HICKS v. FEIOCK

Transcript: 

ORAL ARGUMENT OF MICHAEL R. CAPIZZI, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear arguments next in Cecil Hicks, District Attorney for Orange County, California, acting on behalf of Alta Sue Feiock versus Phillip William Feiock.

Mr. Capizzi, you may proceed whenever you are ready.

Mr. Capizzi: Thank you.

Mr. Chief Justice, honorable associate Justices, if it may please the Court, this is a case that will determine whether Mr. Feiock and the Feiocks of this country may sit on their hands and defy with impunity valid court orders to provide support for their minor children.

This case originated in the State of Ohio when Alta Sue Feiock, the mother of respondent's three children, petitioned the Ohio courts for support under the Uniform Reciprocal Enforcement of Support Act, URESA.

The petition was forwarded to California, where the Orange County District Attorney's office in turn filed a petition with the California Superior Court seeking an order for support.

Following a hearing an order for support was entered directing payment of $50 per month per child, and that was in fact a reduction from the original $75 per month per child which had been ordered at the time of the divorce some eight years earlier.

The Orange County District Attorney's office was acting in this case not as the public prosecutor, but as the attorney for Alta Sue Feiock for the sole purpose of gaining the support due her and her children.

This was not a welfare case.

There was not an effort to recoup welfare moneys.

There was, however, an interest in assuring that Mrs. Feiock would not be a welfare recipient, but more importantly, this case represents a strong and fundamental interest that the state has in assuring minor children that they shall have the support that is due them.

The children have always had a special place in our system, and there is no reason why they should not in matters of child support.

After the order was entered, over the next 12 months Mr. Feiock the respondent, paid three months, but for the other nine months he sent not one thin dime.

He was cited for contempt, and in the concept hearing the petitioner herein relied on California Code of Civil Procedure 1209.5.

With somewhere in the neighborhood of 35,000 family support matters in the active cases of the Orange County District Attorney's office, it is essential that reliance can be made on a statute such as 1209.5.

Unidentified Justice: What is the present population of Orange County?

Do you know, Mr. Capizzi?

Mr. Capizzi: Something in excess of two million.

Unidentified Justice: Two million.

Mr. Capizzi: Yes.

Of course, that is the 35,000 cases are all types, the litigation, the enforcing reciprocal cases from other states, those that have enforcement orders, and the criminal cases that are filed in that connection.

There just aren't sufficient resources for even a public agency to pursue cases such as this without reliance on the statute involved in this case, and certainly if a public agency doesn't have the resources, the private individual who often times seeks to assert their own support, enforcement of their own support orders individually couldn't even begin to pursue those on their own.

Unidentified Justice: Well, Mr. Capizzi, the California Court of Appeals held that the California statutes make this contempt proceeding criminal in nature.

Mr. Capizzi: Yes, Justice O'Connor.

Unidentified Justice: Now, I guess California is entitled to determine that for itself as a matter of state law, isn't it?

Mr. Capizzi: Well, it can place whatever label it chooses on a case, and this case the court below did term the case criminal.

I would submit that the--

Unidentified Justice: So is it a matter, is it a question of federal law for purposes of answering whether the federal constitution is violated?

Mr. Capizzi: --I think that unquestionably it is and be that as it may I would submit that the court below was wrong in terming this case criminal even under California law.

Unidentified Justice: Well, but you don't really want us to get in there, do you, and say that the California Court of Appeals was wrong as a matter of California law?

Are we likely to do that, and can you give me examples of where we have done that?

Mr. Capizzi: Well, I think the Court has always looked to the highest court... this Court has looked to the highest court of the state in determining what the state law is.

Unidentified Justice: Well, why would we want to do that if it is a question of federal law for purposes of the federal constitutional question?

You spent a lot of time in your brief arguing this, and I had a hard time understanding whether you seriously thought we were going to overturn the California court on a question of what the California law is.

Mr. Capizzi: No, we merely meant to set the record straight, and point out that the California Supreme Court has held repeatedly that there are still two types of contempt in California, civil and criminal, but that is absolutely correct.

As far as the constitutional analysis is concerned, it doesn't matter what label California puts on it.

Otherwise a state could deprive this Court of determining in what instances the constitutional provisions of the Fourteenth Amendment will or will not apply.

Now, I suppose we could decide that as a matter of federal law for federal purposes this has the characteristics of a civil proceeding, but that wouldn't mean that California when it went back couldn't treat it as something else for its purposes and under the California constitution.

That's true.

California could do that.

But they haven't done that in this case.

The courts have repeatedly said that there's a distinction between civil and criminal contempt, and the California Supreme Court repeatedly over the years has said that civil is to protect the rights of litigants and criminal is to vindicate the dignity or authority of the court, and--

Unidentified Justice: But it is up to California to decide what it is coming with a... I mean, that is a purposive test, and it is California's purpose.

If California says that it is criminal, who are we to say that it isn't?

Mr. Capizzi: --California has not said that it is criminal, Justice Scalia.

Unidentified Justice: You are arguing that it doesn't matter what California said.

You are arguing that it doesn't matter, and I am saying if it is a purposive test you are urging upon us, it does matter.

What is California's purpose?

If California's purpose is criminal, then that is the end of the matter as far as that issue is concerned.

I agree with you.

I think that California has not said that.

Mr. Capizzi: That's correct.

Unidentified Justice: It has applied certain protections that are normally applicable in a criminal context.

But they can also do that if they want.

Mr. Capizzi: Yes, Justice Blackmun, that is correct.

They have continued to draw the distinction between civil and criminal contempt.

One is punitive, criminal, coercive, is civil.

They have extended the procedural safeguards otherwise applicable in a criminal case to the civil contempt proceeding.

Unidentified Justice: That is a different issue.

You are arguing what California has done.

I am asking why it should be true, the other point that you say, that it doesn't matter what California has done, that even if California has called it criminal, you urge upon us that we are not bound to accept that, and I don't see how that follows at al. It seems to me we are bound to accept it.

