of discussion that we have.
Unidentified Justice: Well, I don't follow that argument.
Isn't it true that in 90 percent of extradition requests, or maybe a higher percentage, they're routinely processed?
Mr. Appel: --Surely true.
Unidentified Justice: It's only the exceptional case that produces this kind of controversy.
Mr. Appel: Surely true.
Unidentified Justice: And that would not change, would it?
Mr. Appel: No.
The only... the questions in this case really are... in fact the governor's interpretation of the extradition clause I don't think is fundamentally very much different than what frankly the members of the Court are likely to come up with, though on the margins apparently there's some question.
The governor believes that he can go beyond the affidavits to look at the safety of the individual and issues of fairness and so forth.
That's what the governor believes as part of the constitutional provision.
The question is, who administers, more than anything.
I'd also like to point out if I may--
Unidentified Justice: You say... the question is, which governor shall have the final say?
That's really what it boils down to.
Mr. Appel: --The question is, who shall have the--
Unidentified Justice: The governor of the state in which the crime was allegedly committed, or the governor of the state in which the defendant seeks asylum.
One of them has to have the final say.
Mr. Appel: --Well, indeed, I think if the Court becomes involved, the Court of course will have the final say.
And it may--
Unidentified Justice: Well, the only thing the Court would decide is what's been admitted in this case, whether there was compliance with the procedural requirement.
Mr. Appel: --Well, I'm not sure of that.
Unidentified Justice: Well, what issue would be open for the court?
Mr. Appel: Well, let me ask this: Supposing... supposing again, and I'm posing--
Unidentified Justice: Supposing a lynch situation?
Mr. Appel: --Yes.
Unidentified Justice: The answer would be, if you follow the Constitution, that the governor of the state where the crime is committed has a duty to prevent lynching.
Mr. Appel: No, I don't think so.
It's like, for instance, the full faith and credit clause, for example, let's use that analogy.
In the full faith and credit context, in the... in the so-called foreign state, you can challenge that foreign decree on the basis that were no jurisdictions, there was no due process, a number of other things.
Unidentified Justice: Right, but you can't challenge an extradition on that ground.
There are certain specific requirements that must be met.
Mr. Appel: I don't read that in the Constitution, quite frankly.
I mean, that's like saying... look at the full faith and credit clause.
Talk about sweeping.
It says, full faith and credit shall be given to each... blah-blah-blah... for all acts, et cetera, et cetera, et cetera.
Unidentified Justice: xxx changed to whether it is a valid judicial act of the other state.
And I assume that there can be fights here about whether there... there indeed was a valid request from the other governor.
Mr. Appel: Well, Justice Scalia, that's not entirely true.
For instance, in the Antelope case, for instance, back in Justice Marshall's day, it was held that penal provisions aren't enforceable under full faith and credit.
It was also--
Unidentified Justice: xxx because no state generally enforced the criminal laws of another.
Mr. Appel: --Right, but I think we're--
Unidentified Justice: That's why... that's why they put it in the Constitution.
Mr. Appel: --I understand that.
But I think you're assuming the question of the scope of the clause.
It's like a... it's like a First Amendment type setting once again.
We understand that the general obligation, as is the general obligation under the First Amendment, is that--
Unidentified Justice: And if we read Dennison, it's a ministerial obligation.
Mr. Appel: --Well, and I just don't... I must say, I don't--
Unidentified Justice: We should overrule that part of Dennison, you'd have us reject?
Mr. Appel: --I think that is not correct.
Unidentified Justice: Do you think that your governor could relitigate the question of probable cause to arrest in this state?
And he'd say, well--
Mr. Appel: No, the probable cause, we have stipulated that there was, on the face of the affidavits--
Unidentified Justice: --Well, that isn't what I was asking you.
What if the governor said, you know, I just don't believe there was probable cause to arrest this fellow in Puerto Rico.
They just don't have the facts there, despite this warrant and despite these affidavits.
Now, can he relitigate that?
