Rogers v. Tennessee - Oral Argument

Argument of W. Mark Ward

Chief Justice Rehnquist: We'll hear argument next in Number 98... 99-6218, Wilbert Rogers v. Tennessee.

Mr. Rogers.

Mr. Ward: Mr. Chief Justice and may it please the Court:

In two cases, Bouie v. City of Columbia and Marks v. United States, this Court stated that ex post facto principles apply to judicial decisions under very narrow circumstances, and that's only when those judicial decisions are unexpected and indefensible based upon the law that's been expressed at the time of the conduct in question.

This case involves a misapplication of this rule of law by the Tennessee Supreme Court.

In this case, the Tennessee Supreme Court held that its decision to overrule itself and to overrule a 700-year-old rule of law was not unexpected and indefensible based upon this test that this Court adopted.

Chief Justice Rehnquist: Has the Supreme Court of Tennessee ever applied the year-and-a-day rule to a case?

Mr. Ward: The court has recognized it since 1907, Your Honor.

Chief Justice Rehnquist: I... that wasn't my question, because I think your opponent says it was dicta.

Do you say it was not dicta, that it actually let somebody off on that basis?

Mr. Ward: It was not dicta in that case.

In 1907 in Percer v. State, if I could explain...

Justice Scalia: Yes.

Mr. Ward: the court reversed in Percer v. State for numerous reasons.

Among those, they tried the defendant without the defendant being present.

One of the reasons they reversed was because they put on proof during the trial as to the date of the death of the deceased, the witness said that it happened sometime in July, but never testified as to what date, what day of the month in July, or what year in July.

The court in... the Tennessee Supreme Court referenced the year-and-a-day rule and reversed the case, because absent some evidence of what date and year there was a death, then there could be insufficient evidence.

Chief Justice Rehnquist: Well, was it reversed because the case shouldn't have been brought, or because the testimony was not relevant?

Mr. Ward: The court... the Tennessee Supreme Court in 1907 listed numerous reasons and said for all of these we reverse.

It's not like they said...

Justice Scalia: Yes...

Mr. Ward: specifically, this is the one we're going to reverse on.

Chief Justice Rehnquist: Well, but they didn't then analyze separately the year-and-the-day rule, or... you... I thought you'd said that a witness testified, and the witness said something happened in July but she didn't say when.

Mr. Ward: That's correct.

Chief Justice Rehnquist: And I'm curious whether the Supreme Court of Tennessee in invoking the year-and-a-day rule said it made the witness' testimony irrelevant, or did it... does the year-and-a-day rule mean that the entire prosecution shouldn't have been brought?

Mr. Ward: Well, what the court stated was that absent the... they... it was really a very... one-paragraph opinion, a very short opinion.

They...

Justice Scalia: The whole opinion was one...

Mr. Ward: No.

Most of the paragraph was... the opinion was taken up with the discussion of trying the man in abstentia.

Justice Breyer: Absentia.

Mr. Ward: Then there was about a half-a-page paragraph that dealt with two issues.

One was, was this indictment returned before the date of the offense or not?

The other one was the year-and-a-day rule, and absent this testimony there was insufficient proof before the court as to either fact, the year-and-a-day rule or when the offense was occurred, so I contend it was not dicta in that case.

And in this case, Your Honor, State v. Rogers, the court, the Tennessee Supreme Court said, we have recognized the year-and-a-day rule in Tennessee since 1907.

Justice O'Connor: Mr. Ward, there... this case has an aura of unreality about it.

Your client apparently attempted to murder the victim by stabbing him in the heart with a butcher knife.

Now, he didn't have any settled expectation that he wasn't going to be accused of murder, and yet he wants to take advantage of this year-and-a-day rule.

I mean, what does it serve?

It's some concept of fair warning or expectation, but at the time the crime was committed, I guess he hoped the victim would die, and I don't see that your client has been deprived of any kind of an expectation.

Mr. Ward: Well...

Justice O'Connor: Regardless of what we do with the year-and-a-day rule.

Mr. Ward: Well, with regard to fair warning my client was entitled objectively.

Subjectively, I have to admit it is very difficult to ever prove that any criminal defendant relies upon the state of the law at the time that he or she commits an act, but objectively he was entitled to rely upon the year-and-a-day rule if the victim did survive.

But more importantly than that, after the fact, after he was charged, fair notice and reliance applies after the fact also, not just at the time of the act; otherwise, a defendant who is approaching trial is never going to know exactly what are the elements of the offense, or what is the punishment that I'm about to face.

We don't just say you're entitled to fair warning of the punishment at the time you commit it, but you're also, based upon that time, are allowed to rely upon that as you're approaching trial.

Justice Scalia: Well, I guess we wouldn't allow a court, any more than we would allow a legislature, to change the law so that attempted murder now becomes murder.

That is, so long as you intend to kill, dispense with the requirement that the victim actually die.

You could say, gee, his expectations weren't disappointed.

He intended to kill.

It just so happened the person didn't die.

And we certainly wouldn't uphold a State supreme court judgment that, well, you know, that's a technicality, we're not going to insist that the victim have died, we're going to get you for murder anyway.

I guess you could likewise say no disappointment of expectations.

Mr. Ward: Well...

Justice Scalia: I don't see why this is terribly different from that.

Mr. Ward: Well, it's not.

Under the State's theory in this case, as long as the defendant had the same mens rea, same actus reis, the fact that the result occurred or didn't occur would be irrelevant, and under the State's theory you could eliminate the requirement that there be a result and there would be no problem with that.

