Conn and Najera v. Gabbert - Oral Argument

Argument of Kevin C. Brazile

Chief Justice Rehnquist: We'll hear argument first this morning in No. 97-1802, David Conn and Carol Najera v. Paul Gabbert.

Mr. Brazile.

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

To answer the first question of certiorari raised in this case, there has to be a determination made as to whether or not Petitioners in this case engaged in egregious or outrageous conscience-shocking conduct.

This case, and the case of County of Sacramento v. Lewis, as well as the case of Washington v. Glucksberg, has set forth the test that should be used in... in making the analysis in a substantive due process case such as this, which involves executive action.

What the Court has told us is that we look to the historical precedent, we look to the case precedent, and we look at the traditions of our Nation.

In this case, the liberty interest at stake is the question of whether or not an attorney has a right not to be subject to a search at the time his client is testifying before the grand jury.

In this case, the Ninth Circuit found that the search warrant was in fact a valid warrant.

Also, at this juncture of the proceeding... this was a grand jury proceeding; there had been no charges filed against Miss Baker, so the sixth amendment right to counsel did not apply.

What tradition normally requires to do a search of a person, whether it be an attorney or anyone else, is in fact a valid search warrant.

That's what occurred in this case.

Justice Ginsburg: Mr. Brazile, if you... you say the conduct wasn't egregious enough to meet what you say is the standard.

But do you concede that it... it was subject to some kind of sanction at all, to deliberately time the search... the search with a warrant... of the lawyer at the very moment when his client was being... was testifying?

Mr. Brazile: Justice Ginsburg, no, we... Justice Ginsburg, no, we do not.

In this case, the search warrant was served between the hours that the warrant authorized.

The warrant authorized a search any time between 7:00 a.m. and 10: 00 p.m. in the evening

The warrant was executed at that time.

It was a valid warrant.

And when Miss Baker was before the grand jury, each time she made a request to consult with her attorney, the district attorneys and the grand jury foreperson allowed her to leave the grand jury in order to consult with her lawyer.

Now, according to this Court's decision in U.S. v. Williams, she had no right to have that lawyer in the grand jury room with her.

And it's not even established that she had a right to consult with him outside of the grand jury under this Court's case law.

But there are other case law from the Federal circuits that do allow that... that the witness has a right to consult with her lawyer.

Justice Ginsburg: But apart from what... your... your argument about constitutional violation is my question to you was, is there any sanction for this?

If the warrant could have been... it could have been executed before the witness appeared before the grand jury or after, but it wasn't a coincidence that they occurred simultaneously.

And my question to you, just... is... is whether there is any sanction for this?

Or if it doesn't meet the constitutional standard, that's it?

Mr. Brazile: Well, there is a sanction for this type of conduct if... under California laws and many others States, there is the tort of abuse of process.

If they felt that the warrant was used for the... for an ulterior motive, in an abusive way, they could have brought a tort action for abuse of process.

So, there is a State law remedy here.

Justice Scalia: Is it correct that the service was not coincidental, the time of the service?

I mean, do you acknowledge that?

Mr. Brazile: No, Your...

Justice Scalia: That it was calculated to...

Mr. Brazile: No, Your Honor, we do not concede that the warrant was somehow calculated to interfere or to interrupt with Mr. Gabbert's practice of his profession.

What in fact happened is, earlier in the morning, when they were up in the district attorney's office, Mr. Gabbert indicated that the documents that were requested in the subpoena, that he had the documents.

He indicated that to Mr. Conn.

And it was at that point he decided to go and to get the warrant.

Justice Breyer: Well, how does this... I don't... I'm just not familiar with this procedure.

I mean, I would have thought that a client has an instrument of a crime, gives it to her lawyer.

The government, I take it, has a right to it.

I've just never heard of... if the lawyer, who is an officer of the court, has an instrument of the crime that the government has a right to, why wouldn't the government just ask him for it, or subpoena it?

I mean, I've never heard of a search warrant for... for... is this a normal procedure?

I... I don't understand.

Mr. Brazile: Justice Breyer...

Justice Scalia: Justice Breyer hasn't practiced in California.

Unidentified Justice: [Laughter]

Justice Stevens: Well, I haven't either, but it is a rather unusual practice out there, I guess.

Mr. Brazile: Well...

Justice Stevens: Is this typical out there?

Mr. Brazile: Well, Justice...

Justice Stevens: Is this the way you normally get documents from lawyers?

Mr. Brazile: Just... Justice Stevens, there is a penal code section that applied here, that requires, when you serve a search warrant on a... on a lawyer, there are certain formalities you have to comply with, one of which is... is getting a special master appointed.

So, in terms of getting the documents from Mr. Gabbert, they did get a special master, and they did obtain a search warrant from the court.

That's the procedure that's...

Justice Stevens: So, that's the normal way you get documents from lawyers out in your... your esteemed bar, you serve... you serve warrants...

Mr. Brazile: I do have...

Justice Stevens: rather than call them up and ask them or serve a subpoena?

Is this typical?

Justice Breyer: I mean...

Mr. Brazile: Well, I think, yes, it is, Your Honor.

Chief Justice Rehnquist: Wow.

Justice Breyer: My brother is out in California.

Justice Stevens: It's a jungle out there.

Justice Breyer: My family has lawyers out in California and never heard of this.

Unidentified Justice: [Laughter]

Justice Kennedy: What?

Justice Breyer: This is a normal thing; they don't just ask the lawyer, Please, give me the document?

If the lawyer is uncertain about it, they need protection legally, and say, Bring... get a subpoena, or...

Mr. Brazile: Well... well, Your Honor, Justice Breyer, what had occurred is they served a subpoena on the witness, Traci Baker.

And part of that subpoena required her to produce the documents, not the lawyer.

Justice Breyer: So, why didn't they have a subpoena for the lawyer?

Mr. Brazile: Pardon?

Justice Breyer: Why didn't they have a subpoena for the lawyer?

If he wants that protection, I would have thought that the lawyer would just say, Here it is, if it's undisputed.

And if it is disputed, why wouldn't they get a subpoena or some other court procedure?

Mr. Brazile: Well, they chose to get a warrant.

He was there.

He indicated that he had the documents.

They obtained the warrant.

If they had waited any longer, possibly to get a subpoena, he could have transferred the documents to someone else.

Justice Breyer: But he's an officer of the court.

Mr. Brazile: Exactly.

Justice Breyer: I would assume that he would not take a... a... is there some reason not to go on the normal presumption that people try to follow the law, who are lawyers?

Mr. Brazile: Well, the problem that the prosecutors were confronted with... days before the appearance of the witness before the grand jury, the subpoena, which required the documents, had been served on Mr. Gabbert at his office.