Mr. Appel: --If the Court becomes involved, I assume he could.
I assume he could.
Unidentified Justice: Well, what have we held in that regard?
Mr. Appel: Oh, sure.
Right, Michigan v. Dorn.
But what did you hold in that regard?
Unidentified Justice: What did we hold?
Mr. Appel: Well, as the Justice well knows, you held that a court... a court... would not look beyond--
Unidentified Justice: Where the governor has decided to extradite.
Mr. Appel: --When the governor has decided to extradite, precisely.
There's a whole host of cases--
Unidentified Justice: Do you think the governor could decide not to extradite because he didn't think there was probable cause.
Mr. Appel: --Yes, of course.
Unidentified Justice: xxx on the face of the document.
Well, then the provision of the Constitution really doesn't do anything at all.
If your answer to that is--
Mr. Appel: Excuse me, I'm going to back off that.
I think that's not correct.
But... I know when I'm out on a limb, and that's one.
Unidentified Justice: --A weak limb, too.
Mr. Appel: But I want to come back to the basic constitutional point, and that is, again, this business frankly, about is his duty mandatory or is ministerial, this is not a helpful distinction.
There's no question that the... that the extradition clause in general establishes a norm of constitutional conduct, just as full faith and credit does, and just as the First Amendment does.
And once again, the question is, what do we do at the margins?
And I might add... let's look at this Article IV; I think it's kind of interest.
Full faith and credit, et cetera.
Congress shall provide how the record shall be proved, and the effect thereof.
Congress is expressly authorized to prove the effect thereof of full faith and credit, and it has under 1738--
Unidentified Justice: If full faith and credit applied, you wouldn't need the extradition act.
Mr. Appel: --But if we look under--
Unidentified Justice: Would you?
If full faith and credit applied, you wouldn't need the extradition act.
Mr. Appel: --Yes, I think that's probably true.
Unidentified Justice: But we have the extradition act.
Mr. Appel: Yes.
Unidentified Justice: So obviously, full faith and credit didn't apply.
Mr. Appel: Yes, but the point--
Unidentified Justice: Well, why are you arguing full faith and credit?
Mr. Appel: --Well, I'm trying to argue by analogy, to make two points, Justice.
One is, just the provision says "shall" doesn't mean that it answers all our questions.
And secondly, Congress is given express authority to determine the effect thereof on the full faith and credit.
We move down, then, to the extradition clause, and we don't have such language.
Indeed, the framers no doubt thought that the states in their own... that each state's governor would determine how to interpret that extradition clause.
There's no further... say, Congress shall give effect, et cetera.
In closing, I do want to go... raise--
Unidentified Justice: xxx have now with respect to the fugitive slave provision that Congress has authority to implement.
There's no reason to think as far as the implementation power is concerned, the one is different from the other, is there?
Mr. Appel: --Well, I think there is.
And the reason for that is, again, the constitutional history of judicial nonintervention that's grown up.
Unidentified Justice: Yes, to be sure.
I mean you can answer that... you can answer all my questions that way.
Mr. Appel: I suspect I could.
Unidentified Justice: Just citing Kentucky v. Dennison.
Mr. Appel: I wanted to address your concern about the power under the territories clause, and that we could conceivably put aside Article IV, the extradition clause, and go under the territory clause, right.
First, that hasn't been raised in this proceeding.
Indeed, it's not in the petition for writ of certiorari.
The petition is only based on Article IV.
And it seems to me that Puerto Rico is seeking for an opinion of this Court to declare that it's a state.
There's an ideological interest at stake here, I think.
They haven't raised the claim.
But let me address the claim--
Unidentified Justice: xxx you think there might be some problem?
Let's assume we were talking about a territory in which Congress had not even established any local courts; it was governing it by Federal courts, all right?
Could Congress require a state to hunt down a... a state to hunt down a fugitive from an indicted crime in that territory?
Mr. Appel: --I think not.
Unidentified Justice: Yeah, that's the problem I have.