But the problem is that as a matter of fundamental fairness and fair warning as to punishment deals with not just at the time of the act.

If we allow courts to retroactively alter the elements of an offense or to retroactively enhance punishment, what I have to do, what I have to tell my clients when we're getting ready to go to trial is, I can tell you what the law was at the time you committed your crime, and I can tell you what the law is today, as we get ready to go for trial, and you're innocent of the law as we have it today.

In some cases I'm going to get to tell them that.

But I can't tell you, because the courts can change after the fact.

They can eliminate this element of the offense.

Justice Ginsburg: Mr. Ward, let's assume that the Tennessee Supreme Court had simply affirmed the lower court that said the legislature made this change, and they made it long before he committed the crime.

You would have no issue at all.

Mr. Ward: I wouldn't be here, and that would be a matter of statutory interpretation.

Justice Ginsburg: Now, suppose the State is one, and I don't know if this is so, where you couldn't have purely prospective overruling because that would be considered an advisory opinion, so here's the Tennessee Supreme Court saying, gee, it was our mistake in not getting rid of this obsolete rule.

It's our rule, not the legislature's rule, so we want to get rid of it, but we can't.

We're saying it's our fault, not the legislature's.

We can't change, however, because if we apply it to this case it's going to be ex post facto, and we can't simply prospectively overrule without being an advisory opinion.

So is your... is the... at the end of the road, is your argument one that a court can't cure its own error of this nature?

Mr. Ward: No, Your Honor.

The Tennessee court could have abolished this rule and applied it prospectively, and probably, and we contend was required to do that if it wanted to abolish the rule because of the ex post facto due process requirements.

Justice Souter: So it can give... the Tennessee courts can give an advisory opinion in that respect?

Justice Breyer: I mean, they can...

Mr. Ward: Tennessee courts, I have no citations, but they frequently make rulings prospectively.

Justice Kennedy: Well, but Justice Ginsburg's hypothetical, and the point interests me as well, it's actually to assume the opposite, that a court is in a system where it is improper to give an advisory opinion.

Justice Scalia: Then what would happen?

Justice Kennedy: The court's hands are tied.

Mr. Ward: Well, I think that the court could give some indication, and could voice some discomfort with the rule short of an advisory opinion.

Justice Kennedy: But it could never change it, unless you're saying that the dictum would provide sufficient basis for a subsequent case.

Mr. Ward: It would...

Justice Kennedy: Then we have an incremental overruling process that you would allow?

They're still changing the law.

Mr. Ward: I think the dictum in the case would then be such that when a court came along later it would be able to say, this was expected and defensible because we criticized the rule in a previous case.

Chief Justice Rehnquist: Well...

Justice O'Connor: Well...

Chief Justice Rehnquist: a moment ago you were saying how you had to have certainty in advising your client, but if that is permissible in a gradual overruling, surely the certainty is gone.

Mr. Ward: Well...

Chief Justice Rehnquist: You don't know what the Tennessee Supreme Court is going to do the next time it comes up if in the interim it has criticized the rule.

Mr. Ward: But I would be fairly confident, if the Tennessee Supreme Court had criticized the rule in advising my client that there was a substantial likelihood that the rule would be changed.

Justice Kennedy: Well, suppose 10 State supreme courts in other jurisdictions... that didn't happen here... had criticized the rule and Tennessee was just quiet about it.

You've got the same problem.

Mr. Ward: Well...

Justice Kennedy: Plus... plus we know that the day, year-and-a-day rule is an outmoded relic anyway.

Mr. Ward: Well, with regard to other States I think it's asking too much of our citizens to ignore a rule of the Tennessee Supreme Court and look to other States.

Justice Scalia: Mr. Ward, you seem to accept it as unthinkable that the Supreme Court of Tennessee should be unable to alter a rule of criminal law by judicial decision.

Do you think it was unthinkable at the time the Federal Constitution was adopted?

Do you think that common law courts, which had much more rigorous notions of stare decisis than we do today, do you think they would have thought it unthinkable that a court should not be able to suddenly make a crime of what had not been a crime at common law?

I mean, I don't know why you accept that, especially when you're dealing with a State that has a constitutional provision adopted in 1870 which reads, all laws and ordinances now in force and use in this State not inconsistent with this constitution shall continue in force and use until they shall expire, be altered, or repealed by the legislature.

I don't think it's unthinkable at all, the Supreme Court of Tennessee shouldn't be able to alter the criminal law.

I mean, if you want to accept it, fine, but I don't know...

Mr. Ward: I'm not sure...

Justice Scalia: why you would accept it.

Mr. Ward: that the Tennessee Supreme Court can alter the... I'm not sure I understand... let... well, maybe I should continue.

Justice Scalia: The question to you, assume that it was unthinkable that the Supreme Court of Tennessee shouldn't be able to change the criminal law, why it should be able to do that, but that's certainly not what is envisioned by the constitution of the State of Tennessee.

Justice Ginsburg: The question didn't assume that it was unthinkable.

The question was simply putting it to you, is this the end result?

That is, that the Tennessee Supreme Court cannot itself change its rule, only the legislature can?

Mr. Ward: Well, the Tennessee Supreme Court can change the rule, and I have no problem with the court changing the rule.

The problem that I'm talking about is the retroactive...

Justice Ginsburg: But they can't change it, because there'll never be a case in which they can change it.

In other words, the court in this situation, we can't change it prospectively because it would be advisory.