He had been in communication with Mr. Conn days and a couple of weeks before the incident occurred.

So, he knew exactly what documents they were after, and he never at one time volunteered, Oh, by the way, here they are; I'll give them to you, you don't need to subpoena anyone.

In their minds, the witness was giving the documents to her lawyer.

She was not producing the documents as required by the subpoena.

To search Mr. Gabbert, if the documents are in fact in his briefcase, they wanted to get a warrant...

Justice Stevens: When did the subpoena require the production of the documents?

Mr. Brazile: Pardon?

Justice Stevens: The subpoena required the production of the document where and when?

Mr. Brazile: The subpoena required the production of the documents on March 21st, 1994, the day of her grand jury testimony.

Justice Stevens: Well, she didn't have a duty to produce it before she showed up before the grand jury, did she?

Mr. Brazile: She had to produce it with... with her at her grand jury testimony.

Justice Stevens: At the time of her testimony?

Mr. Brazile: Correct.

Justice Stevens: So, at the time you served the... the search warrant, she was not in default on the subpoena, was she?

Mr. Brazile: Well, she hadn't gone before the grand jury at that point in time.

Justice Breyer: Right.

Mr. Brazile: But she had also earlier indicated that the documents that... when her apartment was searched... I believe it was on March the 18th... she told them during that search that all the documents that you want, I've turned over to my lawyer.

Chief Justice Rehnquist: And I presume...

But there's... there's no doubt, I take it, that the subpoena was valid under California law?

Mr. Brazile: Yes, Mr. Chief Justice Rehnquist, the subpoena was valid under California law.

There has never been any challenge to the warrant... I mean to the subpoena.

Justice Scalia: And I assume that the reason it was served that morning was that she said she wasn't bringing the documents with her, because her lawyer had them, and that they wanted the documents in order to examine her before the grand jury when she appeared?

Mr. Brazile: That's... that's correct, Justice Scalia.

Justice Scalia: So, if you didn't get the doc... the documents from the lawyer, and she showed up without them, she'd have to go ahead with her grand jury testimony without the documents to cross-examine her with?

Mr. Brazile: And, essentially, that's what happened.

And...

Justice Souter: Well, did you... when... when your client got to that point, did... did your client say to the... to the lawyer, We... we are told that you have the documents subject to the subpoena; will you give them to us or do we have to subpoena you or get a search warrant; did they say that?

Mr. Brazile: To the lawyer?

Justice Breyer: Yes.

Mr. Brazile: No, they did not.

Justice Souter: Did they say, Please give them to us?

Mr. Brazile: No.

Justice Souter: They didn't do that?

Mr. Brazile: No, they did not.

Justice Scalia: Why didn't they do that?

Mr. Brazile: There was a discussion upstairs, before they went down to the grand jury room.

And Mr. Gabbert indicated that he had the documents and that the documents were in his briefcase.

At that...

Justice Souter: But nobody said, May we have them; they're subject to subpoena?

Mr. Brazile: Mr. Conn did not say that, but Mr. Gabbert knew full well that the documents were subject to a subpoena, because a subpoena was served on his office.

Justice Kennedy: No, I'm sure he did.

Justice Souter: I just wanted to know whether anybody asked for them.

Mr. Brazile: I... I don't believe so, Your Honor.

No.

Justice Scalia: Nobody did.

Justice Kennedy: But this case comes to us on summary judgment.

I take it you can argue the case... that you do argue the case on the assumption that it might be proved that this warrant was timed so as to deliberately interfere with the representation of the client before the grand jury.

And you say that even if that is so, there is no substantive due process violation.

Is... is that your position?

Mr. Brazile: Justice Kennedy, that's correct.

Even if it was timed in that fashion, there still would not be a substantive due process right violation here.

Justice Souter: Do you concede that there may well be a fourth amendment violation... that's not before us; and I take it that will be inquired into on remand to the district court... but do you concede, for the sake of argument, that there may be a fourth amendment violation?

Mr. Brazile: I don't concede that there was a fourth amendment violation because...

Justice Souter: But there may be, that that's an open question?

Mr. Brazile: Well, as to the second search that occurred after the grand jury testimony, that is still an open question.

And that issue will have to be resolved...

Justice Souter: I'm sorry, you... you've got the better of me.

The second search?

Mr. Brazile: There were two searches, Your Honor.

The...

Justice Souter: I thought we were talking about the search that was going on during the grand jury testimony.

Mr. Brazile: That... that's correct.

But...

Justice Souter: That... I thought that was... that... that was the search which he says interfered with his right to represent his client.

Mr. Brazile: Correct.

And the Ninth Circuit has held that that search was a valid... that warrant was a valid warrant.

So, there really is no Fourth Amendment question.

Justice Souter: Well, it may be a valid warrant, but an unreasonable search.

Is... is the question of the reasonableness of that search still an open question?

Mr. Brazile: No.

Justice Souter: Okay.

And...

Justice Ginsburg: Because that was put under the fifth amendment.

The other part of the case that is still alive in the district court, as I understand it, was put under the fourth amendment, because there was no warrant for the second search.

Mr. Brazile: That's correct...

Justice Souter: I see.

Mr. Brazile: Justice Ginsburg.

Justice Ginsburg: And in... in... in that light, since there is this piece of the case that unquestionably remains alive...

Mr. Brazile: That's correct.

Justice Ginsburg: the second, unwarranted search, why wouldn't it be open to the plaintiff to amend the complaint to assert that the first search violated the fourth amendment, because, although there was a warrant, it was... the timing of it was unreasonable?

Mr. Brazile: In this case, I think the... the way the complaint was pled, yes, they would have to amend the complaint to state such a cause of action.

But it would be our position that under these facts, the execution of that warrant was not unreasonable.

Justice Ginsburg: But it would still be as... there's nothing that is before us now that would foreclose the plaintiff from, in the district court, moving to amend the complaint to add to the fourth amendment claim that's already there, this further fourth amendment claim?

Mr. Brazile: Not as to the first search.

As... they could amend the complaint as to the second search.

Justice Ginsburg: No.

The second search is not before us, as I understand it.

Mr. Brazile: That's correct.

Justice Ginsburg: That's in the district court.

Mr. Brazile: That's correct.

Justice Ginsburg: You have made an argument that this is not a violation of the fifth amendment due process clause.

My question to you is, it was never asserted that it's a violation of the fourth amendment.

But one of the amici... amici briefs made that suggestion, that if there's anything wrong here, it has to do with the fourth amendment, not the fifth amendment.

So, could the complaint be amended to so assert?

Mr. Brazile: It's... it's... Justice Ginsburg, yes, the complaint probably could be amended.