Mr. Capizzi: If California should suggest, Justice Scalia, that in a civil case where there are punitive damages those are penal in nature, as they have said in contempt proceedings, the potential of a jail sentence is penal, and because punitive damages are potentially penal, we are going to extend the procedural safeguards of a criminal case, not because they are constitutionally required, but because as a state we are going to extend those rights in the civil case.

Thus we would has we have in the contempt setting, have a description of these civil cases as quasicriminal or criminal in nature because we have extended procedural safeguards otherwise available in criminal cases, and then respondent would come before you and say, because these are criminal in nature we have extended the safeguards of a criminal case, the libel case in which we are seeking punitive damages, that, too, is criminal.

The tort case where we are seeking punitive damages, that, too, is criminal.

The bad faith insurance case where we are seeking punitive damages, that, too, is criminal, and that would deprive this Court of determining when and in what setting the constitutional provisions of the due process clause are to apply, and I would submit that the appropriate test is to analyze what the hearing is substantively.

Unidentified Justice: Mr. Capizzi, I am looking at page A6 of the petition for writ of certiorari where you have the opinion of the Court of Appeal, and I am looking at the second full paragraph on the page, the second sentence, where its says,

"Our Supreme Court recently discussed the problem raised by the use of presumptions in criminal cases in people against Roder. "

Now, does the Court of Appeal opinion have any more discussion than that of why it considered this a criminal proceeding rather than a civil proceeding?

Mr. Capizzi: No.

I would submit that it is lacking in analysis as to why it considered it a criminal proceeding.

Unidentified Justice: Have there been other cases from the Supreme Court of California that have said this kind of proceeding is a criminal rather than a civil proceeding?

Mr. Capizzi: No.

In fact, the Roder case did not say a contempt proceeding is a criminal proceeding.

Unidentified Justice: Roder wasn't a contempt case, was it?

Mr. Capizzi: No, it was not a contempt.

It involved the constitutionality of a state statute involving a presumption and prima facie case.

Unidentified Justice: What significance do you give to the sentence on page A8, contempt is quasi-criminal and requires proof beyond a reasonable doubt?

Mr. Capizzi: That is what the California courts have required for in excess of 100 years.

Unidentified Justice: In civil contempt proceedings as well as criminal?

Mr. Capizzi: In civil as well as criminal, and that is why civil contempt proceedings because they have the potential for a jail sentence if the coercive order is violated, they have been given in civil contempt proceedings many of the procedural safeguards that would otherwise be available to a criminal defendant, and as a result, over the 100 years or so, the civil contempt proceedings have been referred to as quasi-criminal and criminal in nature, but that doesn't make them criminal substantively, and as this Court has said in Shilitani versus United States, that we are going to look at the substance, not the procedure by which the order for contempt came about.

Shillitani was a case under Rule 42, the Rules of Criminal Procedure.

As Justice Harland pointed out in footnote 3 in a dissenting opinion, but it called attention to the record below, the judgment and commitment was for guilty of criminal contempt but this Court went beyond the procedural aspects of it and looked at the matter substantively, and because the order of two years in jail or until purging oneself of contempt by testifying before the grand Jury was the order, it was concluded that it was coercive and not subject to the procedural aspects of a true criminal case.

Unidentified Justice: What was the procedure that was involved there that we said was not necessary?

Mr. Capizzi: In Shillitani?

Unidentified Justice: Yes.

Mr. Capizzi: It was the jury trial--

Unidentified Justice: Now, you are urging here that what is not necessary is not only... not only the burden of persuasion... not only the burden of initiation of the evidence, production being placed on the plaintiff, but also the burden of persuasion.

So if I understand your case correctly, it is that although this individual should not be liable for the payments unless he can afford them, although that is part of the case, if the court can't make up its mind, if it is unclear, I don't... if the court finally concludes on the basis of all the evidence, I cant really tell whether he can afford these payments or not, the court will then send him to jail.

That is what you are urging.

Mr. Capizzi: --No, we are not, Justice Scalia.

We are urging that since this is a civil case, the determination of whether the statute meets the due process clause of the Fourteenth Amendment should be analyzed in terms of a civil rule, and in a civil context.

Unidentified Justice: The Court of Appeals certainly ruled clearly enough that the burden of proving the ability to pay is on the prosecution.

Mr. Capizzi: The Court expressed that, and again--

Unidentified Justice: As a matter of California law.

Mr. Capizzi: --But it misstated California law, Justice White.

Unidentified Justice: Well, I don't know how you can convince us of that, but I thought that... I didn't read your brief and disagree especially with that.

I just thought that you thought that an inference of the ability to pay could be drawn from that.

Mr. Capizzi: The statute points out that if there is an order--

Unidentified Justice: Right.

Mr. Capizzi: --there is knowledge of the order--

Unidentified Justice: Yes.

Mr. Capizzi: --and there is a violation, it hasn't been paid, that that is prima facie evidence of contempt, and even if we are to--

Unidentified Justice: You are just saying that the statute says that the prosecution's burden is satisfied when you prove the things that you just mentioned.

Mr. Capizzi: --That is correct, and that is consistent with an early California Supreme Court case, In re McCarty, which likewise said those are the three elements of contempt.

In that case it was an alimony case, but there should be no difference for that analysis between the alimony case and the child support case, and that was the rule in California for a number of years.

Unidentified Justice: Did your brief argue that this statute shifted the burden of persuasion on ability?

I thought you just said it shifted the burden of production.

Mr. Capizzi: The court below--

Unidentified Justice: What about your brief?

Mr. Capizzi: --Our brief expresses that it shifts to the respondent the burden of production.

Unidentified Justice: But the burden of proving ability rests on the... remains on the prosecution.

Mr. Capizzi: No, the... again--

Unidentified Justice: Well, you can't do it both ways.

Mr. Capizzi: --the California Supreme Court has repeatedly said that inability to pay is an affirmative defense.

Unidentified Justice: Yes.

Mr. Capizzi: And as an affirmative defense the respondent has the burden of producing evidence.

Unidentified Justice: Well, we have got--

--You are talking about proving, not producing evidence.

You keep... do you say that the burden of proving it is also on the defendant?

You do say that in your brief, don't you?

You say, as an affirmative defense he not only has to go forward, but he has to prove that he can't pay.