Mr. Appel: And the reason for that is that, Your Honor, the Tenth Amendment, all rights are reserved to the states.
The extradition clause plainly says, when a sister state requests it, you know, that's cut into.
But I think if Congress attempted to pass such a statute, it wouldn't pass constitutional muster.
Unidentified Justice: You say, Congress' remedy is, if it's a Federal offense in a Federal territory, use your own police to do it; you can't lay that burden on the states.
Mr. Appel: That's right.
And that can be done under the Fugitive Felon Act, which allows... someone who flees from one state to another is guilty of a Federal crime, if the Attorney General authorizes prosecution.
You can see that Congress has been very chary about getting into this field.
By passing the Fugitive Felon Act, which says it's a Federal crime to jump from one state to another, and a Federal prosecution can be brought with the approval of the Attorney General or the assistant Attorney General, which may not be delegated.
And so there's no serious threat of a constitutional breakdown occurring in this case at all.
The system has worked well.
If it ain't broke, don't fix it, is part of our argument.
It's hard to see how the injection of the judiciary into the environment is going to help improve things.
In closing... this is my second closing... I'd like to briefly go through some of the facts that were stated.
The question about bond being so low: One of the reasons is, they were afraid that this person if incarcerated in Puerto Rico would be killed; and that appears in the Appendix as part of the extradition proceeding.
There was a serious concern about the safety of this individual.
I want... I want to stress, Justices, this was on a motion to dismiss and a petition for writ of mandamus, and there hasn't been a factual development in a traditional sense down below.
These are materials that were before the governor.
But I just want to share with you some of the concerns that were motivating Governor Branstad, who normally extradites, of course.
There was serious concern about the safety of the individual; fear that he'd be killed.
Unidentified Justice: This is the kind of thing we hear about extradition to foreign countries.
Mr. Appel: I understand that.
Unidentified Justice: Would you make the same argument if Michigan instead of Puerto Rico were involved?
Mr. Appel: Yes.
Yes, I'd have to.
Unidentified Justice: Things are tough up in the Upper Peninsula?
Mr. Appel: Well, I think... no... the basic construct is this, what is the substance of the extradition clause?
It vests administrative authority in the governor to decide whether or not that general duty applies.
And on the margins, the governors determine what the exceptions are.
And in the course of this 150 years, there's been kind of a common law type evolution, documented perhaps kind of illy because there haven't been that many litigated cases.
But the governors have developed a number of exceptions, just like exceptions have been developed to full faith and credit, and just like exceptions have been developed--
Unidentified Justice: You think they really like to do that?
It is curious that no other states have come in on either side of this thing.
I really wonder whether governors like to have to worry about this stuff; whether they wouldn't be delighted to have these questions about whether somebody's going to be hung if he goes somewhere else, worried about by courts.
It seems like a strange thing for the Governor of Iowa or anywhere else to be worrying about.
Are you sure you're doing your governor a favor?
Mr. Appel: --I'm here at his instructions.
I think there's some ambivalence about extradition to be sure among the governors.
That's just my speculation; I haven't taken any poll.
But again, we have to wonder, how will the best institutional results be fashioned here?
It seems to me that--
Unidentified Justice: You're suggesting in that regard that we should treat the states... this is an aggregation of sovereign states that are just like Europe, might decide not to... it's the same... similar thing in that area.
Mr. Appel: --Obviously, it's not just like Europe.
Unidentified Justice: And the reason it's not is because we have this clause in the Constitution.
Mr. Appel: My red light's on, but to answer: What is the purpose of this extradition clause?
What is has done, and no one can dispute this fact, what the extradition clause has done is ensured that each governor has authority to extradite a person to a sister state; and no one can go into Federal habeas corpus or state habeas corpus and say, look, no authority; you can't do it.
And the extradition clause has made that absolutely, crystal, perfectly clear, and no court has held otherwise; just as they've also held that no courts should coerce a governor.
Chief Justice Rehnquist: Thank you, Mr. Appel.
Your time has expired.
The case is submitted.