Chief Justice Rehnquist: Well, that issue isn't before this Court at all, is it?

Mr. Brazile: No, it's not before this Court, but...

Justice Kennedy: Getting to the issue that... that is before this Court.

Assuming the warrant was issued and... and was executed in a way deliberately to interfere with the representation of the client, is... is the only State law cause of action to... to remedy that, an abuse of process?

Mr. Brazile: There would be a State law...

Justice Kennedy: Or there's some other remedies?

Mr. Brazile: Justice Kennedy, there would be a cause of action for abuse of process.

There could also be a cause of action for intentional infliction of emotional distress.

There could be a cause of action for breach of mandatory duty under California law.

There's a government code section... I believe it's 815.6... that allows for such a cause of action.

Justice Kennedy: Does the existence of those cause of actions bear on the question of whether there is a Federal substantive due process right?

Mr. Brazile: Those cause of actions, no.

Justice Kennedy: That... that is to say, if there is adequate remedies under the State... an adequate remedy under State law, is that a ground for saying that there is no substantive due process right under the 14th amendment?

Mr. Brazile: Yes, it could be.

Because if... if we allow for any and every alleged governmental tort to be a 14th amendment violation, then the 14th amendment essentially becomes a font of tort law.

That's why what we're saying in our... our position is that, in order to have a 14th amendment violation, you need a complete ban or exclusion from the practice of the profession, not this temporary delay or interruption in the practice of the profession.

Which, in this case, Your Honor, was... was a period of less than 20 minutes.

And once this interruption was over, he then continued to represent his client at the contempt hearing.

Chief Justice Rehnquist: Well, is there any case from our Court that says there's a substantive due process right to practice law?

Mr. Brazile: The cases from this Court, Your Honor, don't... in my opinion, don't go that far.

And I haven't seen a case.

There's the case of Board of Regents v. Roth.

There's also the case of Cafeteria Workers v. McElroy.

Those cases deal with someone losing their job.

But, by analogy, those cases would suggest, and it's our position, that you have to have a ban or exclusion or foreclosure of the employment in order to state a 14th amendment right.

Chief Justice Rehnquist: And Roth and Cafeteria Workers also were an employer-employee situation, were they not?

Mr. Brazile: That's correct.

And in those situations, I think it's... the... the right is even more important or more significant, because they're totally out of a job.

Mr. Gabbert was not put out of work.

Mr. Gabbert continued to represent Miss Baker immediately after the search.

Chief Justice Rehnquist: And he represented her during the search.

Mr. Brazile: He... he did.

In fact, he did, Your Honor, yes.

Justice Ginsburg: But is there a right to practice law, to get a license, if you qualify, a right that the State cannot arbitrarily deny you?

There is such a right, is there not?

Mr. Brazile: There... there's... you have a right to practice your chosen profession... profession, Justice Ginsburg.

But that right does not extend so far that any interruption or delay in your practice of your profession states a substantive due process 14th amendment claim.

And... and the crux of our argument here is that where you have this temporary delay or interruption in... in the practice of someone's profession, that doesn't rise to the level of a 14th amendment claim.

There are other remedies available.

Again, the State tort remedies, an action for abuse of process, an action for intentional infliction of emotional distress, of a negligence tort.

There are... there are several other remedies.

What we don't want to see is the floodgates opened here, that any interruption of a profession... and this case is not limited just to lawyers; this case would apply to any profession, whether it be an accountant, a secretary, anyone who is practicing their profession...

Justice Scalia: A secretary is not a profession.

Is it only professions it's limited to?

I mean...

Mr. Brazile: Well, any... any...

Justice Scalia: What if I'm a plumber and the government unreasonably interferes with my...

Mr. Brazile: I think, under the Ninth Circuit's decision in this case, if you're a plumber and we execute a...

Justice Scalia: Right.

Mr. Brazile: a valid warrant on you when you're fixing a... a pipe in someone's home...

Justice Scalia: Right.

Mr. Brazile: potentially you could sue the government for a 14th amendment claim, by saying, Well, the search interrupted or delayed my fixing of the pipe, and I couldn't practice my plumbing profession to the highest standards.

It goes that far.

It would apply to any profession, not just lawyers.

Justice Kennedy: If there had been a real interference with representation before the grand jury, I take it the client would have had a sixth amendment cause of action... the client?

Mr. Brazile: The... the client potentially had a sixth amendment cause of action.

However, because this was a grand jury proceeding, no formal charges had been initiated.

It's questionable whether or not the sixth amendment would actually be triggered.

This Court has opinions that...

Justice Kennedy: Is there any... is there any indication that that wrong could... could be alleged by the attorney?

Mr. Brazile: For... for... on behalf of...

Justice Kennedy: There's a... well, there's a standing problem, isn't there?

Mr. Brazile: Yes, oh, absolutely, under this Court's decision in Warth v. Seldin, the Court has held that you cannot assert, under Section 1983, the rights of a third party.

And that's essentially what the lawyer would be doing if he was suing based upon the client's sixth amendment rights.

And this Court has criticized that, and condemned that practice, in U.S. v. Williams, which was a grand jury case that the Court decided a few years ago.

Justice Stevens: May I ask, just because I'm curious, did you ever get the document?

Unidentified Justice: [Laughter]

Justice Breyer: Justice Stevens, I... I believe, later, there was a search of Mr. Gabbert's office, I believe that same day.

Justice Scalia: And, quite frankly, I don't recall if we got the actual documents we were looking for.

Justice Kennedy: There was the... the first letter, which essentially was a script for her testimony, when she testified at the first trial.

Justice Scalia: But I don't believe we got any other documents.

Justice Kennedy: Well, the two pages that were... there was two pages of the... there were two pages of the letter that were delivered at... at the search.

Was that not true?

Didn't... didn't he give two pages of the letter?

Mr. Brazile: I believe there were a couple of pages of the letters, Justice Kennedy, that were provided.

I believe that's correct.

Justice Breyer: Is this... is this... I'm still... I know this isn't directly on the point, but I'm somewhat concerned about going into the lawyer's office, searching the office, as if that's a normal procedure.

What is the normal procedure?

Wouldn't you ask the witness for the letter?

You subpoenaed the letter.

You... you subpoenaed the letter.

She says, I don't have it; I won't give it to you.

Now, if she's given it to her lawyer, can't she ask it back.

Wouldn't you hold her in contempt?

If a State's entitled to it...

Mr. Brazile: Well, what they did here...

Justice Breyer: wouldn't the judge say, Put her in prison until she gives him the letter?

And if he's not entitled to it, she shouldn't... they shouldn't have it.

I mean, what's the normal procedure?