Yes or no?

Mr. Capizzi: No.

Unidentified Justice: It seems to me that could take--

Mr. Capizzi: No.

No.

Unidentified Justice: --You don't say that.

Mr. Capizzi: Justice Scalia, what we--

Unidentified Justice: But that is what the Court of Appeals said, isn't it?

Mr. Capizzi: --The Court of Appeals said--

Unidentified Justice: The Court of Appeals said that California law puts the burden of persuasion on the respondent.

I understood your brief to say that is wrong as a matter of California law.

Mr. Capizzi: --That's correct, Justice O'Connor.

Unidentified Justice: Again, you don't want us to decide that, do you?

Mr. Capizzi: I don't think it is necessary.

It is a civil case, and as a civil case either a burden of production or a burden of proof is appropriate, and the statute places this case in much the same position if not identical position as the circumstances this Court addressed in Rylander versus United States.

The statute--

Unidentified Justice: Well, Rylander involved a situation where only the burden of production shifted.

Mr. Capizzi: --That's correct, Justice O'Connor.

Unidentified Justice: Well, do you lose this case if the burden of persuasion is also involved and placed on the defendant?

Mr. Capizzi: No, I don't believe we do.

Unidentified Justice: I don't think you do, either.

Mr. Capizzi: It is a civil case, and regardless of whether it is the burden of persuasion or the burden of production, there is a rational connection between the proven fact and the presumed fact.

I would submit, however, assuming just for the sake of argument that this were a criminal case, that the statute would meet the heavier beyond a reasonable doubt standard that is required in the criminal case.

It is... if we have an individual who is ordered to pay support, I think it is... a reasonable person would seek to modify that order if he could no longer make the support payments.

His failure to seek modification causes the missed payments to accrue and build in arrearage, which some day he is going to have to pay, as he was ordered to pay even in this case, because even though he was found not guilty on some of the months of contempt, at the time of the hearing he was still found able to pay in installments and was ordered to make payments even for those months for which he could not have been held in contempt because of the coercive nature of it and the fact that the missed support payments accrue.

Now, a reasonable person would seek to modify that order if he truly had no ability to pay.

And his failure to seek modification is a tacit admission that the order remains valid and reliable.

And that is especially true in California, having enacted a code section, Civil Code 4700.1, that makes it extremely easy for an individual to modify a support order.

It is almost as though it is a small claims action, and attorneys are not required, and its express purpose is to make it easy to modify a support order.

So given those factors, it seems to me a reasonable person would modify and an unmodified order supports the presumed fact beyond a reasonable doubt that the original order is still valid.

Unidentified Justice: Mr. Capizzi, whether California decides to or not, and whether you argue it here or not, I had the impression... I don't know which of the briefs I got it from, that most states do place the burden on the defendant, not just for production but of persuasion.

Is that--

Mr. Capizzi: That's correct.

Unidentified Justice: --That is correct.

Mr. Capizzi: It is a burden of producing... or burden of proof in most states.

I would submit that with respect to whether in this case it was a burden of production or a burden of proof, we should look to the cases in California which have said that it was a burden of production.

We should look to the treatises in California which say it is a burden of production, 1209.5.

We should look to Penal Code section 270, the criminal nonsupport section, and the California Supreme Court, People versus Sorenson, interpreting a presumption in that criminal section very comparable to the presumption here as being one involving the burden of producing evidence.

Now, I submit that we should examine those even though they were ignored by the Court of Appeal below, and the reason we should examine those is because even though the court below ignored them, the trial judge didn't.

And just as in Ulster versus Allen, in Footnote 16, this Court said we should look to the jury instructions and how it was treated at the trial level.

The presumption in this case was treated at the trial level by the trial judge as one affecting the burden of proof.

All of the other cases, the treatises were available to him.

He expressed an awareness of the long-standing law.

And he expressly stated on the record that he was treating it as affecting the burden of going forwards, which is another way of saying the burden of producing evidence.

And it was based on the way it was treated by the trial court and the laws in California which treats a presumption affecting the burden of producing evidence almost the same way as this Court analyzed a permissive inference in Allen... in Ulster County versus Allen.

The Evidence Code Section 604, which sets forth how that presumption affecting the burden of producing evidence is to be used is almost identical to the definition of a permissive inference in Ulster County versus Allen, and therefore even if we were to assume that it was a criminal case, I submit that it was treated by the trial court as a burden, as a presumption affecting the burden of producing evidence, and as such meets the due process requirements of the Fourteenth Amendment.

We would submit that the order of the court below finding the statute unconstitutional was in error and--

Unidentified Justice: Let me ask you one final question.

As I remember, and I may have this incorrectly in mind, but the trial judge here did conduct a hearing on the question of ability to pay.

Mr. Capizzi: --Yes.

Unidentified Justice: And concluded that there was ability to pay with respect to at least a portion of the disputed period.

Does his... do his remarks... it is not clear from the part that is quoted in your brief.

Do his remarks indicate where he thought the burden of proof was, which way the preponderance of the evidence went?

In other words, if he said in so many words, I find the evidence to convince me and it is not equally balanced, I am not relying on any presumptions, I find on the facts here that this man had an ability to pay, and I therefore hold him in contempt, it seems a little strange to be arguing about all this argument about presumptions.

I mean, isn't that the end of the case?

Mr. Capizzi: He did, Justice Stevens, make a finding that there was ability to pay.

After first relying on the presumption which the trial judge treated as one affecting the burden of producing evidence, and once the respondent then produced evidence under California law that showed the nonexistence of the presumed fact, then the court was required to treat the evidence without reference to the presumption, and based upon his analysis then of the evidence, including the testimony of the respondent, he found him guilty of the five counts of contempt and dismissed four of the counts.

Unidentified Justice: Right.

Mr. Capizzi: And then made the findings that he had the ability to pay and entered the coercive order.

Unidentified Justice: What I am really asking is whether in the actual decision of this case did the allocation of the burden of proof actually have any impact on the outcome.

Mr. Capizzi: Not the ultimate result, no.

It assisted in travelling the path to reach that, but ultimately it was based upon the testimony of the defendant.

