Cases by Issue - Mootness

City News & Novelty v. Waukesha - Oral Argument

Fri, 09 Jan 2009 14:50:33 +0000

Case:

City News & Novelty v. Waukesha

Media File:

99-1680_20001128-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeff S. Olson

Chief Justice Rehnquist: We'll hear argument now in Number 99-1680, City News and Novelty, Inc. v. the City of Waukesha.

Mr. Olson.

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

This case is controlled by the interaction of four principles, all designed to eliminate the danger of censorship by delay, from this Court's decisions on speech licensing schemes.

First, in order to comply with the First Amendment, a speech licensing scheme that acts as a prior restraint must guarantee an applicant a prompt final administrative decision in a short, fixed period of time.

Chief Justice Rehnquist: Mr. Olson--

Mr. Olson: Yes.

Chief Justice Rehnquist: --is this a speech licensing scheme?

Mr. Olson: It is a speech licensing scheme because it requires a license to operate an adult book store.

Justice Kennedy: But it's different than Freedman, in the sense that Freedman was expressly designed to permit or not permit speech based solely on its content.

Mr. Olson: You're correct.

Justice Kennedy: And it seems to me this is not that at all.

I recognize the analogy, but Freedman is not directly controlling, it seems to me.

Mr. Olson: You're right that the Waukesha ordinance doesn't permit licensing decisions on its face to be made on the basis of content, but the Court I believe has recognized in City of Lakewood and in FW/PBS that licensing decisions that are not expressly content based can still be used for covert content based censorship.

Justice Ginsburg: Are you claiming that any of the reasons that were given... this is a case of a license that was in existence, and it was... it's a nonrenewal case, right?

Mr. Olson: Yes.

Justice Ginsburg: And the nonrenewal was based on violation, alleged violation of the terms of the license.

Are you contesting that any of those terms, like no minors on the premises, open booths, that any of those terms violate the First Amendment?

Mr. Olson: Not in this case.

We will do that in some future case, but we have not made that argument in this case and we don't think the Court should reach that argument in this case.

This is a case about procedures, not about the substantive disqualification criteria.

Justice Breyer: I suppose a book store, or a newspaper has to... they're in a building, and I guess they can't have holes in the floors and unsafe electricity and maybe they wouldn't be able to run a business if they did.

They don't have to meet... for that safe electricity or working conditions and so forth there isn't some special test, is there?

Mr. Olson: Oh, all of those laws of general application that don't act as prior restraints targeted at speech can be enforced.

Justice Breyer: How are the violations here targeted at speech?

I believe that the accusation was they were... involve conduct, nothing to do with speech in the books in the store.

Mr. Olson: They're targeted at speech in the sense that they're tied to the license, and they're tied to the permission to continue your ongoing speech.

Justice Breyer: Well, so you have a book store, and it says you can have a license to sell a book store, open your book store provided there isn't electricity running all over the floor and electrocuting people.

Mr. Olson: Those--

Justice Breyer: Is that then subject to some special test because it's a book store?

Mr. Olson: --If the requirement to have the electricity only applies to book stores, yes, it would be subject to the Freedman guarantees.

If it applies to everybody, as all those building code requirements do as far as I know, then they're not subject to the Freedman guarantees, and that's what the Court said in Lakewood.

The second principle that I think controls the Court's disposition of this case is that a speech licensing scheme violates the First Amendment if it permits the status quo to be altered to the applicant's detriment during the administrative proceedings.

Justice Ginsburg: How do you get that from Freedman, because Freedman, the status quo was no speech.

That is, the Court said you must have a graphic procedure, because you're not allowing someone to speak.

Here, a speaker has been permitted to speak, has a license, and the question is whether it will be renewed.

So--

Mr. Olson: That's--

Justice Ginsburg: --So you're asking for, the continued speech is the status quo, as distinguished from Freedman, where no speech was the status quo.

Mr. Olson: --That's absolutely correct.

In Freedman and in Southeastern Promotions the Court said that a prior restraint before judicial review can be imposed only where it maintains the status quo.

Where the status quo is speech, obviously you can't impose a prior restraint prior to judicial review, and in the tail end of Southeastern Promotions the Court listed the constitutional deficiencies with the law at issue there, and one of the deficiencies listed was that it permitted the status quo to be altered to the applicant's detriment before judicial review.

Chief Justice Rehnquist: That was another Freedman type case, wasn't it, where the performance could not go on under the existence.

Mr. Olson: It was a new speech case, that's correct, but I believe the Court found that the status quo was altered to the applicant's detriment because the show in the presentation of Hair in Southeastern Promotions had to be postponed and they lost their date for the presentation.

We believe that the third principle governing this case is that a licensing scheme that acts as a prior restraint must confer upon an unsuccessful applicant the right to prompt judicial review, and the fourth principle is that--

Justice Ginsburg: Do you really... is that really your principle?

As I understand your case, it's not prompt judicial review as such, as was the case in Freedman, but here you would be delighted to have delayed judicial review as long as you keep your license until judicial review is over, so what you're really saying, it's not a question of prompt, it's a question of until the end of the judicial road, however long that road is, your license can't be revoked.

Mr. Olson: --We believe that's what Southeastern Promotions requires, and we believe that's the only way to prevent injury from lack of prompt judicial review.

Justice Ginsburg: But then if that's the case it's nothing to do with the promptness of judicial review.

It's simply that you retain your license until judicial review is over, however long it takes.

Mr. Olson: It's right that that's the rule we're urging the Court to find in Southeastern Promotions and FW/PBS and apply in this case, but it's wrong to say that it has nothing to do with the promptness of judicial review, I think, because the question on which the Court granted certiorari is does the licensing ordinance have to contain language to prevent injury from want of prompt judicial review, and the only way to prevent injury from want of prompt judicial review when you're enacting city licensing ordinance is to maintain the status quo, guarantee the status quo--

Justice Scalia: But that can be done by the court.

If that's constitutionally required, as you say, when you have the ordinance providing for prompt commencement of judicial review, what would go along with the prompt commencement of judicial review is the ability of the court, indeed the obligation of the court, if the Constitution is as you say it is, to immediately issue a stay order preventing the cancellation of the license.

Why isn't that sufficient?

Why does it have to be in the statute if you provide for judicial review and if, as you tell us, the court having judicial review must maintain the status quo?

Mr. Olson: --Justice Scalia, it's not sufficient for five reasons.

First, the timing of that sort of temporary relief is in the discretion of the circuit court and can depend on lots of factors, including docket pressure--

Justice Scalia: Not if it's constitutionally required, as you tell us.

You tell us that the status quo has to be maintained.

If that's so, you have a... you know, a lock on a stay order from the court as soon as the case gets there.

Mr. Olson: --Well, that really depends on what this Court says in this case.

If the Court says in this case, as we urge it to say, that the status quo through judicial review must be guaranteed, then I suppose we could go into circuit court and get on the schedule for a motion and have the judge receive briefs and decide our motion and, after a period of time, issue an order implementing this Court's decision.

Justice Scalia: It would also mean that you've brought this case before you have any reason to believe you've been harmed.

Mr. Olson: No.

Justice Scalia: I mean, why should we pronounce that advisory opinion?

If it is indeed the case, as you say it is, that the court must issue a stay order, why can't we await that event?

If and when a court doesn't issue a stay order, then you've been harmed.

Mr. Olson: I don't think that a stay order, the possibility of a stay order in the circuit court is an adequate substitute for Freedman safeguards, including maintenance of the status quo as written into the ordinance.

Chief Justice Rehnquist: Well, the supreme court of Wisconsin held... was it the supreme court, or the court of appeals?

Mr. Olson: Court of appeals.

Chief Justice Rehnquist: The court of appeals held that what you're asking for was not required here, didn't it?

Mr. Olson: The court of appeals believed that the status quo would be maintained through the administrative proceedings automatically, and the court of appeals held that it wasn't necessary to maintain the status quo through the termination of judicial proceedings.

Chief Justice Rehnquist: So under that holding, if you went into the Circuit Court of Waukesha County you might get a stay and you might not.

Mr. Olson: Well, we wouldn't have much of a claim on a stay today except by making the arguments from Freedman and Southeastern Promotions that we're making here today.

Chief Justice Rehnquist: Well, couldn't you argue that the administrative determination by the city was arbitrary or capricious?

Isn't that a ground for judicial review of an administrative order?

Mr. Olson: We could.

That would be an argument going to the merits of the claim and, of course, it would be relevant to the issuance of a stay, because we have to show probability of success.

Chief Justice Rehnquist: Your position basically is, even though your claim substantively has no merit, you're still entitled to an automatic stay.

Mr. Olson: I don't even get to whether we're entitled to an automatic stay in my thinking, because I don't think that the possibility of a stay being imposed in a discretionary manner in the circuit court is sufficient to satisfy Southeastern Promotions, Freedman, FW/PBS.

Justice Breyer: It is sufficient if they decide your case... if the circuit... you have some claim on the merits.

You say they're arbitrary in taking away my license.

Mr. Olson: Or some provision is unconstitutional.

Justice Breyer: Yes, all right, you say this, we have a claim on the merits, and you say, judge, decide it.

Decide it before we have to close down.

Now, if they do, it's fine, right?

You have no complaint as long as the judge decides your claim on the merits before you have to shut the door.

Mr. Olson: In an as applied challenge that would be correct, but this is a facial challenge.

Justice Breyer: No, but I'm not saying about this case.

Suppose it was always true that the judges would decide on the merits before anyone had to shut the door.

Mr. Olson: If that were always true, then--

Justice Breyer: No problem, all right.

Mr. Olson: --the court wouldn't have to worry about a specific guarantee--

Justice Breyer: Fine, then why aren't you better off, not worse off, if the court decides a stay before you have to shut down, for after all, a court will give you the stay as long as there's a reasonable probability of success, but the court will allow you to stay open on the merits only if you're right.

Mr. Olson: --Getting that stay does require us to show a reasonable probability of success on the merits.

Justice Breyer: But to win, you have to win, so you're easier... it's easier for you to get the stay than it is to win.

Mr. Olson: Not... not really, in terms of timing especially.

We can't show a reasonable probability of success on the merits in an administrative review until that administrative record gets to the court, and there's no time limit on that under the unamended ordinance.

Justice Ginsburg: This case has an air of unreality to it, because in fact your client did get a stay until the end of the judicial road without making a showing of probability of success on the merits and, in fact, the entire case has been now adjudicated on the merits, is that not so?

Mr. Olson: That's correct, and we have no as applied challenge here.

This is strictly a facial challenge case.

Justice Stevens: But isn't it also have an air of unreality because your client is not in business any more and doesn't intend to go back into business, as I understand the proceedings.

Mr. Olson: Our client is still just barely in business operating as a nonadult store, and intending to close even that operation within a matter of days, but as we pointed out in our brief--

Justice Stevens: Why isn't the case moot?

Mr. Olson: --The case isn't moot because there's a disability from licensure that flows from having violated the ordinance by operating without a license, which I told them they were entitled to do under Shuttlesworth, because--

Justice Stevens: But there's a disability for licensure for a business he has no intention of engaging in, as I understand it.

Mr. Olson: --Well, there's no showing that they intend to engage in this business, or that they have not applied for a new license and they don't have an application pending now, but they haven't foresworn any intention to apply for a license at some other location in the future.

Justice Stevens: I have the impression... I may be unfair to you... that you may be representing interests other than the named party to the case here.

Mr. Olson: Not... my client has a real, concrete interest in having a facially valid, constitutional ordinance on the book in Waukesha.

City News and Novelty and its officers have real interests in that--

Justice Stevens: Sufficient interest to finance extensive litigation in the United States Supreme Court.

I guess that's the answer, right, and of course he's paying the bills, I suppose.

Mr. Olson: --Yes.

The City News and Novelty is footing the bill for this case because they believe they're right, they believe in it's important principle, and they don't want the 5-year disability from licensure that will fall on the corporation and its officers.

If they're determined to have been operating without a license in violation of a valid ordinance up until February 14, 2000, which is when they stopped operating as an adult book store, they'd be disabled from licensure in Waukesha for 5 years after that, until Valentine's Day 2005.

Justice Scalia: That disability has nothing... I mean, that disability has something to do with a defect in the system that might have produced a merits decision that was contrary to the facts, or contrary to the law, but I don't see how that disability has anything to do with the question of timing that you're now bringing before us.

I mean, if, indeed, your client was properly found to be in violation of the substantive provisions of the ordinance, then it seems to me he deserves to be disabled from future licensing.

What does that have anything to do with the timing question of, you know, he has to be allowed to continue operation before the adjudication is made?

I mean, I see that you have some continuing interest, but it's not an interest that depends at all upon the issue that you're bringing before us here.

Mr. Olson: Justice Scalia, they do in the following sense.

If there is no valid judicial review path in this licensing ordinance, then there's no valid renewal mechanism, and the whole licensing requirement becomes facially invalid.

Then they're entitled to operate without a license.

Justice Scalia: But you're not saying that the whole judicial review mechanism is invalid in the sense that it has produced an unjust or incorrect substantive decision.

You're saying that there's one feature of it, namely whether your client was allowed to operate in the meantime that rendered it unfair, but I don't see how that has anything to do with your... the propriety of preventing your client from operating in the future, once a substantive violation has properly been found.

Or, you say it can't properly be found, that the entire judicial proceeding is invalidated by reason of the fact that your client could not be allowed to continue operation pending the proceeding?

Mr. Olson: My client was allowed to continue, but my client was entitled to have that guaranteed on the face of the ordinance, and we contend that the--

Justice Scalia: Well--

Justice Ginsburg: --There is a... there was a... I forgot what the title of the case was, but a decision of this Court explaining that if you were entitled to something as a matter of constitutional right, due process, like notice, it doesn't matter that the notice provision isn't in the law itself, as long as the court insists on it.

Then you have no constitutional right that has been violated.

Mr. Olson: --That's right.

There are some of the cases going to the requirement of, for example, explicit and specific and objective licensing standards that recognize that these could be... these could come from usage or authoritative construction, as well as on the face of the legislation, but here there is no usage or authoritative construction that builds a status quo--

Justice Ginsburg: Well, do you have... all we know is in your case you were allowed to remain in operation until the end of the line.

Do you... is there anything in this record to show that that doesn't routinely happen?

Mr. Olson: --Well, as far as I know, this is the only establishment ever to be licensed in Waukesha as an adult book store.

There's nothing--

Justice Ginsburg: So you're saying in another case someone else might suffer the violation of a constitutional right, but certainly that has not been your experience, and I don't know why we shouldn't assume that other cases would proceed in this same pattern and not in some other pattern.

Mr. Olson: --The Court has held in more than one case that license applicants are entitled more to the hope of the grace... to more than the hope of the grace of the Government.

They're entitled to a guarantee.

In other words, maybe they will.

Maybe they will let the next guy stay open, too, or maybe they'll say that we let Olson's clients stay open because that was test case, raising constitutional issues about our ordinance and we weren't sure how it was going to come out, now we know, so you've got to close with our nonrenewal decision.

We're entitled--

Chief Justice Rehnquist: Mr. Olson, does the fact that you're making a facial constitutional challenge here in your view make any difference on the question of mootness or ripeness?

Mr. Olson: --Yes, I think it does.

I think if we were making an as applied challenge the... Justice Scalia would be right in the sense that we haven't suffered any injury, because we were allowed to remain open.

The fact that we're making a facial challenge, I think first of all it focuses the Court's attention on the ordinance as it stood in 1995, and that's... in '96, and that it prevents it from being mooted out by the subsequent amendments to the ordinance that have taken place four times this year.

Justice Breyer: Maybe, is it standing?

I mean, as I understand it you're saying... you're complaining about a procedural flaw, call it X.

Mr. Olson: Yes.

Justice Breyer: And as far as your client is concerned, X never happened to him.

Mr. Olson: Correct.

Justice Breyer: As far as your client was concerned, it's now been determined that he violated the statute on the merits.

Mr. Olson: Correct.

Justice Breyer: And your client says, I'm out of business anyway, I've made an agreement not to try to get back into it.

Now, it sounds as if that should violate some prudential principle.

I just--

[Laughter]

I'm not totally sure which one.

Mr. Olson: Well--

Justice Breyer: You've looked into this more thoroughly.

Justice Stevens: Can I add one fact before you answer Justice Breyer?

Mr. Olson: --Sure.

Justice Stevens: Generally the purpose of the facial challenge is to protect third parties who may not be before the court, but here, is it not a fact that the third parties are largely, maybe not entirely protected by the amendment to the ordinance, from the very danger that you're seeking... the very principle you're seeking to vindicate?

Mr. Olson: The third parties are protected from a couple of the original problems.

They're protected from indefinite time... indefinite times in the administrative procedure.

But they're not protected from lack of prompt judicial review and lack of preservation of the status quo during judicial review.

The third parties out there who will apply for renewal in the future under this ordinance will still face those facial problems with the scheme as it stands today.

Justice Souter: But those third parties will be in exactly the position that your client has been in during the course of this litigation, isn't that correct?

What I'm getting at is, the kind of the classic third party right that we recognize is the right in the case in which the individual defendant in effect says, yeah, as applied to me the ordinance is perfectly constitutional, but there are these other people and as to them it would not be.

But here your client is in exactly the same position as the other people, and should that make a difference?

One reason why it might make a difference is, if it turns out that this supposedly facially invalid ordinance in practice is applied in a perfectly valid way to you, should we therefore assume that it will be different when the ordinance is applied to third parties?

Mr. Olson: I--

Justice Souter: So I'm wondering whether you're really in a situation in which our cases recognize your right to raise a third party right where you're in the same boat with them.

Mr. Olson: --I think your cases prevent you from assuming that we are in the same boat with them.

I think they prevent you from assuming that they won't be required to close pending judicial review, for example, or that--

Justice Souter: Well, why aren't you in the same boat with them?

Mr. Olson: --Because--

Justice Souter: You say our cases prevent me from making that assumption.

Why aren't you?

Mr. Olson: --We got the grace of the Government and a special dispensation to be allowed to remain open.

Future applicants, there's no reason to believe that they will get that, and they are entitled--

Justice Ginsburg: There's also, usually a champion comes forward and says, other people are going to be chilled, but in this case not only aren't others chilled from getting into this business, but you're being edged out not because of any ordinance, but because a bigger player has taken over and there's not... and has squeezed you out of the market.

Mr. Olson: --Maybe not totally out of the market.

They might want to apply for a license at some other location.

Justice Ginsburg: But they are perfectly adequate champion of themselves.

It's not like the person who is going to be afraid to demonstrate for fear of being arrested.

It's... I don't see any chill of people like, what is it, the B... whatever the organization that has come into this town with a bigger and better adult book shop.

Mr. Olson: Setting that particular organization aside and looking at future operations that might be deciding whether or not to locate in Waukesha, I don't think it's beyond the stretch of the imagination to suggest that they might decide to go elsewhere if this Court decides that Waukesha's ordinance is just fine and you can be nonrenewed administratively for popcorn on the floor, and you have to close until you get a judicial decision on the merits that that's an unconstitutional criterion.

Justice Souter: Maybe we have been misconstruing your argument.

Is your argument not that there is a third party right that you were raising, but an argument that even as to you in this case, in which you were allowed to operate as the proceedings progressed, even as to you in this case, the statute was simply flatly unconstitutional and therefore the entire proceeding was unconstitutional, even though you weren't shut down pending the determination.

Mr. Olson: We do contend that, and we do contend that at least on remand the nonrenewal order will have to be vacated because it was issued pursuant to an unconstitutional licensing scheme.

And with the Court's permission, I'd like to reserve my time.

Argument of Curt Meitz

Chief Justice Rehnquist: Very well, Mr. Olson.

Mr. Meitz, we'll hear from you.

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

The petitioner in this case was denied a renewal of its adult license for committing nine separate violations of our municipal code, including permitting minors to loiter and allowing sexual activity to both occur on the premises.

The City of Waukesha maintains that a guarantee of a prompt judicial determination, as required in Freedman in the context of a censorship scheme, is neither applicable or required for a licensing ordinance that focuses on the secondary effects of such establishments and targets prior misconduct not protected by the Constitution.

The specific issue before this Court, which is before the Court today, is that... whether such an ordinance, which has neither the effect or purpose of limiting or restricting the content of any commutative materials must provide either a guarantee of a prompt judicial determination, versus the availability or access to prompt judicial review for administrative decisions that are made concerning conduct which is unprotected by the First Amendment.

Justice Souter: Well, if we accept your statement of the question, I think it's perhaps an easier case than I believe they mean to bring, because I think part of their point is that even under a scheme which is justified on the secondary effects analysis, so it's not content based in the classic sense, even under that scheme, there is still going to be a content restriction on speech if this establishment is shut down, and that is true simply because the nature of the establishment is rather content specific, so you're going to have a content... you're going to have an effect which is correlated to content, so that's why I wonder if it's fair for you to say that the ordinance does not have the effect, in addition to not having the purpose of a content restriction, because I think they're saying it does have the effect of a content restriction, and that's why you ought to have some safeguards.

Mr. Meitz: In answering your question, Justice Souter, this Court said in the seminal cases, in the first and the plurality of American Mini Theatres, and in Renton, that these types of establishments, adult establishments do have a effect on the surrounding environments.

The Court said in Renton, the majority said that you are capable of regulating, you have a substantial important interest, and as long--

Justice Souter: No question.

Mr. Meitz: --As long as your regulations are justified without regard to the content of what they sell, in this case what they sell or rent, that is content neutral.

Certainly--

Justice Souter: It is content neutral for certain purposes, but he is saying that there ought to be some procedural safeguard that recognizes the fact that even these so called content neutral limitations based on secondary effects do have an effect on speech, and that effect is at least very closely correlated with content, and he's saying that for that reason, even though you can regulate it... that's not being contested, is it, as a broad proposition... even though you can regulate it, there ought to be some limits on your regulation because of the damage that you can do and do on a content basis, in effect.

Mr. Meitz: --And I think that is clear.

As the Court... a plurality stated in FW/PBS, technically this is a... requires prior restraint analysis, and we do initially, we provide the objective standards for review, because if you don't have, as the case was cited in Lakewood, where there are no standards, you have unbridled discretion, and without any standards there's that hidden idea of censorship, and we provide, as the court of appeals determined, objective, definitive standards.

The other key here, as FW said, is you must provide, the licensor must provide a determination in a reasonable, specific period of time.

Justice Souter: But I think, and I don't want to cut you off, but I think what you're saying... and this may be fine, but I want to make sure I understand it.

You're saying, yes, so long as we meet certain conditions, not all the conditions he wants, we can have an effect on content.

Mr. Meitz: I think what we're going to find here is certainly--

Justice Souter: But isn't that your position?

Mr. Meitz: --There will be what we consider an incidental burden on content.

There clearly will be, but this Court on numerous occasions involving time, place, and manner restrictions where you have in place some restrictions, as long as they're incidental, and incidental as this Court has defined on many occasions, is that the regulation is essential to the furtherance of the interest, and clearly here, our interest, our interest in protecting the health, safety, and welfare of our citizens, is geared on not what they're selling, not what they're renting.

We're concerned about keeping minors out of these establishments.

We're concerned about keeping sexual activity from occurring.

We're concerned about peep booths not being obstructed, which would discourage sexual activity.

Justice Souter: We accept that and he accepts that.

All he's saying is, if you're going to regulate on that perfectly legitimate basis, you've got to do it promptly.

That's the argument.

Why can't you do it promptly--

Mr. Meitz: And I--

Justice Souter: --and therefore why is it a burden?

I mean, that seems to me what the issue is in this case.

Why is it a burden that you should not carry?

Mr. Meitz: --We would agree with that.

We believe that the argument of administrative determine... of prompt judicial administrative determination is not the issue before the Court.

Justice Kennedy: But do you agree that it's required?

Mr. Meitz: Absolutely.

Justice Kennedy: Well then, what's the difference between an administrative delay, which you concede the Constitution prohibits, and a judicial delay?

Mr. Meitz: The big difference is this, and I think there were six justices in FW/PBS v. Dallas that recognized the distinction between content based censorship schemes and the Freedman analysis, which was... required these safeguards to obviate the dangers of a censorship system, and those licensing ordinance that do not pass judgment on the content of any commutative material.

Justice Kennedy: But what sense would it make for the Court to have strict rules about administrative expedition but not judicial, other than what Justice... the line of questions Justice Scalia was indicating, that there is authority to issue a stay?

Other than that, what would be the reason?

Mr. Meitz: The reason is, is the requirement for a guarantee of a prompt judicial determination in Freedman is because the licensing scheme in Maryland was passing a determination on the content of what is obscenity.

This Court has stated, to obviate the risks associated with that the judiciary has the expertise to make determinations concerning the constitutionality or whether a matter is protected or unprotected.

That is clear, that an administrative review body is not the final arbiter.

If they want to declare something obscene or not, the burden is upon them... the burden upon them of going to court and proving that is there, and the requirement of prompt judicial determination is because the judiciary has the necessary sensitivity towards what is protected or not protected versus an administrative body.

Justice O'Connor: Mr. Meitz, if some kind of provision for prompt administrative review is required in these license revocation cases, do you think this Court has ever decided whether the ensuing judicial review, whether it has to provide for a prompt decision or just prompt access to the courts, to courts having a power to maintain the status quo if the appropriate showing is made.

Mr. Meitz: We believe that--

Justice O'Connor: Is there a difference between access and final decision and what do you think our cases hold in that--

Mr. Meitz: --For matters involving censorship or content based situations, it's clear from Freedman and its progeny, Southeastern, that a prompt judicial, guarantee of a prompt judicial determination is necessary to minimize the risk, and the--

Justice O'Connor: --You mean final determination?

Mr. Meitz: --Yes.

Justice O'Connor: As opposed to access?

Mr. Meitz: Yes.

However, as the plurality stated in FW, the words availability, avenue, and possibility, that that is appropriate considering the fact that what we are doing here, the municipality is not passing judgment on the content.

What they sell is irrelevant.

We are making determinations that are within our expertise.

We do it every other Tuesday in the City of Waukesha.

Justice O'Connor: Well, I'm not clear on what you think is necessary.

Is it necessary here that there be a provision on the face of the statute for prompt final judicial decision, or just prompt access to the court for judicial review?

Mr. Meitz: Prompt access, Justice O'Connor, because we believe that the purpose, the reason for a prompt judicial determination to eliminate that discouraging effect on the individual film exhibitor to go into court and the expertise, which only the judiciary has, that is not applicable.

Justice Kennedy: But it seems to me it would go the other way around.

If the administrative agency has expertise, and it's required to expedite, in your case, but the judiciary doesn't, then you're allowing the entity without expertise to delay.

That seems to me, you have it backwards.

Mr. Meitz: Not with regard to matters that are not content based.

If you're making a determination on whether minors are loitering or not, that is within the particular realm of municipal body.

They make decisions like that all the time, and that decision is, in effect, final, unless there is an appeal taken, and that's clearly unlike the censorship scheme, where you have to go to court Maryland, if you want this to be declared obscene you better get authorization--

Justice Kennedy: I go back to my earlier question.

If the premise is that the Constitution requires expedition at the administrative level, why doesn't it have the same requirement at the judicial level?

Expertise can't be the answer, because that works against you, it seems to me.

Mr. Meitz: --The reason it would not be required, you have to look at the underlying rationale of Freedman and why Freedman required a prompt judicial determination, because of specifically what the Court said... filed like, the 37 photographs.

You are not in the position, censor... you are... you're in the business of censoring, and you are not sensitive to the protected versus unprotected speech.

Chief Justice Rehnquist: Well, isn't there something, too, to the idea that when you get into court, you're dealing with a neutral tribunal, whereas perhaps the administrative tribunal might be thought not to be neutral.

Mr. Meitz: This is true, and I think as you pointed out earlier the deferential standard of review exists virtually in every State that I'm aware of.

It's pointed out by the Solicitor General, is whether there... whether the administrative body was arbitrary and capricious, exercises will versus its judgment.

Justice Scalia: Mr. Meitz, would you be making this same argument if what was at issue here was not a statute directed at adult book stores but a statute directed at, let's say, radio stations?

It's not addressed at all business, just radio stations.

It picks them out, and it addresses the external effects of radio stations.

If they're found to be in violation of the sanitary code because they're infested with rats, or because the plumbing is unsafe, or because the electricity is unsafe, their license can be revoked.

It seems to me a very parallel situation.

Now, would you say that you could have a hearing under that statute directed only at radio stations, and shut down the radio station before the opportunity for complete judicial review has been accorded?

Mr. Meitz: If you're obviously not trying to--

Justice Scalia: I am worried--

Mr. Meitz: --control the content, but if it's like you said--

Justice Scalia: --That's right.

Mr. Meitz: --rats, or whatever, I would say, absolutely, because if you... you have an interest in maintaining the sanitation and health of the community--

Justice Scalia: Yes.

Mr. Meitz: --and if there happened to be a licensing scheme that allowed them to be shut down, I think the municipality would have a real substantial interest in controlling, and as part of its public--

Chief Justice Rehnquist: A court would want to inquire into why only radio stations were prohibited from having rats in them, as opposed to every other kind of business, I suppose.

Mr. Meitz: --I would agree with that, but I think, again I bring the Court back to the seminal cases of American Mini Theatres and Renton.

The Court recognized that these secondary effects associated with such establishments are important and substantial, and they allow the municipality some flexibility with dealing with these very serious problems, so yes, in a sense--

Justice Stevens: Those cases just dealt with the location of the business.

They didn't go into procedures at all, Renton and Mini Theatres.

Mr. Meitz: --Renton and Mini Theatres was a licensing, albeit you're correct, Justice Stevens, it did involve the zoning, but I think there have been other cases since then, and I'll use... although not in the adult book scheme, but I will mention Ward v. Rock Against Racism, where there was a clear burden, or incidental burden placed upon speech from the standpoint of how loud the music could be in Central Park, and the interests of the municipality being, you know, the neighbors around Central Park had the right to quiet enjoyment--

Justice Stevens: But again, that didn't have anything to do with the timing of the decision, as I remember it, did it?

Mr. Meitz: --Well, the Court there analyzed that as intermediate scrutiny, time, place, and manner restriction.

Justice Breyer: I'd just like to get quickly your... what's the procedural doctrine that... is... look, they're complaining about X.

They weren't hurt by X.

They've decided definitely they're not entitled to a license anyway and they're going out of business, all right.

They've agreed to that, and yet they want to complain about X.

What's the procedural doctrine that bars them?

Mr. Meitz: I'm not sure if I understand the question.

Justice Breyer: Well, you don't think they ought to be here making this argument.

You called it moot, or... we just went--

Mr. Meitz: Yes.

Justice Breyer: --Remember what I just went through with him?

Mr. Meitz: Yes.

Justice Breyer: I want to know, what's the procedural doctrine that says we can't get to the merits of this?

Mr. Meitz: I... the reason we brought this issue to the Court's attention, and for the very limited, unique situation, was the issue upon which you granted review, and that is whether you require a prompt judicial determination.

The fact whether it was expedited or not, they were not injured.

They were allowed to stay open, and that... again, we would prefer that this matter be litigated on the merits.

We have many municipalities--

Justice Breyer: I just want the name of the doctrine.

What is the law that stops them from doing--

Mr. Meitz: --I would cite Asarco from the standpoint at least that you have to have some kind of likelihood of redress that's available from this Court, and it's very speculative at this point in time.

Justice Ginsburg: --But you called it moot.

You did label it mootness, as opposed to standing, because I suppose, on the theory that going in, when this whole thing started, they appeared to be... to have a live interest in this, but now at the end of the line they haven't maintained that interest.

I thought that's what you were saying, but maybe not.

Mr. Meitz: Only since the Court granted this petition for review, we felt it was our obligation to bring it to your attention because of the limited issue upon which you granted the review, not because we amended the ordinance.

Justice Breyer: Well, is the... is this any more moot than Pap's and Erie was moot?

Mr. Meitz: I think it's distinguished from Pap's, because one, as the Court stated in Pap's, they were... this is clearly not an attempt by us... they arrived at a favorable decision from the lower court, number 1.

Number 2, we don't know what... as Justice O'Connor said in Pap's, there's some ongoing injury that occurred in that case to the City of Erie--

Justice Breyer: The difference seemed to me to be, in Pap's it's solely a question of mootness.

Unknown Speaker: Here there's a different thing.

Justice Breyer: The additional thing is that they were never hurt by the provision of which they're complaining.