Mr. Brazile: Well, Justice Breyer, what they did here is they got a warrant not only for Mr. Gabbert, they also got a warrant for... for Traci Baker.

Because the plan was... or the idea was you would search Mr. Gabbert for the documents.

And then, if he somehow passed the documents to someone, you could also search Miss Baker.

So, when you're looking for these kind of documents, the appropriate procedure is to get a warrant, present an affidavit of probable cause to... to an independent judge, and let him make a determination whether or not we can do a search.

The prosecutors in this case were trying the best they knew how to follow the book here, by getting a warrant and... which... a warrant that's been upheld to be a valid search warrant in this case.

Justice Ginsburg: But the one thing they couldn't do, based on the time they executed this, was to have that document when she appeared in the grand jury room, because the document, she said, was with her lawyer.

Her lawyer was in another room being searched.

So, if the purpose was to get her in the grand jury room with the letter, then... then why didn't they wait... what did you say, the whole thing took 20 minutes... wait to start her testimony for 20 minutes?

Mr. Brazile: He was there.

They didn't know for certain whether or not he had the documents.

He indicated that he had the documents in his briefcase.

Justice Ginsburg: I thought he took the two pages out first thing.

Mr. Brazile: Pardon?

Justice Ginsburg: I thought the two pages were turned over by the lawyer himself, not... they were not the result of... of searching his briefcase.

Mr. Brazile: No.

During... during the search, I don't believe they got the two pages, Justice Ginsburg.

Justice Ginsburg: Well, then maybe my memory is... is faulty.

I thought that... that the master turned up nothing, but the lawyer himself had produced, once the search started, the two pages.

Mr. Brazile: I... I... Justice Ginsburg, I don't believe that's an accurate reflection of the record.

It was my recollection that... that the search by the special master didn't uncover any of the documents that were being sought.

Justice Kennedy: Yes.

Justice Ginsburg: But... but what is your recollection about when those two pages were turned over, and in what manner?

Mr. Brazile: I don't believe Mr. Gabbert turned over those documents.

I believe that's what the record will show.

What I'd like to do now is to address the issue of the second question of certiorari, which is the question of... of qualified immunity.

It's our position that this right that's being alleged here, this right to practice the profession, really is the right as to whether or not a lawyer has a right not to be subject to being searched at a grand jury proceeding when his client is testifying.

And based upon the clearly established case law, there is no such right that was recognized under the case law in 1994.

The case law talks about...

Chief Justice Rehnquist: You've been arguing up to now that there's no such right as of the case law right now, have you not?

Mr. Brazile: That... that's correct, Your Honor.

But this... what I was...

Chief Justice Rehnquist: Afore certiorari, then?

Mr. Brazile: That... that's correct.

Justice Ginsburg: Mr. Brazile, may I just interrupt you to read from the Ninth Circuit's decision?

Mr. Brazile: Yes, Justice.

Justice Ginsburg: It says: At Gabbert's request, the search took place in a private room

Before he was actually searched, Gabbert gave Oppenheim, who was the special master, two photocopied pages of a three-page letter from Lyle Menendez to Baker.

So, I think that my recollection was correct in that respect, that the lawyer voluntarily, at the very beginning of the search which turned up nothing, turned over two pages of a three-page letter.

Mr. Brazile: That's correct, Your Honor.

I stand corrected.

Chief Justice Rehnquist, as you indicated, the qualified immunity issue, if the Court determines that there was no egregious or conscience shocking... conscience shocking conduct in this case, or that there is no substantive due process right involved here, we don't even get to the... to the qualified immunity issue.

And there's even a suggestion, I believe, in a concurring opinion by Justice Stevens, in the case of County of Sacramento v. Lewis, that the Court could even go directly, first, to the issue of qualified immunity.

Here, when one looks at the... the case law, the question is, what is the relevant case law?

It's our position that the relevant case law for the purposes of deciding what is or what is not qualified immunity is a decision of this Court or a decision of the Federal district courts, and not something that's based purely upon a district court opinion.

There's a few circuits... or, actually, many of the circuits... the Second, the Fourth, the Sixth, the Seventh, the 10th and 11th... that do not allow district court opinions to establish clearly established law.

And what we're urging that this Court do in this case is to use or adopt the bright line standard for establishing whether or not there's been a violation of clearly established law.

In a case of... of this nature where you have very unique circumstances, you need a high degree of factual correspondence or similarity from the prior case law.

No case has been cited that involves a situation such as this, where you're involved with a grand jury, there's an issue of where there's no... the sixth amendment right is not in... in play.

And here also, you have a valid warrant.

Inherent in any execution of the warrant is going to be some kind of delay or disruption.

Prosecutors in this case, the Petitioners, had no way of knowing that the conduct they engaged in would violate the 14th amendment rights of Mr. Gabbert.

There's no case that would have put them on notice or made it very obvious or apparent to them that they were in violation of such a right.

And this right of undue interference, or unreasonable interference, with the right to practice a profession is very vague and abstract.

There needs to be some clear-cut guidelines.

There are no clear-cut guidelines under the case law as of 1994.

Therefore, the issue of qualified immunity should have applied in this case, because the law was not clearly established.

They were not knowingly in violation of the law based upon the facts and circumstances confronting them.

Justice Kennedy: Is it your position that if there is... going back to this substantive question of whether or not... if there is a right, it's under the fourth amendment?

Mr. Brazile: Correct, Justice Kennedy.

If there is a right here, it would arise under the fourth amendment, not the 14th.

And... and the qualified immunity defense is... is right-specific.

If they have...

Justice Kennedy: Do you think there is a right not to have a warrant that's timed so as to unreasonably interfere with your occupation?

Mr. Brazile: It would be our position... I don't believe that the fourth amendment would give a cause of action based upon the state of the case law.

But if there is a possibility... and it's our position that there is not a fourth amendment violation here, based upon when the warrant was served... but if there is a possibility of a cognizable claim under the Constitution, it's under the fourth amendment and not the 14th amendment.

And because the issue of qualified immunity is right-specific, that insofar as there are 14th amendment claim concerns here, that the qualified immunity defense should apply and preclude a 14th amendment claim in this particular action.

Justice Ginsburg: Mr. Brazile, you mentioned possible State tort remedies.

Is there anything... is there any kind of ethical guide for district attorneys that... that would address how you deal with witnesses and lawyers in... in the grand jury setting?

Mr. Brazile: The district attorney's office does have a manual that governs grand jury proceedings.

But I don't believe it's specific as to the situation that arose here.

And I can't think of any ethical rules that would have governed this situation that they were faced with.

Because these were some rather unique circumstances that they were confronted with.

So, I think the remedy, if there is one, is through the State tort law.