We would submit the court below erred and the order finding the statute unconstitutional should be reversed, and with the Court's permission we would like to reserve the remainder of our time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Capizzi.

We will now hear from you, Mr. Schwartzberg.

ORAL ARGUMENT OF RICHARD LYNN SCHWARTZBERG, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Schwartzberg: Mr. Chief Justice and the associate Justices of the Supreme Court, and may it please the Court, the issue, contrary to a number of the amicus briefs that were filed in this case, I would suggest, is rather narrow, and I would suggest it has almost no national importance.

What we are here to decide is the interpretation of a very specific California statute which affects a civil contempt in the criminal venue for only California makes that definition.

What I would suggest, however, is that the significance of this debate concerns almost a century of California jurisprudence concerning civil contempt.

What I would suggest to the Court is that there are a number of rigs which this Court in Boykin versus Alabama has applied to criminal cases, which, if this Court adopts the position of the petitioner, will eviscerate, will essentially vacate.

Those rights are self-incrimination, both the right not to have to testify and the right not to be called as witnesses, the right to counsel in California, and I would suggest a right which is perhaps more fundamental than those rights in Boykin versus Alabama, that is the right to have proof beyond a reasonable doubt as to each and every element of the charge as contained in the case, this Court's case of In re Winship.

I would suggest that whether 1209.5 violated the Fifth Amendment involves three questions.

The first question is, does 1209, which is the general scheme for contempts in California, define a crime with the element of the ability to pay.

Second, if it does, may this Court redefine that definition of a crime to suit the Court's federal interpretation of what a civil contempt is.

And finally, does it offend the Fifth Amendment if it is a crime?

I think that the answer to whether 1209 defines a crime in California is an unequivocal yes.

In fact, all the Court needs to do is to turn to a case which was decided in the 1940s called Bennet versus Superior Court, and I would merely quote the first line of the third paragraph on Page 210, where the Court says,

"Contempt of court is a specific criminal offense. "

Now, they get that from McClatchie versus Superior Court, which is at 119 Cal. They get that from In Ex Parte Gould, which is at 99 Cal., both 1800s California Supreme Court cases.

Now, one of the questions that the Court asked Mr. Capizzi was, why is it that the Court of Appeal dealt in sense with such short shrift with the question of whether it was criminal or not, and the answer is simple.

They knew what it was.

And there wasn't any need to have any particular extended analysis of that issue because every Court of Appeal knows what it is.

Unidentified Justice: Mr. Schwartzberg, it seems to me that what the California Court of Appeals did ultimately was to say that the California statute as applied here was invalid as a matter of federal constitutional law.

Mr. Schwartzberg: I would concede that, yes.

Unidentified Justice: So is it not also a question of federal law whether this statute is indeed civil in nature or criminal for purposes of answering the federal constitutional question?

Mr. Schwartzberg: No, Justice O'Connor, no more than--

Unidentified Justice: No?

I would have thought perhaps it was, that if we are going to say the federal Constitution strikes it down because it is criminal in nature, that it is a matter of federal law whether this thing is criminal in nature for federal purposes.

Mr. Schwartzberg: --Well, I think the answer to that is this.

If, for whatever reason, the federal government had no murder statute, and then, in fact, let us assume that murder on the federal level was never a crime, but California chose to treat murder as a crime, a felony, and they had a statute that was similar to that in Martin versus Ohio, I don't think this Court would have any trouble striking that statute down, as violating the Fifth Amendment.

Unidentified Justice: Well, Mr. Schwartzberg, what about a case like Shillitani v. The United States which at least indicates that we are free to examine the purpose of the contempt proceeding and characterize it as civil in this instance because it was for the purpose of coercing the payment of the money.

Mr. Schwartzberg: I don't know how to reconcile that with California, and I think California would have trouble reconciling it with Shillitani.

It is the same reason, I think, that the Supreme Court in Culver City tried to make it clear that California was not... I think the problem here is that the legislature used the label "civil".

The fact is that the courts have been calling it a "crime".

Not criminal in nature, not a criminal action, but a crime in California.

Unidentified Justice: Well, I think that is perfectly all right if California wants to do that.

The problem is that we have a California court that has rested its holding on the Federal Constitution.

Now, we can decide that issue, I suppose, and leave California free to call it whatever it wants and impose whatever requirements it wants as a matter of California law.

Mr. Schwartzberg: I think the difficulty with that is that we are putting the cart before the horse.

I think that what the Court of Appeal said was that what we have here is a crime.

A crime no different than any misdemeanor or felony in the State of California.

And their conclusion was that once you had it as a crime, then the decision such as this Court's decision in Rylander do not have any effect.

And then that, in essence, once you determine this is a criminal act, a crime punishable as a crime in California, that this Court's opinions then presuppose that various rights inure.

And one of those rights is the Fifth Amendment.

And what I would suggest to the Court--

Unidentified Justice: I assume that to some extent, the answer to Justice O'Connor's question must depend upon what the Federal test for criminality is.

If the Federal test for criminality is purpose, if whether the purpose of the penalty is to coerce or to punish and if the State says: Our purpose in applying these penalties is to punish, it would be very hard for us to say,

"No, you are wrong, California. "

"Your purpose is not to punish. "

California is certainly dispositive as to what its purpose is.

So, it would depend on what test we are applying; wouldn't it?

Mr. Schwartzberg: --Not only that, but I would go one step further.

And what I would suggest to the Court and I tried to present it in my brief, which is that California has a very unusual legislative scheme which is that we have 166, which is a specific penal statute governing contempt of court and it covers the same act, the same exact act that is prosecuted here.

The difference between 1209 and criminal intent in 166 is that only the people in the State of California can bring a 166 action, but a civil litigant, in other words, a custodial parent, typically, the mother, can hire counsel and bring a civil contempt which is a criminal action.

And for that reason, what I am suggesting is that the California Supreme Court in Culver City and going all the way back to Gould said there are... all these contempts are contained in different places in our legislative scheme, but they are all the same crime.

They just carry different kinds of right.

Unidentified Justice: May I pursue Justice O'Connor's inquiry with a hypothetical?