We can't change it in this case because it would be ex post facto.

One answer that you could give is yes, that's right, only the legislature can change it, but you're not giving that answer.

Mr. Ward: No, I'm...

Justice Scalia: No.

How do you explain the provision of the Tennessee constitution that I quoted?

Mr. Ward: That provision, my interpretation of that provision is it refers to statutory laws and not to judicial decisions of the courts, would be my interpretation of that.

Justice Ginsburg: May I ask you this further question?

Suppose we... it's so, and we tell the Tennessee Supreme Court, you're wrong, this would be an ex post facto obligation.

It would still be open to the Tennessee Supreme Court, would it not, to say, gee, we have to rethink what that lower court did, and we now decide that they were right after all, that the legislature made that change long before this crime was committed.

It would still... no matter what we say here, it would still be open to the Tennessee Supreme Court to say the change was already made by the legislature and that really ended the case, and all this has been kind of an academic exercise.

Mr. Ward: Well, the Tennessee Supreme Court has already said that the legislature did not make a change in it, and the year-and-a-day rule is...

Justice Ginsburg: But they could change their mind, better enlightened by what's happened since then.

There are highest courts who concede from time to time that they are fallible, that they may have made a mistake.

Mr. Ward: So if this Court was to reverse, the Tennessee Supreme Court then would change its opinion?

Justice Ginsburg: I asked if that would be something that would be open to the Tennessee Supreme Court to do.

Mr. Ward: I guess the Tennessee Supreme Court could do it.

They could certainly try it, and I would certainly try to think of some way to come back to this Court, but...

Justice Ginsburg: Well, can you think of one?

The Tennessee Supreme Court says, gee, we got it wrong, that court of criminal appeals, they had it right all along.

The legislature took care of it.

We don't have any more year-and-a-day rule, haven't had one for 5 years.

Mr. Ward: I guess I have to concede that that's always possible, but the Court has made a detailed analysis, the Tennessee Supreme Court, they've rejected that, and I believe that I would stand behind them that they would not change their mind in midstream simply because this Court sent the case back and said they erred on another point.

But I'm not contending the Tennessee Supreme Court can't change the rule.

The rule is dead in Tennessee.

The year-and-a-day rule has been done away with.

The question is whether or not they can apply it to an offense that was committed 5 years prior to that, and it gets back to the basic principle of legality.

Do we try defendants based upon the law that's in existence at the time of their conduct, or do we change it after the fact, and the problem with changing it after the fact is, what it's going to do is, it's going to undermine the presumption of innocence.

Chief Justice Rehnquist: I could understand very clearly, Mr. Ward, the argument if you were saying that they added an element, or they subtracted an element from the offense, or something like that.

You used to have to do it intentionally, but you don't have to anymore, and it's a much different... but here you have something that really is quite peripheral, out on the fringes, that doesn't govern the substantive criminal law at all.

It's almost like a statute of limitations.

Mr. Ward: Well, I disagree, Your Honor.

I believe that this is a material element of the offense as the Tennessee Supreme Court has interpreted it.

They have said that you must prove death within a year and a day in order to convict of any homicide offense in Tennessee, and...

Chief Justice Rehnquist: But that would be true of a statute of limitations too, would it not?

If the statute of limitations from... say, supposing Tennessee had a statute of limitations for robbery, 10 years.

The Supreme Court of Tennessee would say you have to bring an action within 10 years in order to convict of robbery, but that doesn't really make it an element of the substantive criminal law.

Mr. Ward: No, because it doesn't deal with anything with regard to the... it doesn't deal with anything but a time period that they're required to bring an action in.

This is a time period that they must prove certain facts occurred in.

Justice Scalia: With a statute of limitations your argument would go, you are guilty of the crime but can't be prosecuted for it after the 10 years, whereas with a year and a day, your position is you're not guilty of the crime unless the death occurs within a year of... within a year and a day.

Now, your opponent says it's just evidentiary.

What's your response to that?

It's just a question of evidence.

Mr. Ward: Well, it's... as interpreted by the Tennessee Supreme Court, it's not just a question of evidence.

It's a material element that's required to be proven by the prosecution, and there is nothing else... if it was a rule of admissibility of evidence, there would be something else that could prove this point, or prove the conviction of... prove the elements of the crime, but this is an element that, it must be proven.

There's nothing else available.

If you don't prove this element, you don't prove your case.

It's a sufficiency of the evidence rule.

If you don't prove this... and this is... you lose.

And now we say after the fact I can't prove it, we'll just eliminate it.

Any element of the offense I can't prove, we have the power to retroactively eliminate.

Justice Souter: I guess one of the questions I have is whether we gain anything by characterizing it as an element.

If you go back to Bouie, Bouie was concerned with, let's say, the elements that refer to the conduct of the defendant, didn't it?

And Bouie was concerned about fair notice to an individual about what he could and could not do at the time he acts.

And so even if we say, well, the year-and-a-day rule is kind of like an element, it's not the kind of element, it's not the kind of fact that Bouie was concerned with, was... is it?

Mr. Ward: It's not a fact that would deal with the first Calder category, whether something was criminal, made criminal after the fact, no more than whether or not...

Justice Souter: No, but I... I think I agree with you there.

I mean, if we assume that Bouie stands for the proposition that the ex post facto clause and all the Calder analytical framework is subsumed into due process, I'll be candid to say I think you win this case, and my... I guess my question was really aimed at, or premised on a different assumption, and that is that Bouie really does not stand for wholesale incorporation, and what Bouie actually held, the point as to which Bouie made a difference, was a point about altering elements that describe the criminal act itself as opposed to conditions that may or may not occur subsequent to that.