And I think, clearly, as I indicated earlier, Justice Ginsburg, the tort of abuse of process is what would remedy a situation like this, where they're alleging that we used the warrant in a deliberate fashion to somehow deprive someone of... of a right or to harm a particular person.

So... but it's not the 14th.

That's not the vehicle.

Because we don't want to have the 14th amendment as a vehicle or a mode for setting rules that are going to govern criminal procedure or rules that... or we don't want the 14th amendment to somehow supervise how the grand jury proceedings are run.

Leave that to the States.

And if there's a harm that's caused, let the State tort remedy be involved.

This is not the kind of egregious, outrageous conduct that's shocking of the conscience.

Argument of Michael J. Lightfoot

Chief Justice Rehnquist: Thank you, Mr. Brazile.

Mr. Lightfoot, we'll hear from you.

Mr. Lightfoot: Mr. Chief Justice, and may it pleased the Court:

Our contention has been, from the time that we filed the complaint in this matter, throughout the course of the litigation, that the prosecutor's action here was to intentionally time the execution of the search warrant so as to prevent Mr. Gabbert from giving counsel to his client outside the grand jury, and specifically with respect to her potential invocation of the fifth amendment.

And ultimately, it was the purpose of the prosecutors to get her, the client, to reveal information to the grand jury that she was otherwise reluctant to do.

Chief Justice Rehnquist: Am I right in thinking that Mr. Gabbert was available every time she wanted to consult while she was in the grand jury room?

Mr. Lightfoot: Our allega... the answer is no, Your Honor.

Our allegations in the complaint reflect that their actions deprived him of being available, to be of assistance to her, at the times when she was allowed to leave the grand jury.

Chief Justice Rehnquist: And did the... did the case get any more developed than just on the basis of a complaint and answer?

Were there any depositions or affidavits or summary judgment proceedings?

Mr. Lightfoot: There... there were, Your Honor.

There were depositions of Mr. Gabbert, the... the two defendants.

In fact, all the parties who were involved in the search, as well as Miss Baker, the grand jury witness and the client of Mr. Gabbert.

Mr. Gabbert testified that he was taken approximately 40 feet away from the grand jury room, and that the process of the execution took a period of time.

It was, as... as the Court may know, we've indicated in the briefs, the...

Justice Ginsburg: Well, you just said something,.

idn't he ask to have the search done in a private room?

Mr. Lightfoot: He did, Your Honor, that's correct.

And then he was taken away from the entrance to the grand jury room, where he was standing with his client, and taken to an available room in the environs of the grand jury, which was, according to her testimony, three to five car lengths' away from Mr. Gabbert.

Justice Ginsburg: But every time she asked if she could go to that room, she was told, Yes, you can.

Mr. Lightfoot: With all due respect, Justice Ginsburg, that's not what the evidence indicates.

When she first walked into the grand jury while he was... he was being searched down the hall, she was asked a question about her relationship with Lyle Menendez.

Her response was: My lawyer is in the process of being searched

I have had not had an opportunity to... to seek his counsel.

May I leave and seek his counsel?

She was allowed by the foreperson to leave.

When she left the room, she couldn't find him.

An employee of the district attorney's office went down to Mr. Gabbert, told Mr. Gabbert that his client was looking for him.

They never... he... Mr. Gabbert never conversed with his client.

He called out: I'm in the process of being searched

They're going to have to wait.

She then...

Justice Ginsburg: Why couldn't he have just said, Client, tell them to wait, instead of giving his... giving... if he had said that, then maybe all of this could have been avoided.

Mr. Lightfoot: Well, you know, Your Honor, she was a 24-year-old young waitress, very unsophisticated.

He was in the process...

Justice Scalia: Well, he wasn't.

Why couldn't he just have said, Can you interrupt the search for a moment while I talk to my client?

Mr. Lightfoot: Your Honor, what...

Justice Scalia: Could he... did he ask to do that?

Did he ask to have the search stopped?

Incidentally, how long did this search take, for Pete's sake?

I mean, it... it... the way it's described,

"I am in the process of being searched. "

I mean, what did it take, 20 minutes?

Mr. Lightfoot: Twenty minutes to a half an hour.

He had with him, Your Honor, he had the file in this case which included his interview notes of his interview with the client, which the... despite the objections of Mr. Gabbert, were read in their entirety by the special master.

He...

Justice Ginsburg: Who did nothing with them.

I mean, nothing... none of that was turned over to the prosecutor.

Mr. Lightfoot: No, Your Honor.

But Mr. Gabbert consistently made the claim that under California law, Section 1524, the statute under which the search was being conducted, that once he invoked the privilege, under that law, the search has to stop.

And the master continued to read... as a matter of fact, one of the reasons, as indicated in the complaint, that did not allow Mr. Gabbert to leave the room was that the special master, who was in possession of the documents, insisted on copying the interview notes that Mr. Gabbert had made during his interview with the client.

Justice Souter: May... may I interrupt you just to ask this question?

Mr. Lightfoot: Yes, Your Honor.

Justice Souter: You said that under the California statute that governs this, once he invoked the privilege, the search should have stopped.

And you say it did not.

Does he have a cause of action under the California statute?

Mr. Lightfoot: We... we pled it under the independent jurisdiction of the Federal court.

And it was dismissed by the trial court as being a novel claim that had not yet been recognized in the California courts.

Justice Souter: Well, could we...

So, are you taking... I'm sorry.

Justice O'Connor: I'm sorry.

Justice Souter: Are you taking that question up?

Did you raise that before the circuit?

Mr. Lightfoot: We did, Your Honor.

Justice Souter: Okay.

Now, may I... one related question.

I take it, based on the representations of... of counsel on the other side, that you did not, or have not, raised a claim that this search, under the warrant, was an unreasonable search within the meaning of the fourth amendment; is that correct?

Mr. Lightfoot: We did, Your Honor, but not on the basis of the timing of the search, so as to prevent him from giving counsel to his client.

Justice Souter: Is there any reason that you could not raise that claim?

Mr. Lightfoot: Well, Your Honor, we didn't... we don't see this as a... as a... as particularly a fourth amendment problem.

Justice Souter: Well, you're... you're saying you want us to see it as a 14th amendment problem, but my question is, why shouldn't you raise it as a fourth amendment problem?

We have said a number of times that if a claim for relief can be raised under a specific constitutional guarantee, that's the guarantee to invoke, and not the broad generality of substantive due process under the 14th amendment.

So, I... I... I think you have a burden to indicate why you have not raised the timing of the search as an issue of reasonableness under the fourth amendment.

Mr. Lightfoot: Your Honor, I... I assume that Your Honor is referring to the Albright v. Oliver and Graham v. Connor.