Supposing a state differently from all other states passed a statute saying that the negligent operation of a motor vehicle shall be a crime.

And it said, (1) you can go to jail, and all the rest of it, but also have a separate proceeding that the person thereby injured by proof, just by a preponderance of the evidence that he was hurt by the negligent operation, after he proves a crime by a preponderance of the evidence, he can get damages.

Would that comport with the Fifth Amendment?

They call it a crime and they say the private litigant gets a remedy on the basis of it by a preponderance of the evidence.

Does the fact they call it a crime mean that Winship applies?

Mr. Schwartzberg: Well, I am having a little bit of trouble with the analogy because I am not entirely certain as to whether the courts are determining that the civil cause of action is itself a crime.

Unidentified Justice: Yes, the statute says: Negligent operation of the vehicle is a crime.

And it may be proved.

The crime may be proved in a civil proceeding by a preponderance of the evidence.

And, if you get a jury, you instruct them that having done this is a crime and the consequence of the crime is you have got to pay damages to the plaintiff.

The fact that they call it a crime, in your view, I take it, would require all these other protections.

Mr. Schwartzberg: I would be less than frank if I told the Court I really can answer that question.

I can't because I... in essence, what you are saying is that a private prosecutor can come in and obtain damages for a crime.

Unidentified Justice: No.

What I am saying is what a state calls the proceeding may not be binding on us in interpreting the Federal Constitution.

That's what I am saying.

Mr. Schwartzberg: I hope that this does not devolve into a semantics debate because I don't think that when we say we are calling it a crime that that is all we are doing and that it is not a crime in fact.

Unidentified Justice: But do you say, though, that the California rules applicable to this kind of proceeding should be judged by the same standards that apply to similar rules that produce similar consequences in other states except they don't call it a crime.

Mr. Schwartzberg: I don't think that they have anything to do with each other.

I just don't.

Unidentified Justice: So, our case pertains only to California?

Mr. Schwartzberg: Yes.

And that's why I say I think that contrary to some of the amicus who are concerned about the national ramifications of this, I don't think they have any.

Unidentified Justice: Well, what if California that has a statute that says, for negligently driving while drunk, you can have your license revoked, your motor vehicle operator's permit revoked, and the California courts say,

"Well, gee, this is pretty tough on the motorist. "

"We think it is a criminal proceeding. "

And then we talk about presumptions and what the burden of proof.

Now, can this Court if a California court says one of those procedural aspects is invalid under Federal Constitution, can we not reexamine to see whether or not this meets the definition of a "crime" for some of our cases?

Mr. Schwartzberg: Well, I think the answer to that is that if the California court's interpretation is unambiguous that notwithstanding the fact that this may only involve an administrative penalty, whether it is loss of license, loss of privilege, loss of money or jail, I think that if the California court says that in California, that act is a crime, then I think this court, not bound to accept that determination, in effect, I think this Court must apply those Federal constitutional guarantees which apply to a criminal act within the context of this Court's decisions.

So, I would concede, for instance, that this Court does not require counsel in every criminal proceeding, but that does not mean that in those criminal proceedings where the Court does require counsel.

In other words, where the penalty is not de minimis that counsel has to be applied in that proceeding.

And what I would suggest, if we look at this case backwards, if the Court notes that California courts have traditionally, since 1893, applied and felt compelled to apply Federal constitutional rights to civil contempts, the answer is that they must know that it is a crime.

And, in fact, there are no cases--

Unidentified Justice: But how does one "know" that it is a crime?

Mr. Schwartzberg: --Because the courts have, since 1893, defined it as a crime and have treated it as a crime.

Unidentified Justice: And that's all it takes?

You don't want to get into a semantical debate?

Mr. Schwartzberg: Well, I am not suggesting--

Unidentified Justice: Could you tell me, Mr. Schwartzberg, could you tell me, because it makes a difference to my answer to the question we are discussing why California has said it is a crime?

Have they said it is a crime because it is a punishment?

Mr. Schwartzberg: --Yes.

Unidentified Justice: As opposed to a coercion?

Is that the reason they have said it is a crime?

Mr. Schwartzberg: I don't think there is any doubt that the cases have always defined this as a crime because, as the courts say, the ultimate result is punishment.

And, in fact, Petitioner likes to call this coercive.

The truth of the matter is that these proceedings result in substantial periods of jail time.

And whether that jail time comes up front or whether it comes at the end of a probationary period where the respondent still does not comply with the court's order, and in fact the burden of proof becomes less in a probation situation than it does in a normal criminal proceeding--

Unidentified Justice: Well, Mr. Schwartzberg, isn't the California procedure California's response to the uniform reciprocal support law requirements?

Mr. Schwartzberg: --Well, California's response as to what, Justice O'Connor?

Unidentified Justice: Well, there is a uniform act as you know designed to enable parents with custody of a child to obtain child support.

Mr. Schwartzberg: Yes.

Unidentified Justice: And each state, including California, has responded to that by having provisions such as this for contempt proceedings, for non-payment of child support.

Mr. Schwartzberg: Yes.

Unidentified Justice: And isn't this California's participation in that scheme?

Mr. Schwartzberg: Well, the 1209.5 may be, Justice O'Connor, but the original 1209 statute which presents a contempt remedy is not--

Unidentified Justice: Well, 1209.5 is what we are dealing with.

Mr. Schwartzberg: --Yes.

Unidentified Justice: And there is an indication, is there not, in that uniform act that these proceedings are civil in nature for purposes of the uniform act and are designed to coerce the parent who is not making the payments to make the payments.

That is the idea of the uniform act; isn't it?

Mr. Schwartzberg: There is no question about that, but that act does not supercede 1209.

And 1209 is a crime.

Unidentified Justice: Would it be more accurate to say they have dealt with contempt proceedings as a matter of California law as quasi-criminal?

Would that be a little more accurate, maybe?

Mr. Schwartzberg: I would say that the courts when they get to the issue of what species this is, whether it is criminal or civil, have used a number of different labels to govern it.

And that is why I suggested a moment ago to Justice Scalia that one of the... apart from looking at the direct language of the courts to determine whether California considers this a crime is to use deduction and work backwards.