Mr. Meitz: --And that's exactly why we brought that to the attention--

Justice Breyer: I know, and I'm trying to look for the doctrinal handle.

Mr. Meitz: --Yes, and we look at it, if the Court would have granted cert on all issues that would have been a different case, because that might, if you were... the standards issued, or there was some impartiality question of City of Waukesha panel, then that would maybe undermine the entire licensing process, but this was a very limited issue, and we fail to see how this... how they are harmed by this, or there's any redress likely by this Court.

The Court here is... there's 21,000 municipalities in this country, approximately, all of which have a substantial interest and... in seeing... preserving the quality of urban life in America.

Justice Souter: May... I'm sorry, may I just go back to this other issue, and I want to ask you a question about your ordinance.

They're out of business now, I take it.

They're not... they don't wish to operate at the moment.

Mr. Meitz: That's my understanding.

Justice Souter: Okay.

Mr. Meitz: They're closing down this week.

Justice Souter: Now, if they were to win their case, would they be entitled to a license renewal under your ordinance, even though they do not at the present time wish to operate the business?

Mr. Meitz: We don't believe so, because of the narrow issue before the Court.

Justice Souter: Well, I'm not... no, but I'm not asking about the issue before the Court.

I'm asking a question about your ordinance.

If they were to win this case and they come to you and say, we don't intend to operate this business, but we'd like a license, does your ordinance provide for granting them a license?

Mr. Meitz: They could be granted a license if they were... if they're found not to have committed a violation over the past 5 years.

The offices--

Justice Souter: You license businesses that don't intend to operate?

Mr. Meitz: --If they don't operate, no, we would not give them a license.

Justice Souter: Well, that was my question.

As I understand it, they don't intend to operate.

They say, okay, we've won our case.

We don't intend to operate, give us a license.

Can they get a license under your ordinance?

Mr. Meitz: No.

Argument of James A. Feldman

Chief Justice Rehnquist: Thank you, Mr. Meitz.

Mr. Feldman, we'll hear from you.

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

It's our position that the city's ordinance in this case satisfies First Amendment procedural standards in that prompt judicial review is available and therefore the judgment below should be affirmed.

Justice O'Connor: You mean access to review, as opposed to decision making?

Mr. Feldman: Yes.

I think that actually is the question on which the courts of appeals were divided, and that's the question that the Court ought to reach and decide, whether what's necessary is access to prompt judicial review, or a final judicial determination on the merits within a particular period of time.

Justice Stevens: Mr. Feldman, are those cases involving renewals, or initial issuance of licenses?

Mr. Feldman: I think all of the... at least all of the court of appeals decisions I think were initial licenses.

Justice Stevens: Do you think the considerations are the same in the two situations?

Mr. Feldman: Yes, I do.

I think there are differences in a due process analysis between someone who has applied for renewal of a license and hasn't gotten the renewal and has a property interest, perhaps, in that license, and that may have due process implications, but I think from the standpoint of the First Amendment the question is, is there going to be a period of time during which the expression doesn't occur, or does occur, and it's just an interest in expression, and it doesn't matter whether before that time the person was licensed and had... expression occurred or not.

Justice Stevens: Of course, the status quo is entirely different, because in one case the status quo is that the First Amendment materials are being sold, and in the other they're not in... they're not being sold.

Mr. Feldman: I think that's true.

I think that status quo issue has to... may have to do with a due process analysis.

Justice Stevens: Yes.

Mr. Feldman: From the standpoint of the First Amendment, the Court's references in Freedman and the other cases to maintaining the status quo was... in the context of those cases what that meant is, there can be a period of time during which the expression doesn't occur, and I think that's the same principle that applies here.

There can be a period of time in this case pending judicial review, as long as the judicial review is available, during which the expression doesn't occur.

I think what's necessary in this context is, the license applicant has to have the availability of... has to be able to go immediately into court once the administrative decision is made, the licensee has to have the ability to get temporary or preliminary relief if the facts of the case warrant it, and there has to be no particular obstacles that are placed in the licensee's way, and if all of that is satisfied, then the court is in the position to safeguard the licensee's interest and no further requirements are necessary.

Justice Kennedy: So you think the availability of temporary relief on a substantial showing is a necessary component of the review?

Mr. Feldman: It's not directly presented here, because that is available under this statute, but yes, I think it's probably... if you had a scheme... and they are unusual, but I think they may exist here and there.

Where a court doesn't have the power to grant the temporary relief, I think that would raise other... that would raise First Amendment concerns.

I think--

Justice Ginsburg: Mr. Feldman, does the Government have a position on mootness, or whatever you want to call it, or the justiciability of this case at this time in its current posture?

Mr. Feldman: --I think it's our position that essentially for the reasons given by the petitioner, that, although it might be a close question, the case is probably not moot.

There still is some continuing interest that the petitioner has in the case.

Justice Scalia: Why do these adult book store owners keep going out of business and not intending to get back in?

I mean, we had the same question in Pap's.

It's an occupational hazard, I gather.

[Laughter]

I don't understand.

Mr. Feldman: I'm really not aware of the economics that lead to that.

Justice Breyer: But how does he have the right to raise the claims of people who are not here whom would be affected by this procedural provision, when he himself is not affected by it?

Mr. Feldman: I think that his... I think his basic claim is this, is this procedure that the city's put into effect, this licensing procedure, is unconstitutional, and therefore I don't really even need a license, or if I need a license, I ought to be able to get one immediately.

That's the basic claim that--

Justice Breyer: He's saying the whole thing is unconstitutional because--

Mr. Feldman: --Right.

Justice Breyer: --it doesn't have sufficiently quick judicial review, which he himself wouldn't have been affected by.

Mr. Feldman: That's right, but I... the fact that in this particular case he wouldn't have been affected by it--

Justice Breyer: Can you think of another case where it was that distant and somebody was allowed to raise somebody's First Amendment rights when the other people were perfectly able to raise it themselves?

Mr. Feldman: --Well, I think the FW/PBS case, for example, or in the Lakewood case, I think in a couple of those cases you've had people who say, that there are these... that there are First Amendment procedural safeguards that are required, and the party is able to go into court and say, his claim is that the scheme is unconstitutional.

Now, I'm not... we don't agree that it is--

Justice Breyer: Even though it doesn't affect them at all.

Even though they're not affected and the other people--

Mr. Feldman: --They're not affected in this case.

I suppose the theory would be that when he goes for renewal again he might be affected, or that he--

Justice Breyer: --Well, if the theory is if he goes for renewal again and he's not going back into the business, it's a little far fetched, isn't it?

Mr. Feldman: --Right.

I think... yes.

Justice Kennedy: Well, I take it that the classic Thornhill doctrine, where I'm allowed to raise somebody else's rights, is because it's a content based statute, and this is not content based.

Mr. Feldman: That's right, and I think that's the crucial... this is not contents based, it's true, but although in the FW/PBS case, which was identical to this in terms of whether it was content based, the Court said the party could also raise these procedural interests, First Amendment interests, could make a challenge to the constitutionality of that scheme.

I do think that on the merits the important... the crucial point here is that the decisions the city makes are not content based.

Unlike in a situation like Freedman, where the Court said, this Court said that a reviewing court has to be able... has to... is necessary, because what the State was doing was looking at the particular movie and making a judgment based on that content about whether that movie should be allowed.

Justice Kennedy: Can you explain to me why the administrator must act promptly, but the judiciary does not?

Mr. Feldman: Yes, I hope so.

I think in... in FW/PBS what the Court held was that some of the Freedman requirements are not necessary in this context and, in particular, it said the city doesn't have to go to court.

You can let the other party go to court and the city doesn't have to bear the burden of proof when it goes to court, and I think the point of that decision was that the municipal decision here, since it's not content based, can be allowed to go into effect and have final effect even with no judge ever looking at it.

In the Freedman context, it's quite different.

In the Freedman context, what the Court was saying, we don't want this censor's decision to go into effect for any significant period of time without a judge looking at it.

It's not really a final determination of law until you go into court, until a judge has a chance to look at it and decide whether the material--

Justice Breyer: I thought--

Mr. Feldman: --is constitutionally protected.

Justice Breyer: --Am I wrong, I was thinking, look, normally where your courts are at stake a preliminary injunction is good enough, but that isn't good enough where it's the administrator, because the administrator might not be as fair.

Mr. Feldman: I'm not sure I understand the question.

Justice Breyer: Well, the reason that you have to protect them more about... against the administrator than a judge is, you think, well, the judge will be fair.

He sees irreparable injury, and if there's some probability of success he'll give you the injunction.

Mr. Feldman: That's correct.

Justice Breyer: But you have to be tougher than that on administrators, because they're already taken a side and they're not judicial and so forth.

Mr. Feldman: That's correct.

I was only making the point that there was a unique feature present in a Freedman type case, which is, you don't want any effect to be given, or any substantial effect to be given to the administrative decision because it's a content based decision on the content of that speech.

You don't want any effect to be given to that, basically, until it gets into court.

Here, the point of FW/PBS was, that can have some effect as long as the proper procedures are required, and--

Justice Scalia: Excuse me, until it gets to the court?

Are you saying that if it's a content based restriction you cannot impose it until the judicial review is complete?

Mr. Feldman: --No.

No, but I do think that the Freedman safeguards were designed so that it has a very limited effect, and that was the reason why in Freedman you needed the judicial determination, not just the access to the judge, to be within a very prompt period of time, because there was a concern that that administrative decision just shouldn't have a final effect until... not for a very long time, only for the minimum possible time, until the judge decides the--

Justice Scalia: Why wouldn't a stay by the judge, if the judge thought there was any question about it, why wouldn't that have sufficed in that context as well?

Mr. Feldman: --That would, but I think you could look at the Freedman decision--

Justice Stevens: Yes, but that would be changing the status quo.

Mr. Feldman: --Excuse me.

Justice Stevens: That would be changing the status quo.

The State problem is different in the two situations.

Mr. Feldman: The stay, in my view, in our view those are really procedural due process issues and not First Amendment issues, but I think that would be sufficient.

I think you can look at the Court's decision in Freedman as essentially saying that the... saying that either a judge has to grant a stay in each one of these cases regardless of the merits, or there has to be a prompt judicial determination within a very short period of time.

Justice Stevens: Yes, but the stay in the case involving an initial issue, a stay would be a mandate to grant the license, rather than a stay to maintain the status quo.

Mr. Feldman: That's correct.

That's correct.

Justice Stevens: So it's really not a stay, it's more of a mandamus.

Mr. Feldman: That's correct, but I... that's correct.

That's correct, but I do think the difference is that in the initial... whether, in... under a procedural due process analysis there is a difference.

For the First Amendment the question is, is that speech occurring during that period of time, and how long a period of time can that be allowed to happen.

The decisions that the city makes in a scheme like this are decisions about things like whether there were minors in the store, what was the age of the people, were they there, were they not there, were the booths covered or were they not covered so that you could be able to tell what was going on inside them, was there sexual activity that some of the patrons were engaging in or not.

Those are very, very different from the kinds of decisions that were made in the Freedman context, and since those decisions are the kinds of things that municipalities make in generally in enforcing police power type ordinances, there's no reason for them not to be given, in fact, when they make them.

Rebuttal of Jeff S. Olson

Chief Justice Rehnquist: Thank you, Mr. Feldman.

Mr. Olson, you have 4 minutes remaining.

Mr. Olson: Thank you.

If I'm operating a radio station and the city takes my license away because I've let the fence around my tower get into slight disrepair, and my defense is that the provision of the ordinance that says you can lose your license for having your fence in disrepair slightly is unconstitutional, I can't even raise that defense until I get to court, and if I don't get prompt judicial review or a stay of the status quo and be allowed to operate until my judicial decision, I will in all likelihood be out of business and I won't have any effective judicial review on that constitutional defense, and the administrative process can't touch that constitutional argument.

This Court's decisions are clear that delay in a licensing process can lead to content based censorship just as easy as lack of standards, even in a situation where licensing decisions are not expressly based on the content of the material.

Lakewood I think also warns us that an ongoing business is a more likely target of content based discrimination in the licensing process at the administrative level.

The--

Justice Ginsburg: Then I don't understand why the proper answer isn't, because there is this danger, the court will look at it case by case and if, indeed, this is a situation where the administrator is abusing authority to disguise what is really content based regulation, the court can say in that situation, we put a freeze on it.

We allow you to keep your license pending the decision.

But if there's no basis for that, so that it is just a time, place, and manner type restraint, why should you be able to maintain the status quo, which is, allowed to go on with the business, in face of very serious charges of violations that have nothing to do with the content of the books and tapes that are sold?

Mr. Olson: --On the face of the ordinance, those violations may or may not be very serious.

Nonrenewal is required for one single, trivial violation of a provision of the ordinance that may well be unconstitutional.

We can't test the constitutionality of that provision on the face of the ordinance until we get to court.

There are really large numbers of people out there, highly motivated, with influence in municipal affairs, who are waiting for this Court to give them an opening for the covert censorship of sexually explicit speech through delay of licensure, or through any other method that allows room for indirect action.

Not only my client, as an adult book store, but other people who are engaging in unpopular speech and mainstream media ask this Court not to create that opening for covert censorship by delay of the judicial review until that delay becomes fatal to many businesses who won't have meaningful judicial review because they'll just die on the vine while they're waiting for a judicial decision.

A temporary injunction that they have to take the burden of getting in circuit court is not going to be an answer. First of all, it's the kind of cumbersome and time consuming and expensive measure that, as Justice Harlan, concurring in Shuttlesworth, said, you shouldn't have to engage in to pursue your free speech rights, and second, it's a flawed process because you have to wait for the administrative record to prove you've got a chance of prevailing.

Chief Justice Rehnquist: Thank you, Mr. Olson.

Mr. Olson: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Erie v. Pap's A. M. - Oral Argument

Fri, 09 Jan 2009 14:50:18 +0000

Case:

Erie v. Pap's A. M.

Media File:

98-1161_19991110-argument.mp3

Related Transcript:

1999_98_1161_argument.xml

Transcript:

Argument of Gregory A. Karle

Chief Justice Rehnquist: We'll hear argument next in Number 98-1161, City of Erie v. Pap's A.M., doing business as Kandyland.

Mr.... spectators are admonished, don't talk until you get out of the courtroom.

The Court is still in session.

Mr. Karle.

Am I pronouncing your name correctly?

Mr. Karle: Karle.

Chief Justice Rehnquist: Karle?

Mr. Karle: Karle.

Chief Justice Rehnquist: Karle, okay.

Mr. Karle: Thank you, Mr. Chief Justice, and may it please the Court:

In 1994, the City of Erie enacted a content-neutral blanket prohibition against public nudity.

That ordinance was patterned after a similar ordinance which was passed on by this Court in 1991 styled Barnes v. Glen Theatre.

Chief Justice Rehnquist: Maybe you should lower the... I think the trouble is, it's too high.

Crank it down, and I think we might hear you... the other side.

Mr. Karle: Okay.

Justice O'Connor: Now try it and speak up, if you...

Mr. Karle: Our ordinance was challenged.

It went through our intermediate trial level and intermediate appellate system, and was passed on by our State supreme court.

On review, the Pennsylvania supreme court acknowledged that First Amendment protection was extended to nude barroom dancing, as was found in Barnes v. Glen Theatre.

It declined to find any other guidance in Barnes.

Our State supreme court engaged in its own independent analysis in rejecting our contention that the ordinance was content-neutral.

The city challenged the ordinance...

Justice O'Connor: On content neutrality, the ordinance at issue in Barnes, as I recall, prohibited public nudity in general.

Mr. Karle: That's correct.

Justice O'Connor: Now, in this Erie ordinance, the preamble to the ordinance notes that it was enacted for the purpose of limiting a recent increase in nude live entertainment.

Mr. Karle: That's correct.

Justice O'Connor: Does that distinguish this Erie ordinance from Barnes?

Mr. Karle: Justice O'Connor...

Justice O'Connor: seems to have been addressed to a specific problem, making it perhaps not content-neutral.

Mr. Karle: Well, first of all, Your Honor, our position is, reference to content does not make the ordinance content-specific, or content-based.

The intention of that preamble was to acknowledge the prior holdings of this specific Court, which granted certain limitations to this type of expressive conduct.

The whole text of the ordinance is an ordinance of general application.

It applies...

Justice Scalia: Before we get too much into the merits of this case, there's a contention that the case may be moot.

Can you talk about mootness?

Mr. Karle: I...

Justice Scalia: Is the... is this business still in operation, Pap's?

Mr. Karle: As I understand it, the location where it operated initially in 1994 no longer exists.

Justice Scalia: But he's in business somewhere else?

As I understood it, he's out of business.

He's 70 years old, and...

Mr. Karle: I... in an affidavit presented by the respondent, he claims to be out of business.

Justice Scalia: Well, do you claim he's not out of business?

Mr. Karle: I filed a response... they still keep their corporation in an active status, so...

Justice Scalia: Is that enough?

I mean...

Mr. Karle: It's enough that he could get back into business...

Justice Scalia: Well, anybody could get back into business, but then there's no such thing as mootness.

I mean, if a person stops the business and has no intention, expresses no intention of going back into it...

Mr. Karle: We've also...

Justice Scalia: He sold the place.

He doesn't even have the property any more, is that right, and the only reason you think the case is still alive is because the corporation is still in existence?

Mr. Karle: That was one reason we asserted in our petition in response to mootness.

Justice Scalia: What else?

Mr. Karle: We also cited a number of reasons.

If I can...

Justice O'Connor: What about the line of cases that says voluntary cessation doesn't moot a case?

Mr. Karle: We cited those in our response to...

Justice Scalia: Unfortunately, those cases involve voluntary cessation by the defendant.

Justice Kennedy: Right.

Mr. Karle: That's correct.

Justice Scalia: Not voluntary cessation by the plaintiff.

This is the plaintiff who says, you know, I was really mad at the city for closing me down, but now, I don't really care.

I'm going to Florida.

Unidentified Justice: [Laughter]

Justice Scalia: I couldn't care if they close me down or not.

I've made mine and I'm leaving Erie, Pennsylvania.

I'm getting out of the rust belt.

I'm going to Florida.

Unidentified Justice: [Laughter]

Mr. Karle: Justice Scalia, we also indicated that there is a reasonable expectation that the same controversy will occur between the same parties.

Chief Justice Rehnquist: Well now, what... and what's the basis for that statement?

The... I mean, is there some evidence that this corporation is likely to resume the sort of business it had?

Mr. Karle: Chief Justice Rehnquist, we don't know.

There's no evidence before us which suggests that he couldn't do it.

The man hasn't died.

Chief Justice Rehnquist: So it's just kind of up in the air?

He's quit the business, and... but you're saying he might resume it?

Mr. Karle: Yes.

Chief Justice Rehnquist: But there's no evidence one way or the other on the subject?

Mr. Karle: In our mind, what this case...

Justice O'Connor: Well, there is evidence.

He's said he isn't going to.

He's finished.

He's out of there.

Mr. Karle: There is an affidavit, that's correct.

Justice O'Connor: Right, and you don't have anything in opposition to that, except you say, well, he could change his mind.

Mr. Karle: That's correct.

Justice Breyer: What about closing the business?

Isn't that evidence, too?

I mean, physically he closed something, it's gone, he sold the property?

Mr. Karle: Yes, the property was sold.

Justice Kennedy: All right.

Justice Breyer: So he has no property, he says he's not going to do it any more, and you in response to that say, what?

You say nothing.

Justice Kennedy: All right.

Mr. Karle: If I may, the corporate records of this entity indicate a number of shareholders.

Mr. Panels wasn't the only one.

I don't believe there was an affidavit submitted by those individuals.

Chief Justice Rehnquist: Perhaps we've explored that as much as we need to.

Why don't you return to the merits?

Justice Souter: Mr. Karle...

Justice Ginsburg: May I ask just one further question on it?

I was surprised that you weren't content with saying, in response to the mootness suggestion, well, fine, then we must wipe out the Pennsylvania supreme court's decision, because you didn't get your crack at appealing it.

How can the plaintiff say, I won this wonderful victory, and now I'm going to go out of business, but I'm going to preserve, immune from any further review, this decision?

Mr. Karle: I would be content if this Court could order that this matter be remitted back to the State supreme court and the order vacated.

It was not my understanding that...

Justice Breyer: Are you sure we have the power to do that?

Mr. Karle: It was not my understanding that it was... this Court could do that, but...

Justice O'Connor: I'm not, either.

Mr. Karle: But if in its wisdom it could, I would invite it to do so.

Justice Scalia: But that would change your mind...

Unidentified Justice: [Laughter]

Justice Breyer: That would change your mind on the likelihood of the conduct recurring?

Quickly.

Unidentified Justice: [Laughter]

Justice Souter: Mr. Karle, going back to the issue that Justice O'Connor raised on whether this is content-based, she asked you, as I recall, whether it was content-based because it seems to be directed to the particular category of nude dancing, not nudity generally.

As you answer that, I wonder if you would consider a variation on that question, which is what was the nub of what was bothering me here as a seeming distinction from the situation in Glen.

The statute by its... the ordinance, rather, by its terms seems to cover all nudity.

The reference to it is, appears in the state of nudity, to describe what is proscribed, but there is at the same time the preamble that says, what we're really concerned with here is nude dancing, and there is a representation in the record... it may have been from you.

I forget now... to the effect that the statute is not going to be enforced against legitimate theater productions like Equitus, Equus and Oh Calcutta and so on.

And so my variation on the question is this.

It sounds as though perhaps facially you could say it covers all nudity, but as applied it certainly is not covering all nudity and distinctions are being made, insofar as I can tell they are being made on the basis of content, on the basis of the artistic quality of the production in which the nudity occurs.

Equus is left alone.

The barroom dancing is not left alone.

So on either Justice O'Connor's theory or my theory, isn't a content-based distinction being made here?

Mr. Karle: I would say no, Justice Souter.

The preamble purely acknowledges the restrictions on nude barroom dancing as enunciated by this Court in 1991.

It sets the parameters of the ordinance, which this Court held were constitutional.

Justice Souter: No, but the Barnes ordinance, the assumption of our decision, or our decisions, I guess, of those of us who would... did uphold the Barnes ordinance, the assumption was that it applied across the board, and that, in fact, hadn't been challenged.

And I think... I did not go back and reread my opinion, but I read excerpts from it in the brief, and my recollection is that I said, you know, if it turns out that either an overbreadth challenge or some kind of a challenge to the effect that it is not being enforced across the board were made, that might be a different case, and it sounds to me as though this is that different case.

Mr. Karle: And if I can address two points, Justice, the first is, you pointed to some references in the record which attribute statements to me which suggests that, or state that this will not be enforced against plays such as Hair, or Equus, or other theater productions.

As I stand here now, before this Court, we are standing on the face of this ordinance and it would be and it could be applied to those types of productions.

The reasons for those statements were concerns of the trial court, and we tried to...

Justice Souter: Yes, but they were concerns about constitutionality, and I didn't remember whether it was you or somebody, whoever was representing the city said...

Mr. Karle: No, that was me.

Justice Souter: this is in fact the way we're going to enforce it.

Justice Stevens: Wasn't that the...

Justice Scalia: Was that indeed the reason you would allow Equus, because you think the Constitution requires it?

Mr. Karle: Absolutely not, no.

Justice Scalia: Well, if the Constitution did require it, would you allow nudity in Equus?

Mr. Karle: If the Constitution required it, the plaintiff...

Justice Scalia: And would that be unlawful subject matter discrimination, if it's required by the Constitution?

Mr. Karle: Pardon me, Justice?

Justice Scalia: Would that be unlawful subject matter discrimination if it's required by the Constitution?

Mr. Karle: Absolutely not, not...

Justice Scalia: Of course not.

Mr. Karle: no.

Justice Scalia: So what you're saying is, you will enforce this ordinance... even if you said you would do it, not enforce it for Equus, you're saying you will enforce it to the extent the... you will enforce it by its terms to the extent the Constitution permits enforcement by its terms.

Mr. Karle: That's absolutely correct, Justice Scalia.

Justice Stevens: Well, but wait a minute...

Chief Justice Rehnquist: I don't follow that...

Justice O'Connor: just a minute here.

Justice Stevens: May I ask this question, please, counsel?

You made a solemn representation in open court to the judge, and you're saying that... you do not stand by that representation?

I'm not asking you why you made it.

Mr. Karle: No.

Justice Stevens: But it seems to me you did make a representation on the record that this ordinance would not be enforced against those two... in those two situations.

Mr. Karle: Your Honor...

Justice Stevens: Is that correct?

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

Justice Stevens: Well, why should we not therefore assume that you... that the city will do exactly what you said the city would do in the open court proceedings that are part of this record?

Mr. Karle: Well, first of all, judge, anything I did was evidenced in the record, and the intent was to try to get the trial court to give the statute a limiting construction.

He seemed to be troubled by that.

I don't think I'm able to...

Justice Stevens: I don't really care what the... I don't really care what your intent was, it was strategic, tactical, or what, but you did make a representation as to the city's policy in enforcing this ordinance.

Mr. Karle: And that would be beyond my abilities as the City Solicitor...

Justice Kennedy: I think your answer is getting worse.

Unidentified Justice: [Laughter]

Justice Kennedy: You said, you know, I said this to the trial court so I could win in the trial court, but I'm not going to say it here so I'm going to win here.

That's what I'm hearing.

Justice Stevens: That's...

Mr. Karle: No, no, no.

I... that's not to mean I was making a misstatement to the trial court.

He didn't understand my position.

That's my point.

Justice Ginsburg: Do I understand that Equus in fact played?

Mr. Karle: Yes, it did.

Justice Ginsburg: And you didn't make any effort to stop it?

Mr. Karle: No.

Justice Ginsburg: And you didn't say the reason you did because you...

Mr. Karle: And...

Justice Ginsburg: You thought the constitution required it?

Mr. Karle: No.

The respondents portrayed that situation as a conscious, deliberate effort on our part to withhold...

Justice Ginsburg: But you knew that Equus was playing in town?

Mr. Karle: Right, and the trial court made a finding on that in the cert petition at page 27a, 14, the trial court said the play Equus, which featured frontal nudity, did appear in the City of Erie in October and November 1994, after passage of the ordinance.

And I know there was discussion in the respondent's brief that this was a conscious, deliberate effort, but all we acknowledge is, the play was here, and it wasn't enforced, and if I can go outside the record, the reason is, no one complained.

Justice Scalia: Yes, we do have some matters in our obscenity law jurisprudence about redeeming artistic or social value, don't we, and some people might think Equus has that.

Mr. Karle: It may, yes.

Justice Kennedy: Yes.

Mr. Karle: But certainly we were not trying to...

Justice Scalia: I can understand there may be some reason to think that lap-dancing is a little different from Equus as far as the Constitution is concerned.

This case does not involve lap-dancing, does it?

Justice Kennedy: Ah, well...

Unidentified Justice: [Laughter]

Justice Stevens: This case does not involve lap-dancing, does it?

Mr. Karle: There was lap-dancing in these... in the bar, yes.

Justice Breyer: So what am I supposed to do if...

Does the record show that?

there are some... if I think that some forms of this might involve no more than selling a sexual favor, like prostitution, no expression, no nothing, but other forms of this might be simply a low-brow kind of art, in which case you're starting to distinguish among kinds of art, so all would depend on what it is, a matter which the record is totally silent about?

What are we supposed to do?

Mr. Karle: Justice Breyer...

Justice Breyer: I'm not saying I do think that.

I'm saying that hypothetically.

Mr. Karle: Justice Breyer, if I can address that, I believe that that issue was already addressed squarely in the Barnes case, and it put limitations on regulation of nude barroom dancing, and we took the almost... almost identical language of Barnes, incorporated it in our ordinance, and are applying the law as it was stated in 1991 in that case.

We aren't making any judgments as to...

Justice O'Connor: Except the preamble is different, right?

Mr. Karle: The preamble simply to acknowledge your prior holding in 1991.

The respondents would have us... have the Court believe that by the city acknowledging a precedential case, that somehow vitiates the ordinance and makes it content-neutral.

Justice O'Connor: It's not that.

It says the intent is to focus and prohibit nude live entertainment.

I mean, that's what it says.

Mr. Karle: But Justice Connor, that's not what the whole ordinance said.

Justice O'Connor: O'Connor.

Mr. Karle: O'Connor.

But that's not what the whole ordinance says.

The whole ordinance speaks to regulation of public nudity in all places.

Justice Scalia: I suppose if you had people who had been walking down Main Street in the buff, the prologue might have said, we've had a lot of people walking down Main Street in the buff, and so we think there's a need for a statute against public nudity, and that statute would be generally applicable, I assume.

Mr. Karle: I...

Justice Scalia: Just because it was prompted by one particular incident, or series of incidents, doesn't render it any less generally applicable, does it?

Mr. Karle: I agree, Justice Scalia.

Justice Scalia: I thought you would.

Mr. Karle: All we would...

[Laughter]

All legislation makes mention of content.

That may be the triggering point for an ordinance or a statute, but just to mention it, or mention the content and acknowledging a trigger in point doesn't make it content-specific.

Justice Ginsburg: Mr. Karle, what about the Pennsylvania supreme court, that interpreted its law?

It seemed to read that preamble almost as a substitute provision of the statute.

The Pennsylvania supreme court thought that that preamble counted, and in determining whether it does or not, don't we owe some respect to the way the... Pennsylvania's highest court construes Pennsylvania law?

Mr. Karle: I disagree.

I believe the court failed to make any distinction in the two ordinances in Barnes.

I believe... that's our Supremacy Clause argument.

What the court did was simply apply the minority view in Barnes and gave our ordinance...

Justice Ginsburg: Well, it said something about the preamble, and that's what I'd like you to address, not its treatment of Barnes, but whether the preamble counted in determining the validity of this legislation.

Mr. Karle: The State supreme court, although it found that our ordinance had a purpose grounded in secondary effects, it said, stated that it was overshadowed by an unstated motive, so it really doesn't go on to tell us the distinguishing features.

Justice Ginsburg: Well, the part that I remember, and correct me if I'm wrong, is, it referred to something that was stated, the very words that Justice O'Connor quoted to you from the preamble.

That wasn't something unstated.

Mr. Karle: No, it was not.

That was definitely in the preamble.

Justice Ginsburg: And the Pennsylvania supreme court thought that that preamble counted.

Mr. Karle: I believe that the respondents have conceded that point.

If you refer to their brief at footnote 2, it says the Pennsylvania supreme court did articulate one important... distinguished between the case and Barnes.

It expressly noted that the ordinance on its face stated that it was adopted for the purpose of limiting a recent increase in nude live entertainment.

This, rather than Justice White's dissent in Barnes were the basis... if this were the basis rather than Justice White's dissent, then their reasoning would square with the judgment, so relying even on what our opponents are saying, they didn't make that square distinction to hinge the decision.

Justice Ginsburg: But I'm asking you about the relationship between two high courts, Pennsylvania's highest court and this Court, and doesn't this Court owe some respect to the way the Pennsylvania supreme court construed that statute?

Mr. Karle: I... it could accord it.

Our position is they didn't... they found the... they found Barnes and they found the Erie ordinance strikingly similar.

They did not go along and distinguish the ordinance.

If they did...

Justice Kennedy: How could anybody...

Mr. Karle: If they did... if they did, we wouldn't be here...

Justice Scalia: How could anybody construe it that way?

I mean, if the supreme court said, you know, black is white, would we not think that maybe they misspoke?

By its terms, the ordinance applies to all nudity, does it not?

Mr. Karle: That's correct, Justice Scalia.

Justice Scalia: And the prologue says what prompted this ordinance, but it doesn't say that that's all the ordinance applies to.

Mr. Karle: That's correct.

Justice Scalia: How can the Pennsylvania supreme court possibly have said that the ordinance only applies to nude... did it ever say that it applies only to nude dancing?

Mr. Karle: No, it didn't.

Justice Stevens: Of course, you told it it didn't apply to theater productions of nudity, so it probably relied on that in assuming that maybe...

Mr. Karle: That certainly...

Justice Stevens: it didn't quite might mean what it said.

Mr. Karle: Justice Stevens, that certainly wasn't in the opinion or the rationale in the Pennsylvania...

Chief Justice Rehnquist: Did you make any representation to the supreme court of Pennsylvania as to the application of the statute?

Mr. Karle: No.

Justice Souter: Yes, but if the supreme court of Pennsylvania wants to take a kind of strict original intent approach to its statutes and say, despite the generality of the language it only applies to the occasion for its enactment, I... would you say that we should override Pennsylvania's... the Pennsylvania supreme court's construction?