And my understanding of the holdings in those cases is that where there is a textual source in the Bill of Rights for the particular behavior that we raise as being violative of our client's constitutional rights, then we should pursue that particular violation.

Justice Souter: Well, the textual source here is the reasonableness requirement of the 14th... of the fourth amendment.

And is... is there some reason that you cannot raise this issue... it may, you know, be a... a new issue... but is there some reason you can't raise the issue there?

It's a new issue under the... under the 14th amendment, too.

So, why not raise it under the fourth?

Mr. Lightfoot: Because our claim, Your Honor, does not have to do with the manner in which they seized the evidence.

Justice Souter: It has the manner... it has to do with the manner in which the search was conducted.

Your claim, as I understand it, is that the search was conducted deliberately in a way to interfere with the right of your client to... the right of your client to advise his client when called to testify before a grand jury.

Why is that not, at least on the face of it, an issue of reasonableness that could be raised under the fourth amendment?

Mr. Lightfoot: Because, Your Honor, it's my understanding that the fourth amendment guards against unreasonable activity in the procuring of evidence.

We are concentrating on the behavior of the prosecutors in separating Mr. Gabbert from his client.

It's... it's the same as if they had locked them on an elevator or told him, as he was standing outside the grand jury room, that there was a death in his family to get him out of the building so that...

Justice Souter: In any case, you don't want to... you don't want to pursue that avenue of relief?

Mr. Lightfoot: Well, we haven't, Your Honor.

We... I... I'm saying honestly to the Court that we filed fourth amendment claims with respect to the search that took place 40 feet...

Justice Souter: The second... yeah...

Mr. Lightfoot: and we did not pursue that as one of the bases, because we thought that it more properly fell within the due process clause.

Justice O'Connor: My questions are much the same.

I want to know exactly what your claim is in its narrowest sense.

Is it a substantive due process violation that you allege?

Mr. Lightfoot: It is, Justice O'Connor.

Justice O'Connor: And what holding of this Court do you think comes closest to supporting recognition of a substantive due process violation here?

Mr. Lightfoot: If I were bound to... to identify one case, it would be Meyer v. Nebraska, decided in 1923, Your Honor.

Chief Justice Rehnquist: Well, that's not teaching German in a school.

That seems a rather far cry.

Mr. Lightfoot: Well, Your Honor, you know, respectfully, I don't think it is a far cry.

What we're talking about is we're... we know, going back into the last century, that everyone has a due process right to practice a profession or to engage in the calling of one's choice.

Chief Justice Rehnquist: Well, what... what case supports that proposition?

Mr. Lightfoot: Going back to the Dent case, in the 1890's, the 1915 case of Truax v. Raich...

Chief Justice Rehnquist: Well, those cases were all overruled in the thirties and forties.

Mr. Lightfoot: Your Honor, the... the case that was decided in 1923, the Meyer v. Nebraska, was a case that was a direct appeal of a man who was the teacher and convicted of the crime of teaching in German during a small portion of his teaching day, approximately a half an hour.

Chief Justice Rehnquist: Well, if that is the case you relied on, surely you lose on the qualified immunity ground.

Because it's... it's a great leap, wouldn't you agree, from that to supporting your present claim?

Mr. Lightfoot: Well, that's the... that's the closest case in the Supreme Court.

There... there's a case in the Eighth Circuit, decided in... in 1974; Wounded Knee v. FBI, a 1983 case, where the Court held that there was a constitutional right to practice law that was interfered with.

Justice O'Connor: Well, but now, wait a minute.

Do you... do you say that an attorney cannot be searched, pursuant to a valid warrant?

Mr. Lightfoot: Not at all, Your Honor.

Justice O'Connor: And that's what happened here.

There was a valid warrant; you concede that?

Mr. Lightfoot: We... for purposes of this argument, we do, Your Honor.

Chief Justice Rehnquist: Right.

Mr. Lightfoot: But... but, Your Honor, we're not... we don't claim that every time an attorney is searched that there's a due process violation.

This search occurred at the precise... and this is what the Ninth Circuit held... at the precise moment in time when the lawyer was retained to represent the witness...

Justice O'Connor: Well, of course there was a reason; they wanted to get a letter to use to examine the client, the lawyer's client, about her communications with the Menendez Defendants.

Mr. Lightfoot: But, Your Honor, it was made clear to the prosecutors as early as the day the... the subpoena was served on the lawyer that she had a fifth amendment right to refuse production.

Which was ultimately... that was the ruling of the California court.

It was... it was a clear example of her... her exercising her fifth amendment right.

And so, when he... when Mr. Gabbert came to court with his client on the morning... the following Monday morning, of course she intended to exercise her fifth amendment right, if he had been allowed to counsel her, and refuse to produce it.

Justice Ginsburg: Isn't that what happened, though, Mr. Lightfoot?

You... you said that this was a device to get that witness to talk despite her fifth amendment privilege.

But as I understand what went on, she never did.

She just... she said, Can I talk to my lawyer, and when it didn't work out, she came back and read from her card, her fifth amendment rights.

And she did that twice.

Mr. Lightfoot: That's correct.

Justice Ginsburg: But she didn't... she didn't give any testimony?

Mr. Lightfoot: She didn't.

And it was fortuitous, Your Honor.

But she never had the opportunities to get the counsel, the advice from her lawyer, that she had... had retained him for and for which he was there to give her.

Justice Ginsburg: Well, what would he have told her different from

"Read the card I gave you? "

Mr. Lightfoot: Well, it depends, Your Honor, on what... I mean, the reason that the lawyer is there... you... a lawyer, to act professionally, must understand what the question is before he can legitimately counsel his client to invoke the fifth amendment.

If she was asked questions that did not... did not call for answers that might tend to incriminate her, she was duty bound to answer those questions truthfully.

Justice Ginsburg: Yes, but we know now what the questions were.

And it seems that she did precisely what he would have counseled her to do.

Mr. Lightfoot: Well...

Justice Breyer: Maybe... go ahead, answer that, please, sir.

Mr. Lightfoot: Well, it's fortuitous that it happened that way, Your Honor.

But when he went to the grand jury, she had no idea what questions would be asked, nor did he.

And it was his right to be there, to counsel her, as she came out.

She had a right to leave the grand jury and seek his advice.

He was protecting her...

Justice Scalia: Did she... have we said there's a right to have counsel in grand juries?

Chief Justice Rehnquist: No.

Justice Scalia: A constitutional right?

Mr. Lightfoot: Well, Your Honor, this... in...

Justice Scalia: That's new to me.

Mr. Lightfoot: in 1976, in the Mondujano case, this Court said, with regard to the prosecutor's admonition to a target before a Federal grand jury: You have the right to leave the room and seek the advice and consult with counsel

And this Court said that is a correct recital of the law.