Mr. Ward: I agree with Your Honor.

The cases that come before this Court for the most part have dealt with the first Calder category.

Justice Souter: Yes.

Mr. Ward: But if this Court...

Justice Scalia: But I guess if you don't use an elements test for Bouie, I guess you have to reach the conclusion... and you say it's only those things that affect the conduct at the time of the offense, regardless of whether it's an element or not.

Then you would have to say that you could change the law and not require for murder in the first degree that the victim had died.

That's a subsequent event.

You knew you shouldn't stab him with a knife, intending to kill him, and the fact that he died should make no difference.

I...

Mr. Ward: I believe...

Justice Scalia: I can't imagine that you're allowed to do that.

Mr. Ward: Well, that's not my argument.

Justice Scalia: I know it isn't.

Mr. Ward: That's my opponent's.

Justice Scalia: But that's what you should have said in response to the Bouie argument just raised.

Unidentified Justice: [Laughter]

Mr. Ward: But if this Court applies one Calder category there's no reason not to apply them all.

If there's some concern about whether due process principles should incorporate... ex post facto principles should apply...

Chief Justice Rehnquist: What is your authority, Mr. Ward, for simply suggesting that all of the Calder categories are carried over into this ex... like ex post facto... clearly this is not governed by the Ex Post Facto Clause.

It's governed by Bouie, which said some of the same considerations applied.

You're talking as if everything is carried over bag and baggage.

Mr. Ward: Well, I submit it's carried over with the Bouie limitation that the judicial decision has to be unexpected and indefensible, but what I'm suggesting is, there's no reason to distinguish the first Calder category from any of the others as far as ranking them in some priority that...

Chief Justice Rehnquist: Well, but then you're acting for... asking for an extension of Bouie, which clearly didn't cover these others.

Mr. Ward: Yes.

I'm asking... in one sense I'm asking for an extension.

In the other sense I'm asking the Court to say that it meant what it said, that ex post facto principles apply through the Due Process Clause.

Justice Ginsburg: Well, Mr. Ward, with respect to that, Calder was itself dicta, because the case came out the other way, and there was something said by a justice and it has become venerable over the years just because it's been repeated and applied as law by later courts.

But then, when you're thinking of extending it under a due process label, wouldn't you want to take into account its origin, and the compartmentalization has been criticized?

I mean, you're not bound to take it over lock, stock and barrel.

Why should you, given its origin as dictum and its rigidity with these categories?

I mean, it's not Scripture.

Mr. Ward: That's correct, and actually when you look at the definition in Bouie that was cited from Calder v. Bull, the discussion talks about aggravating a crime after the fact, and also making something criminal that wasn't a crime after the fact, and those are the two things that Bowie concentrated on in its statement or definition of an ex post facto law, the first two Calder categories.

And then the Court said, if it's ex post facto for a legislature to do it, then due process should prevent the courts from obtaining the same result.

My suggestion is that there's just as great a harm from making something criminal that wasn't criminal before as it is to aggravate a criminal offense.

For instance, if you take something that's not a crime and give it a 2-day punishment.

It's a far greater harm to take something that already is a crime with a 2-day punishment and then aggravate it to where it has a 20-year punishment.

Justice Chase talked in Calder about those Calder categories and said they came from the same kinds of harm, and my suggestion is that ex post facto principles are fundamental concepts, fundamental concepts like fundamental fairness.

It's fundamentally unfair to alter the elements of an offense after the fact, or to aggravate it.

It's fundamentally unfair because it undermines the presumption of innocence.

Justice Ginsburg: So everything under the Ex Post Facto Clause would be subsumed under due process vis-a-vis the legislature too, is it, and in fact that's what you're saying, isn't it?

Mr. Ward: That's the rule I'm asking, but only under the limited circumstance when the ruling is unexpected and indefensible under the test this Court adopted in Bouie and Marks.

This test was developed from Jerome Hall's principles of criminal law, and it's to take into consideration the fact that all opinions in one way or the other are retroactive.

How do we treat these opinions that are grossly retroactive, that change a clear line of authority in a jurisdiction?

If there's no further questions, I'd like to reserve the remainder of my time.

Argument of Michael E. Moore

Chief Justice Rehnquist: Very well.

Very well, Mr. Rogers.

Mr. Moore, we'll hear from you.

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

The decision below did not deny petitioner due process of law because it did not deprive him of fair warning that stabbing another person in the chest with a butcher knife risked prosecution under Tennessee's homicide statutes.

The statute under which petitioner was convicted defines the crime of second degree murder as the knowing killing of another.

The... a conviction under that statute does not require that the victim die within any particular period of time, it does not require that the defendant know that the victim will die within any particular time.

Justice Scalia: But statutes often... I'm sorry, Chief.

Justice Kennedy: Go ahead.

Well, I was just going to say, wasn't it assumed by the Tennessee Supreme Court that this was a substantive rule of law, and that you agreed that it was but argued that it had been repealed by the 1989 revision of the statute?

Mr. Moore: Yes, Your Honor, our position below was that the rule was a substantive principle of law that had been abolished by operation of our Criminal Code of '89, which said that unless conduct is described as an offense by statute it is no longer an offense, and we argued that the evident purpose of that provision was to abolish all common law crimes, common law elements of crimes...

Justice Kennedy: And the court rejected that argument.