And that is to look at what the courts have done and the only way you can conclude that a defendant on a criminal action or a contempt action in California has a right to counsel, which most states don't provide, has a right to Fifth Amendment privileges most states don't provide.

Unidentified Justice: Well, don't you suppose, Mr. Schwartzberg, that because one of the consequences of this coercive proceeding may be imposition of a jail term that a state as a matter of state law might want to build in extra protections, such as a higher standard of proof.

Mr. Schwartzberg: But, Justice O'Connor, I would agree with you if I could find in the cases... and I have read them over and over, again... any reference either to California's own constitutional provisions which govern the Fifth Amendment which govern the right to counsel.

The truth is that they all relate back to the Fifth Amendment.

And, in fact, in In re: Witherspoon, which was decided by the same Court of Appeal which decided In re: Feiock, the Court of Appeal again noted that this was a criminal proceeding and based upon Supreme Court language from 1893 concluded that a defendant in a criminal action or a contempt action had a right not to be called as a witness and that that was compelled not by California's Constitution, but by the Fifth Amendment.

The leads me, obviously, to the next step which is that--

Unidentified Justice: Before you get there.

Mr. Schwartzberg: --All right.

Unidentified Justice: Do the California courts make any difference between an order in a case like this which says, the defendant's fault in the court and the court says,

"Unless you make these payments that are due, you will go to jail. "

"And you will sit there until you come up with the payments. "

That seems to me coercive.

Does it make any distinction between that and a situation where the person who has failed in the past who makes payments comes before the court and the court says,

"Because you have not made these payments in the past, you are going to jail for three months. "

Is there any distinction?

Mr. Schwartzberg: There is absolutely no distinction in the procedural--

Unidentified Justice: Both of them are called coercive.

Mr. Schwartzberg: --Criminal.

Unidentified Justice: Criminal.

Mr. Schwartzberg: Yes, in fact, when the Court looks at City of Culver City v. Superior Court, essentially, the petitioners in Culver City stand before the court asking them to tell them what kind of contempt this is because they are obviously looking at other jurisdictions and recognizing that depending on what kind of a contempt it is, they get different rights.

And the Supreme Court said,

"We don't care what you call it, because it is all the same. "

Now, that may sound like Alice in Wonderland, but the courts have essentially eviscerated any distinction between civil and criminal contempt, the traditional forms.

They discuss what they are.

There is no question about that.

They are not blind to that.

But when we get down to the procedural niceties of what a contempt is, there is no question that the courts in California treat it as a crime.

It is a misdemeanor because it is not punishable by more than a year in county jail.

Unidentified Justice: Yes, but in this very case, if this man came up with the money that is in arreared and paid it in the court or paid it for his children's support, would he not immediately get out of jail?

Mr. Schwartzberg: Well, first of all, he is not in jail and never was.

He was placed on probation.

And, essentially, the probation grant ordered him to do two things.

It ordered him to make future payments on penalty of going to jail and it ordered him to make past payments on penalty of going to jail.

Unidentified Justice: And what I am saying is if he makes the past payments, he won't go to jail, if he complies with the order.

Mr. Schwartzberg: It is clear that essentially through the minority of his children's lives, if he never misses a payment he will not go to jail.

Unidentified Justice: So, it is clear that this order in other jurisdictions would be treated as a coercive and a civil contempt.

Mr. Schwartzberg: Correct.

And I have conceded that in my briefs.

And that is why I say that I think that California has chosen because of the threat of jail to call it a crime.

Unidentified Justice: See, you are suggesting, I think, in my hypothetical example about a negligence case, if a state not only called it a crime, but also said,

"We will appoint counsel and we will give the defendant the privilege of not getting on the stand, but the only remedy is you pay damages. "

You would say that having given some constitutional rights to a proceeding that is labeled criminal means all other criminal rights must go with it.

Mr. Schwartzberg: No, not based upon what you just said.

Depending upon where the genesis of those rights comes from.

Unidentified Justice: Well, it comes from California or my hypothetical state's mistaken belief it was compelled to do so by the Federal Constitution.

Mr. Schwartzberg: Well, if you assume it is erroneous then, obviously, I lose.

But I don't assume that their decision was erroneous.

Unidentified Justice: They say it was based on the Federal Constitution and that's why they do it.

It is the fact that, (a) they call it criminal; and (b) they think as a matter of Federal Constitutional law they had to do it.

Does that mean that we must agree with them that it is--

Mr. Schwartzberg: Well, I wouldn't put it that way.

Unidentified Justice: --What else do you have in this case?

You have California classifying this as criminal proceeding and giving a lot of rights to the defendant.

Mr. Schwartzberg: Sure.

Because it is a crime.

Unidentified Justice: It is a crime because they call it a crime.

Mr. Schwartzberg: But that is always the predicate.

Isn't that always true for any wrongful act?

Unidentified Justice: No.

The state also identifies certain sanctions that require that then there are rights--

Mr. Schwartzberg: Well, then maybe we ought to make it clear.

This is a crime.

The sanctions in this case are no different than in any other crime.

Unidentified Justice: --Yes, they are because the defendant here carries the key to the prison--

Mr. Schwartzberg: And so does every other criminal defendant in California.

If I go out and commit a robbery in California, and I am convicted of that robbery, the penalty is either probation or prison.

A court could place me on probation and could stay the imposition of that prison sentence and if I am a good boy for three years on that probation grant, I will never see a day of time.

Unidentified Justice: --Yes, but it could also say,

"You are going to jail for three years. "

"I don't care whether you make restitution or not. "

Mr. Schwartzberg: And so can they under the civil contempt statute.

That's the analogy I want to break.

Under the civil contempt statute, there is no obligation that the trial court place the contemptor on probation and give him another chance.

The court can simply say, "Off to the hoosegow".

Unidentified Justice: But if he does that, then I think everyone would agree that is the equivalent of a criminal procedure.

Mr. Schwartzberg: But we don't define whether a matter is criminal after we find out what the sentencing is when the state has already said that it is criminal.

And that is the problem we are having.