Mr. Karle: I think you're mandated to.

Chief Justice Rehnquist: Absolutely.

Justice Scalia: The republican form of Government provision.

We haven't applied it before, right?

Unidentified Justice: [Laughter]

Justice Breyer: Is that what this... are you... did the Pennsylvania supreme court say that it doesn't apply to people walking down the street without any clothes on?

Is that what they said?

Mr. Karle: That's the ultimate effect, because they struck those provisions in the ordinance, walking nude, walking around nude.

They struck them.

Justice Breyer: They said they struck them because they thought they were unconstitutional.

If they had been constitutional, would they say as a matter of statutory interpretation they don't apply except to clubs?

Mr. Karle: Perhaps, Justice Breyer.

Justice Breyer: Perhaps.

Justice Scalia: As I read the Pennsylvania supreme court's opinion, they do seem to assume what has been brought up in the discussion here, that the immediate motivation for this statute was the appearance of a lot of nude dancing establishments, and they acknowledge that.

And then they go on and seem to indicate that that motivation for it is enough to vitiate it under the Constitution, but I don't see that they anywhere say that it only applies to nude dancing establishments.

They seem to regard the fact that it was prompted by the appearance of the nude dancing establishments as enough to render it not content-neutral, which is quite different from what's being suggested.

And you agree with that, too, I think.

Unidentified Justice: [Laughter]

Mr. Karle: We provided a number of analyses that the supreme court could have utilized in order to reconcile the various opinions in Barnes such that it could construe our ordinance.

In a nutshell, what we are saying is, the State supreme court ruled as it did because it couldn't reconcile either the plurality or the concurring opinions of the Barnes case.

I suggest that, just looking at Barnes, there aren't five votes to mandate a strict scrutiny standard of review, so therefore the court was in clear error in utilizing a strict scrutiny standard of review in applying that review to the city's ordinance.

We believe our ordinance withstands intermediate scrutiny.

The Pennsylvania court acknowledged a purpose in the ordinance.

They termed it secondary effects.

Absent Pennsylvania supreme court's reliance on the unstated motive for finding the ordinance unconstitutional, which was drawn from the Barnes dissent, the regulation passed was unrelated to expression.

We utilized the same criteria, the O'Brien criteria, in the form of regulating the type of nudity and to... what we're saying is, to the extent the expression is affected, the ordinance is no more restrictive than necessary.

In other words pasties and G-strings requirement in Barnes are the same in ours, therefore the court should have found our ordinance constitutional on strict scrutiny.

Because Erie's ordinance is substantially indistinguishable from the statute in Barnes, the Pennsylvania court was constrained to uphold it.

Mr. Chief Justice, may I reserve?

Argument of John H. Weston

Chief Justice Rehnquist: Yes, you may, Mr. Karle.

Mr. Weston, we'll hear from you.

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

As is made clear throughout these proceedings and by the remarks today, Erie's only concern in considering, adopting, passing, and enforcing this ordinance was the notion of nude entertainment.

The language that Justice O'Connor quoted was accurate and illustrative of exactly what Erie's purposes were.

What makes this case so unusual was that Erie was unusually candid in terms of exactly what their true content-based motivations were in connection...

Chief Justice Rehnquist: Well, Mr. Weston, you talk about motivation, but if the ordinance on its face applies across the board, does motivation really make any difference?

Mr. Weston: Yes, it does, Your Honor, for a number...

Chief Justice Rehnquist: What's the authority for that?

Mr. Weston: Well, in some sense Barnes itself is authority for that, Mr. Chief Justice, because if the only issue that was relevant in this kind of analysis was what is the literal language of the legislation, Barnes would have been a very brief series of opinions in connection with the evaluation of the constitutionality of that legislation.

But in fact there were three, as this Court knows well, full opinions, each of which traced the history of the statute, analyzed it, its impact, what motivated the Framers, what didn't motivate, how it was being enforced, and so forth.

Where we deal, as we do here, with a piece of legislation which has the ability to dramatically impact substantial amounts of...

Justice O'Connor: All right, except the... Pennsylvania's highest court has said that at least one purpose of this ordinance was to prevent secondary effects of an unfortunate kind, sex crimes and that kind of thing, and I guess we accept that as a purpose of this statute, to curtail the secondary effects created by live, nude entertainment.

Mr. Weston: I beg your pardon, Justice O'Connor, I've heard you but I'm not quite sure I understand the...

Justice O'Connor: Well, I think that the Pennsylvania supreme court did go further and say that a purpose of the enactment of this ordinance was to prevent unfortunate secondary effects such as an increase in sex crimes, am I right?

Mr. Weston: It certainly stated what was in the preamble of the ordinance.

Interestingly, however, in that preamble the preamble noted that it was concerned, if the City of Erie was concerned about creating an atmosphere conducive to the possible creation of these so-called secondary effects, as opposed... and I don't mean to be splitting hairs here, but I think it's important in terms of the whole secondary effect, content-based, pretexual analysis... that all that the city was concerned about was the notion, well, that maybe something might be created in which something else might happen somewhere, some place, not terribly unlike some of the comments that are made about television.

But I think with respect to the ultimate analysis of even though there may be in the face of the preamble some suggestion that secondary effects played a role, number 1, there's certainly no evidence whatsoever in the record to support the notion that either there were secondary effects or...

Chief Justice Rehnquist: Well, we held in City of Renton v. Washington, whatever it was, that the legislature didn't have to make a study of individual situations.

It could rely on what other legislatures had done.

Mr. Weston: Absolutely, Mr. Chief Justice, and keeping that in mind, we are not suggesting that Erie was required to do its own studies, but the point is that Erie had no evidence, unlike Renton, which interestingly, as the Chief Justice points out, didn't do its own studies, but simply relied on studies that had been done by neighboring Seattle some years before, Erie not only didn't do its own studies, but did not rely on any studies.

The only thing in the legislative record reflective of any cerebration or consideration about this piece of legislation was the unanimous statements...

Chief Justice Rehnquist: Well, maybe they read the City of Renton opinion.

Mr. Weston: Well, perhaps they did, but if they did, then they were obligated to at least...

Chief Justice Rehnquist: I don't think so.

I don't think the City of Renton says that you're obligated to make your... to consider your own evidence.

Mr. Weston: Oh, but that's not what I'm saying, Mr. Chief Justice.

What I'm saying is that the enacting legislature... excuse me.

The enacting legislature is obligated to consider substantial evidence in connection with its evaluation and decisionmaking with respect to it.

It doesn't have to do its own.

When the Chief Justice says, well, perhaps they read the Renton case, but if they read the Renton case, then, like Renton, what their obligation was to do was to assert that they read the Renton case...

Justice Breyer: Well, but that...

Mr. Weston: and followed it and it was an influence of that...

Chief Justice Rehnquist: That was probably what the City of Renton did, but eventually if enough cities do that, can't it be simply treated as datum that these kind of things do bring bad secondary effects?

Mr. Weston: Well, I suppose it depends on what the state of the evidence is over what period of time and so forth, and what particular businesses, but this Court, not terribly long ago in Turner II, made it very clear that in consideration with the must-carry provisions in Congress that in order to evaluate content neutrality it was necessary for there to be substantial evidence in the record before Congress which Congress considered in connection with...

Justice Kennedy: But again, that was an enactment for the first time.

Does the Congress have to do it every time once it's made this line?

That's...

Mr. Weston: Well, I suppose... excuse me.

Justice Kennedy: In this case the question is whether or not these kinds of established... create secondary effects.

Mr. Weston: Well...

Justice Kennedy: And there having been some determination on that, including the Supreme Court opinions, can't cities rely on that?

Mr. Weston: I don't think so, Justice Kennedy, particularly because the potential for pretextual enforcement and pretextual legislation is simply too great, and in connection with legislation which has the potential and the reality of restricting vast quantities of protected expression in order to minimize that pretextual burden, it is... the pretextual potential... it's not a very great burden from a First Amendment potential to require an enacting legislature simply to articulate the legitimate concerns that it has, what is motivating it, and the basis on which it is passing...

Justice Ginsburg: Mr. Weston, would the City of Erie have had to do that if, instead of saying there shall be no totally nude dancing, it said, there shall be no totally nude dancing establishments within a certain distance from each other?

Mr. Weston: Well, in that sense, Justice Ginsburg, it would have been operating in more familiar territory in the sense of adopting some sort of adult zoning legislation which, interestingly, Erie of course had in existence.

Justice Scalia: Mr. Weston, I gather you now think this case is moot?

Mr. Weston: Your Honor...

Justice Scalia: Is that a hard question?

Mr. Weston: It's a difficult analysis, Justice Scalia.

Justice Scalia: Well, I didn't get this notion from nowhere.

I thought you asserted it was moot.

Unidentified Justice: [Laughter]

Mr. Weston: The reason it's a difficult analysis is because prior counsel responsibly brought to the Court's attention the circumstances of the ownership, lack of ownership, sale of the property and so forth, at the earliest possible moment, when he learned about it.

The motion was properly made to the Court, and the Court denied the motion.

When I say it's a hard question, I stand here before you having spent the last 3 months following this Court's dismissal of the... or denial of the motion to dismiss, and so I suppose I'm personally somewhat conflicted in connection with the efforts that we put forward with respect to this.

Justice Scalia: What is the state of affairs?

The corporation is still in existence?

Mr. Weston: Yes.

The corporation is technically still extant.

To the best of my knowledge, however, Justice Scalia, nothing differs from what the motion to dismiss said, which is to say that the owner of the corporation sold the property.

There is no adult business on the premises.

The owner of the property has no other involvement in any other adult business in Erie or anywhere else, and has no intention to resume such activity.

Justice Ginsburg: Then why isn't the proper result that the Pennsylvania supreme court decision should be vacated?

Mr. Weston: Well, probably because at least as far as the Pennsylvania supreme court's consideration of the case, the matter is concluded.

In other words, there was a petition for rehearing that was filed before the Pennsylvania supreme court, which the Pennsylvania supreme court denied, and as far as the Pennsylvania supreme court is concerned, there was a full, litigated hearing...

Justice Ginsburg: But they were interpreting the Federal Constitution deliberately, not the State constitution.

Mr. Weston: Yes.

Justice Ginsburg: And the City of Erie successfully persuaded this Court to hear the question.

Mr. Weston: Of course that's true, Justice Ginsburg.

Justice Ginsburg: So at that point, why isn't it fair to say, all right, it's out of business, but you can't ask for a voluntary dismissal without prejudice this late in the game, which is essentially what you're asking for?

You're saying, yeah, we won in the supreme court, we want to carry on that victory, but the case is moot, so it's essentially a voluntary dismissal that you're asking for.

Mr. Weston: If I may make it in the simplest possible terms, at this juncture the motion has been... and I don't really know else how to say it this way.

The motion was made, it was responsibly brought to the attention of the Court, the Court denied it.

We've prepared for the hearing on the merits, and we're here to proceed as the Court wishes.

The opinion of the Pennsylvania supreme court appears to be final as far as the Pennsylvania supreme court is concerned, but with respect to it, I'm not sure that the circumstances would have been terribly different with respect to the Pennsylvania supreme court if the relevant individual had died as opposed to simply going out of business and no longer...

Justice Ginsburg: Yes, but I take you say, you made the motion, it was denied, that's the end of the matter.

But I'm asking you to consider, suppose the motion were held in abeyance, and you say, we went out of business, we want to withdraw from the field.

Wouldn't the proper answer be, okay, but the judgment of the Pennsylvania supreme court is vacated?

Mr. Weston: Again, as I've tried to suggest, it seems to me, in terms of the litigation and the litigants, that the matter was fully briefed, fully litigated, and fully decided in an adversarial proceeding at the Pennsylvania supreme court, and it was final as to that court.

To the extent that the plaintiff no longer has a further interest in the matter, it would appear that to the extent that this Court deems it appropriate to moot the action, that that would leave the situation as the status quo ante in the Pennsylvania supreme court.

Chief Justice Rehnquist: I suppose it might depend on whether the supreme court of Pennsylvania regards itself as being bound in the same way we do about not deciding moot cases.

In a couple of cases that we've heard here, we have... Duremas, for example... we have simply dismissed an appeal, feeling that we don't have the authority to vacate a State court judgment the way we would a Federal court judgment.

Mr. Weston: Yes, and I think... but conversely, Mr. Chief Justice, I thought that the reasoning that you expressed in your concurring opinion in the Honig case about, from the perspective of mootness, that once a case had reached this Court and had been accepted for jurisdiction, that perhaps the traditional mooting criteria should drop off.

Chief Justice Rehnquist: I was alone in the Honig case.

Unidentified Justice: [Laughter]

Mr. Weston: I have never noted any temerity on the part of the Chief Justice to be alone in that or any other circumstances.

Justice Stevens: May I go back to secondary effects for a minute, now that we're through with discussing mootness?

Do you agree that if there were secondary effects here, such as Justice Souter described in his opinion, that that would justify a total prohibition on the activity, or that... did that doctrine merely apply to the location where the activity may take place?

Do you think there's a distinction there, or not?

Mr. Weston: Absolutely, Justice Stevens.

The... this Court has never utilized secondary effects as a justification for a total ban on protected activity.

Obviously, I have a familiarity with when secondary effects first entered the lexicon in Young v. American Mini Theaters and, of course, it was utilized then in the analyses with which you and I are familiar.

Justice Stevens: Let me just suggest that perhaps Justice Souter's opinion in Barnes is inconsistent with that submission.

Mr. Weston: Just... yes, exactly yes to the question.

Justice Souter's opinion sought, it seemed to me, to utilize the notion of secondary effects which have traditionally been applied solely for the purpose of limiting a particular location, perhaps in a time, place, and manner context, to the much more draconian and speech-burdening concept of totally banning everywhere in a jurisdiction vast quantities of presumptively protected...

Justice Souter: I think the point was... whether it was a wise or an unwise point I'll leave for the judgment of my peers, but I think the point was that the O'Brien case itself was a secondary effects case.

I didn't reread O'Brien before this, but my recollection is that the concern with the burning of the draft card was that the destruction of draft cards would make it difficult to administer the draft laws.

It was not a sort of talismanic injury to the draft card itself.

So that in fact the occasion for the O'Brien holding was to look ahead to what this kind of act is going to threaten for the future throughout a system, and it may or may not be wise to extend the kind of sexual secondary effects into the O'Brien rationale.

I thought it was, but I'm willing to hear argument on it, certainly, from those who disagree.

But I think that Brien was a kind of secondary effects case... O'Brien.

Mr. Weston: Justice Souter, I think that in fact, with all respect, O'Brien was absolutely not a secondary effects case, because the nature of the harm asserted by the Government in the face of the challenge to the antidraft card destruction statute on the basis of its expressive impact was that the destruction of the draft card in and of itself, and the deprivation of the draft card, was the very thing that Congress had targeted with the specific new legislation.

The Chief Justice was very, very clear at the time that... and Your Honor, Justice Souter, you may recall that in O'Brien there had been new legislation adopted which is what had been, what had triggered the prosecution's...

Justice Souter: I didn't reread O'Brien before this argument, so I'll take your word with...

Mr. Weston: But the prior legislation had required that all registrants maintain in their possession their draft card and their classification certificate.

The new legislation banned the destruction of the card and the certificate, and the expression of the Court in upholding the legislation was simply that it was very important to the selective service that everybody maintain in their possession a draft card and the classification, so that what was at issue in O'Brien was not secondary at all, but absolutely and primary effect, and...

Justice Souter: Assuming the distinction is to be... I know... maybe I shouldn't pursue this, because I don't think this case turns on it, but I'll... one last question.

I promise you it's my last question.

Mr. Weston: Please.

Justice Souter: Assuming that the primary-secondary distinction can be made here on viewing O'Brien as you've just described it, why should that make a difference?

It may make a difference in proof of effect, in proof of harm, but why should that make a difference in principle?

Mr. Weston: Well, the primary reason is, is that to the extent that there is an assertion that some secondary or tertiary or far distant activity is what is the source of concern to Government, and that on that basis there's going to be a dramatic restriction or banning, total banning of expression, it simply is too far removed from the nature of the expression which is protected, or which we seek to protect under the First Amendment and our general approaches to it.

Justice Souter: So that a secondary effect, almost by definition, is something that does not rise to the level of importance to justify it.

That...

Mr. Weston: Yes.

I think yes.

I think that would be exactly the point, whether because it simply isn't important enough, whether it simply isn't linked enough to justify terminating or banning expression, or whether it simply doesn't give us enough of an opportunity to evaluate the potential pretextual application of an asserted justification for silencing unpopular expression.

And that's really what makes these cases difficult, because with respect to adult entertainment the businesses are enormously unpopular with city government, or county government.

Government is terribly hostile with respect to these businesses, and what seems to happen, unfortunately, really much like what Erie did.

Erie had a specific target in mind.

It was only nude dancing.

It was only nude entertainment.

But what Erie did, instead of passing direct legislation which implicated what their sole concern was and then allowing that legislation to be challenged in the crucible of strict scrutiny, where there could be a fair evaluation of really what was going on in the situation, Erie wrapped its limited and specific concern inside a piece of legislation of seemingly general applicability.

Justice Scalia: Of seeming... do you really think that if someone would walk nude down the Main Street in Erie he would not be arrested under this ordinance?

Mr. Weston: Justice Scalia...

Justice Scalia: Do you really think this ordinance only is going to be applied to nude dancing establishments?

Mr. Weston: Justice Scalia, there was already a State statute in Pennsylvania which would have prohibited exactly the conduct to which Your Honor refers.

Justice Scalia: But not nude dancing?

Mr. Weston: The State... I beg your pardon?

Justice Scalia: But not nude dancing?

Mr. Weston: Not nude dancing in private, in a private circumstance where there was no affront, where nobody was going to be offended, where there was no possibility for juveniles.

The only remaining gap in the State and city legislation was nude entertainment, which is specifically what Erie targeted, as they were candid enough to say in their preamble, as their legislators were candid enough...

Chief Justice Rehnquist: Well, the sort of thing you're talking about happens all the time, it seems to me.

It happened in the Fourteenth Amendment.

The concern of the Congress was the newly freed slaves, and yet they wrote a provision much, much more broadly than that.

Frequently, a particular incident will cause legislation to be passed and the legislation is broadly framed.

I've never thought there was any objection to that.

Mr. Weston: Well, Mr. Chief Justice, the problem, the objection in this setting is that we are all being asked to participate in some sort of charade.

Erie had...

Chief Justice Rehnquist: Why is it... it's only a charade if the ordinance is in fact... is going to be enforced only against nude dancing places, and really, as Justice Scalia says, someone walking down the Main Street of Erie in the nude will not be prosecuted, but I don't get any suggestion of that here.

Mr. Weston: Well, I suggest that it's a charade in this sense.

If Erie were to have passed its ordinance specifically targeting the only interest it had in passing the legislation, it would be viewed as a direct and specific restraint on expression...

Chief Justice Rehnquist: Well, so they had a good lawyer.

Mr. Weston: But that's what the charade is, and it seems to me that where we deal with expression, and where there's legislation that either inevitably is going to affect vast quantities of expression, or where on its face, or where it will, just simply by virtue of its passage, affect enormous amounts of recognized expression, we ought not to countenance the notion of true judicial strict...

Justice Breyer: I find it difficult to figure out how to administer that principle.

I mean, I am familiar with... I have some sympathy to it, but I don't see how it works.

That is, the... because legislatures don't normally say always what their actual motive is, so if they pass legislation dealing with importing fish, but their real objective is to, you know, hurt somebody individually, are we supposed to start looking into that?

Mr. Weston: Well, I think the difference is, Justice Breyer, that in this case and in these cases we deal with expression, we deal with the most elevated aspect of our society.

Justice Breyer: I see that.

The other question I have... I see where you're going on that, but the other question I have, which is...

Mr. Weston: And...

Justice Breyer: All right, finish that if you'd like, because if you're going to say a special...

Mr. Weston: Thank you.

I just want to say that in the ordinary course the fish statute with respect to trying to hurt somebody individually tends not to be the kind of thing which is likely going to happen.

It will be an unusual setting, something that will be fairly easy to prove, and be something that will be palpable.

With respect to the expression setting, we do not permit Government simply to have the easy ability to interfere with expression absent demonstrable justifications, whether they... of a content-neutral nature in order to establish the justification, whether it be compelling need or otherwise, to interfere with what otherwise in our society is presumptively protected, and it makes it worse in this case, because at least on the basis of Barnes we had eight justices, all of whom noted and held that this kind of expression, this kind of entertainment was protected.

Now... and I know I interrupted your question.

Forgive me, please, if...

Justice Breyer: No, it's a different question, which is, I don't see quite how to proceed.

The first assumption would be... it's an assumption that there are some kinds of nude dancing that are not expressive at all, rather, they're forms, let's say, of prostitution, or sexual behavior, and second, that maybe that's what they're going after here, and third, if it's so, how would I know?

There's no record.

What do I do?

Mr. Weston: Well, firstly, with respect to the notion that there might be nude dancing which involves prostitution, or...

Justice Breyer: I don't mean it involves prostitution.

I mean, it is no more related to expression than turning a mouse loose in a house with an intent to frighten someone.

You're intending to get a reaction, and that doesn't have to do with aesthetics, and it doesn't have to do with expression.

Mr. Weston: Of course.

Of course.

Justice Breyer: And I take it your predecessor here refused to make any stipulation that it had anything to do with expression here, i.e., expression as we normally mean it in a political or language or aesthetic sense, i.e., not to do with that, and I take it there was no... you know, they wanted to stipulate there was some kind of expression, and you said no.

Your side said no.

Do you see what I'm saying?

And you might disagree with it.

You might say there is no such kind of nude dancing; all nude dancing is, in fact, aesthetic.

Is that your view?

Or, it could be, no, there is some, but it's mixed up with other.

What is your view?

Mr. Weston: Our view is that under this ordinance and on this record, because we are making a facial challenge to this, this ordinance does not regulate touching, prostitution, or whatever.

The legislation that we challenge, and the only legislation that we challenge, interdicts and prohibits only nude dancing.

To the extent that there is other nude dancing about which Government is concerned, there are certainly State prostitution statutes in Pennsylvania, the point being that from our perspective the nature of the dance, and dance itself, is a recognized form of expression.

Justice Scalia: Suppose it is, and so is burning a flag, I suppose, and with burning a flag we would certainly say that if there were a general law against burning anything in the public streets and you happened to burn a flag, although it is a form of expression, the State has rendered that particular form of expression unlawful for reasons unconnected with the expression itself, and therefore the statute is constitutional.

Why shouldn't we say the same thing about nude dancing?

It may well be a form of expression, but for reasons that have nothing to do with what is being expressed, but which have to do simply with the nudity, that particular form of expression has been rendered unlawful.

Express the thought in some other way, just as you must express the thought in some other way than burning a flag in the public streets.

Mr. Weston: If there were going to be that assertion made and that conclusion drawn, Justice Scalia, it ought to be done under a standard of strict scrutiny to be able to evaluate the relationship between the asserted prohibition and the impact on speech in a meaningful way that is protective of expression...

Justice Scalia: I accept it, that it's strict scrutiny.

It certainly is strict scrutiny in the flag-burning case, but I have no doubt that our decision in Johnson, which said that the law specifically directed against burning flags was unconstitutional, would have come out the other way if it were a general municipal ordinance against burning matter in the street, leaves, flags, rags, anything else.

That surely would... if he was prosecuted for that, he surely would have been convicted.

Mr. Weston: But this ordinance, although seemingly one of general application, unlike the antiburning legislation to which you referred in the streets, inevitably has an impact on a recognized form of vast quantities of expression.

Justice Scalia: Gee, but so does prohibiting the burning of a flag.

In fact, it's to my mind a much more cognizable communication of an idea than dancing is, nude or otherwise.

Mr. Weston: It may well be, but in terms of... and it's... and in terms of the number of examples of which flag-burning... I'm sorry, I'm saying this poorly.

The amount of speech that is potentially interdicted by the anti-leaf-burning legislation in Texas to which you refer is minimal compared to the impact on speech of a piece of legislation that specifically bans all nudity at all times in 1999, when nude entertainment has become a significant staple of the American cultural scene, which means that there are vast numbers of not only nude dancers...

Justice Scalia: It depends where in America you are, Mr. Weston.

Mr. Weston: Well, I'm not sure that's correct, Justice Scalia.

Justice Scalia: You come from Beverly Hills, and it may well be out there, but I'm not sure that I would say that throughout America.

Mr. Weston: Our office is no longer there, but my... our...

[Laughter]

As the amicus briefs made clear, there are something like 3,000 adult clubs throughout the United States, that there was more income generated from those establishments than from all theaters, plays, drama groups throughout the United States combined.

The point is that in the nude... in the leaf-burning situation, the potential impact on expression was minimal.

In this circumstance, both on... particularly on this record, where the absolute basis for passing it was limited exclusively to expression, it is inappropriate to use the deferential standard, whether of rational basis, which you, Justice Scalia, employed in Barnes, or even O'Brien itself, O'Brien not having been designed for that kind of circumstance and that kind of situation, either because there was no showing of a content-neutral basis for the legislation, number 1, or because simply of the application of the legislation.

Chief Justice Rehnquist: Thank you, Mr. Weston.

Mr. Weston: Thank you, Mr. Chief Justice.

Rebuttal of Gregory A. Karle

Chief Justice Rehnquist: Mr. Karle, you have 2 minutes remaining.

Mr. Karle: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to make a couple of points.

The statute in Barnes, which we utilized as the pattern for our ordinance, simply is to accord the same amount of protection and the same regulation as in Barnes.

That's the limitation, notwithstanding the argument that it makes it content-specific.

My opponent also pointed to, in his argument, a State statute regulating something in the nature of sex crimes.

That is in our crimes code, and that requires an intent element.

Our ordinance does not require an intent.

It's a conduct ordinance, being in a state of nudity...

Justice Stevens: But would the State statute cover walking down the street in the nude?

Mr. Karle: It would cover walking down the street in the nude if... a person commits a misdemeanor in the second degree if the person for the purpose of arousing or gratifying sexual desire of himself or any person, other than his spouse...

Justice Stevens: So that in Pennsylvania it is perfectly... every place except Erie, it's perfectly all right for a citizen to walk down the street in the nude if he just wants to get a lot of sunshine.

Mr. Karle: Well, no...

[Laughter]

Well, no, it's a crime in Pennsylvania if the intent is...

Justice Stevens: No, he doesn't have... his intent is to sunbathe as much as possible.

Is that a crime in Pennsylvania or not?

Mr. Karle: Gratifying sexual desire is the crime.

Justice Stevens: So that in Pennsylvania, for the purpose I described, you may walk around nude.

Mr. Karle: Under our ordinance, not, because...

Justice Stevens: Not in downtown Erie, but in the rest of the State?

Mr. Karle: I can't speak to Upper Macungie township, or...

Justice Stevens: No, no, no, but as a matter of State law it's perfectly okay.

Mr. Karle: Yes.

Yes.

Justice Stevens: That's a pretty good answer to his argument.

Mr. Karle: But at any rate, Justice Stevens, it requires an intent element.

Justice Ginsburg: Mr. Karle, the Pennsylvania supreme court did, in its list of 14 facts that it considered important, say the play Equus, which featured frontal nudity, did appear in the city of Erie.

Isn't the matter of enforcement a part of the case, at least that the Pennsylvania supreme court thought it was dealing with?

Mr. Karle: I'm unfamiliar with that provision.

Justice Ginsburg: It's on page 27a of the petition for writ of certiorari.

It's the Pennsylvania supreme court's decision that you're challenging.

Mr. Karle: That's the trial court's...

Justice Ginsburg: Oh, the trial court decision.

Mr. Karle: Yes.

That's just the trial court...

Justice Ginsburg: Did... I don't recall, then, did the Pennsylvania supreme court mention that?

Mr. Karle: No, they didn't...

Chief Justice Rehnquist: They didn't.

Mr. Karle: I don't believe.

Chief Justice Rehnquist: Thank you, Mr. Karle.

Mr. Karle: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Friends of the Earth v. Laidlaw Environmental Services - Oral Argument

Fri, 09 Jan 2009 14:50:15 +0000

Case:

Friends of the Earth v. Laidlaw Environmental Services

Media File:

98-822_19991012-argument.mp3

Related Transcript:

1999_98_822_argument.xml

Transcript:

Argument of Bruce J. Terris

Chief Justice Rehnquist: We'll hear argument next in Number 98-822, Friends of the Earth v. Laidlaw Environmental Services.

Mr. Terris.

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

The district court in this case, after two trials, found that Laidlaw had violated the Clean Water Act 1,412 times.

One hundred and thirty of those times had come in the immediate 6 months before the complaint was filed, and another 36 of the violations came after the complaint was filed.

The complaint alleged ongoing violations and it sought injunctive relief.

Five years... three... five years later, after the complaint had been filed, the district court found that there was no long... that Laidlaw was in substantial compliance and therefore there was no need at that point to issue injunctive relief.

Instead, it imposed a penalty of $405,000, specifically to deter future violations.

Six years after the suit was filed, the Fourth Circuit held, solely because injunctive relief was no longer in the case, that the case had to be dismissed as moot, and that attorney's fees would not be payable to the plaintiff.

We submit that Article III does not compel such a perverse result.

The plaintiffs submit that, even though the civil penalty is payable to the United States Treasury, that plaintiffs benefited from the imposition of a penalty because penalties deter future violations.

Justice O'Connor: Well, I guess what happened, perhaps, was the district court handled this at a time before we'd handed down Steel Company.

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

Steel Company came...

Justice O'Connor: And the Fourth Circuit reviewed it after that case had come down, and apparently placed some reliance on that, right?

Justice Breyer: That seems to be...

Mr. Terris: It relied solely on Steel Company.

Justice O'Connor: Yes.

That seems to be what happened in effect.

Mr. Terris: That there...

Justice O'Connor: So it boils down to what we meant in Steel Company...

Mr. Terris: I think that's correct, Your Honor.

Justice O'Connor: as applied to this case.

Mr. Terris: I think that's correct, and I think it also involves what the relationship of Steel Company is to this Court's prior decision in Gwaltney, because our argument is that Gwaltney is precisely this case.

Justice O'Connor: Well, except Gwaltney didn't really get into the circumstances expressly, and I guess Steel Co. did, so we have to reconcile that in some way.

Mr. Terris: I think, Your Honor, that Gwaltney did get into the circumstances.

It would have been extremely difficult for this Court to over... to have overlooked the fact that there was no injunctive relief in Gwaltney.

Justice Scalia: This is a jurisdictional point, and our cases are replete with the statements that actions by this Court on jurisdictional matters that do not discuss the jurisdictional matters are not precedential.

Mr. Terris: That's correct, Your Honor, but...

Justice Scalia: And did Gwaltney discuss the jurisdictional matter explicitly?

Mr. Terris: Yes, it did, Your Honor.

It discussed both standing and mootness, and...

Justice Scalia: This aspect of standing?

Mr. Terris: It did not go into the exact aspects of Steel Company, but Your Honor found in Steel Company itself that Gwaltney had... that this Court in Gwaltney had upheld standing, and presumably found that that had been a reasonable determination.

One has to assume that the Court did not simply overlook a matter as clear-cut as the fact that injunctive relief had never... had not been issued in Gwaltney and was no longer in the case because it had not been appealed.

Justice O'Connor: Mr. Terris, do you think the Fourth Circuit may have confused mootness with standing?

Mr. Terris: I think it certainly confused mootness with standing, because what it did is take a decision of this Court in Steel Company and say that it applied in and of itself, with no further reasoning, to the decision, to the case before it.

This Court in Steel Company said explicitly that the rules for mootness were not the same rules for standing.

The Government had argued in Steel Company that the law, that this Court has repeatedly laid down that for a case to be moot it must be absolutely clear that the injury would not continue, that when the Solicitor General made that argument, that that argument did not apply in Steel Company because that was a standing case, and you could not use... you could not use that doctrine as a sword instead of a shield, as this Court stated.

Justice O'Connor: thing if I may.

The Roebuck facility has been closed now, as I understand it, and the incinerator removed.

Mr. Terris: That is true.

Justice O'Connor: Does that moot the case perhaps?

Mr. Terris: There is a substantial question about that...

Chief Justice Rehnquist: Yes.

Mr. Terris: about that.

What we have... what Your Honors, of course, have done is granted certiorari on a different issue.