Mr. Moore: but that position was rejected, Your Honor.

Justice Kennedy: But is it still not correct that you would agree that it's a substantive principle of law, or are you taking a different...

Mr. Moore: Our position is that for due process purposes the label one attaches to the rule, whether one calls it a substantive rule, a procedural rule, an evidentiary rule, an elemental rule, whatever label one attaches to it really doesn't make any difference, because the touchstone of due process fair warning in this context, in the retroactivity context, is the violation of a reliance interest of some sort, and because...

Justice Kennedy: Let me ask you just a little refinement of the question.

Supposing you had prevailed on the view that the 1989 statute had discarded this or changed this substantive rule of law, would you think that you could then have prosecuted someone who had committed the crime before the 1989 statute went into effect?

Mr. Moore: Your Honor's hypothetical is if we had prevailed and the '89 act had...

Justice Kennedy: And then you wanted to indict someone who had committed the same kind of offense prior to 1989.

Mr. Moore: Yes, Your Honor, it is.

What Your Honor's question essentially is, if the legislature had effectuated this change, would this be a prohibited ex post facto law.

Our contention is that no, it would not have been, although I must concede that if the rule had been a definitional element of the crime, that would have been an ex post facto violation.

Justice Kennedy: But there you're placing a label on it, and I thought the label didn't matter.

Mr. Moore: Right, and I think labels do make a difference for Ex Post Facto Clause purposes, if in...

Justice Kennedy: But not for due process purposes.

Mr. Moore: But not for due process purposes.

Justice Scalia: So your position is, in the hypothetical that I raised with your colleague over there, your position is that if the legislature changed, or our Court changed the law so that the victim no longer has to die, you're guilty of murder, your reliance would have been just the same.

You intended to kill the person.

You struck him with a knife.

He just happened, through your good luck, not to die.

No reliance interest at all.

Do you really think the court could say, we no longer require the victim die for murder?

Mr. Moore: I do not.

Justice Scalia: Why?

Mr. Moore: But I think...

Justice Scalia: I think it's because it's an element of the crime, but why do you think it is?

Mr. Moore: Well, I... certainly the death of the victim is an element of the crime.

Justice O'Connor: Yes.

Mr. Moore: The timing of the death of the victim is not an element of the crime.

Justice Scalia: Ah, so we do come down to the debate over whether this timing thing here is an element of the crime or not.

You've just said that it's irrelevant for due process purposes.

Mr. Moore: I think the due process violation in Your Honor's hypothetical would be that... well, I think first of all, Your Honor's hypothetical assumes that a court may rewrite a statute.

Homicide in Tennessee is not a common law crime.

Justice Kennedy: All right.

Mr. Moore: It's a statutory crime.

Justice Scalia: Change the hypothetical so it isn't a statute, it's a common law crime.

It doesn't matter.

I mean, the fact is, you have to come back... in order to avoid my hypothetical you have to fall back on the fact that this is not an element of the crime in this case.

If it's an element of the crime, I think you're going to lose, unless you're willing to accept the hypothetical I gave you that you can change the law through judicial decision to dispense with the death of the victim.

Mr. Moore: I think the change, the alteration in the law posited by Your Honor's hypothetical would be unconstitutional, but not because it violated Bouie's fair warning principle.

Justice Scalia: That's right, so there must be something beyond Bouie's fair warning principle.

Mr. Moore: Well, there is substantive due process.

If it is a wholly irrational change, that indeed would be unconstitutional for that reason, but I think the retroactivity problem here that is the subject of Mr. Ward's client's complaint is that somehow the retroactive alteration of this principle of law deprived him of some form of fair warning.

Justice Kennedy: You're careful to say that this is not a substantive due process violation, and that's the way the question presented is.

I... the ex post facto law applies to the States.

Can we consider this as an ex post facto case without any prejudice to your position?

Mr. Moore: No, Your Honor, I do not think the Court may consider this to be an ex post facto case, because the ex post facto...

Justice Kennedy: No, no, no.

Can we debate this case under the Ex Post Facto Clause, or does that depart from...

Mr. Moore: Certainly Your Honor may ask me questions concerning whether the Ex Post Facto Clause would be violated if this alteration had been effectuated by the legislature, yes.

Is that Your... is Your Honor's point...

Justice Kennedy: Suppose the Court thinks that it's an ex post facto violation for the legislature to repeal the... pardon me, for the Court to abrogate the year-and-a-day rule.

That's really what's before us, isn't it?

Isn't this an ex post facto case rather than a substantive due process case?

Mr. Moore: I would disagree with Your Honor, because it would be an ex post facto case if the alteration of the law here had been effectuated by the legislature.

Now, Mr. Ward's argument is that the technical restrictions of the Ex Post Facto Clause have been imported into the Due Process Clause, but there are numerous reasons why we contend that would be imprudent and, as a matter of history, incorrect.

Justice Breyer: I see.

Justice Kennedy: And this is the way you read Bouie.

Of course, Bouie does have language to the effect that if the legislature can't do it under the Ex Post Facto Clause, neither can the courts, and I would assume that the Court in Bouie would have said, because of the Ex Post Facto Clause itself, as well as because of the substantive Due Process Clause, or was it restrained from doing that just because we've always said that ex post facto is for legislatures, not courts?

Mr. Moore: Well, I think a combination of the two, but I think Bouie cannot be read to have already accomplished this importation that Mr. Ward suggests this Court ought to adopt in this case.