Unidentified Justice: Could I ask you, Mr. Schwartzberg, if we disagree with you and say that California's notion about whether this law is criminal or civil doesn't bind us and we decide that we will treat it as civil, do you lose?

Mr. Schwartzberg: Yes.

Unidentified Justice: Why?

Mr. Schwartzberg: I lose because I would concede that under Rylander and Usury that the inferences, the burden shifting that this statute accomplishes do not offend the Fifth Amendment in civil matters.

I would concede that, and I have conceded that all along.

Unidentified Justice: Yes.

All right.

Mr. Schwartzberg: Let me go a little bit further here and indicate to the Court this.

One of the things that I think this case presents by the petitioner is essentially... comes out of some for the same questions as the Court was asking Mr. Capizzi, and that is do we essentially allow petitioner to relitigate the definition of state law before this Court when they have essentially lost that opportunity in the Courts below?

What I would suggest to the Court is that these issues, if the Court looks through the original briefs that were filed in this case, the Court will notice two things.

Petitioner never argued to the Court of Appeal that this was not a crime.

And Number Two, they never argued to the Court of Appeal that as an element of that crime we add ability to pay.

Essentially they went to the Court of Appeal and they argued that 1209.5, notwithstanding these two assumptions, did not offend the Fifth Amendment, and perhaps that is why you have the Court of Appeal providing short shrift to what we are now arguing amongst ourselves.

The fact is that petitioner has also argued in their brief, and I have had--

Unidentified Justice: Well, yes, but the Court of Appeal didn't give short shrift to the notion that this is the kind of a proceeding in which shifting the burden of persuasion is unconstitutional.

Mr. Schwartzberg: --No, because they knew from the outset that they were dealing with a crime in California, and once they had that as a predicate, then the only other question that they had to resolve was whether the wording of 1209.5 offended the Fifth Amendment, and they didn't have any trouble reaching that conclusion either.

And the reason we know that they wouldn't have any trouble is because essentially this shifts everything onto the defendant.

We know that.

Unidentified Justice: You seem to be arguing that we just aren't entitled at all to ask whether or not this is close enough to a crime to trigger these protections.

Mr. Schwartzberg: I would be fearful to use the word entitled, but I would hope to argue to the Court--

Unidentified Justice: Don't be fearful.

Mr. Schwartzberg: --I would hope to argue to the Court that, yes, the answer is is that this case is very similar in some respects to Runi.

I mean I just... I see... my view is that what the Court is being asked to do is to rewrite the opinion but I think that the answer has to remain the same.

My belief is, and I think that the cases support it, and in fact in the reply brief that petitioner filed just last week essentially petitioners... I consider their central argument to be on Page 9 that this Court must define the subject matter of a statute solely in federal terms.

If that is true then what I would suggest is that if the federal government in 49 states make a wrong a civil cause of action, providing for injunctive relief, let's say pouring 1,000 gallons or sulfuric acid down a drain, they make it a civil wrong, they allow for injunctive relief to stop it from happening, and damages to punish the wilful or the wrongdoer for what he did, and California thinks that it is more important to protect its citizens on its water quality because we don't have any water in California, and so they make it a felony.

Essentially what I see petitioner arguing is that he would come here and say it is not a crime, because nobody else makes it a crime, and perhaps it wasn't a crime under common law.

Unidentified Justice: So the example would have to be they made it a felony but they way the only remedy for committing this felony is an injunction or a cease and desist order.

If they did that would your position be just as strong?

Mr. Schwartzberg: I don't know.

I would suggest to the Court that if California chooses to make something criminal, and we are getting back to the semantic argument, I don't know how to get out of it, and this is the problem I think you have seen in our briefs, if they make something criminal, does the definition of a crime only flow from the punishment, and I don't know that the answer to that is true, because there are many acts in society which may be labeled a crime which perhaps don't even carry the punishment.

Unidentified Justice: But I think you have agreed that California could solve this problem.

Instead of coming here with their lawsuit, they could have gone to the Supreme Court and said, we want a new rule defining this species of contempt the same way every other state does.

Mr. Schwartzberg: Justice Stevens, they did, and they got one vote.

I mean, I think that is why we are here, and I think the answer is that since 1893 the legislature has not known what this is, they have seen various rights being compelled by the Fifth Amendment.

You don't have to be Phi Beta Kappa to figure out that must mean it is a crime, and they haven't amended the statute of 1209, and the reason for that is because they are quite content with what it is.

Unidentified Justice: If that is true and they want to keep this burden of proof, they can, no matter what we decide, they can say as a matter of California law we are still going to require that the burden of proof on this issue be placed on the other party.

Mr. Schwartzberg: I don't think they can do that as long as the Fifth Amendment exists, but I think what they can't do--

Unidentified Justice: No, no, no, I mean they could take your position, which you say they have now.

Mr. Schwartzberg: --They don't need to.

We have already essentially eviscerated the law in California, but what I would suggest is that--

Unidentified Justice: What I am suggesting is, if you should lose this case in this Court on the federal theory, they could still, as you say as a matter of California policy this is the result they want, they could easily--

Mr. Schwartzberg: --No question, Your Honor.

I hope my client--

Unidentified Justice: --You have your own Fifth Amendment.

Mr. Schwartzberg: --Well, we do, but I think that our courts are going to be less inclined to utilize it in the near future.

Unidentified Justice: You can't apply it differently?

Mr. Schwartzberg: No, I don't think that.

I think that there is a movement of the court to utilize independent test grounds in a far more judicious manner than have been used in the past.

Unidentified Justice: Mr. Schwartzberg, what about this as a way of out of your semantical box.

Anything that you go to jail for is a crime.

In fact, this is what I thought our law reads like.

If it is a proceeding that sends you to jail, it is a criminal proceeding, unless the purpose of sending you to jail is just to force you to do something.

Now, that means forcing you to do something after you are in jail, so that I can send you to jail until you pay up the money that is due or until you perform some act that you are supposed to perform.

That is civil.

Mr. Schwartzberg: And I would suggest that does not happen in this case.

Unidentified Justice: That is right.

Mr. Schwartzberg: Absolutely.

Unidentified Justice: What is here is, you are going to jail for not having paid previously.