Chief Justice Rehnquist: Yes.

Mr. Terris: What the respective parties have presented to Your Honors is their views of the facts.

Those facts, of course, have not been sifted through any type of hearing in the district court.

Part of the facilities have been taken down, and part of the facilities still remain.

We know that because we had them examined last week, and so in addition the company continues to have its permit.

It fought, in fact, to preserve its permit in State court even after the time that the... that it had decided to close, and it negotiated a closure agreement with the State which allows it to reopen an incinerator in the future.

Justice Stevens: May I ask this question, Mr. Terris.

Let's assume for purposes of argument that a week ago the case became totally moot, and everybody would agree with it.

Would that exonerate your opponent from paying the civil penalty?

Mr. Terris: We do not think so, because we think that under Walling v. James Reuter and the U.S. Bancorp decisions of this Court that when the voluntary actions of the defendant to in effect prevent a decision of a district court from being carried out, that in the interests of justice this Court has the power to vacate the court of appeals decision and to therefore let the district court decision continue to apply.

Justice Scalia: Mr. Terris, can I ask you, the premise of your argument is that it would surely be okay to grant the penalty relief if injunction relief had also been granted.

Mr. Terris: Well...

Justice Scalia: You don't even think that's a debatable problem.

Mr. Terris: I don't think it is, although the...

Justice Scalia: Yes.

Mr. Terris: other side debates it.

Justice Scalia: What cases do you know that have said it is a proper function of courts in private litigation to impose a public penalty, that is, a penalty that does not go to the plaintiff but that goes into the public Treasury?

Mr. Terris: I think Gwaltney clearly holds that.

There's no sense to Gwaltney, it is absolutely nonsensical to have... for this Court to have sent this case... that case back on remand if a contrary...

Justice Scalia: It's a major proposition to establish without any discussion about it.

I mean, every time you alter from the traditional status quo the functions of the courts you alter also the functions of the other branches of Government, and the States are complaining here because they think that the decision whether to impose a civil penalty or not belongs to the executive branch.

It's part of prosecutorial discretion.

And by placing that within the courts there is a major alteration of power between the various branches of Government and, in this case, not only between the executive and the judicial at the Federal level, but also between the Federal and the State Governments.

Mr. Terris: There are several... I have several answers, Your Honor.

I do not think this is private litigation.

This is litigation that the Congress of the United States said should be permissible to private citizens in order to carry out a function that is essentially a governmental function.

Justice Scalia: But Congress can't say anything.

Congress can't... just because Congress has said it, it doesn't mean the courts can do it.

There's a proper role for courts.

Mr. Terris: I understand that, Your Honor, but I am saying that the Congress has said this is not private litigation, this is public litigation to carry out a public responsibility.

Justice Scalia: I understand Congress has said it.

The issue is whether that's constitutional.

Mr. Terris: Let me go on.

The States, as far as this case is concerned, have not objected.

One State has objected, the State of South Carolina.

The other... another group of States, 13 of them, have supported the plaintiff's position.

There is no reason to see this case as a... as raising the fundamental question which is a question, I submit, on whether Congress had the power to set up this kind of a mechanism at all.

Chief Justice Rehnquist: Well, you didn't raise that question in your petition for certiorari.

Mr. Terris: That's correct.

That's quite correct, and it wasn't decided below, so there is no issue before this Court as to whether Congress has the power to create a mechanism in which private citizens can enforce Federal environmental laws.

Now, of course, there's a considerable history of private citizens enforcing laws which has been held, upheld by this Court.

Justice Kennedy: This discussion began when we asked whether or not the pendency of an injunctive suit that's live allows you to collect civil penalties which are retroactive, and the respondent's brief quotes Lewis and Casey for the proposition that standing is not dispensed in gross.

In Lyons v. City of Los Angeles... the Chokehold case is the same... we looked to each claim to see if there's standing as to each claim.

Mr. Terris: That's correct.

Justice Kennedy: So in light of those cases, why is it that you can argue, as you do, as you seem to do, that the impendancy of the injunctive action somehow confers standing to collect civil penalties for the past wrong?

That goes against the teaching of those cases, does it...

Mr. Terris: That isn't the argument, Your Honor.

Our argument is not that injunctive relief gives us the right to sue for civil penalties.

Quite the opposite.

Our position is that the Congress has set up a scheme in which you can ask for injunctive relief, you can ask for civil penalties, and each of those remedies has to be analyzed independently to determine whether there was redressability.

Justice Scalia: And you say that there is no standing requirement for the civil penalties.

They stand separately.

For injunction, you have to show the injunction will help you, but for the civil penalties, all you have to show is, Congress gave you the right to be a Private Attorney General.

Mr. Terris: That...

Justice O'Connor: Or do you have to... do you take the position, rather, that there has to be a reliance on continuing violations of the statute to get the standing?

What is your position?

Mr. Terris: Our position is that it is not enough that Congress has said we have the right to sue for civil penalties, any more than it's enough to say that we have the right to sue for injunctive relief.

We have got to show redressability under Article III.

Our position is that civil penalties, like injunctive relief, deter when there is the possibility of future violations.

Justice Kennedy: So you want us to analyze this case as if you asked just for civil penalties.

You'll rise and fall with that, on this issue.

It's just as if you sued for backward relief, not for future injunctive relief.

Mr. Terris: I do not have to go that far, Your Honor, because, of course, we asked for injunctive relief, as in Gwaltney.

We... it is important to us that our case is on all fours, in fact a little stronger than Gwaltney, but our base... but underneath that proposition is the argument that civil penalties are sustainable under Article III if they provide a benefit to the plaintiff.

Chief Justice Rehnquist: But they would have to provide a benefit rather specifically, would they not?

I mean, you couldn't sue, say in Virginia and try to get something done out in California.

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

Our...

Justice Breyer: Finish.

Finish your answer.

Mr. Terris: Yes, let me... the district court specifically held in this case that the civil penalties did deter, and we submit that that determination is entitled to weight.

I may say also that the court of appeals assumed that was true.

Justice Stevens: But the court of appeals...

Did it find that the penalties deterred conduct that had an adverse impact on your clients?

Mr. Terris: Excuse me, Your Honor.

Justice Stevens: Did the district court find that the civil penalties deter conduct that has an adverse impact on your clients?

Mr. Terris: It basically found there was not enough likelihood of future violations to justify injunctive relief, because, of course... not a mootness ground.

It did not hold against us on mootness grounds as far as injunctive relief is concerned.

It held, as a matter of using the basic discretion that a district court has as to whether to issue injunctive relief, not to issue it.

Justice Stevens: No, but what I want to be clear on, the civil penalties clearly would deter future violations.

The question I'm asking is, were the violations established in this case ones that had an adverse impact on your clients?

Mr. Terris: Oh... the district court held that there was standing, the court of appeals assumed that there was standing, and we proved standing, so... but that issue, I submit to Your Honors, is not before you.

Justice Stevens: And did you prove that the violations adversely affected your clients?

Mr. Terris: Yes, Your Honor.

Justice Stevens: Okay.

Mr. Terris: It's part of standing.

Justice Ginsburg: But the court of appeals didn't review that, and one of the questions that I have is, assuming I would agree with you that this case is not moot, mustn't this Court stop there and say, whatever the district court found, the court of appeals didn't review it, so we would say, case not moot, court of appeals stop assuming standing, decide all these questions that you didn't decide.

What right would we have, if we agree that the case isn't moot, to decide anything but that?

Mr. Terris: I certainly don't think, Your Honor, that you should decide standing, which is... fact-intensive does not raise an issue that's involved in certiorari.

The closure issue I think should be sent back to the district court, because there was no record whatsoever on it.

I do think it would be appropriate for the attorney's fee issue to be decided by this Court.

It is a... it has been fully briefed...

Justice O'Connor: It wasn't even decided in...

But is there... there's no final judgment there, is there, on the attorney's fees?

Mr. Terris: No, but there was a decision by the...

Justice Scalia: So...

Mr. Terris: There was a decision by the court of appeals that it will not give attorney's fees if the case is moot, so it's very likely... if we go back to the district court on the closure question, it's very possible that that issue will continue to be lurking in the case.

Justice O'Connor: I just thought there was no final judgment as to the attorney's fees.

Mr. Terris: Oh, I think there was.

There was... they were denied.

Justice Souter: And the court of appeals did not say, as I recall, that they would not award attorney's fees if it was not moot.

Mr. Terris: That is true, Your Honor.

I don't think they could.

Justice Scalia: Mr. Terris, could I come back to Justice Stevens' question?

I'm not clear whether the deterrence that the court referred to, which would be achieved by this penalty, was deterrence against violating the law at this same facility and in the same manner.

I mean, this company still had a permit.

They presumably could operate elsewhere.

They operated other facilities.

It might have been deterrence from violations there that the court had in mind.

Is there any reason to believe that it means deterrence from a violation at this very facility?

Mr. Terris: I think there is, Your Honor, because no other facilities was raised in the case in the district court.

There was never any discussion of that.

There's no reason to believe that it was considering anything than the case before it.

Justice Souter: Is the permit specific to the facility?

Mr. Terris: Excuse me?

Yes.

Justice Souter: So that when they retain the permit, it is for this location only.

Mr. Terris: This and only this location.

Justice Breyer: Yes.

Mr. Terris: I'd like to reserve the rest of my time, Your Honor.

Argument of Jeffrey P. Minear

Chief Justice Rehnquist: Very well, Mr. Terris.

Mr. Minear, we'll hear from you.

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

The court of appeals erred in holding that a citizen's suit under the Clean Water Act must be dismissed as moot if the district court concludes that injunctive relief is unwarranted.

The Clean Water Act authorizes private citizens to bring suit to abate ongoing violations, and it provides the district courts with two types of coercive remedies to compel compliance.

The district court may ask for civil penalties, or it may grant civil penalties, or it may issue an injunction, and that choice lies with the discretion, the remedial discretion, of the district court.

The district court properly exercised its discretion in this case.

The citizens brought suit to abate ongoing violations, and the court determined that they were entitled to relief.

The court declined to enter an injunction in light of Laidlaw's current compliance status at the time of judgment, but it nevertheless concluded that civil penalties were appropriate, because they would deter future violations by Laidlaw at that site.

Chief Justice Rehnquist: Well, is that consistent with its refusal to issue an injunction, because ordinarily, if you think there are going to be future activities that need to be deterred, you probably would issue an injunction, wouldn't you?

It's only if you feel the people have really changed their ways for good that you turn down an injunction.

Mr. Minear: No, I don't think that's the case, Your Honor.

I think if we look at cases involving voluntary cessation, ranging from Gwaltney to City of Mesquite, W. T. Grant, all of those cases recognized that a case might not be moot, but nevertheless injunction relief may nevertheless not be warranted.

What has happened in this case...

Justice Scalia: No...

That seems to me entirely backwards.

I mean, the more radical... the more radical sanction, it seems to me, is to impose a monetary penalty, whereas the lesser one is simply say, you know, don't do this bad thing again, and you're saying the... you're saying here the court found that the probability of their doing it again was small enough that the court was not even willing to wag a finger at them, and yet the court socks them with a monetary penalty in order to prevent them from doing it again.

Mr. Minear: Your Honor...

Justice Scalia: I find that an extraordinary upside-down approach to that.

Mr. Minear: Your Honor, I do not think it's extraordinary, because the court would not have simply wagged its finger at Laidlaw.

An injunction in this case could have, most likely would have intruded the court into the operations of Laidlaw.

For instance, an injunctive could have limited the amount of feed that goes into the incinerator, it could have specified the type of equipment that Laidlaw had to use, all of these things are quite burdensome and intrusive.

Justice O'Connor: It could have.

Justice Scalia: It need not have.

Mr. Minear: It need not have, but this is why Congress gave courts the power to select the remedy that is most appropriate to ensure compliance.

Justice Souter: But of course the civil penalty looks in both directions, doesn't it?

Mr. Minear: Its...

Justice Souter: So that the court might have said, well, I'm going to award the civil penalty here in part because of what we find they have done, and in part for deterrent purposes.

I mean, it could have... it could have had both rationales, couldn't it?

Mr. Minear: That's not what the court did in this case, Your Honor.

I think the court made quite...

Justice Souter: What did it say?

Mr. Minear: It made quite clear its view on the use of civil penalties, and this appears in the joint appendix at pages 121 through 125.

Justice Stevens: What did they say?

Mr. Minear: What they said, what the court said was that civil penalties here are available to deter future violations, and they do so by depriving...

Justice Souter: So they construed it solely as deterrent in this case.

Mr. Minear: In this case, that is the approach the court took, and what's more, the court said the reason why it deters is because it will deprive the party of the economic benefit of noncompliance and thereby take away the incentive to commit future violations.

Laidlaw was clearly...

Justice Scalia: Of course, the penalty doesn't do that.

A future penalty would do that.

Mr. Minear: This penalty deprived Laidlaw of its... of the benefits of its past noncompliance...

Justice Scalia: Right.

Mr. Minear: and made clear that its future violations...

Justice Scalia: That won't stop its future violations.

What will stop its future violations is the fear that a penalty will be imposed in the future, right?

I mean, if it had assurance that no penalty would be imposed in the future, it would keep on its bad ways, wouldn't it, despite...

Mr. Minear: But it's the application of the penalty that provides the assurance that it will be applied in the future as well.

A penalty that is never applied, of course, has no deterrent effect.

This penalty... and one only needs to think in terms of the practical aspects.

The plant manager is facing the prospect, we can increase our profits by increasing the throughput in our incinerator, but we're going to violate our permit if we do that.

He talks to his lawyer, asks the lawyer, what would be the consequences.

If he's told, well, you might simply get an injunction telling you not to do again... do it again, the company will have a strong incentive to go ahead and violate and make those profits.

On the other hand, if the counsel says, well, the last time you did this you paid a penalty that took away all the economic benefits of violating that permit, that operates as a powerful deterrent, and that is what we believe the district court was seeking to do in this particular case.

Now, I think it's important to recognize, and Laidlaw concedes, the district court had not declined to provide injunctive relief on the ground that defendant's compliance efforts had made this case moot.

This Court's decisions, including Gwaltney, made clear that voluntary cessation of unlawful conduct does not moot a case unless it's absolutely clear there's no reasonable prospect for continuance.

Laidlaw did not argue or demonstrate that there was mootness of that sort in this case, and so for that reason the court was free to apply the remedy that it thought was appropriate to abate future violations.

Justice Stevens: May I ask you the question I asked your... the other counsel: supposing the case became moot today, would you still be entitled to the money

Mr. Minear: Our view is, we might very well be entitled to the money, and the analysis goes as follows.

If the plant had closed before judgment, it's the position of the United States then in that situation, if that eliminates all possibility of future violations, then the case is moot, and the case should just be dismissed.

I'm talking about the district court judgment.

Justice Stevens: Even after the district court has said there should be a penalty.

Mr. Minear: No, I'm talking about, in that case before the district court.

Justice Ginsburg: Oh...

Mr. Minear: If the plant is closed after...

Justice Stevens: I'm asking you... say it becomes moot after the district court makes a finding that they ought to pay $400,000 to the United States.

Mr. Minear: I think one of the inquiries that has to be made on remand is whether that closure was prompted by the court's judgment.

If the judgment actually was effective...

Justice Stevens: You seem to be dodging my question.

I'm assuming mootness.

Mr. Minear: Yes.

Justice Stevens: Assume it's moot, and everybody agrees it would be moot, except for the fact there may be a fight over whether or not they still have to pay the money, would that prevent it from being moot?

Mr. Minear: If it's clearly moot, and it was not caused by the... the closing was not caused by the entry of the judgment, in that case we think the appropriate course would be under Bonner Mall and the Walling v. Reuter case to remand the case to the district court with the reimposition of the district court's judgment, and that's governed by...

Justice Stevens: To reimpose the district court's judgment.

Mr. Minear: Reimpose the district court's judgment.

Justice Stevens: And so then, you think they'd have to pay the money.

Mr. Minear: They'd have to pay the money.

Justice Scalia: That's what I was trying ask you.

Yes, okay.

Mr. Minear: And the reason for that is simply as a matter of interest of justice.

As this Court indicated in Bonner Mall, if a defendant actually precludes the other party from obtaining relief in this Court, the appropriate course in the interests of justice is to remand the case back to the district court.

Justice Scalia: And then that's... I'm sorry.

Justice Souter: Were you going to...

No.

And that is also true on the assumption that you have pointed out we have to make in this case that the penalty was purely forward-looking.

The penalty was purely prospective as a deterrent.

You see, I can understand your argument if the penalty had both characters, forward-looking and backward-looking, but in this case, as you've told us, the penalty is entirely forward-looking.

If it is moot, so that beyond peradventure there can be no expectation of repetition, I don't understand why the penalty would still be enforceable.

Mr. Minear: The reason why the penalty is still enforced in that situation is to avoid the gamesmanship that would otherwise result.

If a party, a defendant could simply string the litigation along until it becomes moot and then avoid the civil penalties that are imposed...

Justice Souter: Would the injunction stand, if they had issued an injunction?

Mr. Minear: Yes, and in fact the Walling case involved the imposition of an injunction, and the injunction was on appeal to this court.

It had been granted in the district court, it had been overturned in the court of appeals.

At the time that this case was pending before the court, the defendant corporation dissolved, and this court said, in that situation we're nevertheless going to reinstate the district court judgment and allow the parties to determine in the district court what remedies are available in that situation.

Justice Scalia: Excuse me.

They reinstituted the judgment but not the remedy.

They didn't reinstitute the injunction.

Mr. Minear: I believe the injunction was still reinstituted, and the court indicated it would be up to the parties to determine what could be enforced in that situation.

Justice Souter: So it was left as a matter of discretion.

Mootness was no bar to the injunction, is what you're saying.

Justice Breyer: That was the necessary...

Mr. Minear: Yes.

Now, I understand Justice Scalia's concern is, if the case is truly moot, why does the injunction continue, but nevertheless, what the court said is, when the case became moot on the way to the Supreme Court, it had the discretion to determine what to do with the case on remand.

Now, I would like to focus on the deterrent value of the penalties that are at issue here, because I think this is an important point for this Court to understand.

It has indicated in a number of its cases the value of, the deterrent value of civil penalties.

In Gwaltney, the Court said that citizens may seek penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.

In other words, Gwaltney recognized that civil penalties are available to abate the violation.

In addition, this Court said in Tull that courts can deter future violations by basing the penalty on its economic impact, exactly what the district court did in this case, and in Romero-Barcelo, this Court said that an injunction is not the only means of ensuring compliance, citing to civil penalties.

Justice O'Connor: Well, what about Steel Company, though?

Mr. Minear: Steel Company is distinguishable, because in that case... if I may finish my answer... it involved a wholly past violation in which civil penalties would have no future deterrent effect.

Thank you, Your Honor.

Argument of Donald A. Cockrill

Chief Justice Rehnquist: Thank you, Mr. Minear.

Mr. Cockrill, we'll hear from you.

Mr. Cockrill: Thank you, Mr. Chief Justice, may it please the Court:

This case comes to this Court in somewhat of an odd posture in that we are here, in the eighth year of this litigation, because the petitioners want this Court to send all of us back to the Fourth Circuit to litigate the issue of additional civil penalties for violations, some of which occurred nearly 13 years ago, none of which caused any measurable environmental harm, based on the petitioner's contention that such additional penalties for long-past violations will somehow deter future discharges at a facility in South Carolina that no longer discharges, and they ask for this relief despite two very important facts.

One, they admit that at trial they completely failed to prove specific adverse effects to the environment, and secondly, whatever injuries that they may have had, they now concede were redressed by the district court's ruling in 1997.

Chief Justice Rehnquist: What ruling of the district court is that?

Mr. Cockrill: It was the district court's 1997 ruling on liability.

There was an earlier 1995 ruling called the preclusion ruling that said the lawsuit could go forward.

We then tried the case, and the district court ruled in 1997, found violations, and imposed the penalty.

Chief Justice Rehnquist: Thank you.

Justice Breyer: We've said that you have to take standing issues first, and there's a barrier to the standing issue.

That was Steel Co., and there seems to be a barrier to the standing issue, the absolute ruling that if you go and ask for a future... for the penalty, the past penalty in order to deter the future, can't do it, no standing, so we have to address that, don't we, despite 13 years, despite all the things you say.

Mr. Cockrill: Yes, Your Honor.

I mean... yes.

That's our position, that under no circumstances should a private party be able to seek penalties, a remedy in which that private party has no personal stake, because there's just no good historical analogue in the Federal system for a private party doing that.

Justice Breyer: Well, what about treble damage plaintiffs in antitrust cases?

What about qui tam plaintiffs?

What about all the instances in State law where you have a person called a Private Attorney General?

Not perfect analogies, but why not good enough?

Mr. Cockrill: I think in State law... obviously, the Federal system has a separation of power consideration that State law doesn't.

In a qui tam action, obviously the plaintiff, who is suing on behalf of the Government, at least gets a portion of the take.

Justice Breyer: If he gets $13.50 he can put a million into the Treasury, but if in fact what he gets is some assurance that there won't be pollution again, he can't put the money in the Treasury.

Mr. Cockrill: Well, to answer the first part of it, if you got $13.50 out of a million dollar judgment, I'm not sure that's enough of a personal stake, but I know...

Justice Breyer: I sometimes exaggerate.

Unidentified Justice: [Laughter]

Justice Scalia: Mr. Minear, it's not universally agreed that qui tam actions are constitutional anyway, is it?

Mr. Cockrill: No, it's not, Your Honor, and there's a lot of...

Justice Scalia: And this Court has never faced the question, has it?

Mr. Cockrill: It has not, and... but my point is that at least that qui tam plaintiff has some personal stake by virtue of the statute, the False Claims Act, giving that quit tam plaintiff a...

Justice Scalia: Quit tam squared, you might say.

Mr. Cockrill: I'll agree with that, although I'm not sure I understand it.

[Laughter]

Justice Scalia: We have learned not to do that.

Unidentified Justice: [Laughter]

Justice Ginsburg: Mr. Cockrill, the district court said they were in violation, and I... the reason I'm not giving an injunction is because I think that this penalty is enough of a deterrent.

If the district court was wrong about that, isn't the implication that it would have given the injunctive relief as the only redress that this plaintiff would have standing to pursue?

The district court didn't say, an injunction's out of the question.

It said, I want to deter this defendant, and I think the best way to do that is through a monetary penalty to take away the benefit of the violation.

Mr. Cockrill: I don't think that's completely correct, Your Honor, for this reason.

The district court denied the injunction for very good reasons.

The citizens' suit was filed in June of 1992.

Two months later, as the district court found, the company was in substantial compliance.

The district court found that 5 years prior to the citizens' suit there was continuous activity on the part of the company, good faith compliance efforts, working with the State, and that the citizens' suit basically came in at the end of that process, so the district court felt that because this was not an indifferent company that was galvanized into action by the citizens' suit, and because it came into substantial compliance within 2 months of the citizens' suit by finally figuring out the technology problem, there really wasn't a need for an injunction.

The district court... and that's just obvious from the record, and...

Justice Ginsburg: I thought that the district court suggested that the plaintiff was the galvanizing factor and that the defendant itself had tried to get the State into the act and, indeed, drafted the pleadings for the State court suit that was filed, and that was all a nice cozy deal between the defendant and the State.

Mr. Cockrill: The district court did not find that.

Justice Ginsburg: Well, the district court did say, I am not going to do what the statute, if everything was above-board would require, that is, not take this case because there is an adequate remedy going on in the State court.

Didn't the district court, in order to continue in this case, have to say why it was not crediting the State proceeding?

Mr. Cockrill: Yes.

The district court ruled that the State's prior enforcement of these same penalties was not diligent, based primarily on the district court's feeling that the penalty, $100,000 that the State imposed upon Laidlaw, was not sufficient because it did not calculate or attempt to recover a theoretical economic benefit of noncompliance.

Going back to your earlier question, the district court did not find that this citizens' suit was the catalyst for Laidlaw coming into compliance.

In fact, the district court found that when the State sued Laidlaw and entered a consent decree on June 10, 1992, in order to obey that consent decree, Laidlaw shut down for substantial periods of time.

Justice Ginsburg: Well, why did the district court say, and one of the reasons that I'm not giving injunctive relief, it's not simply that I assigned a whopping penalty, but down the road there will be substantial counsel fees?

Mr. Cockrill: The district court did say that, and it underscores the uncertain nature of penalties.

Our position is very clearly, the penalties are clearly the central issue.

They cannot find redress in a compensatory fashion.

Everybody agrees to that, because they're paid to the sovereign.

The only way you get there is through deterrence, and historically, of course, equity provides a personal redress, declaratory judgments and injunctions which are designed specifically for that purpose.

Here, a penalty is overly broad.

Mr. Minear mentioned the Tull case.

The Tull case points out multiple objectives, but in this particular case, it simply, or in any case, while you may easily say, and I would agree, that penalties as a general matter have some general deterrent effect, any legislation with some type of penalty or sanction is going to have a general, nonspecific effect, but to try to predict the specific effect becomes a very cumbersome and a very difficult proposition, and nothing... and that's shown in this case.

And I think Congress recognized that when they... in the Clean Water Act citizen suit provision, because they lump penalties and injunctive relief together.

Chief Justice Rehnquist: What do you mean when you say, penalties have to have a specific effect, Mr. Cockrill?

Mr. Cockrill: What I mean, Your Honor, is to redress an injury under Article III, it... the burden on the plaintiff is to show that the relief requested, that there is a substantial likelihood that that relief will redress that injury.

Chief Justice Rehnquist: And do you challenge here that the penalties here imposed would have that effect?

Mr. Cockrill: Oh, indeed I do.

I think these penalties imposed here had no deterrent effect.

Chief Justice Rehnquist: Because, what, the conduct had already ceased?

Mr. Cockrill: Yes, because looking at this... deterrence to me implies, someone doesn't want to do something that's right, and you have to goad them into it.

Based on this record, including the 5 years of continuous effort before the citizens' suit, you cannot draw that conclusion, and that's why, in fact, the district court lowered the penalty below this calculated economic benefit, because Laidlaw's compliance efforts had been in good faith, had not caused environmental harm, and had...

Justice Souter: Well, you...

Justice Stevens: I don't think that's... you say the district court thought that the penalties were less than the economic benefit?

That's not what he said.

He said he was removing the economic benefit.

Mr. Cockrill: No, he didn't, Your Honor.

Justice Stevens: Similarly, only by removing the economic benefit of noncompliance can a civil penalty ensure that a violator receive no economic advantage.

Mr. Cockrill: You read that correctly, Your Honor.

You're reading from the 1995 district court opinion, where the district court very forcefully said, to be an effective deterrent, a penalty must remove the economic benefit.

At that point you're at a wash, and then some, to make it a true penalty.

In the 1997 decision, the economic benefit was $1.1 million.

The penalty was $405,000.

Justice Stevens: Well, did he agree the economic benefit was 1.1, or was that what your opponent argued?

Mr. Cockrill: No, that's what he agreed.

They argued it was...

Justice Scalia: Oh, I see.

Mr. Cockrill: I think, three or four million we, of course, were lower, and he... we were, like, at $900,000.

He said 1.1, but I'm going to penalize you less than half of that because of these mitigating factors, and that's in fact... that was, of course, the basis of Friends of the Earth's appeal in the Fourth Circuit, that that penalty was not only a nonpenalty, but it had the opposite effect.

It encouraged and rewarded violations.

Justice Souter: Yes, but didn't he also anticipate counsel fees at the time he set the $400,000?

Mr. Cockrill: He did.

He did, Your Honor.

Justice Souter: So he figured that more money was going to come out of their Treasury at some point as a result of the totality of their actions.

Mr. Cockrill: Yes.

He said this $400,000, when coupled with what we might have to pay, and what they paid me...

[Laughter]

that that, all taken together, would, he believed would be a deterrent.

But what that shows, Your Honor, is that the penalty wasn't, in the district court's mind, a sufficient deterrent, because he had to add other things to it.

Justice Souter: But it doesn't follow from that that the penalty was not a deterrent, and it doesn't follow from that that in fact a... and it doesn't follow from historical practice, either, it seems to me, that the penalty cannot be a deterrent unless it is tied more specifically to specific action, because equity frequently depends upon the accrual of coercive penalties.

And so it seems to me that the use of the penalty procedure without necessarily tying it to the economic value of a particular practice is in fact consistent with historical equity practice, and I don't see that there is any radical departure from what the judge did here from what equity courts have done in the past.

Mr. Cockrill: Well, in equity, clearly you have, you know, an injunction.

Clearly a court has the power to enforce that injunction with coercive fines.

In this case, under the Clean Water Act, these penalties from the district court, 90 percent, 97 percent I think of the penalties were pre-complaint.

These penalties were completely retrospect... retroactive, going to the... not prospective, punishing for past conduct, and that's the basis...

Justice Souter: This may get to a point that is semantic, and I'm not sure of the answer.

I just can't remember what the court said well enough.

As I... is it fair to say, in... consistent with what you just told me, that the court required the particular past actions which it identified as a condition of awarding the penalty, but at the same time said, the reason I'm awarding the penalty is not merely, as it were, based on the excuse that they did bad things that I've identified, but I'm awarding them for prospective purposes to see that they don't do those bad things again.

Is that a fair characterization of what the court did?

Mr. Cockrill: I don't think it's fair.

It's not... for this reason.

The district court said that the Clean Water Act mandates that I award a penalty, and that is the reason, if you look at the entire record, he felt obligated to do it.

Indeed, by the language that was...

Justice Souter: And it was mandated because he found they had done certain bad things.

Mr. Cockrill: He found violations.

Justice Breyer: Okay.

Mr. Cockrill: Yes.

Justice O'Connor: Well, here there was an allegation of continuing violations.

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

Justice O'Connor: And suppose the plaintiffs included people who lived along the river and who swam in it regularly and complained of the mercury discharges, and alleges violations that continued even after the filing of the complaint, amends the complaint, it's going on.

Now, do you say, under those circumstances, if the court found all of those things, it could not award a civil penalty, at the same time denying an injunction, as a means of deterring continuing violations?

Mr. Cockrill: I think that's what I'm saying, Your Honor, for this reason.

Justice O'Connor: Even if all those things that I've said are true.

Mr. Cockrill: Right.

Continuing violations, at the time of the lawsuit, I think under Article III that penalties are simply unavailable to a private party.

Justice O'Connor: Okay, so you raise the constitutional issue...

Mr. Cockrill: Yes.

Justice O'Connor: by way of a defense.

Mr. Cockrill: I think as a statutory matter...

Justice O'Connor: Now, did the Fourth Circuit rest on some grounds of mootness as opposed to standing?

Mr. Cockrill: They did.

Justice O'Connor: Do you think we need to send it back for a review of standing?

Mr. Cockrill: No, I don't, unless you over... of course, if you reverse the Fourth Circuit, then you can obviously take up the standing issue and the statutory issue raised in the briefs, or you could remand it.

We would prefer that this Court take it up.

Justice Kennedy: I take it you agree that, as a general matter, penalties deter conduct.

Mr. Cockrill: In a nonspecific, attenuated fashion that will vary from case to case, yes, sir, I do.

Justice Kennedy: Well, but this is the basis of much of our criminal law and so forth.

Mr. Cockrill: It is.

A deterrent effect...

Justice Kennedy: All right.

Let's assume that with this violator, penalties would deter conduct.

Mr. Cockrill: We're going to assume...

Justice Kennedy: Let's make that assumption.

Mr. Cockrill: That penalties deter conduct.

Justice Kennedy: That an industry or business, that I'm concerned about this because I may have a penalty.

Let's make that assumption.

What difference does it make if the penalty goes to the Government as opposed to a private plaintiff so far as deterrence is concerned?

Mr. Cockrill: I think under that hypothetical, if you could make the assumption, I would tend to agree that there's a much stronger case for allowing a private party to seek a penalty, because that private party's going to see a real benefit.

That's not the case here, but I would agree, but to me there is no way that anyone could make the statement that as a general rule, penalties deter.

It just is too... this Court's precedents in the Linda R.S., the Simon case, even Steel Company, make that point that when you...

Justice Stevens: May I ask this question, Mr. Cockrill.

You've referred to nonspecific deterrence.

I don't quite understand that.

If one assumes... and I don't know if this is a fair statement or not... that there had been periodic discharges of mercury in front of, say, one of the plaintiff's private property that adversely affected the value of that property, or their ability to fish or swim, or something like that, and if the penalty is designed to prevent a repetition of what had gone on before, why wouldn't that be sufficiently specific?