And every circuit since that time has pointed to that language...

Justice Scalia: Constitutional right, did we say?

Mr. Lightfoot: Well, it didn't say a constitutional right, Your Honor.

But I can't... but we know...

Justice Breyer: Either it is or it isn't.

And what is bothering me, I guess, like perhaps others, is it's you're not even close.

Either she does have the right or she doesn't.

If in fact she does, then maybe her sixth amendment right was violated.

And if she doesn't, no right was violated.

He's entitled not to be searched unreasonably.

Either you had an unreasonable search or you didn't.

If you did, then in fact the fourth amendment is violated.

If you didn't, nothing is violated.

Either way, no matter how you parse it, there's no 14th amendment right of due process substantive at issue in this case.

This case is about reasonable searches and seizures.

This case is about right to a lawyer before a grand jury.

That's the end of it.

There's nothing else.

Justice Scalia: All right.

Justice Breyer: What's your response to that?

Mr. Lightfoot: Well, Justice Breyer, I would... I would respectfully disagree.

When... when the lawyer went to the grand jury with his client at that moment in time, he had a right.

We know, going back to the jurisprudence of this Court, going back to the 1950's, in Annis v. Myers, that this Court found that the fifth amendment is drained of any significance at all if the lawyer isn't there to assist the client in how to decide whether or not to invoke it.

It's not self-executing.

Justice Ginsburg: Even if... Mr. Lightfoot, even if we took your best argument, didn't your client have some kind of obligation to mitig... something akin to mitigation of damages, both for himself and for the client?

And as has been suggested before, he could have said, when he knew his client was looking for him, Please tell her, or, Please, on my behalf, ask them to hold up until this search is finished.

I mean, he... he had a couple of opportunities, and he didn't... didn't do anything to lessen whatever the trauma might have been for his client.

Mr. Lightfoot: Well, Justice Ginsburg, the only opportunity he had was when the district attorney's employee... and I... I've indicated this to the Court already... told him that his... his client wanted to talk to him.

He said to the D... district attorney's employee, They're going to have to wait... obviously referring to the course of the grand jury proceedings... until the master finishes with his search of me, because I'm... I'm being occupied here.

And as we indicate in our brief, if you're the subject of process, you don't have the right to walk away, to take...

Justice Ginsburg: Could not he not have said... you said this was a representative of the D.A.... Would you please tell your boss to hold up until this search is completed?

He didn't say that.

He just said, They're going to have to wait, as though they would... they would execute his non-request just because he said that.

Mr. Lightfoot: Well, in hindsight, Your Honor, maybe that would have been the best course.

But at... at the moment in time, as he indicated in his deposition, he was... his... his attention was to the... the search that was taking place, which involved not only attorney-client documents that related to Miss Baker, but to two other clients, as well.

And the master insisted on reading all the documents in those files.

Justice Souter: Mr. Lightfoot, let me ask you a question which I think is basically Justice Breyer's question.

But let me go about it in a slightly different way.

We have said that we are not going to engage in... in recognition of a proliferation of due... substantive due process rights if there is relief available under more specific guarantees of the Constitution.

There are at least two possible ways of approaching this case.

One of them you have done, you have followed, by saying: I claim the due process right

Another way of approaching it, in which there's no standing problem at least, is by claiming that there was a violation of the fourth amendment because the timing of the search and the reasons for... for that timing amount... make it... make it an unreasonable search.

If... if ultimately this Court would not recognize the unreasonability... the unreasonableness, rather... of the search under the fourth amendment, what good reason would there be for us to recognize a substantive due process right to redress the same claim?

Mr. Lightfoot: Because, Your Honor, the actions of the prosecutors amount to a serious, serious subversion of the adversary system here.

When Mr. Gabbert...

Justice Souter: But you recognize... you've already conceded, and quite rightly, that there's no per se rule against searching lawyers.

And, therefore, it would seem to me that the simplest way to approach the case would be by asking, is there something in particular about this search of the lawyer that somehow allows for relief, despite the fact that lawyers themselves are open to fourth amendment searches, in... in much the way that other people are?

That's a simple way of going about the case.

Why don't we go about it in the simple way.

And if we don't find a simple reason for recognizing the right, why go to a more complicated level?

Mr. Lightfoot: Because my answer, Your Honor, is that the core of the behavior that we claim amounts to the constitutional violation is the action of the prosecutors in stepping in and subverting the right of the lawyer to give advice as to the invocation or non-invocation of the fifth amendment by his client.

That... the prosecutors know from the moment they take an oath, in California, that they are to support the State and Federal Constitution.

The defense lawyer's role, in California and elsewhere in this country, is to protect the client.

The client has a constitutional right, before a grand jury, to invoke the fifth amendment.

If you take the lawyer away, then you subvert the process.

It's egregious behavior because, as the Ninth Circuit indicated in this case, Your Honor...

Justice Scalia: My understanding is that there is no constitutional right to a lawyer before a grand jury.

So that the argument you're now making is just totally wrong.

Mr. Lightfoot: Your Honor, our claim doesn't rest on whether or not Ms. Baker had a sixth amendment right to counsel.

She was... she was afforded the right, under practice and procedure in California, to leave the grand jury.

You can't give a right and then...

Justice Scalia: You also said earlier in your argument that... that she refused to... she had a right not to turn... a fifth amendment right not to turn over the documents.

Mr. Lightfoot: She did, Your Honor.

Justice Scalia: What is that?

You have a right not to turn over a document that would incriminate you?

Mr. Lightfoot: If the production itself would incriminate you...

Justice Scalia: My, it's wondrous things happen to the... to the Bill of Rights out there in California apparently.

Unidentified Justice: [Laughter]

Justice Scalia: There... there is a fifth amendment right not to turn over evidence which you have if... if the evidence would incriminate you?

Mr. Lightfoot: If the act of production would tend... you're virtually saying,,that verbal conduct is incriminating.

And that's what Mr. Gabbert had indicated to the prosecutors beforehand; asked for a period of time so that he could make the motion... pursue a motion to quash before the court, which was denied.

When he did attempt to file the motion on... on the Friday before the Monday appearance, the first thing the prosecutors did was to get a search warrant and go out themselves and search through her apartment, to see if they could find the documents.

It was their intent, when they took him aside, not to get the documents from him, but to bring her in, unrepresented, and get her to waive her fifth amendment right, and give them the opportunity to explore her relationship with Lyle Menendez.

That's what our theory is.

They could have done that a number of ways.

The way they chose to do it was to use the search warrant to separate them.

And that's what we...

Chief Justice Rehnquist: How... how long was she before the grand jury?

Does that appear from the record?