Mr. Schwartzberg: Correct.

Unidentified Justice: And that, if you call that coercive, then every criminal penalty is coercive.

That is to say, you are coerced not to kill people by knowing that if you kill somebody you will go to jail.

Mr. Schwartzberg: There is no question.

The only concern--

Unidentified Justice: That couldn't be what we mean by coercive.

Mr. Schwartzberg: --The only concern I have is that I think that petitioner is going to argue to this Court two minutes is that merely facing that jail sentence is going to scare these people into paying their money, and that is what makes it coercive, but the same argument is true that that is supposed to stop crime, because if we know we might go to jail if we are caught, somehow crime won't occur and we know that that is baloney so it is not--

Unidentified Justice: Why don't you make that argument to us?

That is not one that you made.

Mr. Schwartzberg: --Well, I haven't made it because of the difficulty in grappling with how the California courts go back and forth between the definition of what is a civil versus criminal contempt.

It is always criminal.

Unidentified Justice: Do most of these proceedings arise in the fashion that this one is--

Mr. Schwartzberg: Yes.

Unidentified Justice: --that is, the defendant has said you haven't made payments in the past and therefore go to jail?

Or do most of them come up, you know, we are going to send you to jail until you make up past payments?

Mr. Schwartzberg: I would venture to say that most judges attempt the rod before they put them in jail, and the answer is, yes, most defendants are placed on probation just as I would venture to say that most criminal defendants in the traditional criminal sense are placed on probation for first and second, maybe sometimes--

Unidentified Justice: But if a judge says, you haven't paid, therefore you got jail, and he goes to jail, if he then comes up with his past payments, he gets out.

Mr. Schwartzberg: --No, not in California.

That is it.

Unidentified Justice: That is it.

Mr. Schwartzberg: You just do your time.

Unidentified Justice: That's the difference.

Mr. Schwartzberg: You do your time.

And when you get out... now you can always obviously as for a modification, and you can hold up a certified cashier's check in front of the judge and beg that he now comes back and modifies your probation, but it is not a situation where the judge says the Orange County jail is across the street, Mr. Defendant, why don't you go over there, and when you get the money, give me a call?

It doesn't happen that way.

Obviously, I have just a few moments, but I would like to emphasize this.

Everybody is going to concede, just as the argument made by Mr. Capizzi in the beginning, that these are children involved, and obviously we have custodial parents who need the money.

Excuse me.

I ask the Court to affirm the decision below.

Chief Justice William H. Rehnquist: Thank you, Mr. Schwartzberg.

Mr. Capizzi, you have three minutes left.

ORAL ARGUMENT OF MICHAEL R. CAPIZZI, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Capizzi: Mr. Chief Justice, if it may please the Court, if there was such a defendant in jail and he did have the money, we would be so willing and happy to take that money for the children it is undoubtedly--

Unidentified Justice: Yes, but how about the judge?

Mr. Capizzi: --I think the judge would--

Unidentified Justice: If he puts him in jail for not having paid for a term, he may not let him out just because he comes up with the money.

Mr. Capizzi: --Where it is the coercive element that is trying to be utilized, and the entire thrust of these proceedings is to coerce payment, to get the payment for that child, and it is only as a last resort that the jail--

Unidentified Justice: Well, Mr. Capizzi, is it true as your opponent says, that in California the jail is imposed only as punishment, not as future coercion?

Mr. Capizzi: --No, that is absolutely incorrect, and--

Unidentified Justice: So he is wrong as a matter of California law?

Mr. Capizzi: --He is wrong, and I think the judgment of the Court in this case indicated that he is wrong.

The jail sentence was suspended on condition that he make the payments and it is only if he failed to make the payments that the coercive element would then come into play.

Unidentified Justice: The sentence itself, before its suspension, which is what we are arguing about, the sentence itself was a sentence or having failed to make past payments.

Now, that is coercive, to be sure, just as much as life imprisonment for murder is coercive.

It induces you not to commit a murder, and this would induce him to make the payments.

It is coercive in that sense, but that is not what we mean by coercive.

We mean you have the key to the jail in your pocket, and that wasn't the case here, was it?

Mr. Capizzi: Absolutely.

It was suspended on the condition that he make the--

Unidentified Justice: I am talking about the original sentence.

It is the sentence that we are concerned about, not the suspension of the sentence.

Mr. Capizzi: --But the sentence was suspended because Mr. Feiock didn't have the wherewithal to pay the $1,650 at the time he was given a payment schedule and told to reduce the arrearage at the rate of $50 per month.

And so it was necessary to continue the course of nature of that 25-day jail sentence.

If he pays, he will never do the time.

And there is certainly a preference that he pay rather than that he do the time.

Counsel is also incorrect in categorizing this as criminal.

City of Culver City versus Superior Court, a California Supreme Court case, at Page 549, says,

"But in California the proceedings leading to punishment for failure to obey a decree, criminal contempt, and to imprisonment until the omitted act is performed, civil contempt, are exactly the same. "

Although the sections which provide the procedure for both kinds of contempt are provided for in 1209 of the Code of Civil Procedure, contempt proceedings are said to be criminal in nature, and those procedural right and safeguards which are appropriate to criminal contempt proceedings are also afforded in California in civil contempt proceedings.

So we continue to draw a distinction based upon the substantive aspect, but we extend the procedural safeguards the same to both.

And as a result, both civil contempt and criminal contempt are deemed to be criminal in nature.

And the Court below did not categorize this as criminal--

Chief Justice William H. Rehnquist: Your time has expired, Mr. Capizzi.

The case is submitted.

Transcript: 

Argument of Speaker

Mr. Speaker: The opinions of the Court in two cases No. 86-787, Hicks against Feiock No.86-2037, Landers versus National Railroad Passenger Corporation will be announced by Justice White.

Argument of Justice White

Mr. White: For the reasons stated in opinion on file in the Hicks case, 86-787, the judgment of the Court of Appeals of California is vacated and remanded for further proceedings.

Justice O'Connor has filed the dissenting opinion in which the Chief Justice and Justice Scalia have joined.

Justice Kennedy did not participate in the case.