Why are you referring to nonspecific...

Mr. Cockrill: Well, I guess I go back to this decision, to the Court's decision in Tull, where it pointed out that in the congressional history of the Clean Water Act the purposes of a penalty, while they include deterrence, the primary purpose is retribution, punishment, that there's also a restitutional purpose, whereas as I mentioned, an injunction is specifically designed to proscribe or regulate future conduct, and that's what I say when it's nonspecific.

The deterrent effect is there at some level, but...

Justice Stevens: How could it be more specific?

If it says don't... it is a remedy designed to prevent that which was wrongfully done in the past from being done in the future, and the thing that was wrongfully done in the past is specifically shown by the evidence, and therefore wouldn't the deterrence be equally specific?

Mr. Cockrill: It may or may not, Your Honor.

That's what I'm saying.

Justice Breyer: All right, well, if it may or may not... if it may or may not, why can't... why isn't Congress free to make a judgment that as a general matter there will be cases in which the fact that a plaintiff collects money for a past injury helps to deter this defendant from doing the same thing in the future?

Can't Congress make the judgment that there are a lot of cases like that?

Mr. Cockrill: I think Congress can make the judgment.

Justice Breyer: If Congress can make the judgment, then what is it about Article III that prevents them from saying that a person who's had injury in the past, and might have injury in the future, can bring a lawsuit to create in this case that specific deterrence?

Mr. Cockrill: Justice Breyer, I think Congress can make the judgment, as they do in the legislative history of the Clean Water Act, that penalties will have a number of effects, including a general deterrent effect.

I do not think Congress could make the judgment that penalties do deter in every instance, because...

Justice Breyer: No, they're not saying every.

What they're saying is, there are a number of cases in which they will specifically deter, and because we think there are quite a few cases like that, there may be some, maybe your case, where it wouldn't be true, but we think there are quite a few, and therefore we give standing to people to use that enforcement mechanism.

Mr. Cockrill: Well, they give... under that hypothetical, of course, you're getting closer to penalties deterring in the great majority of cases.

I don't think Congress can legislate Article III requirements.

As far as, if Congress declares that penalties deter, or that they deter in the great majority of cases, I don't think that's going to supply, necessarily, the redress in Article III, and clearly, here, under these facts, when the district court ruled in '97... and Mr. Chief Justice, you asked... you brought out the point, you can't sue in Virginia to get something in California.

My colleague agreed with that.

That's exactly what the argument is in the reply brief, and I'm referring to page 7, where we're told, through the affidavit of a paralegal, that even if we stop discharging, which we have, permanently, that Laidlaw and its corporate affiliates have other facilities.

Well, first, Laidlaw doesn't, but our affiliates do in other States, and there have been recent violations of those, and...

Justice Ginsburg: But that was an end argument.

They made five or six arguments, and that was...

Mr. Cockrill: Yes, ma'am, but I... but my point was that they have taken the position that penalties imposed in South Carolina will deter facilities in Kentucky and Texas that aren't really before the court to benefit...

Justice Ginsburg: But mainly they said, we don't have much of a record on this closing, we do have the permit still alive, and there's nothing that this Court can decide on that.

There's one position that you had about mootness that I was not clear on, and that was, you seem to say it's their fault because they didn't appeal from the denial of injunctive relief.

Suppose they had, would there then be no mootness question?

Mr. Cockrill: If they had appealed the denial of injunctive relief, I think the court, the Fourth Circuit could have heard the... it would not have been moot for that reason, for the statutory reason...

Justice Ginsburg: That would have saved the case for mootness, even if the Fourth Circuit agreed with the district court that, all things considered, injunctive relief was unnecessary.

Mr. Cockrill: Yes, I think that's...

Justice Souter: Then your rule is simply going to turn this into a kind of appellate pleadings game.

Mr. Cockrill: No.

We're not suggesting that someone, that a plaintiff who has been denied injunctive relief take an appeal, even though the plaintiff feels that the injunction was properly denied.

That's not what we're saying.

We're saying the Fourth Circuit...

Justice Souter: On your rule, the plaintiff is always going to feel that, because the plaintiff is going to know that in fact reliance on the penalties is going to get him nothing, because there won't be any penalty left, and he'll have to appeal the denial of the injunction, or he'll get nothing.

Mr. Cockrill: Well, I think as a matter of statutory construction under the Clean Water Act you must always have... in order to get penalties, they must be coupled with a request for injunctive relief.

As a matter of Article III...

Justice Souter: And in your rule, in order to keep penalties, any penalty awarded must be accompanied by a continuing request for injunction at the appellate stage.

Mr. Cockrill: Yes.

Under the Clean Water Act, that's correct, but we're not suggesting that people take appeals in which they don't have a good faith belief.

In this case...

Justice Breyer: But I... well...

Mr. Cockrill: they made the decision not to do it, and that's all we're saying, is that once they made the decision to continue the litigation on appeal, seeking only a remedy that would not redress any injury that they had, that that, in effect, mooted the case...

Justice Scalia: Well, that turns...

Mr. Cockrill: of the Steel Company.

Justice Souter: That may leave an interesting question, but it turns the case into rather a sport, I suppose.

Mr. Cockrill: I don't think it...

Justice Souter: Nobody's ever going to make this mistake again, if you win.

Mr. Cockrill: Well, except if they take up the injunction and the civil penalties, I think Steel Company... Justice Kennedy said under the Lyons case and the Casey case, and also Ashcroft v. Mattis, you look at each remedy individually and if there's not Article III jurisdiction for a particular remedy, it's not going to save that remedy to couple it with a remedy such as an injunction that does have an Article... that is grounded in Article III.

Justice Breyer: No, but the problem is that if you admit that they have standing to get an injunction, because an injunction will stop repetition...

Mr. Cockrill: Yes.

Justice Breyer: and if you admit that in the long run, the mind run of cases, Congress could believe that in the mind run of cases, collecting these kind of penalties will stop repetition, then you must think that they have standing and redressability to get this kind of penalty.

That's the Article III argument.

That's why... that's the argument that once you go down the road of saying an injunction is okay, even though they're somewhat strangers, and once you say that this has the same effect, in many cases, as an injunction in terms of specific deterrence, even if not in yours... that's a matter for other places to decide... then you must say that there is standing here.

Chief Justice Rehnquist: Oh, I didn't understand you to say that you could waive the requirement of deterrence in a particular case.

What is your position there?

Justice Breyer believes that you've said that it's enough, as I understand it...

That Congress...

that Congress has found in the generality of cases that penalties will deter.

Right.

Now, do you agree with that?

Mr. Cockrill: No, sir, I don't.

Chief Justice Rehnquist: Well, what is your position?

Mr. Cockrill: My position is that, while Congress has noted a general deterrent effect, which I agree with, it's reasonable to presume that any penalty or sanction will have some unknown, general effect.

Traffic laws do.

Some people speed, some people...

Justice Breyer: Specific effect.

Mr. Cockrill: It... the specific effect will vary from person to person, and that's our position, that penalties are not specific enough, and you cannot predict the effect of a penalty on a...

Chief Justice Rehnquist: Well, but is your position, then, that penalties can never do the job, or that it's a case-by-case thing, that in some cases you can show that a penalty does have specific deterrence, or that since Congress has found that penalties are enough, that that would be true in all cases?

Mr. Cockrill: Well, I think in some cases, penalties will deter.

I would think it would be a bad thing to make... to send it back to the Federal courts for a case-by-case determination.

It's a difficult determination to make, Mr. Chief Justice, what the effect of a penalty is going...

Chief Justice Rehnquist: What is your position on it, though?

Mr. Cockrill: My position on...

Chief Justice Rehnquist: What is... do you agree that there was sufficient deterrence for Article III purpose in this particular case?

Mr. Cockrill: No, Your Honor, I don't.

I think the penalties that were imposed had no deterrent effect, because Laidlaw came into compliance on its own, and was basically on the verge of compliance before the citizens' suit was filed.

I think the penalty here were exactly because... what the district court said, I'm mandated to do it, and he based it entirely on past violations and then said, I believe this, with the other costs, will deter, but it is just too uncertain in any case, and it creates a lot of confusion, and that's especially shown here, where at one point in the Fourth Circuit the petitioners felt that these were an ineffective deterrent and now feel that they're an effective deterrent, and I think...

Justice Kennedy: Mr. Cockrill...

Mr. Cockrill: that shows the problem.

Justice Ginsburg: can I ask you, before you're finished with this other issue about counsel fees, there is a split in the circuits on the so-called catalyst theory...

Mr. Cockrill: There is.

Justice Ginsburg: which the Fourth Circuit rejected.

Is it appropriate for this Court, whatever it does on the mootness part, to resolve that circuit split on catalyst versus no catalyst, that you've got to get something positive from the judgment?

Mr. Cockrill: If you overrule the Fourth Circuit, and remand to the Fourth Circuit these other jurisdictional questions, I think it would be premature.

If you... I think the Government takes that position, too, that that should be handled on remand.

If you...

Justice Ginsburg: But handling it on remand, if you're a district court, you already know what your circuit court has said, that is, no catalyst theory, so it would leave this...

Mr. Cockrill: What I'm saying, Justice Ginsburg, is, on remand to the Fourth Circuit, to consider the standing argument based on lack of harm and the statutory jurisdiction argument based on the diligent prosecution, subject matter defense, if you send those back to the Fourth Circuit, then I think it would be premature for this Court to decide the attorney's fee issue.

The Fourth Circuit may decide that there was no initial jurisdiction, either constitutional or statutory, and that will resolve it.

If you affirm the Fourth Circuit and say they were correct, then it might be proper that the case did become moot at the time they appealed.

Then I concede that it may be proper to take up the attorney's fees issue at that time.

Now, I wanted... in the few remaining minutes that I have, I wanted to address a question by Justice O'Connor.

You asked, did the closure moot.

I think it clearly did.

We did retain the permit.

In our Rule 21 suggestion of mootness motion we have an affidavit that says why we did that, to make it more attractive to a prospective purchaser, kind of like someone who sells a restaurant and keeps an ABC license.

It's easier to transfer.

The more... perhaps the more difficult question is, if we did moot it by our unilateral action, what should happen, and I would ask the Court to keep in mind the Bonner Mall decision that says the Court may make a disposition of the whole case, as justice may require, taking into account the nature and character of the conditions that led to the mootness.

Rebuttal of Bruce J. Terris

Chief Justice Rehnquist: Thank you, Mr. Cockrill.

Mr. Terris, you have 3 minutes remaining.

Mr. Terris: Your Honors, in both Tull and Romero-Barcelo this Court said that the Clean Water Act's penalties were intended to deter, as... and of course it had other purposes as well.

The district court specifically found, and this is on the joint appendix, on page 182, that the penalty that it was imposing, together with attorney's fees which it contemplated the plaintiffs would receive, and the attorney's fees which the defendant's counsel obviously have received, would constitute deterrence, so the... Laidlaw's argument before this Court that there is not specific deterrence in this case is in the face...

Justice Breyer: Well...

Mr. Terris: of the determination by the district court after 10 days of trial.

Chief Justice Rehnquist: Could the district court, Mr. Terris, simply say to defendant, I know you've hired a very expensive lawyer in this case, you're going to have to pay him a lot of money, so we don't need any more deterrence for your violation?

Mr. Terris: Well, Your Honor... Your Honor happens to have hit on one of the central grounds of our appeal to the court of appeals, which was that we take the position that the economic benefit has to be stripped from the violator without taking into account attorney's fees, particularly since the attorney's fees could not be known to the district court at the time.

I think that was a mistake.

But the point that I'm making here is, because that issue is... clearly is not before Your Honors, the point that I'm making to Your Honors is that the district court clearly found that the penalty it was imposing was a deterrent against future violations, that is, specific deterrence, and I submit that it is a concrete benefit to the plaintiffs.

I want to come back to the question about whether... whether, if you deny injunctive relief, then you can't grant civil penalties, that injunctive relief is not a lesser form of relief, and I think that is very clearly shown in Romero-Barcelo.

There, this Court said that injunctive relief should not lie under the facts of that case under the Clean Water Act, but it then pointed out, although it did not faithfully anticipate this Court's later ruling in Department of Energy v. The State of Ohio about sovereign immunity, but it then pointed out that penalties were an alternative to injunctive relief, and I submit to Your Honors that is exactly what we have in this case.

What the district court found was that there was... that there was not enough likelihood of violations to justify the extraordinary relief of injunctive relief.

It said that the defendant did not need to show no chance of violations in order to defeat injunctive relief under the ordinary four-part test for injunctions, but it then quite clearly said, when it got to civil penalties, that that was a deterrent, and it would stand in place of injunctive relief.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Terris.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The Oyez Project

Featured:

Mosley v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:14 +0000

Case:

Mosley v. United States

Media File:

97-7213_19981014-argument.mp3

Related Transcript:

1998_97_7213_argument.xml

Transcript:

Argument of Donald J. McCauley

Chief Justice Rehnquist: We'll hear argument next in Number 97-7213, Sylvester Mosley v. The United States.

Mr. McCauley.

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

The issue in this case...

Chief Justice Rehnquist: Just a moment, Mr. McCauley.

Spectators are admonished, do not talk until you get out of the courtroom.

The Court remains in session.

Proceed, Mr. McCauley.

Mr. McCauley: The issue in this case is, if this Court is to imply a mens rea element in the Federal bank robbery statute, as both sides concede it must, then the Court's decision in Morissette v. The United States governs.

In Morissette v. The United States, the Court held that it would imply a specific intent element into a statute that codified a common law crime.

Chief Justice Rehnquist: There, the statute itself had no intent requirement, did it, in Morissette, statute by its terms.

Mr. McCauley: That's correct, although I believe there was mention of a knowingly in the Morissette case, a general intent, and this Court held that where the legislature, Congress was codifying a crime that was a crime at common law, it considered the whole tradition of the common law, wherein an evil intent had always been either a specific element of the statute of common law, or the understanding of the case law common law, so when the Congress was legislating against that common law backdrop, this Court held a statute that did not have the literal word intent, or evil will, that was not deleted by Congress through inadvertence, that the Court would require a specific statutory statement by the Congress saying that it intended and directing that its intention was contrary to the common law understanding that an evil intent was always there.

Chief Justice Rehnquist: What we're talking about here, I guess the question presented is whether bank larceny is a lesser-included offense of bank robbery, is that right?

Mr. McCauley: Yes.

Chief Justice Rehnquist: And the reason that intent is important, and that's why you're talking about it, is what?

Mr. McCauley: Is the larceny statute specifically has an element, intent to steal, whereas the current codification of the bank robbery statute does not have the word intent.

It has the steal language in that there's a phrase, to take from the person or presence of another, which is the definitional term for steal.

Chief Justice Rehnquist: And if intent is read into it, then it... bank larceny is a lesser-included offense, and if intent is not read into the robbery statute, then bank larceny is not a lesser-included offense?

Mr. McCauley: Yes, Your Honor, under this Court's holding in Schmuck.

If it is read in, and we have the definitional phrase connoting steal, then it mirrors the elements that are at issue in the lesser offense, the intent to steal.

Justice Souter: Well, even if that is so, don't you have a problem in this case, because the lesser-included offense that you ask the charge to be given on was the more serious of the two larceny offenses, i.e., theft of something more than 1,000, and there's no requirement of value of more than 1,000 in the robbery statute, so is it not... I guess another way to put my question is, is it not the case that if you're right so far, the lesser of the two larceny statutes may be a lesser-included offense, but the one you asked for, which requires proof of more than 1,000, is not?

Mr. McCauley: No, Justice Souter.

The $ 1,000 threshold that's in the two paragraphs of the larceny statute is not a requisite element of larceny.

Justice Souter: Well, why isn't it?

It is, as you just said, in a separate paragraph.

That's not usually the way sentencing elements are described.

Mr. McCauley: I submit that the $ 1,000 threshold is to distinguish between a felony larceny, felony bank larceny...

Justice Souter: Mm-hmm.

Mr. McCauley: and a misdemeanor bank larceny.

Now, the crime of robbery is always a felony, and we were charged in the indictment with a crime of robbery, and the indictment set forth amounts more than $ 1,000, $ 9,000 in count 1...

Justice Souter: Yes, but the test is not whether this is lesser-included within the meaning of the indictment as it charged the crime in fact.

It's... the test is a reference to the statutory elements and, if that's the test, then an element of more than $ 1,000, it seems to me, defeats your case.

Mr. McCauley: That's why it is our position, and we urge the Court, that the $ 1,000 mentioned in the two paragraphs of the larceny statute is not a requisite element.

Justice Souter: But if we take the position that it is a requisite element, that's the end of your case, right?

Mr. McCauley: I don't believe so, because there's language in the robbery statute regarding monetary value.

Justice Souter: Yes, but there's nothing about $ 1,000.

If I steal... if I rob the bank teller of $ 1, I've committed the robbery offense.

I've not committed the $ 1,000 larceny offense.

Mr. McCauley: No.

You would have committed the misdemeanor larceny offense.

Justice Breyer: I take it you think the $ 1,000 is simply an amount that triggers different punishment levels.

Mr. McCauley: Yes, and I think it's illustrated by the indictment requirement, the Fifth Amendment right to indictment, where any felony we're entitled to a right to an indictment, where you wouldn't be entitled to a right to an indictment on a misdemeanor larceny.

Justice Scalia: Well, you said in your brief that the model instructions for this crime also support your position, but those model instructions tell the jury first to find whether there's been larceny, and then if they do find it, the jury finds whether there's been $ 1,000 or more of value involved.

It goes to the jury, doesn't it, under those model instructions that you cite?

Mr. McCauley: Yes.

If that is...

Justice Scalia: Well, why would it go to the jury if it's just a sentencing factor?

Mr. McCauley: Only if that issue is being litigated.

Justice Scalia: Why would it go to the jury even if it's being litigated?

Why wouldn't it be a matter for the judge?

Mr. McCauley: If there were... if there was evidence issues regarding the exact amount of the money the triggers...

Justice Scalia: When there's evidence issues on a sentencing factor, it goes to the jury?

Mr. McCauley: No.

If there were, under a particular scenario, evidence to support either...

Justice Scalia: Under those model instructions the question of $ 1,000 goes to the jury I think because it's a separate crime.

Justice Ginsburg: The Third Circuit dealt with this question.

What did they say about it?

They dealt with the amount.

Mr. McCauley: In a footnote, they said this is not an element.

They said it had... it was not a requisite element, that common law, Congress did not when it legislated consider this a requisite element, when it took the common law terms and laid them out in what is a larceny.

Justice Scalia: Mr. McCauley, I know you didn't intend this, but when you set forth section 2113 on page 2 of your brief I find it misleading.

It shows subsection (b) as containing only one paragraph, whereas in fact, as shown in the Government's... the appendix to the Government's brief, page 2a of the appendix, subsection (b) contains two separate paragraphs, one of which is the $ 1,000, and the other one is no value requirement at all, and I think that makes a big difference as to whether you consider this just a sentencing factor or a separate offense.

Mr. McCauley: Oh, it is a critical difference.

Justice Scalia: Well then, why didn't you set forth the whole statute instead of just that one paragraph?

Mr. McCauley: Well, we apologize if that... we did not believe that that was at issue, that the Third Circuit, the court below dropped a footnote, said this is not an element, it's clearly a distinction between felonious... a felony and a misdemeanor.

Our understanding of the case law was that that's the reason for the S1, 000.

The critical element that the court below was saying is missing from the robbery statute is this intent to steal, and the position is that that has always been in the robbery statute.

The Government concedes it was a requisite element up until 1948.

It's only with the recodification of title XVIII in 1948 that the word intent in the form of the term felonious is deleted, and that's explained by this Court in the Prince matter, that it was just a change in phraseology, and that...

Justice Kennedy: Suppose the statute first said that robbery must be done with intent to steal and to take away, then 2 years later the Congress excises that phrase intent.

What would we take Congress' purpose to be, just by comparing the two statutes?

Mr. McCauley: Under the Court's holding in Morissette, and reaffirmed 4 years ago in Staples and X-Citement Video, you would require a specific statutory statement saying that we are acting contrary to the common law understandings of a common law crime.

Justice Kennedy: In other words, you understand Morissette to say that Congress has to say, we are enacting the statute contrary to the common law and the foregoing paragraph is to be interpreted accordingly?

Does Congress have to say that?

Mr. McCauley: Yes.

That's my understanding in Morissette with respect to common law crimes, crimes that were malum in se at common law, not crimes that are malum prohibitum.

As the Morissette case says, if we were dealing with just regulatory offenses, it would not... if this Court, under its holding in Morissette, would not require a specific contrary statement by Congress.

But the Court stated in the Morissette opinion absent a specific statement to the contrary we will imply this scienter requirement, this mens rea, this intent, and there... and I think what's also illustrating...

Justice Kennedy: Well, but Morissette didn't... or maybe it did.

Correct me if I'm wrong... didn't involve the hypothetical that I put of a statute which is specific, and then a statute that's changed the next year, not as part of a recodification, just suppose that Congress changes the one specific statute.

Morissette didn't involve that instance, did it?

Mr. McCauley: Yes.

Felonious had fallen out of section 641, the statute that was interpreted in Morissette, and the Court...

Justice Kennedy: Felonious did.

Felonious did, but what... suppose the words were, with intent to steal.

Same rule?

Mr. McCauley: Yes, the same rule, because the Court in Morissette said, anything, these critical elements, whether they be actus reis or mens reas, that had been established in the more important part of criminal jurisprudence, they are not changed...

Justice Kennedy: Well...

Mr. McCauley: by inadvertence.

Chief Justice Rehnquist: Well, that was an... that's an extraordinary position you're taking, that in... the statute at one time says with intent to steal, and Congress passes a law saying, we repeal the requirement that there be an intent to steal, and you're saying in effect Congress can't do that.

Mr. McCauley: No.

No.

Then that is a specific statement that the Court is looking for in the Morissette analysis.

Chief Justice Rehnquist: So all you need, then, is an express repeal by Congress of an intent requirement that was formerly there.

Mr. McCauley: Yes.

That is my understanding of Morissette.

Justice O'Connor: But you have that here.

Justice Scalia: But you have that here.

I mean...

Mr. McCauley: No.

The legislative history is silent on that, and the legislative history...

Justice Scalia: I don't care about the legislative history.

Feloniously was there, and feloniously was repealed.

Mr. McCauley: And it was explained in the Prince case as a change in phraseology to tidy up the statutes.

Justice Scalia: Well, but then you have to answer the Chief Justice's question differently, and you have to appeal to legislative history instead of simply asking... answering his question that it... that you accept the fact that if the word is there, and is then repealed by Congress, the common law requirement is eliminated, because that is the situation here.

Mr. McCauley: I understand the Chief Justice's question to say if Congress says we're repealing that, that is a specific statement to the contrary...

Justice Scalia: Congress has to say it in addition to passing the statute that says it?

Mr. McCauley: A specific indication that it is acting contrary to the common law...

Justice Scalia: You need legislative history to confirm what the statue says, or else the statute is ineffective to do that?

Mr. McCauley: If you have it.

If you don't have legislative history, you look at the text, and you understand the text, and if it's a common law offense, the Court's... under the Court's precedents an implied... specific intent will be implied in...

Chief Justice Rehnquist: That's an equally extraordinary position, it seems to me.

You have a situation where the statute at one time says, with intent to steal, and then Congress passes a law that says, you know, enacted by Congress and so forth, that the words intent to steal are hereby deleted from the statute, and there are no committee reports, no legislative history.

Now, does that successfully get rid of the intent to steal requirement?

Mr. McCauley: Yes.

That's a specific statement by the Congress that it is deleting that element that has previously been there.

Chief Justice Rehnquist: Well, it isn't a... it's not a specific statement.

It's a deletion, and that, I gather, is enough.

Mr. McCauley: Yes, and it is changing.

It is changing the requisite elements.

Here, they're...

Justice Scalia: That is not the situation here because the legislative history, in your estimation, shows what?

Mr. McCauley: That felonious was deleted as a matter of phraseology to tidy up the statutes in 1948 that had become cumbersome through the repeated use of the term, felony and misdemeanors.

Justice Souter: We don't... as I understand it, we wouldn't necessarily have to go to legislative history for that conclusion, would we, because I assume what we would find, if we went through the codification, is that two things happened.

They took out the word feloniously in all the statutes that used to have feloniously in it, and they simultaneously enacted a new definitional section which described as a matter of definition what a felony is and what a misdemeanor is, and I take it we could infer from that, without even getting to legislative history explanations, that what they were doing, as you said, was sort of tidying up.

They were taking out what they thought were merely useless words of classification, but nothing more.

Is that fair to say?

Mr. McCauley: Yes, and what they did not delete... and in 1937, that was the first modification of the original bank robbery statute that was enacted in 1934.

The Prince case explains and the legislative history is not malleable on this.

The statement is, it's an act, the 1937 act is an act to include lesser-included offenses of robbery, and it was in response to the Justice Department writing to the Congress saying, they had an example where someone went into the bank and took the money, but there was no force, threat, or intimidation, and they couldn't be prosecuted under the robbery statute because of the robbery's requirement of that extra element of force, threat, or intimidation.

And the Congress responded and entitled the act, Bank Robbery and Incidental Crimes, and their statement in the legislative history specifically stated, this is an act to amend the bank robbery statute to include the lesser offenses of bank burglary and bank larceny.

Justice Ginsburg: They said the words, lesser offenses?

Mr. McCauley: Yes.

Justice Ginsburg: Because it's one thing to say they filled a gap that the bank robbery statute left open, and another to say that the way they filled it was by creating a lesser-included offense.

Mr. McCauley: Yes.

I believe the statement, preface statement is, this is an act to amend the robbery statute to include the lesser offenses.

Chief Justice Rehnquist: But Prince deals with the merger of offenses, doesn't it?

It doesn't talk about the same thing we're talking about here, lesser-included offenses.

Mr. McCauley: That's correct.

The Prince case held that there couldn't be pyramiding of punishments.

If the actual robbery is completed, and the person had been indicted for the completed robbery and also indicted for the unlawful entry with the intent, that the... those elements would collapse in and there could only be one punishment.

The Court struck down the consecutive sentences in Prince.

I cited the Prince case for the explanation of what... how felonious does not appear in the current statute, where it always did appear in the original enactment and then in the amendment in 1937, because that is the critical term that is missing.

I think what's also illustrates this, and it's the Government's brief at page 11, when they recite what they say are the requisite elements of the bank robbery statute, they do not recite the language, to take from the person or presence of another.

The definitional term of the word steal, it's there in the text.

The Government overlooks it in its recitation on page 11.

It also overlooks it when it draws this Court's attention to other robbery statutes that the Congress has enacted on pages 14 through 15 of the Government's brief.

It deletes in their recitation... and it's included in the whole appendix, but not when they have it in the body of their brief, these... the critical definitional term for steal, to take from the person or presence of another.

Justice Ginsburg: Then what you're saying is that the bank larceny statute is simply redundant.

Both statutes use the word take, but the bank larceny statute goes on to say, and carry away with intent to steal, so I gather what you're telling me now is that the words, carry away with intent to steal, are surplusage, that all it takes is the word take.

Mr. McCauley: They were used... at common law the statutes had used the word take, and also carry away, as delineating various elements.

It was a requirement of asportation, was the term that was used.

There had to be some movement.

Justice Ginsburg: Would the bank larceny statute be any different, would it cover anything less, if it simply read, takes, and left out the words, carries away with intent to steal?

Mr. McCauley: If the carries away was taken out, there wouldn't be this asportation, of the movement...

Justice Ginsburg: All right, with intent to steal.

Justice O'Connor: It just...

Mr. McCauley: of the property with intent to steal.

Chief Justice Rehnquist: If it just said take...

Mr. McCauley: Yes, and I say the greater offense, robbery, also has this asportation requirement in the definition of steal, and take...

Justice Scalia: What if it says, takes and carries away, but does not say, with intent to steal or purloin?

Mr. McCauley: Then it's not a larceny.

That was a requisite element at common law.

Justice Scalia: And we wouldn't read that element in?

Mr. McCauley: No, not that actus reis.

Justice Scalia: We would not read it in?

Justice Souter: We wouldn't read it into the statute?

Justice Stevens: Gee.

Justice Scalia: But you're asking us to do the same thing to (a).

Mr. McCauley: I...

Justice Scalia: Why wouldn't we do the same thing to (b), if that phrase was not in (b)?

Mr. McCauley: Because the evil intent was always a critical element, the means rea element, whereas whatever actus reis may have been required, but not...

Justice Scalia: Gee, I really don't understand your case, then, because I had thought that your case was, in describing common law crimes, Congress is often a little sloppy, and sometimes they leave out a word like feloniously.

It doesn't mean that it wasn't intended to be there.

They just leave it out sometimes.

Now I ask you if they left it out in (b), would that make any difference, but you say, oh, no, (b), if they left it out they would change the crime.

It would no longer be the crime of larceny.

Why can't they be elliptical in (b) just as you say they have been elliptical in (a)?

Mr. McCauley: I don't understand... if they take out the intent to steal element of larceny, my answer was that then it wasn't a larceny by definition in common law.

Justice Scalia: Now, I... oh, maybe what you... maybe the reason we're not... I don't mean that they take it away with the intent of taking it away.

They just delete it from the statute.

The next time the statute appears, they say, we've consolidated statutes, and there are too many words in these statutes.

We're going to take away with intent to steal or purloin, okay, the same thing that you say happened under (a), that they just dropped feloniously because it was too verbose, or whatever.

Suppose they did the same in (b), and they dropped with intent to steal or purloin.

Mr. McCauley: And they still labeled that bank larceny.

Justice Ginsburg: Yes.

Justice Scalia: Then it would still be larceny, wouldn't it?

Mr. McCauley: Absent a contrary expression that they were rewriting the common law, the Court could imply that requisite element.

Justice Ginsburg: I thought your position was that the word takes does it all, so why should the word takes be any different when you're talking about larceny than a robbery?

I thought you said that the whole thing that imports the idea of intent to steal is the word take.

You said that about the bank robbery statute, and now you're saying something different, no, you need more in the bank larceny statute.

Mr. McCauley: In the bank robbery statute, I'm relying on the Court's holding in Morissette and its prodigy to put that critical mens rea intent element in where felonious had been, and felonious had modified the definitional term of steal.

So up until 1948, we had intent to take from the person of another, intent to steal.

The element that the court below held as a matter of law does not appear in the robbery statute, and because it doesn't appear, the robbery statute doesn't embrace, fully embrace the requisite elements of the larceny statute.

So under Schmuck, as a matter of law, it's not a lesser-included offense.

I say, as a matter of law, intent is there implicitly, impliedly by the Court's precedents, and that when felonious was taken out, absent a specific congressional statement that they were doing that intentionally and not by inadvertence.

They were not looking to revolutionize the understanding of robberies and larcenies...

Justice Stevens: But there's another...

Mr. McCauley: which they recodified in 1948.

Justice Stevens: Isn't there another problem, that the criminal intent can be one of two kinds?

It can be a general intent to violate the law, which Morissette says we will always imply, or it can be more specific, an intent to deprive the person permanently of the property.

You could have the former without having the latter.

Mr. McCauley: Yes.

Justice Stevens: And I think one of the Government's argument is that, well, you have the former in (a) but not necessarily the latter, and what is your response to that?

Mr. McCauley: Well, that essentially turns the reasoning of Morissette on its head, because Morissette said, when we're dealing with statutory definitions or codification of common law offenses, we will imply this evil mens rea, specific intent.

I believe that is the holding and the rationale in Morissette.

We would not do it, we would allow for a general intent in other offenses, public welfare offenses, regulatory offenses.

But where Congress legislates in the traditional common law area of crimes, absent a specific statement, it will be the specific intent that the Court would apply.

Justice Breyer: I don't understand these words, specific intent, et cetera, so in my own mind it comes down to just what Justice Stevens said, that the difference, whether there's a specific intent or not, from any practical point of view, is whether a person who goes into a bank, puts out a gun, takes the money, goes out of the bank, but he did it with an intent to return the money, you see.

Unidentified Justice: [Laughter]

Justice Breyer: Now, if, in fact, he still committed bank robbery, they win, but if, in fact, he hasn't committed bank robbery, you win.

Isn't that what it comes down to?

Mr. McCauley: Yes.