Justice Kennedy: Well, I think if we prevail for your position we do have to cut back on some of the language in Bouie, do we not?

Mr. Moore: Yes, Your Honor.

Justice Kennedy: Because there is the fact, if we say well, the legislature can't do it under the Ex Post Facto Clause, neither can the courts.

Mr. Moore: Well, I think candidly the language to which Your Honor refers is properly characterized as dicta, because in the Bouie opinion Justice Brennan quite clearly located the doctrinal source of his ruling in this Court's Bouie for vagueness jurisprudence.

Justice Kennedy: I think that's a fair argument, but we have to at least cut back on the dicta.

Mr. Moore: Yes, Your Honor.

Justice Kennedy: If that's what it is.

Mr. Moore: The State of Tennessee would not object to Your Honors clarifying that point, and I think the point is well taken in Justice Brennan's opinion in that case, is that both the Ex Post Facto Clause and the Due Process Clause of course spring from a common core of concerns about fairness, but obviously the purpose of the Ex Post Facto Clause is as really a structural restraint on the power of the legislative branch.

Now, clearly...

Justice Stevens: May I just interrupt you there for a second?

The clause itself doesn't speak about the legislative branch.

It speaks about, a State may not pass such a law, and it's true, of course, that a court normally looks to the past and decides what the law has always been, even though a question has never been decided.

But here, however, it's unusual, because the Tennessee Supreme Court expressly says, we're going to change a substantive rule of law, and is that any different than if it had been exercising, say, its functions to make court rules, or had said, we are now going to pass the following rule, that in murder cases the victim does not have to die within a year.

If they'd written it out as a rule to be applied in the future, and somehow had authority to do that and comply with the Tennessee constitution, how would we treat that, as a court rule, or as a legislative rule?

Mr. Moore: I think, under this Court's first ex post facto case, Calder v. Bull, the action would still be a judicial act and therefore beyond the scope of the Ex Post Facto Clause.

If Your Honor will recall, in that case three of the four justices posited the possibility that the resolution under review there had been adopted by the Connecticut legislature in the exercise of that body's historic powers to operate as a court, and all three of those justices said that if we decide this is a judicial act rather than an act of legislation, it is beyond the words of the Constitution.

Justice Scalia: But in that day of rigorous stare decisis, what they may have meant by a judicial act was a court announcing that this rule of a year and a day was never part of Tennessee law, that our past opinions were erroneous.

At most they meant that, and maybe they meant simply affirming an ambiguous rule.

I mean, I think you have to read Calder in the time frame in which it was pronounced.

You didn't have courts who suddenly just jumped up and said oh yes, that used to be the criminal law, but we are changing it.

Mr. Moore: I would still argue, Your Honor, that the Tennessee Supreme Court's decision in this case is in the tradition of the... of a common law court.

The common law does evolve, and the first principle of that evolution is that where the reasons for a rule fail, the rule should also fail, and so this...

Justice Scalia: It really didn't evolve very much at the time of Calder v. Bull.

I mean, the courts... or to the extent it evolved it, it evolved the good old-fashioned way.

They lied about earlier cases.

Unidentified Justice: [Laughter]

Justice Scalia: But they certainly didn't just stand up and say, you know, we're changing the law.

That was very rare.

Mr. Moore: Right, but of course it is our contention, Your Honor, that Calder v. Bull is really beside the point here, because this is a due process case, not an Ex Post Facto Clause case.

Justice Souter: May I pursue that just for a second?

Assume for the sake of argument here, and you will be willing to do this, I guess, that the year-and-a-day rule is not an element, and assume that the Ex Post Facto Clause has not been totally incorporated and applied to judicial acts.

One line of analogy that has been suggested here this morning, it's not a perfect analogy, but it goes part of the way at least, is an analogy with sort of a statute of limitations.

What is the rule under due process if a statute of limitations is modified to a defendant's disadvantage after the limitation period has run?

Can a legislature do that?

Mr. Moore: I believe, insofar as this Court's jurisprudence is concerned, that the question remains open.

I would argue that...

Justice Souter: What's the general rule in the State court, sitting with State due process clauses, or applying the Federal one for that matter?

Have they held it a denial of due process in effect to reopen the limitation period after it has run in a defendant's favor?

Mr. Moore: I can only speak to my jurisdiction's case law, and I cannot cite to Your Honor a case that directly addresses that issue under our State constitutional equivalent of the United States or the Fourteenth Amendment's Due Process Clause.

Justice Kennedy: Is it acknowledged and accepted that a legislature could not alter an ex... a statute of limitations, after it has run for a defendant?

Mr. Moore: I do not believe that is an accepted proposition.

I believe that if a legislature did it, one would have to measure that law against each of the four Calder categories, and it's not really an easy fit under any of those four categories.

A statute of limitations does not render criminal actions innocent when done.

It involves... the statute of limitations doesn't regulate primary conduct at all.

The statute of limitations also involves facts which are sort of wholly collateral to guilt or innocence, so I think it doesn't either aggravate the crime, it doesn't... quite clearly it doesn't increase the punishment, and because it involves issues that are wholly collateral to guilt or innocence, it's hard to argue that it's a sufficiency-of-the-evidence rule.

Rather, the remedy for a statute of limitations violation would be to dismiss the prosecution altogether, to dismiss the indictment altogether, not to enter a judgment of acquittal.

So I think if I were here arguing that case, at least I would have an argument that would pass the smile test.