Mr. Lightfoot: I believe for approximately 15 to 20 minutes.

She was allowed to leave on two occasions, and remained outside the grand jury before she was ordered to come back in and... and answer questions.

Justice Scalia: The 20 minutes includes the time she was outside, or was she...

Mr. Lightfoot: It does.

No, it includes... she was... she was only asked four questions, Your Honor, during the course of her appearance.

She was not asked about the documents.

And as the Court knows, the search warrant that the prosecutors got on the morning in question was a search warrant not only to search Mr. Gabbert, through the special master, but to search Miss Baker, as well, for the documents.

They had the special master there, and they had a police officer, who could have searched.

If they were intent on finding the documents on the person of Miss Baker, they could have searched her outside the grand jury room.

They didn't do that.

They brought her in and, before asking her to produce the documents, they asked her questions that would have obviously invoked her... her right not to give testimony that would intend to incriminate her.

Justice Ginsburg: There's nothing here that shows that, on the two occasions when she left and came back, that the prosecutors inside the grand jury room knew that she hadn't been able to find her lawyer.

Mr. Lightfoot: Well, there... there is, Your Honor.

Because, as I indicated before, they put this search in motion when she first came in and was asked a question about her relationship with... with Lyle Menendez.

He... she indicated, My client... my lawyer is not available; he is being searched...

Justice Ginsburg: Yes, but she went out in search of her lawyer.

Mr. Lightfoot: She went out...

Justice Ginsburg: She said, Can I see my lawyer?

They said, Yes.

She went out to look for her lawyer.

She came back.

They knew that she went out to look for her lawyer.

Did they know, when she came back into the room, that she hadn't found him?

Mr. Lightfoot: Well, the record indicates, Your Honor, that, after she left the grand jury the first time, that the two prosecutors left the grand jury room, as well.

So, they would have seen her out in the hallway.

And as we know, it was one of the employees of the district attorney's office, during that break, who actually spoke to Mr. Gabbert.

And the other indication is that Mr. Oppenheim, who was there, having been picked by the district attorney's office as the special master to perform this search, he never came back and reported his findings until after her appearances before the grand jury.

So...

Chief Justice Rehnquist: Well, would he report... under California law, would the special master report to the grand jury?

Mr. Lightfoot: No, he would report to the prosecutors, Your Honor.

Chief Justice Rehnquist: That's who the special master reports to under that California law?

Mr. Lightfoot: No, Your Honor.

There's no provision in the statute who he reports to.

But he was picked by the district attorney, brought to the building, and accompanied the district attorneys and introduced to Mr. Gabbert.

And when they... when he ultimately did report to anybody, he reported back to the prosecutors what the results of his search were.

Chief Justice Rehnquist: And that... that was all as contemplated by California law?

Mr. Lightfoot: Well, not... not all of that, Your Honor.

The California law requires that when the master first approaches the lawyer who is the subject of the warrant, that the lawyer be given the opportunity to essentially turn it into a subpoena and voluntarily turn the documents over.

Which is exactly what Mr. Gabbert did here.

He had copies of two of the three pages.

And as the Ninth Circuit indicated, his first act was to turn those over to the special master.

But the... despite the mandate of the California statute, the... the search continued.

The mandate of the statute is that if at any point the lawyer invokes the attorney-client privilege with respect to any of the materials, then it's the duty of the master to seal the documents and take them to a court for that court to resolve the disputes with respect to the privilege.

And as we know, Mr.... from the record... Mr. Gabbert invoked the privilege consistently during the 20 minutes to a half an hour that the search took place.

And according to Mr. Oppenheim, the master's testimony, because the documents didn't have the wordson them, he didn't view them as privileged.

And so, when he went back to the prosecutors, he told them there was nothing in the files that was privileged.

And that's when the second search took place outside the grand jury room.

Your Honor, with respect to the... to the question of qualified immunity, the Petitioners in this case ask this Court to set down a rule that there must be some factual correspondence between a previous case of this Court and the facts of this case.

That suggestion was rejected, explicitly... explicitly rejected... by this Court in 1997, in the Lanier case.

And as this Court said in... in Lanier, that it is... it is not unusual for the... a general proposition appearing in a prior Supreme Court case to be sufficient to give a clear or fair warning of what the constitutional right is.

And as this Court remembers in Lanier, the... the right that was involved was the right of victims not to be subjected to sexual abuse by a State judge.

And the authority for the... the previous Supreme Court opinion for... that set out that right was Rochen, which, as the Court knows, was a... a serious physical violation of the person of... of the defendant in that case.

But...

Justice Souter: In this case, you're relying on Meyer?

Mr. Lightfoot: I'm sorry, Your Honor?

Justice Souter: In this case, as I understand it, you're relying on Meyer and Nebraska?

Mr. Lightfoot: Well, we're... we're relying on Meyer.

We're relying on the Schware case, back in the 19... v. the Board of Examiners for the State of New Mexico, which held that a person has a right to practice law.

That was a procedural due process case, but the right itself was the right to practice law.

We rely on the Eighth Circuit case of...

Chief Justice Rehnquist: The Schware didn't hold that there was a substantive due process right to practice law.

Mr. Lightfoot: It identified... it identified a right that Mr. Schware had to practice law.

Chief Justice Rehnquist: But wasn't that given to him by the State of New Mexico?

Mr. Lightfoot: Well, he... he was... he was pursuing a right under the... the liberty clause in the 14th amendment, Your Honor.

That's... that's exactly what we're... what we're doing here.

Justice Souter: But the... the right, in any case, was... was a right, as it were, in Gross.

In other words, a right to choose a profession and, generally, to practice it.

Schware did not deal, as I understand it, with specific interferences on a sort of a client-based or case-based rationale.

Mr. Lightfoot: No, Your Honor.

But this Court has never held that there has to be a total ban on the exercise of somebody's right before it gives rise to...

Justice Ginsburg: But this is much... I mean, this is a tiny slice.

If you... if you think of the right to practice law.

We'll take the Griffith case.

I have a right to practice law if I'm qualified, even if I'm not a citizen.

That general right.

And then, to take 20 minutes out of lawyer's life and say that that involves the right to practice law, it's rather overblown, it seems to me.

Mr. Lightfoot: May I respond to your question, Justice Ginsburg?

Chief Justice Rehnquist: Go ahead.

Mr. Lightfoot: Your Honor, that may be.

But this is the most significant moment in this representation, where her answer to a question may be irreversible if she doesn't get the right advice from the client.

And that's what this... that's what the Ninth Circuit case said was so egregious about the conduct in... in this case.

Chief Justice Rehnquist: Thank you, Mr. Lightfoot.

Mr. Lightfoot: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.