Justice Breyer: Yes, and if it comes down to that, have you found any case, ever, in history, where there was such a person, where in fact he put the gun up... I mean, we found one, almost, in the Sentencing Commission, where a person who took some money with a toy gun to pay his veterinarian and... because he wanted the dog cured, and gave back the money when the dog died, I mean, but that was... that was an unusual case, and I'm not sure it applies.

So I take it we're talking about very unusual cases.

You've both done research.

I will ask both sides the same question.

Has any case that sheds any light on that particular question, rather than using these vague words, ever come up?

Mr. McCauley: The intent, in any case...

Justice Breyer: I don't want to use words like intent.

What I want to know is, has there ever been a case one way or the other where a person who did all these things for bank robbery, and he walked out the door, but he intended to give the money back.

In that sense there's proof he was going to give the money back.

He was just going to walk around the block with it and give it back, or the equivalent.

Now, that's what you say the case turns on, and I agree with you.

Now, has there ever been such a case, or the equivalent?

Mr. McCauley: There wouldn't be a reported case because I submit it's not a robbery, and he may not have been indicted.

Justice Breyer: No, no, there could be.

The Government or the State could have prosecuted somebody for that as robbery, and the judge would have had to decide, yes or no, is it a robbery.

That could have happened in the history of the 50 States, and common law and, I don't know, everything else, or statutes like this could have happened.

Mr. McCauley: I'm not aware of a case that, Your Honor, Justice Breyer...

Justice Scalia: I think I recall a case in which somebody walked in and was under the impression that money that was in the hands of a teller belonged to him, rather than to the bank.

Justice Breyer: That's another instance.

Justice Scalia: And he snatched the money violently out of the hands of the teller, and said, give me that, that's mine, and without the feloniously portion of this statute, that would have been a crime.

I don't remember where that case is.

Justice Breyer: Oh, no, but that's the other possibility.

I didn't...

I don't know any such case, but it's very possible for such a case to exist.

Justice Ginsburg: Didn't the Tenth Circuit in this case mention that as one possibility?

Mr. McCauley: Yes.

Justice Ginsburg: In the Brittain case, the Tenth Circuit... the Tenth Circuit gave two examples that seemed rather far out.

One was, it was... I thought it was my money that I was grabbing, and the other was, I really want to be put back in prison, so I actually intimidated the teller to give me the money, and I looked for the cops when I got out on the street so I could be caught and be put back in prison.

Mr. McCauley: Well, Justice Ginsburg, with respect to the first hypothetical, that I really thought it was my money, that had been a defense at common law.

Under claim of right, if a person was recovering their own money by force and violence, that could defend and defeat the mens rea, the evil intent.

However, Congress, in drafting this language, and the text of this statute, both the larceny provision and the robbery provision has the added language that takes away that defense of claim of right.

The added language is, the property or money in the care, custody, and control of the bank, so irrespective, the going in and saying, give me my money, if it's done by force, threat, in the presence of a person, it's a completed robbery, if... irrespective if it's your own money, because it's in the care, custody, and control.

So they broadened the common law...

Justice Kennedy: I don't understand that.

Justice Scalia: I don't understand why that, adding that it has to be in the care, custody, or control of the bank eliminates the requirement that you intend to steal, rather than intend to get your own money back, even though it is in the...

Mr. McCauley: Oh, it doesn't.

It doesn't.

My point was that it took away... that language takes away the common law defenses, but a defendant claiming right to the money, and therefore defeating the element of intent to steal, because...

Justice Breyer: No, I...

Mr. McCauley: If the money is in the care of the bank...

Justice Scalia: No, it isn't really his money.

He thought it was his money.

Mr. McCauley: Then I would say that's a completed robbery.

Justice Kennedy: I'd like to ask you, if I could, about section... subsection (c), which is at page 2a of the petition in the Government's brief.

The receiver of stolen property is guilty only if it's been stolen... only if there's been a larceny under (b).

Mr. McCauley: Yes.

Justice Scalia: Not under (a).

Mr. McCauley: Yes.

Justice Kennedy: Which way does that cut?

Does that distinction help you, or does it help the Government?

Mr. McCauley: Well, this distinction, I believe it helps us both, because it illustrates...

Justice Kennedy: That doesn't help me much, but...

Unidentified Justice: [Laughter]

Mr. McCauley: This Court's opinion in Gaddis interprets this statute.

This is a receiving stolen property, and in Gaddis it was similar to the Prince analogy of pyramiding and consecutive sentences, and I think a reading of the Gaddis opinion, which was issued prior to the Prince elements test, the Gaddis opinion I think is illustrative and instructive, because I believe the Court in Gaddis is assuming that 2113(b) is a lesser-included offense of 2113 (a).

This enacted in (c)...

Justice Kennedy: No, but on the other hand, it seems to me to help the Government in that the statute seems to envisage a situation in which property has not... in which there has been a robbery, but property has not been stolen, and that, it seems to me, helps the Government.

Mr. McCauley: Well, why it's not a lesser-included offense, and I would submit it's not a lesser-included offense of the robbery, where I submit (b) is, is because there's an additional element and there's additional purpose behind the text, and it's to go at other individuals, a different class of individuals, receivers of property, and that's what the Gaddis opinion explains.

So that's an additional class of people, a different purpose behind the text, and a different element, whereas I submit all of the elements within the text...

Argument of David C. Frederick

Chief Justice Rehnquist: Thank you, Mr. McCauley.

Mr. Frederick, we'll hear from you.

Mr. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

Bank larceny is not a lesser-included offense of bank robbery under the statutory elements test announced by this Court in Schmuck v. United States.

The plain language of the statute...

Justice O'Connor: Well, it might be if we read in the intent to steal requirement.

Mr. Frederick: No, Justice O'Connor, that's not correct, because even if you were to read in an intent to steal element in the bank robbery offense, there are two other textual indicators that suggest strongly that Schmuck test has not been met.

Justice O'Connor: Well, you say the take and carry, but robbery requires taking from, and that's close enough for Government work, as they...

Unidentified Justice: [Laughter]

Mr. Frederick: Not this Government, Justice O'Connor.

[Laughter]

Take had a distinct meaning both at common law and under this statute.

It means to gain caption over.

Carrying away is to move while supporting, and all of the commentators who have construed those terms say that carrying away is a distinct element, that one could gain caption over property in a bank, commit the robbery offense, but not carry that property away, and so we would submit that the omission of carried away is... is a significant omission for establishing the elements test.

I would first...

Justice Ginsburg: On that point, then, suppose the scenario is, somebody grabs $ 10,000 from the bank, they didn't use any force or intimidation, and they start walking away.

They're stopped at the door by the guard, so they didn't get away from the bank.

No bank larceny.

Mr. Frederick: Well, that's correct in those common law jurisdictions that it construed carrying away to go beyond the curtilage of the particular edifice.

Justice Ginsburg: I'm asking about this statute.

This bank larceny statute.

I'm in the bank, I grab $ 10,000, intending to make it my own, but I'm apprehended at the door before I cross the threshold, and get outside the bank.

Mr. Frederick: We would prosecute that person, and we would argue that carrying away had been satisfied, because the place where the person had taken the money or gained caption over it very likely was where the teller is, and the person had...

Justice Scalia: So as soon as he takes one step, he's carrying it away.

Mr. Frederick: It's a... that's correct, Justice Scalia.

Justice Scalia: This is a finely crafted statute.

You're guilty of that offense if you take a step, and you're not guilty of it if you don't take a step.

It seems very strange.

Mr. Frederick: Well, the commentators noted that the asportation requirement was a minimal one.

Justice Ginsburg, in further response to your question, there are jurisdictions that would not have found larceny on those facts because the carrying away had to go beyond the edifice, and typically it was a house where the larceny was...

Justice Ginsburg: Yes, but here we just want to know if this particular statute is a lesser-included offense of the bank robbery, so you're telling me that the difference between the two is one step.

You don't have to take any step in robbery as long as you used intimidation or force, but you do have to take one step...

Mr. Frederick: You have to make a carrying-away movement, and the jury must find that after it has been put in the indictment and proved beyond a reasonable doubt by the Government.

In the same...

Justice Scalia: No, finish your answer.

Mr. Frederick: No, I... in the same way that the Government must plead in the indictment under larceny that the amount taken was above $ 1,000 and the jury must find that.

That is an element of the larceny offense and not an element of the bank robbery offense, and we know that...

Justice Souter: Was it ever an element of the robbery offense at common law?

Mr. Frederick: No.

Justice Souter: So therefore, even on your position, even before the word feloniously was eliminated that still was not an element, and there was never this identity.

Mr. Frederick: The monetary requirement, or the feloniously requirement.

I'm...

Justice Souter: When feloniously was removed from the statute, assuming it did nothing more than have this tidying up, or classifying a function, it did not... it would be easier, I guess, to go back to my original question.

Before feloniously was removed from the statute, the Federal robbery statute never required an asportation because in your view that was not a requirement of common law and would not have been read into it under the words feloniously or in any other way, is that correct?

Mr. Frederick: Yes, but let me explain further, because the asportation requirement was a requirement of robbery at common law, and feloniously did not encompass the asportation requirement.

They were distinct.

If you look at Blackstone, Blackstone says feloniously takes and carries away, using force in the person or presence of another.

Justice Breyer: Right.

Mr. Frederick: So if I've understood the multiple parts of your question...

Justice Souter: No, I... you've answered my question.

You have said, it was a requirement at common law, but it was not comprehended by the word feloniously.

It had to be spelled out in the statute.

It was never spelled out in this statute, and therefore the removal of feloniously has nothing to do with the requirement under the Federal statute.

Mr. Frederick: Of carrying away, that's correct, Justice Souter.

Justice Scalia: But if you define an... call an offense robbery, and you define it, and suppose you left out carry away, I thought under Morissette and our jurisprudence that we would assume that the traditional asportation requirement was not eliminated simply by the failure to recite it.

Mr. Frederick: Well, I'm glad that you raised Morissette, because I think there is some confusion about what the Court addressed and what it held.

The Court in Morissette did not hold that when Congress has defined terms using non-common law words, and six of the eight elements of this bank robbery statute depart from the common law, Morissette did not say you read in common law requirements.

In fact, in Morissette, as the Court explains in footnote 28 of its opinion, in describing the drafting history of section 641, Congress used the word converts, which was a common law word, and the question before the Court was, what did Congress mean when it used the word converts?

It had not appeared in any of the predecessor sections of that statute, and so what the Court held was that in tort cases a conversion could occur by an unwitting action if there was some negligence or something in the interference with the property rights of the true owner.

So in reading... but at common law the crime of conversion required an intent to steal, so what the Court held in Morissette was that because Congress had used the words, knowingly converts in a crime, that it must have meant to include the intent to steal, because otherwise innocent conduct would be subject to the criminal sanction.

Chief Justice Rehnquist: Congress had not used any words other than knowingly convert.

Mr. Frederick: Well, it used embezzlement and steal, but the Government's prosecuted theory...

Chief Justice Rehnquist: Was based on the converts.

Mr. Frederick: That's correct.

Justice Kennedy: That footnote also says the 1948 revision was not intended to create new crimes but to codify those then in existence.

How would you describe what happened here in light of that statement?

Mr. Frederick: What we know, Justice Kennedy, is that the word feloniously was removed from the statute.

The reviser's notes don't explain why.

The reviser just simply says that there were changes in phraseology, so we do not know what Congress was thinking when it omitted those words.

Justice Kennedy: So we do not know whether it intended simply to recodify or, on the other hand, whether it intended to create new crimes with new definitions.

We just don't know.

Mr. Frederick: That's unfortunately correct, Justice Kennedy.

I would point out that 2 years before the...

Justice Stevens: Wasn't there a general statement that the whole revision was intended to be a mere codification?

Mr. Frederick: Yes, but this Court in Wells held that an omission of a word that had appeared in prior versions was not going to be read back in, and materiality in Wells was an element of the offense.

Justice Breyer: Suppose, then, we said there are two choices.

Choice 1 is that Congress, in putting the word steal in the one and not in the other... it ended up that way, didn't it?

And robbery doesn't have the word intent to steal, larceny does.

Mr. Frederick: That's correct.

Justice Breyer: One possibility is that's simply an oversight, or they assumed it would be read in, and the other possibility is no, Congress did it purposely, leaving out the words, intent to steal, or feloniously, because Congress wanted to be sure that the person in Justice Scalia's hypothetical who unfortunately is trying to steal his own money, or the person in my hypothetical who, in fact, takes it out the door, walks around the block and wants to give it back, that that's what Congress wanted to do.

Congress wanted to punish those two people.

Now, those seem to be the only two hypotheses I can think of, and it's obvious from the way I've stated it that I find the second hypothesis totally fanciful, but perhaps... I mean, there's never been such a case, there never will be such a case, so the notion that Congress wanted to punish those two cases which will never occur is fanciful.

The notion that it wanted to keep the same requirement, and had nothing more in mind than everybody read it in, is not fanciful, so what's your response to that?

Mr. Frederick: 2 years before Congress codified the laws in 1948...

Justice Breyer: Yes.

Mr. Frederick: it enacted a definition of robbery in the Hobbs Act which did not contain an intent to steal, but which underscored the seriousness Congress attached to forceful takings of property in the presence or from the person of another, and it is clear, as Judge Coffin in the First Circuit said in the DeLeo case in 1970 that the acts of robbery are so unambiguously dangerous as to make implicit the mental element underlying the offense.

Our position is that robbery and the way Congress has defined it go to the means that the person uses to take the property from another, whereas larceny is addressed to the ends that the person intends when he has taken the property, and they are two different offenses.

Robbery is an offense against the person, and larceny is an offense involving property.

Justice Scalia: Are there cases involving the Hobbs Act... there's none in this Court... in which we've said that the intent to steal does not... is not included, but are there cases in the courts of appeals?

Mr. Frederick: There are cases in the courts of appeals that hold that the Hobbs Act does not require an additional mental element of intent to steal or other... any other special intent requirement, as Congress drafted in three different provisions of the bank robbery statute.

The knowing, knowing that the stolen property, the receiver of stolen property has to know that it is stolen in 2113(c), in 2113(b) the intent to steal, and in second paragraph, 2113(a), the bank burglary offense Congress drafted that the person entering the bank has to do so with intent to commit a felony.

So it is clear that there are specific textual indicators of this statute that underscore that Congress knew how to include a special mental element but did not do so in the bank robbery offense.

Chief Justice Rehnquist: Let me ask you, Mr. Frederick, about the common law defense to the crime of robbery, and as I understand it, or your opposite counsel, that it was a defense if the defendant thought it was his own property.

Mr. Frederick: That's correct.

The...

Chief Justice Rehnquist: But I suppose no reasonable defendant could think that a bunch of dollar bills in a drawer in a bank were his own property.

He might think that he had maybe 10 days earlier deposited another bunch of dollar bills, but certainly he wouldn't think that the particular dollar bills that he cashier gave him under the threat of a gun were his own property.

Mr. Frederick: I think that's reasonable, Mr. Chief Justice.

Justice Scalia: Well, that may be, but then why does that appear in (b)?

Mr. Frederick: It appears...

Justice Scalia: Which also applies only to money in the possession of any bank, credit union, or any savings and loan association, and it specifically requires an intent to steal or purloin.

Mr. Frederick: Traditionally a person could take money.

A person who goes into a bank has... you know, fills out the deposit slip or the withdrawal slip in a certain way and takes out $ 1,000, intending only to make a withdrawal of $ 100, and the teller says, hey, wait a minute, you've just walked out of the bank, you have taken $ 1,000 from the care, custody, or control of the bank.

That is not larceny unless the person had the intent to steal the money.

An innocent taking would not be criminalized in the same way that a person who went into the bank with a gun and said to the teller, give me $ 1,000, would be regardless of what the robber ultimately intended to do with the funds.

Our position is that that dangerous activity by a robber fundamentally makes robbery a different offense from larceny.

Justice Breyer: Can I ask a question about the $ 1,000, because you've only... you've devoted about three or four sentences in your brief, but it is different, and the jury does have to find, I take it, the 1,000, is that right?

Mr. Frederick: Yes.

Justice Breyer: All right.

But if we say... I don't know how to deal with that.

That is, it would seem to me that if that's what makes the difference, then in instances where Congress could really want a lesser-included offense... say, (b) is lesser-included of (a), let's say.

And then it takes (b) and it divides it into two or three parts, one part being a misdemeanor, another part being a felony, another part being a more serious felony, it would turn out even though Congress wanted it to be a less... a lesser-included offense, you never could get the charge, because you'd have to pick (a) or (b) or (c).

You see, you'd have to pick version 1, version 2, or version 3, since one or the other would fit your case, and then the fact that there were these two other versions would prevent you from getting the charge, so I can't work it out.

Mr. Frederick: Justice Breyer, we would concede that a case arising, a question under second paragraph (b) is a much more difficult one than under first paragraph (b), but let me emphasize, and I'm looking at 2a of the appendix to our brief where the language is set forth, the with... not exceeding $ 1,000 is right between two elements of the offense.

Chief Justice Rehnquist: You're talking about the first paragraph of (b)?

Mr. Frederick: Yes.

Chief Justice Rehnquist: Or the second paragraph?

Mr. Frederick: The first paragraph of (b).

The value exceeding $ 1,000 occurs between two elements of the offense.

It occurs to us as an untenable argument to make that exceeding $ 1,000 is not an element of the offense.

And furthermore, there would be a grand jury clause problem if we were not to charge it in the indictment.

Justice Breyer: That's true, but what worries me is, imagine the other two elements are out of the case.

Suppose Congress wrote (b)... you know, both parts of it, both parts of the bank larceny statute in identical words to (a), so robbery, absolutely identical but for the force or violence.

And now what it does is, instead of having one provision saying that, it has two provisions saying it, distinguished only by the $ 1,000.

All that Congress wanted to do there is make it a felony or make it a misdemeanor, but the felon couldn't get... you see, then no one could get the lesser-included charge simply because of that fact.

That can't be right, but I don't know why it isn't right.

Mr. Frederick: I would concede it is a much more difficult question, but let me point out that in either circumstance Congress was talking about property that was subject to monetization.

It had to be property with a monetary value.

There are circumstances in which a robber could ask for property that could not be given a monetary value such as, give me the blank checks that are in your till.

Give me the account information of all of the people who have more than $ 1 million in this bank.

Give me the computer access codes so that I can go home and I can get into the bank.

You know, that kind of information is very valuable to a robber, but would not necessarily be subject to the monetization requirement, and the prosecution in that kind of bank robbery would not have to prove beyond a reasonable doubt that there was some monetary value, and the jury would not have to find it.

We would simply have to establish that the robber had used force within the person or presence of another to get anything of value, and I think we would be able to satisfy the requisites of the offense in a prosecution of that type.

Justice Souter: Yes, but when you do that, what you have done is to prove the misdemeanor variety.

You have proved that there is some value, but you have not proved that the value is over $ 1,000, so you've got a simple lesser-included in that case.

Mr. Frederick: Well, it depends on...

Justice Souter: Isn't it... I'm...

Mr. Frederick: Justice Souter, that is a very difficult question, because the wording of second paragraph (b) is not exceeding $ 1,000, so you know, the question is, what does that mean?

Our position is that the offenses...

Justice Souter: Well, it means... since you have the burden of proof, it means anything that you have proven... anything that you have not proven to have a value exceeding a 1,000.

Mr. Frederick: We construe the provision to be property that is subject to some kind of monetary valuation.

Justice Souter: Why isn't the better answer to the problem... I mean, we all have it.

Justice Breyer articulated it, but I mean, this strikes us all as odd.

But why isn't the answer to it, Congress could put in a sentence and say that in an indictment that charges property of value exceeding $ 1,000... I'm sorry, that in an indictment for robbery that does not specify value, that depending on... that either of the subparagraphs may be treated as a lesser-included offense?

Mr. Frederick: It could certainly have done that, Justice Souter.

Justice Souter: You know, depending on the value that's actually proven at trial.

Mr. Frederick: Absolutely, and I would like to make one other point about this statute in that regard, that in the subsections (d) and (e) Congress did use very similar language to make clear that (a) and (b) were lesser-included offenses of aggravated robbery where the person had been assaulted or there had been a death ensuing.

And the way Congress worded that made it clear from the very first provision of the bank robbery statute in 1934 there was a lesser-included offense for simple bank robbery versus aggravated bank robbery.

Justice Souter: In effect a special rule to get around Schmuck in cases like this.

Mr. Frederick: No.

The point is that Congress did not intend to make bank larceny a lesser-included offense of bank robbery, and we know that from the various textual indications in the statute.

Justice Souter: No, but if it wants to there's a simple way to do it.

Mr. Frederick: Well, no, because...

Justice Souter: Without getting into a Schmuck elements problem.

That's all I'm saying.

Mr. Frederick: I don't think Congress could get around that, Justice Souter...

Justice Breyer: Why?

Mr. Frederick: because the prosecution would still have to prove all of the elements.

It would simply have to prove the additional element.

Justice Scalia: You mean, you can't make it a lesser-included unless it is a lesser-included.

Mr. Frederick: That's right.

Justice Scalia: You can only make it a lesser-included by defining the elements in such a way that it is.

Mr. Frederick: Yes, or saying we incorporate this subsection in all of the elements.

Justice Souter: Why is that so?

Mr. Frederick: Because the elements...

Justice Souter: Why can't Congress say, we're going to treat this as if it were a lesser-included, depending on the proof that is adduced at trial?

Why can't Congress do that?

Mr. Frederick: Well, I think Congress can do that, but the way it would have to do that would be by reference to the prior offense, or the greater offense, and taking out a subset that would not have to be proved.

Justice Kennedy: Well, if that...

Justice Scalia: Mr. Frederick, you've said that (a) is not a statute that uses common law terms, that there are a lot of things in the first paragraph of (a) which are not common law robbery terms.

What in particular, by force and violence?

Isn't that the standard requirement?

Mr. Frederick: At common law the phrase was, force or putting in fear.

It's broader in this by including force and violence or by intimidation, which is not... is close to putting in fear, but we would submit not of the same degree of magnitude in terms of force, that there is no intent to...

Justice Scalia: Gee, I don't think that's very much difference.

Do you think they meant something different by saying by force and violence, or by intimidation they meant something different than by...

Mr. Frederick: I think they meant for...

Justice Scalia: force or putting in fear?

Mr. Frederick: I think they meant for it to be easier to establish.

Here, in this case, for instance, it was an intimidation theory, where the defendant in this case went to the teller, in one case used a sign saying, hold-up, and frightened the teller.

It...

Justice Scalia: Now, that is to say, put the teller in fear.

I think you intimidate somebody if you put them in fear.

Justice Kennedy: I don't...

Mr. Frederick: Well, let me move to another one...

Justice Kennedy: Yes, try...

Mr. Frederick: that may be more persuasive to you.

Justice Scalia: What else is there?

I mean, I understand the later portion, or obtains, or attempts to obtain by extortion.

Well, that's fine, but that's a different section of it.

That's not the robbery section, I wouldn't say.

Mr. Frederick: That's correct.

Let's start with property.

At common law it had to be personal, tangible property that was taken.

Under this statute, there is no such limitation.

It's any property or money or any other thing of value.

Justice Scalia: Uh-huh.

Mr. Frederick: At common law, it had to be property of another.

Under this statute, it is belonging to or in the care, custody, control, management, or possession of any bank, credit union, or savings and loan institution.

It's a broader...

Justice Scalia: Even, presumably, if it's your own money, yes.

Mr. Frederick: That's correct.

Robbery of your own money would still be robbery under this statute.

As we've pointed out, there's no carrying away requirement, and there is no intent to deprive permanently of property, so...

Justice Scalia: Yes, but they could have been left out, because you acknowledge that sometimes in the Federal context, even in the State context, some of the elements, when a crime is defined, are left out, but without the intention of not requiring them.

Mr. Frederick: Justice Scalia, I would not want to concede that for purposes of this argument we would be taking...

Justice Scalia: Okay.

Mr. Frederick: the view that criminal offenses should be construed by courts to have common law concepts reinserted without some very clear indication that Congress intended to do that.

Justice Scalia: Fair enough.

Justice Breyer: In other words, if you know that the bank robber... sorry, the bank robber knows that the money on the counter belongs to him, the bank robber.

In fact, he's not a bank robber.

He's just an irate customer, and he gets so angry at the delay that that money that he knows is his, he threatens to punch the teller in the nose.

I guess that could happen.

The teller's taking a long time.

In your view, Congress intended to punish that as bank robbery?

Mr. Frederick: Yes.

Justice Breyer: Yes.

Is there any indication anywhere that Congress wanted to punish that as bank robbery?

Mr. Frederick: No, except for the words of the statute, which suggest that Congress wanted to deal with people who forcefully took property from the person or presence of another in a way that would be deemed in, I think, unsocial behavior, and that is the essence of our theory that robbery is fundamentally different because of the means the person uses to take the property.

Justice Breyer: But let me ask you, I'm still... I'm still not totally... I... and you might be helpful on this.

If... remember, I'm imagining that all your arguments are out of this case.

It is written identically, the larceny, to the robbery ones, and none of your arguments are there but for the force or violence, but for the $ 1,000.

I'm still... and you agree, I take it, or don't you, that if Congress had wanted, in (a) it has bank robbery, in (b) and (c) it has bank larceny, identically worded but for force in (a) and but for $ 1,000 in (b) and nothing in (c).

Justice Kennedy: All right.

Justice Breyer: Now, do you think Congress could have said, and by the way, being a little informal, we want (b) and (c) to be lesser-included offenses of (a)?

It could have said that.

Mr. Frederick: Yes.

Justice Breyer: And if it had said that, they'd be entitled to the charge.

Mr. Frederick: Yes.

I think that...

Justice Breyer: All right.

Then my question is, given a Federal Criminal Code with 4,000 sections, or 3,800, having been written at different periods with different drafting styles, with different understandings of law, don't we have to try to figure out whether Congress implicitly wanted to do that, rather than looking for some actual form of words in (a) that would tell us?

Mr. Frederick: Yes.

I do think that the Court has to do what it can to infer congressional intent, and the position that you've articulated is by far the most difficult...

Justice Scalia: Yes.

Mr. Frederick: hypothetical under this statute.

Chief Justice Rehnquist: Do you think that Congress gives a lot of intent in drafting statutes as to whether one is a lesser-included offense than the other?

Mr. Frederick: Well, in some instances it is clear that Congress has intended to do that.

In other instances, it is less clear.

Chief Justice Rehnquist: You say this is not one of them.

Mr. Frederick: Well, this is one where Congress did, we submit, think about the overall concept of lesser-included offenses, because it made aggravated robbery a greater offense of simple robbery.

Justice Scalia: Really?

Do you really think that a majority of the Members of Congress even knew that the word feloniously had been dropped from this provision, much less had a particular intent as to what the dropping of it meant?

Do you really think that?

Mr. Frederick: What we know is that the act that they all voted on did not have the word feloniously in it, and...

Justice Kennedy: It seems to me... I have one question under (c) again.

Under your view, if there's been a robbery under (a), then there can be no receiving stolen property under (c) without your going ahead and showing that the elements of larceny were really there anyway.

That seems to me a little odd.

Mr. Frederick: The omission...

Justice Kennedy: I mean, you're going to have robberies under (a) that you prosecute under (a), but then you have people who receive stolen property and you're going to have to show there's a (b) offense.

That seems to me a strange way to operate.

Mr. Frederick: It is, and the Court dealt with that in Gaddis by saying that it functionally was to be construed that the person... if the property had been stolen through a robbery, that intent requirement is what had to be established there even though the word a) doesn't appear in the subsection (c)...

Justice Kennedy: And to that extent it seems to me, even given Gaddis, that the (c) problem helps the petitioner more than you.

Mr. Frederick: Well, as to who it helps more, it's six of one, half-dozen of the other, because (c) also includes a special mental element indicating that Congress knew how to put special mental elements in these provisions when it wanted to, and it did not do that for the robbery provision.

So... Gaddis also says that (c) is not a lesser offense of (a) and (b), that it is a distinct offense because of the different elements that were required to be proved for that.

Now, I would like to make one final point before closing, and that is that a number of courts of appeals, in addressing the question of intent under this statute, have faced claims by defendants that they lacked the requisite intent to commit bank robbery either because they were involuntarily intoxicated or they were on LSD, or they had psychic problems, or some other nature that would negate the specific intent that they thought had to be proved under the provision.

An argument that robbery has such a special mens rea raises the specter that defendants will attempt to negate that element of intent.

Justice Stevens: May I ask you one historical question?

You mentioned some elements of this offense that differ from common law robbery such as the care, custody, and control of the bank and so forth.

Were those elements in the statute before 1948?

Mr. Frederick: Yes.

Justice Stevens: So if... so they don't show that the '48 revision made a change.

They are not evidence of the '48 codification changing the meaning of the statute.

Mr. Frederick: That's correct.

The 1934 act was whoever by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take from the person or presence of another any property or money or any other thing of value belonging to or in the care, custody, control, management, or possession of any bank, and the subse... I mean, that core language has basically stayed with the provision from 1934 to the present day.

If there are no further questions, we would submit that the decision should be affirmed.

Chief Justice Rehnquist: Thank you, Mr. Frederick.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Spencer v. Kemna - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Spencer v. Kemna

Media File:

96-7171_19971112-mq-argument.mp3

Related Transcript:

1997_96_7171_argument.xml

Transcript:

Argument of John W. Simon

Chief Justice Rehnquist: We'll hear argument now in Number 96-7171, Randy G. Spencer v. Mike Kemna.

Mr. Simon.

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

In September 1992 the State of Missouri revoked Randy Spencer's parole on the basis of the Board of Probation and Parole's finding that he had committed forcible rape, armed criminal action, and possession of crack cocaine.

After exhausting his State remedies, Spencer filed a Federal habeas corpus action asserting Federal constitutional violations concerning this revocation which would, if recognized, have required the court to hold it invalid.

About 4 months after Spencer filed his petition, the State released him on parole again for good behavior, but without expunging the order of revocation or abandoning its finding that he was guilty of these three serious felonies.

Nearly 2-1/2 years after he filed his petition, the district court dismissed it as moot.

In conflict with the decisions of every other United States court of appeals that had then issued a published opinion dealing with the subject, the court below affirmed the district court's dismissal.

An official governmental finding that one is guilty of forcible rape, armed criminal action, and possession of crack cocaine has collateral consequences like those of a criminal conviction per se.

Unknown Speaker: It does?

I thought that if you're convicted of a crime, A, then under the guidelines in many States when you're convicted of crime B your sentence automatically goes up, and I thought that wasn't true here, that if your parole is revoked there is no guideline or statute that says you get an increased sentence because of a parole revocation, though of course they could give you an increased sentence on the basis of that for which the parole was revoked.

Mr. Simon: Justice Breyer--

Unknown Speaker: Am I wrong, because... yes.

Mr. Simon: --Justice Breyer, I've two responses to that.

The first is that although it is not automatic in the case, it is not automatic that under the guidelines you would get it... you would get a higher sentence solely on the basis of the parole revocation, the parole revocation can force one's offense into the 15-year window--

Unknown Speaker: I thought... am I not... what I was saying is, I thought that that which does it is not the parole revocation, it is that for which the parole was revoked.

In other words, the defendant would always have a chance to say, but I didn't do this thing, I didn't commit... I didn't do that for which, and then the parole board or whoever, the court would consider, did he do it or didn't he do it.

You can't do that if you're convicted of a crime.

I just want to know if I'm right.

Is that right or not?

Mr. Simon: --I agree with--

Unknown Speaker: Tell me if I'm--

Mr. Simon: --I agree with what you're saying, Justice Breyer, but in Sibron this Court... this Court considered that question in respect to criminal convictions--

Unknown Speaker: --All right, but I mean, the first part was, is that right, and then if I'm right, then why... then you're going to explain why it doesn't matter.

Go ahead.

Mr. Simon: --Well... yes.

Thank you, Your Honor.

You are right.

You are right in that the parole revocation does not have exactly the same effect under the Sentencing Guidelines as a criminal conviction.

However, to put the burden on the petitioner and then defendant in the... under the guidelines of impeaching the parole revocation years after the fact has the same things wrong with it that it would have in the Sibron situation, where this Court said that we shouldn't require people to come in years after the fact when they have proceeded to litigate the claims under the rules as Sibron and Randy Spencer have done.

Unknown Speaker: But in Lane v. Williams we said that the same factors don't apply, that the parole revocation situation not becoming moot, we limited Sibron to say what it said, the legal consequences, and said that some of the other consequences that you're talking about did not prevent it from becoming moot.