Justice Souter: Yes, but even in a statute of limitations case, in a civil action, don't we place a fairly high value on the assurance that a defendant has that his period of jeopardy, his period of exposure to liability is over, and he can simply get on with whatever he wants to do, and I would suppose that that same value applies with a greater intensity, or at least as great an intensity in the area of the criminal law, and I... the analysis so far doesn't seem to be giving any weight to that interest, and I'd like to know why you think that interest is not sufficient to support the petitioner's argument here.

Mr. Moore: Because, Your Honor, the year-and-a-day rule is not a rule of repose.

None of its purposes at common law really were concerned with...

Justice Souter: Well, it functions... it certainly functions that way.

Mr. Moore: Perhaps it functions that way, but its purposes at common law were wholly unrelated to considerations of repose, or concern with... concerns with repose, so I don't believe...

Justice Souter: They were essentially evidentiary.

I mean, you just couldn't prove the causation reliably after that period.

Mr. Moore: Precisely, Your Honor, so I don't believe that petitioner can really claim any expectation interest in repose that derives from the rule.

Now, the statute of limitations does protect such concerns but, of course, there is no statute of limitations for murder in Tennessee...

Chief Justice Rehnquist: I...

Mr. Moore: which reflects a judgment, I believe, that... by our legislature that murderers should not have any repose.

Chief Justice Rehnquist: I think we've held, in connection with a civil case, that a legislature can change the statute of limitations without violating the Due Process Clause.

Mr. Moore: Well, that... certainly that case law certainly would, I think, support our position here.

Justice Breyer: Why?

Suppose that if you have two statutes in a state, the first forbids attempted murder and has lesser penalties, the second forbids murder, and has greater penalties, and one day the State, the supreme court decides to... that anyone who's guilty of attempted murder is guilty of murder, because they say there's no difference in the state of mind, et cetera.

They have some reasons.

Now, could you apply that retroactively?

I wouldn't have thought so.

I mean, it seems very unfair.

Mr. Moore: I don't think so, but I...

Justice Breyer: All right.

Now, I agree with you.

But if that's so, how does this differ?

I mean, before they make the change people think, if I go after somebody and he survives for a year and a day, it's like attempted murder.

After the change, it's like murder.

So if... if, as I agree with you completely, the first would be fundamentally unfair, why isn't the second?

Mr. Moore: Your Honor, I believe that first of all the change here is a change in a rule that does not address either primary conduct or... and does not eliminate the mens rea with respect to the result of that...

Justice Breyer: Nor did my example of attempted murder, murder.

Mr. Moore: And Your Honor's hypothetical is that... that, if I understand it, that a court would decide that attempted murder equals murder.

Justice Breyer: You can imagine... I mean, it's not totally absurd.

It depends on how they're written.

They have discretion as to sentencing, they say, these notions of punishing by effects are out of date, we should punish by state of mind, the state of mind is identical... I mean, we can make that up.

It's not totally absurd.

It's just moderately absurd.

Unidentified Justice: [Laughter]

Justice Breyer: But if it did happen... if it did happen, which is the point of it, I think we'd say it was fundamentally unfair, and that's why I want to know what the difference is.

To me there is... I can't find a difference.

Mr. Moore: Analytically it seems to me there is a large difference, since you have essentially in your hypothetical created or expanded the elements of the crime in a way that affected the primary conduct of the actor.

Justice Scalia: Ah, we're back to the elements again.

You ultimately were driven to the same response to my hypothetical, which was essentially the same as Justice Breyer's.

Justice Breyer: And it's awfully technical, you see.

Now, in the sense that from the point of view of fairness, really what's happened in my attempted murder, murder case is the difference as to something beyond the control of the defendant, whether the person happened to die, and that seems just what's at stake here, whether we call it an element, or whether we don't call it an element, and that's why it seems a relevant hypothetical.

Mr. Moore: I think the year-and-a-day rule, that it is not accurate to characterize the year-and-a-day rule as an element, for a couple of reasons.

First of all, the court below, and as a matter of Tennessee law, I think it is clear from its opinion indicated that it is not an element of homicide.

It said, rather, that the effect of its elimination was merely to give the State an opportunity to prove causation, so...

Justice Scalia: Is the ultimate characterization a matter for the State, or a matter for the Federal courts?

Mr. Moore: I think...

Justice Scalia: I mean, could a State call... suppose you have the State in Justice Breyer's hypothetical saying, well, the actual death of the victim was not an element of the crime.

It was just... you know, it wasn't really an element of murder.

Now, we'd look at that and we'd say, well, you say that, but come on, that's an element.

Isn't it a question for the Federal court, rather than the State, ultimately?

Mr. Moore: I would disagree with that.

I think...

Justice Scalia: All right.

Well...

Mr. Moore: I think the State...

Justice Scalia: How do you distinguish the year-and-a-day rule from what we held to be an element a couple of terms ago?

I think it was a couple of terms ago.

That is, in a rape prosecution, the requirement that there be a hue and cry by the victim.

We held that was an element of the crime.

Like the year-and-a-day rule, it has nothing to do with the intent of the criminal.

It's after the event.

It's after the fact.

We held it was an element.

Why is that an element and this not an element?

Mr. Moore: Well, I would answer in two ways.

First of all, it is quite plainly not a statutory element, and it seems to me that is an issue of State law, and in fact the court here said, the lower court here said that it has never been a part of the statutory law of the State.

Secondly, it is not an element because it is not one of those issues that is submitted to the jury.

It's rather a jurisdictional fact.

Chief Justice Rehnquist: My recollection of the case Justice Scalia refers to, which I think is Carmel, is not the same as his.

I think we were both in dissent in the case, but my recollection is that the Court held that the particular... the hue and cry violated the Ex Post Facto Clause.

I don't know that it said that that was an element of the crime.

Mr. Moore: Yes, Your Honor.

Justice Scalia: Well, I thought... I... well, we'll go and read it.

I thought we... we said that because it was an element.

Mr. Moore: But in either case I don't think the problem with Justice Breyer's hypothetical or Justice Scalia's hypothetical would be one of due process fair warning, which is the principle of due process...

Justice Stevens: Well, can I give you a hypothetical that... stick to the year-and-a-day rule, because that's what we have before us.

Supposing just before 1989 there'd been a really terrible crime, he killed a child in a bad situation, but the child didn't die for over a year and a half, or over a year and a day, and the Tennessee... that prompted the Tennessee legislature to abolish that rule, and they said in the rule, abolish it for the past case too, and they said well, they can't do that, and they say, if we can't do that because of the Ex Post Facto Clause we urge the supreme court to abolish it judicially, and remind them that they all run for reelection if they don't do it, so...

Unidentified Justice: [Laughter]

Justice Stevens: And then, sure enough, the case comes up and they decide, well, it's a... it was a common law rule but we're going to abolish it.

Now, why should there be a different rule when it's done by the court rather than by the legislature?

That's my real question in the case.

Mr. Moore: Because of the institutional differences between courts and legislatures.

Justice Stevens: And what is the institutional difference when the court frankly says, we are making a new rule of law?

What is the institutional difference?

Mr. Moore: Because of the insulation of that, of the institution of the courts from the same sorts of political pressures that gave rise to the framers' complete distrust of the ability of the legislative branch to legislate in this particular area.

Courts not only are insulated from the same sorts of political pressures, but they're subject to a tradition of institutional...

Justice Stevens: But my hypothetical assumed that there was political pressure.

Mr. Moore: Excuse me, Your Honor?

Justice Stevens: My hypothetical assumed that there was political pressure because they have to run for reelection.

They can read the newspapers and see how outraged the public is about this particular crime.

Mr. Moore: Well, I think Your Honor's hypothetical posits there is political pressure, but the court, of course, by tradition doesn't succumb to political pressure.

[Laughter]

And in addition it operates under a set of institutional constraints in the way it goes about doing its business that it seems to me provides important protections here.

The... it can't initiate law reform efforts of its own.

It must... it can only act in the context of cases that the litigants bring before the court.

In addition, there is stare decisis, and the concomitant imperative that courts justify departures from precedent of the sort Your Honor's hypothetical posits, with reasons, and with some neutral principles of general applicability and some consideration of the impact of the change they're about to make, not only on the litigants before them, but on all similarly situated litigants.

I think all of those traditional restraints operate to justify different treatment for court decisions as opposed to decisions of legislatures, and certainly the history of the Ex Post Facto Clause indicates that the framers were acutely aware of those distinctions, and because of a well-documented history of parliamentary abuse involving legislation of this sort they thought it essential to insert a prophylactic prohibition against legislation of this sort without regard to... they weren't going to look into the fairness of individual pieces of legislation and the circumstances under which they were passed.

They erected a prophylactic bar to legislation of that sort at all.

Justice Souter: But isn't the answer to the institutional argument that you've been making the answer that Justice Scalia has raised a couple of times elsewhere in the argument, that at the time the ex post facto rule was written the way it was, common law courts, or our very conception of courts, even in the Federal system, which was in gestation at that time, involved a system of much stricter precedent than we have today, so the likelihood of a court doing what this court has done was simply much less than it is today.

We have an entirely different concept of binding precedent today, and for that reason, shouldn't the Due Process Clause take that into consideration by being starchier in... than perhaps the founders ever thought there would be a need to be when reviewing judicial change?

Mr. Moore: Your Honor, I think the Due Process Clause and the Ex Post Facto Clause also are... serve very different functions under our constitutional scheme.

As I indicated, the Ex Post Facto Clause is this sort of structural restraint on the power of that branch of Government, but Due Process, litigation under the Due Process Clause is by its very nature case by case, and the concern of the Due Process Clause is individualized fair treatment, so I would suggest that it would be inconsistent with the nature of the due process guarantee to build into it some sort of prophylactic structural restraint on the judicial branch because of concerns that the judicial branch in modern times engages in too much law reform.

It seems to me that due process, the Due Process Clause, with its concern about individualized fair treatment, is up to the task of protecting against aberrational cases in which a court is self-evidently engaged in some sort of arbitrary or vindictive action that... of the sort that violates our notions of fundamental fairness and our notions about the rule of law.

To close, our position is that the Due Process Clause was not violated here, and that the Due Process Clause is not violated by a court decision of this sort that retroactively alters a rule of criminal law unless that change expands the scope of conduct covered by the criminal prohibition issue and does so unforeseeably.

Secondarily, our position is that the Ex Post Facto Clause simply doesn't regulate judicial action at all, and that none of its technical restrictions should be imported wholesale into the Due Process Clause.

Thank you very much.

Rebuttal of W. Mark Ward

Chief Justice Rehnquist: Thank you, Mr. Moore.

Mr. Ward, you have 4 minutes remaining.

Mr. Ward: Unless the Court has other questions, I have nothing else.

Chief Justice Rehnquist: The case is... thank you, Mr. Ward.

The case is submitted.