You really... we must modify or abandon Lane v. Williams for you to prevail, must we not?

Mr. Simon: Certainly not abandon, Mr. Chief Justice.

Unknown Speaker: But considerably cut back on it.

Mr. Simon: I'm not even sure of that, Mr. Chief Justice.

Lane is distinguishable on numerous grounds.

The prisoners there neither challenged their parole revocations nor sought relief, nor put the consequences of those revocations at issue by seeking expungement of their records.

The target in Lane was the guilty plea way back when, not the parole revocation.

They were seeking relief from what they contended to be an involuntary guilty plea.

If--

Unknown Speaker: But didn't we say in Lane that consequences... we're talking about whether something becomes moot.

The consequences that didn't have the same effect as statutory consequences would not be regarded as keeping a case from being moot.

Mr. Simon: --Correct, Your Honor.

However, things have changed since Lane.

Unknown Speaker: What has changed?

Mr. Simon: Well, first of all the Court's doctrine on that has changed, because in Evitts the Court added--

Unknown Speaker: That was a footnote in... on a point that wasn't even argued.

Mr. Simon: --Well, Your Honor, I believe... well now, of course, Your Honor, I wouldn't know whether it was argued.

The Court would know that.

Unknown Speaker: Well, you can tell whether... just from the way it's put in a footnote you can tell it wasn't argued.

Mr. Simon: Your Honor, the material that is most damaging to my client in Lane is also in a footnote.

The question is what the Court held in Lane and in Evitts, rather than the typography of where the points appeared and in Lane, the question that my client is asking the Court to decide, this wasn't before the Court, because in Lane the prisoners did not argue that the State of Illinois had violated their Federal constitutional rights as explained in Morrissey and Gagnon.

The target was just different, Your Honor.

I know the language is there, but not only were the facts different in Lane and the procedural posture was different, but Lane predated Evitts' addition of sentence enhancement and testimonial impeachment to the list of collateral consequences and, furthermore, one of the things the Court relied on in Lane, as far as the reader can tell, is the speculative nature of what was going to happen.

And it's my position, Your Honor, that the consequences of that, of a parole revocation, especially a serious one like this, one sex offense, one weapons offense, one drug offense, the consequences of these are far more powerful--

Unknown Speaker: Well, are you saying then that whether or not a case has become moot may depend upon the seriousness of the charges in the parole revocation?

Mr. Simon: --Only if the Court chooses to apply Sibron to parole revocations, Your Honor.

If the Court goes on a case by case basis and just says, well, in this case it's forcible rape, armed criminal action, and possession of crack cocaine, well, we're going to hold that it's not moot, if the Court feels that that would be unmanageable because courts would have to decide it on a case by case basis, the Court could apply the Sibron presumption.

My client wins either way because of the grossly stigmatic characteristics of the felonies that he's been found guilty of without a trial.

Unknown Speaker: Well, Mr. Simon, as I understand it, you're concerned about the stigma as it would apply at the point of a subsequent parole revocation.

I would suppose that the stigma that you refer to would be far more powerful at the point of a subsequent decision to parole in the first place, and yet that does not seem to be your concern.

Why does the stigma become greater when he has been paroled and the question is, will parole be revoked, than it was, or seems to be on your calculus, at the point at which he would be subject to parole?

Mr. Simon: Your Honor, we have been a little more soft spoken about the parole consequences per se, but we have never abandoned them, and they--

Unknown Speaker: Did you argue them in the... I thought your argument on the circuit was that the adverse consequences that you're concerned about are adverse consequences at the point of a later parole revocation.

Was I... am I wrong about that?

Mr. Simon: --I... Your Honor, I am not sure about where the focus of it was, except that in the Eighth Circuit the focus was on the parole consequences as... and to the exclusion, I will concede, of later consequences such as sentence enhancement.

Unknown Speaker: Let me ask you a different question, if I may.

It goes back to what Justice Breyer began with.

I take it you accept the fact that at a later parole revocation hearing, at least, you could indeed argue and present evidence to the effect that the underlying conduct that was assumed in this revocation in fact didn't take place.

Mr. Simon: Yes.

Unknown Speaker: You could be heard on that.

Mr. Simon: Yes, Your Honor.

Unknown Speaker: Is it also the case... do you assume that you could also make this argument: you may not consider the fact of the earlier parole revocation as such independently of the underlying conduct, because I was doing my best, I had done my best to litigate that by means of habeas at the time I was released, and therefore the habeas issue became moot and I could never go to judgment, so therefore you shall not consider, you must not consider the parole revocation as such.

That argument would be open to you, and... wouldn't it, and wouldn't it be successful?

Mr. Simon: Your Honor, if I were representing Mr. Spencer on that hypothetical case I would certainly make the argument that you're suggesting, Justice Souter.

However, I think that Occam's razor would tell us that we should recognize collateral consequences before we require counsel or particularly the pro se parole candidate to make an argument that intricate, and I agree that it is an intricate argument that a resourceful counsel who is sitting here with us today would make.

Unknown Speaker: Mr. Simon, may I just clarify one thing?

I thought that you were making the point in connection with your client that it wasn't that they'd let him out at parole and then it would only be... the question would be to put him back.

I thought you were talking about the reduction of his chances now to be paroled when you called our attention to the guideline in Missouri that says, will they let him out now on parole when he's due?

Not if there appears... there does not appear to be a reasonable probability that he would live and remain at liberty without violating the law, so I thought you were talking about the reduction of his chances of being paroled.

Mr. Simon: Justice Ginsburg, the guideline that you're quoting is from the Missouri sentencing guidelines rather than their parole guidelines.

We acknowledge that it's discretionary with the board how much weight the board should give to this parole revocation in the board's decision, but I believe that what the Court was just quoting was a document for the use of Missouri courts in passing sentences.

Unknown Speaker: It says... can we take the case, then, that there's not a single statute which attaches adverse consequences to parole revocation in and of itself.

Mr. Simon: No, Your Honor, we can't--

Unknown Speaker: Or am I wrong about that?

Mr. Simon: --We can't take that because of the 15-year window under the Federal Sentencing Guidelines.

Unknown Speaker: No, there's... I'm sorry.

Is... that's what I was wondering.

There's something in the Federal Sentencing Guidelines that says parole revocation itself makes a difference?

In and of itself.

Mr. Simon: Well, it's... I guess it depends on what we mean by in and of itself.

Unknown Speaker: No--

Mr. Simon: Consequences.

Unknown Speaker: --What I mean by this is the following, and I think maybe Justice Kennedy means the same.

If you have a prior conviction and then you come up for sentencing again, that's it, you know.

You get a bump up.

You go into another column, or you get an... that... all that the judge will look to is, is there another conviction?

I mean, that's basically the rule.

Mr. Simon: You can't attack it anyway?

Unknown Speaker: Well, I don't know.

That's why I hesitated, because there may be certain things you could attack.

Mr. Simon: No counsel, for example.

Unknown Speaker: Yes.

Yes, that's right, exactly.

But now, parole revocation I thought was different.

That's why I started with this, that there is nothing that the parole revocation in and of itself gives you a bump up for.

Rather, a judge would look at it and say, hmm, his parole's been revoked.

I wonder... that doesn't look good to me.

I wonder what that's for, and then the counsel would argue about it, and they'd say, you know, it wasn't... et cetera.

You see... I thought... but I wasn't certain I'm right, and that's why I started out with this.

Mr. Simon: Well, Justice Breyer, for me to advise you on the kinds of--

Unknown Speaker: No, no.

Mr. Simon: --Sentencing Guidelines--

Unknown Speaker: You've read it recently--

Mr. Simon: --is like bringing coals to Newcastle.

Unknown Speaker: --You've read it recently with this in mind, and so I raised it because I fear I could be overlooking something, which is why I raised it.

Mr. Simon: Your Honor, the big picture in respect to the Sentencing Guidelines is that before the Sentencing Guidelines were authorized and adopted a Federal sentencing court had virtually unbridled discretion.

5 years to life could mean anything in between.

But under the guidelines, the amount of discretion, the scope of the sentencing judge's discretion has been cabined, and one of the factors that goes into that at various points is the 15-year window, concerning which it does definitely have an effect and there's no wriggling out of it.

Unknown Speaker: 15-year window for what?

Mr. Simon: For a previous incarceration, Justice O'Connor.

Unknown Speaker: For prior offenses.

Mr. Simon: Yes, Your Honor.

Unknown Speaker: Not parole revocation as such--

Mr. Simon: Not--

Unknown Speaker: --for prior offenses.

Mr. Simon: --Not as such, Your Honor, but the parole revocation makes a difference in the 15-year window.

But the big picture, members of the court, is that the Sentencing Guidelines have narrowed that window of discretion.

It's been a sea change in criminal sentencing in the Federal courts, and the parole revocations--

Unknown Speaker: These all assume that he's going to commit another crime and be judged again or be up for parole again.

Do we have to assume that?

Mr. Simon: --No, Your Honor, because of the other... because of the other factors.

When... this does not... this argument for collateral consequences, whether as applied to parole revocations or criminal convictions, does not assume that the person is going to go out and commit another crime.

Everything, all of the factors that the Court has relied on in Carafas, in Evitts, wherever the Court has talked about collateral consequences, there is some intervening act, some intervening decision that the person burdened by the collateral consequences must make.

One thing that everyone agrees on as a collateral consequence is jury service.

Whether a person is kept from serving on a jury because he or she is a convicted felon is... depends on whether they're called for jury duty, whether they come up with some excuse in advance, whether they want to serve on the jury.

That depends on intervening choices.

The right to vote depends on intervening choices.

Unknown Speaker: Yes, but those are... I'm willing to acknowledge that people have those choices.

I'm not willing to acknowledge that people have a choice whether to commit a crime or not.

I... it seems to me rather weird to say, oh, if I commit another crime I'm going to be subject to these adverse consequences.

It seems to me the proper response to that is, don't commit another crime.

Mr. Simon: Agreed, Your Honor, and there's no way that I'm arguing that anyone should commit crimes.

However... however, Your Honor, the same argument would cut against other guarantees of the rights of the accused.

It's always... when... it would... there would always be an answer to a criminal defendant who seeks to overturn his or her conviction by saying, well, you shouldn't have committed that crime.

You wouldn't have a problem of ineffective assistance of counsel if you hadn't committed the crime.

Unknown Speaker: I'm not talking about that.

That's water over the dam.

If the crime's been committed we're talking about whether you were tried fairly, but you're talking about, oh, if I... I'm going to be deprived of, you know, something if I should commit another crime, and I'm not willing to accept the hypothesis.

You should not commit another crime.

May I ask two questions?

Mr. Simon: Yes, Justice.

Unknown Speaker: First, isn't... didn't... this man actually did commit another crime, didn't he?

Mr. Simon: He committed a separate crime that is, we would submit, only marginally relevant to what's going on here.

Unknown Speaker: Oh, okay.

Mr. Simon: It was... it was attempted stealing, nothing to compare with the serious sexual, violent weapons, drugs felonies that the State has found him guilty of without a trial.

Unknown Speaker: Let me ask my second question, then.

In the earlier Illinois case the... conceivably if... it would not have been moot if they had asked for another... wanted to replead and stand trial.

Now, supposing in this case the State takes the position well, we'll admit the procedure was deficient but we do want... since he wants to get it off the record we do want to have a hearing on the merits of the charges.

Would that be possible?

Mr. Simon: I shake hands with Mr. Layton and we go home.

We have our hearing.

Unknown Speaker: You'd have... but is that conceivable in the way this thing might develop?

Mr. Simon: Theoretically conceivable, Your Honor.

Unknown Speaker: But under your view what will happen if you win?

That's what I--

Mr. Simon: Oh, the relief we would ask for, Your Honor, is a remand to the Eighth Circuit for... with instructions to remand to the district court to allow the respondents and the petitioner to litigate the merits of his claims.

Unknown Speaker: --To say that it's not moot.

Mr. Simon: Yes, Your Honor.

Unknown Speaker: Do you... you said the Sentencing Guidelines regime is new.

Do you put in part of the different picture in distinguishing Lane Heck and Balisok, which wasn't clear what the 1983 situation was?

In other words, is there a way... 1983 is not available.

Mr. Simon: Mm hmm.

Unknown Speaker: Is there something other than habeas that would enable you to expunge what you say is this unjust blot on the record?

Mr. Simon: Not that I'm aware of, Your Honor.

My client exhausted his State remedies, as he was required to under Preiser v. Rodriguez.

Then he filed his habeas corpus action.

He can't proceed with a 1983 until his habeas corpus action has been not only litigated but victoriously litigated under Heck and Edwards.

At least as I read the--

Unknown Speaker: There's no other procedure in Missouri that could be used to expunge this, to get a hearing and to expunge it?

1983 is a Federal remedy, but no State remedy at all to question a parole revocation that you say was without due process?

Mr. Simon: --I believe that his appropriate remedy was... in the State courts was a State habeas petition.

He filed successive petitions in the three levels of Missouri courts and lost and then went to Federal court, and Your Honor, I... if there is another procedure, first of all I'm not aware of it and second, I believe that my friends here from the State would argue that it was not appropriate and that it was a frivolous inmate filing.

So it... Heck... but to go back to your point, Justice Ginsburg, Heck and Edwards are very important to this, because it means that if my client loses on the mootness point and the court, the Federal district court cannot address the merits of this, then he's boxed out of any Federal remedy at all.

He is simply stuck with this unconstitutional parole violation that brands him as a forcible rapist.

Unknown Speaker: Well, that was the case for at least a century and a half, wasn't it?

I mean, you speak as though it is unthinkable that a prisoner should not have a hearing in Federal court on alleged constitutional violation and State proceedings, but our use of habeas corpus for that on a regular basis is relatively recent.

Mr. Simon: Agreed, Your Honor.

The question is whether this Court and Congress, as the two key decisionmakers in this area, want that result to happen, and Congress... Congress, as we all know, has recently revisited habeas... Federal habeas corpus at the... almost simultaneously they revisited 1983 in PILRA, and in... the Congress considered these things very seriously.

They considered them after the majority of the circuits, eight circuits by my count, had held that claims like my client's were not moot, and they didn't amend 2254.

Unknown Speaker: Well, they didn't amend it, but what do you think in the congressional statutes dealing with habeas corpus reflects a congressional desire that there be a hearing in Federal court for every asserted violation of the Federal Constitution in State criminal proceedings, or parole proceedings?

Mr. Simon: Every?

None, Your Honor.

Unknown Speaker: Okay.

May I ask another question, sort of on the question of mootness?

I gather you do not question the right of the State to retain whatever evidence they have supporting the conclusions that they led to in the parole violations.

Mr. Simon: No, Your Honor.

I think they'd better do that.

Unknown Speaker: Okay.

So if they have the right to keep the evidence, what if they came in and said, well, the parole violation doesn't mean anything in terms of, as they basically argued, they said, therefore we'll take it off the books but we're going to keep the information in the file.

That would satisfy you.

Mr. Simon: We go home, Your Honor.

Unknown Speaker: I don't know why they don't do that and let you go home, because that's all they need, it seems to me.

Mr. Simon: Well, Your Honor, the respondents are on the horns of a dilemma, because they're arguing here that, oh, this is just a parole revocation.

It doesn't mean anything.

And yet when he comes up for sentencing there'll be some assistant prosecuting attorney who's going to be... you know, arguing to the court that he's the worst thing--

Unknown Speaker: When he comes up for sentencing on some new crime.

Mr. Simon: --Or, Your Honor, when he is the victim in an automobile accident and has to testify--

Unknown Speaker: But that--

Mr. Simon: --to get his medical expenses paid.

Unknown Speaker: --That invokes Justice Souter's earlier observation that at that point he says, look, this was an improper revocation, you go from there, and then you said that... I think that's when you said it was... Occam's razor applied, because this is more--

Mr. Simon: Parsimonious.

Unknown Speaker: --I assume because this is more complex.

It seems to me it's much more... is Occam's razor a precedent we cited in this Court?

I haven't seen it recently.

But assuming that it is, it seems to me that Justice Souter's solution addresses that.

It's much more simple to wait until there is a specific harm, and then talk about it, as opposed to saying that 1983 is available... or, pardon me, that habeas corpus is available for every parole revocation violation when the custody is terminated.

Mr. Simon: Your Honor, I thought that the Court had crossed that bridge in Sibron, and my question is, if it... if Sibron is right on that point, that we shoot it out closer in time to the transactions and occurrences involved in the case, which is what the respondents normally want to do in collateral attacks, is litigate things closer in time while the witnesses are still alive, they're still around, the blood samples are fresh, what not, why doesn't it work when it cuts in the petitioner's favor?

And as to the... as to litigating it in a civil trial, that... see, they just multiply the number of times--

Unknown Speaker: Well, how would it... you say it would come up if he testified in an automobile accident.

Do the Missouri courts allow impeachment of a witness on the ground of his parole was once revoked?

Mr. Simon: --Your Honor, I believe that the two sides have cited all of the Missouri cases on that, and that the... as... they argue one side, we argue the other.

It's our position that as long as one asks the question correctly, you can get that in, and we'd refer to the Newman and Comstock cases on that.

Unknown Speaker: May I ask one other question?

Mr. Simon: Please, Justice O'Connor.

Unknown Speaker: I know your time is almost up, but are you relying at all on any bad faith extension of time in these habeas proceedings that caused the thing to become possibly moot?

Mr. Simon: Well, first of all, Your Honor, in no way are we relying... are we asserting that this man is entitled to relief on account of the delay, only that he's entitled to a day in court.

We are concerned that this would send a message--

Unknown Speaker: But are you relying on the fact that the district court acted improperly or in bad faith or anything in extending the time after which he was released?

Mr. Simon: --No, Your Honor, but it does illustrate the risk of leaving the lower court decision intact.

Thank you.

May I reserve--

Unknown Speaker: Yes.

Very well, Mr. Simon.

Mr. Layton, we'll hear from you.

Argument of James R. Layton

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

After Sibron, Lane, and the footnote in Evitts, we might be able to divide collateral consequences that are alleged to defeat mootness into three categories.

The first are those that are current civil disabilities, those that led to the decision in Sibron... can't vote, can't serve on a jury, those kinds of things.

A second category are the ones that were addressed in Lane, things that are discretionary that we can't know now, for example, whether a past parole revocation may have some impact on a future parole request, or, to take that to its ultimate, where the Ninth Circuit has said that perhaps a sufficient collateral consequence is how this revocation might affect someone's chances of employment in the future.

Unknown Speaker: Mr. Layton, maybe I misremember Sibron, but I thought, unlike the first case, Carafas, or whatever, which dealt with only present disability, Sibron did speak about future problems as a result of the conviction, like being impeached as a witness.

Mr. Layton: It did speak of those.

However, all of the precedents that Sibron cited to support the premise that it could draw a line beyond which there is a presumption against mootness were felony cases.

Every one of those is a case that involves current civil disability, so Sibron is not clear as to what it means in terms of what kind of disability today would be sufficient, but the tenor of Sibron is there is a conviction, and in our society we presume when there is a conviction that there are some effects today, as opposed to other kinds of things that may happen to someone as a result of our judicial system.

A third category of alleged collateral consequences are those that are contingent on some future event, although they may not be discretionary after the contingency occurs, and that leads us to the question of the Federal Sentencing Guidelines that Justice Breyer was asking about at the beginning of Mr. Simon's presentation, and that are addressed for the first time in this respect in the reply brief on the merits.

There is in the Federal Sentencing Guidelines a provision that says, we will give points in criminal history for all of the convictions where the incarceration comes within the last 15 years, and by revoking Mr. Spencer's parole, Mr. Spencer... the time of Mr. Spencer's conviction or his incarceration was extended.

So if Mr. Spencer is convicted of a crime between April 16, 2007 and August 7, 2008, then the Federal Guidelines would be affected by this parole revocation, but not otherwise, and I think that shows the difficult position that Mr. Spencer asks this Court to take, that we assume that it is enough to defeat mootness today that he may commit a crime during a relatively brief period in the next century, and yet that's the position that he's taken, that the Ninth Circuit has taken, that that kind of sentence enhancement is sufficient.

The consequences Mr. Spencer alleges fall within three general categories, that it may affect a future parole decision... what was addressed in Lane, and which is an entirely discretionary decision under Missouri law... whether it would affect him at trial through impeachment or perhaps a presentation of evidence under Federal Rule of Evidence 413, or whether it would affect his sentencing.

And then comes the question of the 1983 action, which doesn't really fit in any of these categories of collateral consequences, because his loss of a 1983 claim is not the result of the parole revocation.

It's not the result of the hearing about which he complains.

It's the result of his failure to obtain a successful decision in his habeas, or a State or a Federal habeas, and I think there are three reasons why the Court should resist the urge of Mr. Spencer to adopt the position that a 1983 claim, or a loss of the 1983 claim would be enough to defeat mootness.

The first is that it is too far removed from the question at hand, which is the parole revocation.

The second is that--

Unknown Speaker: I'm not sure I follow that, because isn't it as a practical matter, given that when you're put back in, parole is revoked, it's not for a very long time, and almost in every case you couldn't get through the whole process.

You have to go three tiers in the State and then go into the Federal, so these things are bound to be moot, aren't they, because even... you're talking here about district court delay, but that wouldn't be enough.

You'd have to go... Lane didn't become moot till it was in this Court, right?

Mr. Layton: --I think these things are bound to become moot, and I think that the problem Mr. Spencer has where he suggests that he is unusual somehow in losing a 1983 claim is... well, let's present a hypothetical about Mr. Spencer.

Let's suppose that his State remedies were not exhausted until the day after he was reparoled.

He wouldn't have a 1983 claim, not because of anything the State had done, but because it just took a while for that process to happen.

And yet he suggests here the Court ought to announce a new rule that because of the timing of his case, somehow, if we have a 1983 claim it will be lost, the case is no longer moot.

Now, one of the things that that does is, it would... to adopt that would endorse the position that Mr. Spencer can come before this Court and raise that issue for the first time.

In his brief he wonders how the Eighth Circuit, with its own precedent of Leonard v. Nix, could have reached the decision that it did, given the... a loss of a 1983 cause of action.

Well, the reason is because he never raised the question of a 1983 cause of action in the Eighth Circuit, and so for this Court to adopt that would be to endorse the premise that all of these collateral consequences save one, which were raised for the first time in this Court... in fact, for the first time generally in the reply to the cert petition... that that's the way that someone should operate.

You can do these things late.

I think the third reason why the Court should not adopt the premise that a 198... loss of a 1983 cause of action is sufficient to prevent mootness is that that would in effect move the Sibron presumption from just covering habeas petitions that challenge convictions to covering essentially all habeas petitions, because what habeas petitioner, if the Court were to so rule, is going to resist the urge to say, oh, I have a 1983 cause of action, and so, judge, you can't dismiss my case.

Unknown Speaker: Let me ask you something, Mr. Layton.

Is there any other procedure in Missouri whereby the prisoner could get some kind of declaratory judgment or any other relief finding that he was denied any hearing on these charges?

Mr. Layton: Perhaps not, Justice O'Connor.

The appropriate method would have been through a petition for a writ of habeas corpus, which he pursued.

It may be possible for him to enter into, or attempt a petition for a writ of mandamus, or a declaratory judgment action, but we know of no instance in which a person in his situation has attempted that.

Unknown Speaker: So he just can't get it litigated.

Mr. Layton: He cannot get it litigated in the context of this case.

Unknown Speaker: Well--

--And does that mean, do you think, that prison authorities would be essentially not constrained about taking arbitrary action against a prisoner near the end of the prison term because the whole thing's going to become moot, or in connection with any parole revocation because it's likely to become moot?

Mr. Layton: No.

The--

Unknown Speaker: What are the constraints, if you're right, and we have some bright line rule here?

Mr. Layton: --Section 1983 provides a constraint.

It just doesn't--

Unknown Speaker: Well, but he's going to lose any right to recover in 1983 because he can't get a successful habeas conclusion.

Mr. Layton: --Well, he loses his 1983 claim.

Unknown Speaker: Yes.

Mr. Layton: But if the State had a policy or program or practice of doing what Your Honor says, then he would... could have a 1983 claim to stop that practice, not to question his own determination, but to stop that practice, and he would have an incentive to do that, since he's already incarcerated again, and although he's been given a new parole date on his new sentence, he has yet to be paroled, and so he could do that.

Unknown Speaker: Mr. Layton, what about the State challenges on State habeas?

Is it possible to tell from the dispositions of those cases whether the Missouri courts passed on the merits of his claim?

Mr. Layton: In each instance the petition was denied without explanation, and so it is impossible to do more than assume that they were ruling on the merits, with the possible exception of the intermediate court, where he used the wrong writ, although the Missouri practice is, even when a lawyer presents the wrong writ, is to simply assume that the lawyer intended a different writ.

Unknown Speaker: Is it possible... is it typical in a Missouri habeas proceeding if the... say the habeas court expressed a view on the merits, to simply deny it, rather than say it's... write it out?

Mr. Layton: It is very unusual in Missouri practice for the denial of any writ to come with an opinion.

In fact, I have yet to see that in my own experience.

Unknown Speaker: May I ask a... probably kind of a stupid question, I must admit, but you're arguing that this... the harm to him is so trivial that the case is moot.

I suppose the benefit to the State must be fairly minimal also.

Mr. Layton: I don't know that that is a stupid question, because it's something that I've considered carefully.

In Pennsylvania v. Mims, where the question before this Court was also mootness, but mootness where the State wanted to continue litigating the case, the Court said that it was... well, the... Justice Marshall in a sense said it was barely not moot because the State had an interest in some future sentencing.

Here we aren't even to that point.

It's hard to imagine what great incentive there is going to be for the parole board if Mr. Spencer is now before the board and has been told the board is to give him a new hearing.

Why does the board care whether they give him a new hearing or not at this point?

He's already served on his revocation.

Unknown Speaker: And if the problem arises in a future proceeding you... everybody agrees you can save the evidence and save... just as you save charges that are made against people that are never disposed of.

You keep them in the file so you know what's... what accusations have been made.

I mean, I... it just doesn't seem to me the world turns on the outcome of this case, and if you... even if you should lose, it seems to me the cost to the State is pretty minimal.

You're just say whenever one of these people file these out of... you know, these old cases, we'll just say, okay, we'll expunge the record, we'll keep the... but we're going to keep the evidence.

Mr. Layton: Well, I think that that is--

Unknown Speaker: That doesn't seem to me that would hurt you very much.

Mr. Layton: --I think that would be true if all cases were like Mr. Spencer's, but of course, if this Court announces a rule that extends the breadth of collateral consequences, then we will be litigating more cases further in the district courts and the courts of appeals, and that is our difficulty here, is not so much what our disagreement is with Mr. Spencer, as where we would be if this Court announced a different rule.

In fact, I doubt that with Mr. Spencer the... this would have any impact at all.

It's notable that Mr. Spencer at no point through the process of the parole hearings denied possession of cocaine, and twice before, since the time he'd first left prison, he'd been found with cocaine, and so it's unlikely that he would... his parole revocation would be any different even if he were limited--

Unknown Speaker: But there was a very serious charge there of rape, which he vehemently denied.

Mr. Layton: --Yes.

Yes, he did deny that.

He... at the original interview he admitted to consensual sex, but denied that it was rape.

He admitted to pushing the woman down, but denied it was rape.

Unknown Speaker: The problem that I have is that... let's take the worst case.

Let's say that parole revocation is based on a confession that the defendant made because the prison guard put him on the rack.

Even so, you say that doesn't matter.

He has his chance to go to the State court.

They just denied it without giving a reason.

His time ran out while he was on the Federal side, so too bad, this process that so severely violated due process it's a wash.

He has no chance to be vindicated.

Mr. Layton: That is the result of the Court's holding in Heck v. Humphrey.

Not the result of the holding here, but in Heck v. Humphrey.

Because as I said before, Mr. Spencer would be in the same situation under Heck v. Humphrey if he couldn't complete his State remedies... if he couldn't complete his State remedies by the time he filed a Federal habeas, then he couldn't assert a cause of action in the hypothetical that Your Honor poses regardless of how the Court rules here, so there would still be people in that situation, unable to obtain a Federal forum in which to litigate their claim.

Unknown Speaker: So one possible thing would have been in your view to say it's moot... to bring this you have to be in custody.

Mr. Layton: Yes.

Unknown Speaker: It's a... all right.

So we're only talking about the cases where the prisoner was in custody when he brings it but he's released before he's finished.

So in those cases it would be rational to do one of two things.

You could say, the habeas is over.

He's no longer in custody.

But if he thinks he was hurt, he could bring a 1983 action.

Or alternatively you could say, well, you don't have to... you can't bring a 1983 action, but... if you're hurt... even if you're hurt, but you can keep pursuing the one you started.

Mr. Layton: Those are both logical, but the third--

Unknown Speaker: But now where we are is, if we agree with you here we are saying you can't do either.

Mr. Layton: --That's right.

Unknown Speaker: All right.

Now--

Mr. Layton: I think that's--

Unknown Speaker: --Now if... and starting afresh... let's start absolutely afresh, which is pretty close to where I am.

I read the statute, and it says that in a habeas case you must be in custody, and then you can ask for such relief as law and justice require.

Mr. Layton: --Yes.

Unknown Speaker: Is that right?

Mr. Layton: Yes.

Unknown Speaker: All right.

So now we know at least in some instances he doesn't really have to be in custody.

He just has to have been in custody when he... that's clear.

Mr. Layton: That's the way that the statute--

Unknown Speaker: All right.

So now he says how could it be moot under the Constitution of the United States, because I was in custody.

That's good enough to start this thing, and I would like such relief as law and justice require.

Namely, in my case, law and justice require a hearing, after which there will be an expunging of the record.

That's what he wants.

That's the relief.

Mr. Layton: --But the--

Unknown Speaker: I mean, that's what he's asking for.

He's asking for that relief.

He says of course it's not moot.

I haven't got the relief I want.

That's the relief I want.

Mr. Layton: --But to say--

Unknown Speaker: And all we're debating about is whether he should want it.

He says that's up to me.

Mr. Layton: --The same--

Unknown Speaker: Or, unless you say... there's one other little part to this, because I... you'll say... maybe you could say, well, the relief he wants under the circumstances is outside the statute.

Mr. Layton: --I believe it is.

I... the same kind of situation--

Unknown Speaker: Oh, I didn't mean for you to jump there yet--

Mr. Layton: --Okay--

Unknown Speaker: --because I was saying... two parts... one is, why would the Constitution stop him from getting the relief he wants?

He hasn't got it.

Mr. Layton: --Well, I don't know that the--

Unknown Speaker: Then the statutory part.

Mr. Layton: --I don't know that the Constitution does stop him from getting the relief he wants.

The question here is not his constitutional right but his statutory right, either under the habeas statute or 1983, and so this Court has interpreted 1983 not to give relief to someone in this man's situation, and so it's not a constitutional right--

Unknown Speaker: What we're doing here, and it's really... mootness is an odd word to use.

We're saying that given the change in circumstance... maybe it's the right word, but given the change in circumstance, the relief he wants is outside the phrase I quoted in the statute.

Mr. Layton: --Correct.

Unknown Speaker: It couldn't be relief that law and justice requires, and the reason it couldn't be is because too little turns on it.

Mr. Layton: Yes.

Unknown Speaker: That's your argument.

Or you could say that he's no longer in custody.

Mr. Layton: Yes, you could take that approach.

Unknown Speaker: No... well, we... how can we say that if, in fact, in other cases we've said that a person who is no longer in custody can bring it?

Mr. Layton: I think that Justice Breyer presents the problem.

Unknown Speaker: Yes.

Yes, if one goes back to the... if one wants to analyze it by the statute, according to Justice Breyer, one would never have decided Carafas or Sibron the way they did.

Mr. Layton: It's certainly possible to go to where Justice Thomas led in, I believe it's the Heck decision, and not have any of these problems, but we aren't there today, and today we're in the presence of the Lane decision that says that when the future consequences are discretionary, when they're speculative, when they require certain intervening steps before there's some kind of relief, that we aren't going to recognize that the case continues after custody in those situations.

So the Court doesn't have to go nearly that far in order to reach the conclusion that it ought to reach today.

Unknown Speaker: Of course, in Lane we in effect said that if he had... they had asked for relief this man asked for it would not have been moot.

Mr. Layton: Well, I'm not sure of that.

I think that the Lane... that at least the way I read the decision the... what you... the Court was suggesting was that they'd asked about the original conviction, and so--

Unknown Speaker: They were asking for in effect an enforcement of the plea, specific enforcement of the plea bargain.

Mr. Layton: --Yes.

Unknown Speaker: Which we--

Mr. Layton: If... if we treat the parole revocation as the direct equivalent of a conviction, then that's correct, but we haven't treated parole revocations as the direct equivalent of convictions, and I think the reasons have come out this afternoon, that they don't come accompanied by the same kind of consequences, at least under Missouri law.

Now, it may be that we would be in a different situation if we were in a State such as, I believe New Hampshire, where after you've been revoked once, you never can get parole again, but we aren't in that situation.

All of these kind of disabilities or consequences that we're talking about are remote and contingent.

Unknown Speaker: --Mr. Layton, the most recent expression of this Court on this mootness is a case called Minnesota v. Dickerson, and I was surprised that neither brief cited that.

That seems to favor the petitioner here.

I... do you know what... it's at 508 U.S. at page 371, footnote 2.

Mr. Layton: Well--

Unknown Speaker: It's that long footnote.

Mr. Layton: --I know the footnote.

I will confess that I have studied it, but I am not at the moment recalling exactly why I didn't think that I would read it in the petitioner's favor.

It certainly does follow along from Sibron, Lane, and Evitts, but I don't think would read to... could be read fairly to hold in petitioner's favor here.

Unknown Speaker: It wasn't... it was a case where there was a diversionary sentencing statute so that there was no conviction on the record.

Mr. Layton: That's right, and there was a reference in the case to collateral legal consequences, and they were of the sort that are contingent in my three part classification that is--

Unknown Speaker: Yes, because the original criminal charges, as I understand that case, were dismissed.

Mr. Layton: --I believe that that is right, although the dismissal itself I think is at issue there.

I don't think that it comes up under habeas, and so it doesn't incur the habeas problems that we have here, but--

Unknown Speaker: And that was a case I think in which it was the petitioner that was seeking to have it dismissed as moot, rather than the State.

Mr. Layton: --That may be, plus the Minnesota statute said that a conviction after a successful probation, although not a conviction for future purposes, can be used in calculating a criminal history category under Minnesota law, but there's nothing in that decision to suggest that the same would be true even under Minnesota law for a parole revocation.

Again, it addresses a conviction and not a parole revocation, and that becomes a critical distinction as long as we attach to convictions certain mandatory civil disabilities or consequences.

If there are no further questions, I thank the Court.

Unknown Speaker: Thank you, Mr. Layton.

Mr. Simon, you have 4 minutes remaining.

Rebuttal of John W. Simon

Mr. Simon: Thank you, Your Honor.

First, I would like to say that the petitioner agrees with the respondent that the question here is statutory and not constitutional, that it's well established in the decisions of this Court, acquiesced in by years of congressional revision, coupled with inaction, that a person must be in custody when he or she files a petition but that once that is filed, the court may reach the merits of that after they have been released or even completely discharged.

In respect to the Minnesota decision, members of the court, the petitioner owns that decision and did not feel a need to cite it with specificity by virtue of a reference I believe I made in the reply brief to the cases relied on by the amici.

Unknown Speaker: But you didn't cite it, so that suggested to me you didn't think it was... if it was in your favor, that it was strongly in your favor.

Mr. Simon: I'm sorry if I didn't cite it expressly, Your Honor, but we would own it.

Now, it would allow... it referred to use of adjudications in future proceedings.

It was rather broad, but we do see it as buttressing our position.

Now, with respect to the petitioner's denial of his drug use, I would refer the Court to pages 89 and 90 of the joint appendix, paragraphs 33 and 34.

These are not written with great articulateness, but I interpret these as denying the drug use and disagreeing with the interviewing officer to the effect that the petitioner had admitted the drug use.

So we have hearsay within hearsay from the parole officer saying that the petitioner admitted the drug use.

Now--

Unknown Speaker: You're not saying that wouldn't be admissible in a revocation hearing, are you?

Mr. Simon: --Mr. Chief Justice, hearsay is, of course, admissible in parole revocation proceedings.

We don't deny it, but that illustrates the slender thread on which this revocation hangs.

Now, the respondents have presented many arguments about how this parole revocation isn't very serious, how this parole revocation for forcible rape, armed criminal action, and possession of crack cocaine isn't very serious, and on some of them I have to agree that they've scored on some of these points in respect to this particular petitioner, and I'm not telling this Court that every single reason why a criminal conviction remains live after release applies to a parole revocation, at least as to Randy Spencer.

But if one looks at the big picture, it is just absolutely unrealistic, bordering on disingenuous, to say that a parole revocation by the State of Missouri for three serious felonies doesn't matter, that it doesn't give the person affected by it a substantial stake, that gives him the incentive to litigate it zealously.

In Missouri we like to ask questions on voir dire, if there's any member of the panel that does not have common sense.

No one raises their hands, and so you say, well, Judge Bandry is going to instruct you in a few minutes, that you just need to apply your common sense in this case.

I think that if the Court looks at the damage that this does to this man's future in terms of testimonial impeachment--

Chief Justice Rehnquist: Thank you, Mr. Simon.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Arizonans for Official English v. Arizona - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

Arizonans for Official English v. Arizona

Media File:

95-974_19961204-argument.mp3

Related Transcript:

1996_95_974_argument.xml

Transcript:

Argument of Barnaby W. Zall

Chief Justice Rehnquist: We'll hear argument now in Number 95-974, Arizonans for Official English and Robert D. Park v. Arizona.

Mr. Zall, and let me request of you, Mr. Zall, and also of your colleague that the Court is very interested in hearing a full discussion of the issues relating to standing, mootness, and jurisdiction, so we hope you'll devote a substantial part of your arguments to that.

Mr. Zall: Yes, Your Honor.

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

This First Amendment facial overbreadth case involves a Government employee who wanted to write her official documents in a language her supervisor did not understand.

Even if her choice of language on the job was speech, which is was not, it was the Government's speech, not hers.

Under Capital Square, Government runs no risk of a First Amendment violation when it restrains its own speech.

Official English statutes, which are simply restraints on the Government's own speech, do not violate the First Amendment.

It's a political choice.

One point was not treated sufficiently in the briefs.

Last term in County Commissioners v. Umbehr, a Government contractors case, the Court said that the Government's interest in speech depends on the speaker's proximity to Government.

The closer to Government, the greater the Government's interest.

Umbehr described a speech spectrum ranging from private citizens, in whose speech the Government has little interest, to Government employees, whose closeness to Government means that the Government is very interested in their speech.

Government contractors fell somewhere in between Government employees, who had the closest relationship to Government, and other speakers with less close relationships, and though not said in Umbehr, since Government is actually closest to itself, Government speech, the Government speech cases would be... would place very high on the Umbehr speech spectrum, beyond--

Unknown Speaker: Mr. Zall, this particular Government, at least the Attorney General, long before this case was decided by the district court said that the constitutional provision in Arizona did not prohibit the use of a language other than English where necessary to assure the fairness and effectiveness of the delivery or services to members of the public.

Why didn't that end this controversy?

The then plaintiff, the sole plaintiff in effect got all the relief that she sought, which was the assurance that she wouldn't be fired if she used a language other than English where necessary to assure the fair delivery of her service.

Mr. Zall: --Your Honor, we agree with the Attorney General's opinion as to its construction of Article XXVIII on the First Amendment grounds.

We also agree that the Attorney General appropriately considered equal protection matters.

Our concern is that the Attorney General's opinion relied on a case which, subsequent to the opinion, this court vacated on mootness, and that was an equal protection issue.

Unknown Speaker: Did the Attorney General withdraw that opinion as the official interpretation of the State's executive?

Mr. Zall: It did not, Your Honor.

Unknown Speaker: So that's the law as far as the executive's... as far as official Government in Arizona is concerned, so my question is, why didn't this case end?

Wasn't it moot at that point?

Mr. Zall: Your Honor, I believe the plaintiffs in the case said that the next Attorney General could issue another opinion and the Attorney General's opinion was not binding on the courts, therefore they felt that they still had a viable case, and the district court disagreed with the Attorney General's interpretation and decided not to abide by it, as did the Ninth Circuit.

Unknown Speaker: Well, is... it's not a question of what the district court independently might think the law was.

The question was, was the plaintiff at any risk of losing her job when the official interpretation, the State's interpretation, was that what she was doing was all right?

Mr. Zall: I think the answer to that question is she was at no risk of losing her job, Your Honor.

Unknown Speaker: Well, didn't... what controversy was left, then, if she was at no risk of losing her job?

Mr. Zall: I believe, Your Honor, that although that was... that's the correct interpretation, she did not agree with that and asked the court on a slightly different ground, which is that she was not... excuse me.

The district court handed down a decision on a slightly different ground, which is that although she was not at risk from losing her job, it decided this was a facial overbreadth case and felt somehow there were some risk to other Government employees who were not before the court.

Unknown Speaker: What basis would there have been for that?

I mean, the Attorney General's statement of State law was not a statement which was peculiar to her.

Mr. Zall: I think that's correct, Your Honor.

Unknown Speaker: So the district court was wrong, wasn't it?

Mr. Zall: I believe the district court was wrong, Your Honor.

This never should have been a facial overbreadth--

Unknown Speaker: So at that point the case was certainly moot, even if we make the assumption that there was a case or controversy at some point.

And it probably became moot when Ms. Yniguez left her State employment, I would have thought, at the very least.

Mr. Zall: --Your Honor, the central point of mootness is whether this Court's decision can affect the legal rights of the parties before it.

Unknown Speaker: Well, who do you represent, exactly, here?

Is it that organization that helped put it on the ballot--

Mr. Zall: Yes, Your Honor.

Unknown Speaker: --and a Mr. Park?

Mr. Zall: Yes, Your Honor.

Unknown Speaker: And how is it that they have standing in this case at this juncture?

Mr. Zall: Petitioners have standing because the lower court decisions affected their legal rights.

They have legal rights created by the State.

Unknown Speaker: What kind of rights does your organization have, AOC, or whatever it is?

Mr. Zall: AOE--

Unknown Speaker: You assume that it's some kind of legislative standing for them?

What is it you're arguing for that would give them standing?

Mr. Zall: --In footnote 17 of Diamond v. Charles the Court noted that a State may create interest the invasion of which would give standing in Federal court.

That's exactly what we have here.

The State created an interest in petition--

Unknown Speaker: I would have thought Diamond v. Charles would require us to say that the organization does not have legislative standing.

Mr. Zall: --Your Honor, Diamond v. Charles as I read it is predicated on the ability to create and enact a legally enforceable code, citing Snapp.

Unknown Speaker: But how does that give the organization here standing, Arizonans for Official English?

Mr. Zall: Well, that goes back to the standing question for organizations, Your Honor.

There are two ways that we have standing.

One is the invasion of our ability to go into State court.

Unknown Speaker: Well, once the thing is adopted by the voters, I don't see what standing that organization has to litigate in Federal court.

Along that same line, how is your organization any different from any citizen in the State of Arizona?

Mr. Zall: Your Honor, the statute... the citizens' suit provision in Article XXVIII, section 4 permits any person or organization doing business in Arizona to enforce Article XXVIII in State court.

That would not, in and of itself, give standing.

Unknown Speaker: Well, why wouldn't that just be a State law cause of action?

Mr. Zall: It is a State--

Unknown Speaker: I mean, how do you get to Federal court?

Mr. Zall: --Because the Federal court decision eliminated that State court right.

It would be the equivalent of our having any other State interest, State granted interest which the Federal court's action then eviscerated.

We would have the right to come to Federal court and say, we fought hard for that right.

Unknown Speaker: Well, that part of your answer then seems to me that you're agreeing that you're no different than any other citizen of the State of Arizona.

Mr. Zall: I think that's not correct, Your Honor.

I think because we are the proponents and we expect... it was our court purpose to get that right under--

Unknown Speaker: Well, but you were just the mechanism for putting something on the ballot.

Unlike a legislature, the voters didn't give any authority to you.

They voted for a measure.

Mr. Zall: --That's true, Your Honor, but the question--

Unknown Speaker: Would a Senator who sponsors a bill have standing to challenge a court's evisceration of the bill after it's been adopted as a statute--

Mr. Zall: --The Senator--

Unknown Speaker: --on the ground that he's... you know, it's my bill.

It was my idea.

Mr. Zall: --No, Your Honor, the Senator alone probably not, but the legislative body itself would under Chadha, and I think that that's a situation where--

Unknown Speaker: Is that clear that where the courts misinterpret a statute the Congress that passed the statute has standing to challenge the court's interpretation of it?

Mr. Zall: --Not quite at that point, Your Honor.

What Chadha says is, where the executive branch and the challenger both agree that the provision is unconstitutional, Congress was the appropriate body to defend the statute.

Unknown Speaker: Well, but Congress is a standing branch of the Government with ongoing duties and responsibilities, and it was vitally interested in the one-House veto from the standpoint of its institutional capacity.

All your organization did was put something on the ballot.

Mr. Zall: Your Honor, the same situation applies in Arizona, where the Arizona constitution, Article IV, provides that the voters themselves have the right to an initiative, and this is a matter in which this would affect the voters' right of initiative.

Unknown Speaker: Mr.--

--Is your claim... I'm sorry.

Go ahead.

I had one.

Are you claiming that the Arizona provision therefore creates Article III standing for any Arizona citizen in a Federal court?

Mr. Zall: No, Your Honor.

I'm suggesting that in certain limited circumstances the invasion of the right would give someone standing to complain about it, and the difference is--

Unknown Speaker: But what is the invasion of the right which would be in any way different from an invasion which any citizen simply as a citizen could claim?

Mr. Zall: --Your Honor, the invasion of the right is the elimination of the right.

That goes to the injury question, the prudential question.

Unknown Speaker: Well, in... then I think what you're saying is that any citizen could have Article... would have Article III standing.

Mr. Zall: I don't believe so, Your Honor, because the individual interest... t he individual injury to each citizen is so small relative to everyone else that there is no differentiation, but to the initiative proponent, just as in this Court's decision in the Term Limits case, where the State was present, just as the State is present here, the initiative proponents were able to come forward and make their best case.

Unknown Speaker: Because the State was present making the argument on the merits, but here we don't have that.

I think the State is telling us this case is moot, right?

Mr. Zall: Your Honor, that's the State's position, but lower... in the lower courts they were quite clear on their position on the merits.

It's only when they came to this Court that they brought up once again this issue.

Unknown Speaker: Yes, but this Court is bound by a case or controversy requirement, and the State is acknowledging that that no longer exists.

You did say one thing, Mr. Zall, that puzzled me, and perhaps I misunderstood you.

You said that you were now disabled because the Federal court had eliminated your right, but it was not my understanding that a district court or a court of appeals is a higher authority on a question of Federal constitutional law than, say, the supreme court of Arizona.

Mr. Zall: Your Honor, I'm sure that's true as to the interpretation of State law, but not necessarily the application of Federal law to State law, but leaving that aside--

Unknown Speaker: Do you think... is the... are the Arizona State courts bound by what the Ninth Circuit thinks Federal constitutional law is?

Mr. Zall: --I think the courts are split on that, Your Honor.

I know the Arizona position is that they are not bound, but there are cases--

Unknown Speaker: So that's... since that is the position of the State courts in your State, then nothing has been eliminated by anything that a district court or the court of appeals said.

Mr. Zall: --Well, Your Honor, as to us, and this goes to our own unique situation and why we're different from everyone else--

Unknown Speaker: Unless the plaintiffs can sue in Federal court.

I mean, I assume what you're worried about is that any State employee who doesn't want to abide by this provision would simply bring a 1983 action in State court... in Federal court, and the Federal district court at least would be bound by the determination of the court of appeals here and would apply the opinion that you don't agree with.

Mr. Zall: --That's our concern, Your Honor under--

Unknown Speaker: If we were to find that your organization does not have standing here, I guess... and for that reason dismiss the case, I guess the consequence would be that the court of appeals judgment would stand, because you just came in at this last stage, right?

Mr. Zall: --No, Your Honor.

We attempted to intervene.

Unknown Speaker: You attempted to intervene, but you were not a party in the court of appeals.

Mr. Zall: We were a party in the court of appeals Your Honor.

In the 939 Fed. 2d opinion, Yniguez won.

We were permitted--

Unknown Speaker: But there were other parties on your side of the case in the court of appeals.

Mr. Zall: --Well, because of a fairly bizarre application of 2403(b), we were the only group that the court designated as a party.

Unknown Speaker: You were not a party in the district court.

The district court denied your motion to... your post judgment motion to intervene, is that right?

Mr. Zall: That's correct.

Unknown Speaker: And you didn't seek to enter the litigation before the judgment in the district court.

Mr. Zall: That's correct.

Unknown Speaker: And was the reason that you didn't because you thought that the State was going to defend the provisions?

Mr. Zall: Yes, Your Honor.

That's what the Ninth Circuit found also, and we did receive those assurances.

Unknown Speaker: What about after the Attorney General took a position with which I gather you disagreed about the narrowness of the provision?

Mr. Zall: Your Honor, in the district court the State's position was completely... was the same as ours.

They argued the constitutionality.

They argued one additional factor, which was the Eleventh Amendment, and ultimately the court, the district court accepted their Eleventh Amendment argument but rejected their constitutional argument.

Unknown Speaker: Get back to the point I'm concerned about.

If you don't have standing here, the decision, at least of the district court, remains in effect, isn't that right, because you... your standing has nothing to do with the district court judgment.

Mr. Zall: Unless this Court vacates it, or--

Unknown Speaker: Why would we vacate?

They were proper parties.

If we take the ground that you're not a proper party here, nor were in the court of appeals, the district court judgment would still stand.

Mr. Zall: --Your Honor, if--

Unknown Speaker: I assume.

Mr. Zall: --I'm sorry.

If... since the State attempted to intervene in the district court level under 2403(b) and was reversed, I believe that the appeal, at least of that order, is still properly before this Court, and I think that--

Unknown Speaker: I thought the Governor was a party in the district court, wasn't he?

Mr. Zall: --The Governor was, Your Honor.

She... and--

Unknown Speaker: And the Governor thought the constitutional provision was invalid, I understand, Governor Mofford.

Mr. Zall: --She did, Your Honor.

Unknown Speaker: And the Attorney General said it's not enforceable in the circumstances that Yniguez said it was, so it seems to me that there's no controversy before the Court if you have no standing.

Mr. Zall: Your Honor, if we have no standing, and the argument is that the district court's opinion stands, then you will have in essence private constitutional review.

Unknown Speaker: Well, under our Bankcorp decision it seems to me that even though we were to conclude you have no standing, that does not mean we would simply dismiss the petition for certiorari if we find that there was a defect further below, that there was... either controversy either had become moot, or there was no case or controversy in the first place.

This Court would then have the authority to vacate the opinions below, I believe.

Mr. Zall: I believe that's also the position of the States in its briefs, Your Honor.

Unknown Speaker: Why would we vacate the opinion below?

That is to say, I can see if you were the only party before the Ninth Circuit and you don't have standing, then we'd vacate that, I guess.

There was no controversy because they weren't parties.

But in the district court, prior to Ms. Yniguez leaving her job, the district court reached its decision and then the other party to the case, the Governor, decided not to appeal, so there was no appeal, and therefore the district court decision stays in place.

I suppose--

--So why--

--Yes.

I suppose there is a question, though, which I had already asked you, about whether there was even--

--That's right.

That's right.

--a controversy at the district court.

That's right.

That--

--because the Governor took the same position as Ms. Yniguez.

That's right.

Exactly.

Whether there was ever a controversy.

Mr. Zall: Your Honor, I think there's also a question--

Unknown Speaker: So could you go back... I mean, I'm quite interested in your response to Justice O'Connor's question.

Mr. Zall: --As to whether there was ever a controversy in the district court, Your Honor?

Unknown Speaker: Yes, because that would seem to be determinative, wouldn't it, about whether or not we vacated, assuming you lose all the other points, the district court decision or just vacated the court of appeals decision, so I think your response would be important on that.

And of course if you left that in place you could review the matter in some other case.

I mean, you're not deprived of constitutional review.

Was there ever a point when the Governor was adverse to the plaintiff in this case, and there was one statement that the Governor said that she would comply with the constitutional amendment, and she expected every other State official to do the same.

Now, was there ever any adversary contest in the district court, or did we have a friendly lawsuit throughout?

Was there ever any point where the Governor took the position before the district court, I am defending the constitutionality of this State constitutional provision?

Mr. Zall: I believe that was the position of the State throughout the district court--

Unknown Speaker: State meaning government, because it's hard to tell who is the State in this case.

Mr. Zall: --I'm sorry.

The State was a party until December 21, 1988, when it was dismissed on Eleventh Amendment grounds, and then the complaint was refiled without the State.

Unknown Speaker: But would... and then the Governor, as the chief executive officer of the State, did she ever take a position in opposition to the plaintiff--

Mr. Zall: I believe--

Unknown Speaker: --in the litigation?

Mr. Zall: --Yes.

I believe the answer is yes.

In the litigation the Governor's position, as articulated by the Attorney General, who was representing all the parties in that--

Unknown Speaker: Including the Governor.

Mr. Zall: --Including the Governor.

Unknown Speaker: Well, but--

Mr. Zall: But before--

Unknown Speaker: --I had thought that they had conflicting positions.

I had thought that the Governor indicated that she agreed with the district court that it's unconstitutional, but that the Attorney General said that it would not be enforced against Yniguez, but even if we take those two combined, it seems to me that there's no controversy.

Mr. Zall: --Your Honor--

Unknown Speaker: There's no... at least there's no threat.

There's no threat to the employee.

Mr. Zall: --The Attorney General's position was, both prior to the opinion in the litigation, that there was no threat to the employee, and at the point of the opinion said, in essence, there's no--

Unknown Speaker: So at that point where was the controversy?

Mr. Zall: --Since this is a First Amendment case, Your Honor, what's concerning me is that the Court is very solicitous towards concerns of chilling First Amendment speech, and because the--

Unknown Speaker: You're chilled if there's a threat.

You're not chilled if there's no threat.

I mean, that's... don't you need a threat to be chilled?

Mr. Zall: --I think Your Honor's question is whether you would need a realistic threat to be chilled.

I think a perceived threat which chills speech might be--

Unknown Speaker: You have an unrealistic threat--

Mr. Zall: --Well--

Unknown Speaker: --that chills you?

Wouldn't an unrealistic threat produce an unrealistic chill?

[Laughter]

Mr. Zall: --I think it would, Your Honor.

Unknown Speaker: May I ask another question about the status of the case?

I take it the defendants never filed an answer, or did they?

Mr. Zall: Defendants did file an answer, Your Honor.

Unknown Speaker: Including the defendant Catherine Eden?

Mr. Zall: I'm sorry, Your Honor, I think I misspoke.

I believe the defendants did not file an answer in the--

Unknown Speaker: Was--

Mr. Zall: --They filed a motion to dismiss.

Unknown Speaker: --One of the defendants was Catherine Eden, the director of the Department and so forth and so on.

Was her position ever made known formally of record?

Mr. Zall: Other than the Attorney General's representation, her own personal position, Your Honor?

I don't think so.

Unknown Speaker: Can you tell me, is the director of this employee's Department bound by the Attorney General's interpretation of the act?

Mr. Zall: Although the Attorney General's opinion is not binding on the courts--

Unknown Speaker: Is it binding on this agency?

Mr. Zall: --The director of the Department of Administration?

I don't know the answer to that, Your Honor.

Unknown Speaker: Not much use being an Attorney General, I would guess, if your opinions on the law are not binding on the other executive officers.

You might as well not have one.

Mr. Zall: Well, Your Honor, I believe the Attorney General's opinion power as under ARS 41-193 (A) is in the statute, but the courts have decided that they're not binding on--

Unknown Speaker: Oh, they're not binding on the courts, I've no doubt about... let me ask about damages.

Did the district court award nominal damages?

Mr. Zall: --Yes, Your Honor, following the Ninth Circuit en banc opinion.

Unknown Speaker: Following the Ninth Circuit en banc opinion--

Mr. Zall: Yes.

Unknown Speaker: --but not originally?

Mr. Zall: Correct, Your Honor.

Unknown Speaker: And the Ninth Circuit used as the basis for its jurisdiction once Yniguez was no longer employed and the case would otherwise be moot the fact that... what?

Although the district court had not... although she... had she asked for nominal damages?

Mr. Zall: Not specifically, but she had asked for all other relief.

Unknown Speaker: All other relief.

Mr. Zall: Which is what the Ninth Circuit--

Unknown Speaker: And the Ninth Circuit en banc sent it back saying that you could have awarded nominal damages, even though the court had not awarded nominal damages.

Mr. Zall: --That's correct, Your Honor.

It also said that Ms. Yniguez--

Unknown Speaker: But since it hadn't awarded nominal damages, why wasn't the case moot once she left employment?

Mr. Zall: --The Ninth Circuit felt that she had--

Unknown Speaker: It could--

Mr. Zall: --the right to ask for nominal damages, and that was enough.

Unknown Speaker: --Well, that's... so retroactively the Ninth Circuit said go back and get nominal damages and that will retroactively keep the case alive.

Is that what the Ninth Circuit did?

Mr. Zall: I think what they're asking is that she could ask for it.

It was the request and the expectation rather than the--

Unknown Speaker: But the case was over below.

She had gotten her relief.

The relief did not include nominal damages.

The only relief it got was injunction against enforcing this against her in the future.

Then she leaves the State employ.

There's nothing left to the case, right?

Mr. Zall: --Actually, there was no injunction issued, either.

Unknown Speaker: Well... just a declaratory judgment.

Mr. Zall: Just a declaratory judgment.

Unknown Speaker: So that she would know that she wouldn't be threatened, or chilled, unrealistically or realistically, whatever.

[Laughter]

Right?

Mr. Zall: The court felt that--

Unknown Speaker: And the Ninth Circuit said, however, although there's nothing here that... once you've left employment there's really nothing at issue any more, there could be something at issue if the district court had granted you nominal damages, and we will remand to the district court to have the district court, if it wishes, grant you nominal damages, whereupon, retroactively, our jurisdiction on the appeal will be valid.

Is that what the district court of appeals did?

You can object to the question as leading.

[Laughter]

Chief Justice, I'm leading him where he doesn't want to go.

I think--

[Laughter]

--he wants to have the case here, but I don't see how it's here.

That's characteristic of all leading questions.

[Laughter]

Mr. Zall: --I think, given the context, my proper answer should be yes, but I think my answer's actually no, Your Honor, because I think what it was suggesting was that in the peculiar circumstances before the court at the time there were still legal rights between the parties before the court, which it had made parties, which could be determined by the court on the facts in front of it.

Unknown Speaker: Yes, but there was no legal right to damages, was there?

I mean, the Ninth Circuit... apart from everything else that Justice Scalia recited, the Ninth Circuit was also wrong in suggesting that she would have a right to nominal damages, wasn't it?

Mr. Zall: I think under the Eleventh Amendment that's correct, Your Honor.

Unknown Speaker: May I ask you what... in your judgment what we should do with the case?

[Laughter]

Mr. Zall: If--

Unknown Speaker: You must have a position.

Mr. Zall: --Yes, Your Honor.

Unknown Speaker: You represent a client before us.

[Laughter]

And I'm curious to know what your position, independent of all the questions that have been asked of you--

--Perhaps we could have it printed in a casebook on jurisdiction.

[Laughter]

Mr. Zall: Obviously, our preference is to have the Court decide the merits, since we believe that the rights of petitioners and respondents would be determined at that point, but if the Court finds that this case was moot, either from the start there was no subject matter jurisdiction, then clearly we would ask the Court to vacate all the way down.

If there are no other questions, I'd like to reserve--

Unknown Speaker: Very well, Mr. Zall.

Mr. Pohlman, we'll hear from you.

Argument of Robert H. Pohlman

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

When the State of Arizona determined in its exercise of it sovereign judgment that it would not join in the petition for certiorari in this case and that it would not appeal the final judgment in Ms. Yniguez' favor for nominal damages in the district court, this case became one without an Article III case for controversy and should have concluded.

We would ask that this Court dismiss the petition because the petitioners lack standing to maintain this action in this Court.

Unknown Speaker: I certainly agree with that, but why didn't it suddenly become nonexistent as soon as the district court entered a judgment that didn't include nominal damages and the petitioner later, and before the appeal, resigned from her State employment?

Why didn't it become moot then?

Mr. Pohlman: It wasn't moot for a number of reasons, Justice Scalia, one of which is that there was a final unappealed judgment in favor of the... Ms. Yniguez against Governor Mofford, so that judgment was binding and final long before she left State employment.

Unknown Speaker: Well, why was there a case or controversy in the district court, please?

Mr. Pohlman: In the district court there was a case or controversy initially because, as a factual matter, the district court found that Ms. Yniguez had suffered an injury in fact in that she... her First Amendment rights had been chilled.

Unknown Speaker: Well, the Government... the Governor agreed that the proposition was invalid.

Mr. Pohlman: The Governor agreed after the judgment, Your Honor, Justice O'Connor, that it was invalid.

Unknown Speaker: Well, there was never... there was never an answer on the merits, was there?

There was just a motion to dismiss by Arizona.

Mr. Pohlman: There... I don't recall, Justice O'Connor, whether there was an answer.

Unknown Speaker: Isn't that right?

Isn't that all there was?

Mr. Pohlman: I don't recall if there was or not.

I tend to believe there was an answer because the case went on for so long below, and actually went to trial.

Unknown Speaker: But at any point in the litigation did either the Governor or the Attorney General indicate that your client would be disciplined for using Spanish?

Mr. Pohlman: There was... Justice Kennedy, there was no specific indication.

However, there was a finding that Governor Mofford intended to enforce the article, that she expected Government employees to enforce the article and to comply with the article, and that therefore Ms. Yniguez had a chilling effect on her First Amendment rights that was caused by Governor Mofford, and that's found in the appendix to the petition for certiorari at pages 102 and 103.

Unknown Speaker: What was the basis for that finding?

Mr. Pohlman: It was Governor Mofford's outspoken indication that she intended to enforce Article XXVIII, and that she expected Government employees to comply.

Unknown Speaker: But in view of the Attorney General's opinion, enforcement of it does not seem to have a realistic prospect of any effect on Ms. Yniguez.

Mr. Pohlman: First, Mr. Chief Justice, Ms. Yniguez did not have the benefit of that particular Attorney General's opinion until some 3-1/2 months after this litigation was commenced, so for that 3-1/2 month period of time, her rights were obviously chilled.

Unknown Speaker: Well, but if they were chilled for 3-1/2 months and then all of a sudden unchilled, the lawsuit doesn't go ahead on the basis of what was the case earlier, does it?

Mr. Pohlman: It doesn't, Mr. Chief Justice.

However, in the case of the Attorney General's opinion below, that opinion was found to be nonbinding.

The district court judge recognized that the... a different Attorney General may well have a different opinion.

Unknown Speaker: Nonbinding on whom?

Mr. Pohlman: The... it was not binding on any court.

Unknown Speaker: Ah.

Mr. Pohlman: It was binding--

Unknown Speaker: But the court wasn't... but the claim wasn't that the court was going to prosecute her.

The claim was that someone representing the State, the Governor, the Attorney General, or her supervisor was going to bring some action against her, and the opinion, I presume, was binding on those people, possibly with the exception of the Governor, but it was binding on the others, wasn't it?

Mr. Pohlman: --My understanding, Justice Souter, is that it would be binding on those lower administrative employees, including Catherine Eden, who was one of the defendants who was--

Unknown Speaker: So that leaves the Governor, and isn't it also the case that prior to the district court judgment, in any even prior certainly to the expiration of the appeal period, the Governor herself had gone on record in her own right as saying that she thought it was proper to use English if necessary to discharge one's duties in a reasonable way.

Isn't that correct?

Mr. Pohlman: --In the record, Justice Souter, the Governor always said that she would enforce the article until such time as the judgment was entered by the district court.

At that time, she indicated she did not intend to appeal, but she also thought it was--

Unknown Speaker: No, but didn't she at some point, and I'm not positive of what this moment was, didn't she also indicate, quite apart from her general position that the amendment should be enforced, that she believed it was proper for a State employee to use some non-English language if that was reasonable in the discharge of the employee's duties?

Didn't she say that?

Mr. Pohlman: --That's not my understanding, Justice Souter.

That language was included in the Attorney General's opinion, which was in January, of course, after the lawsuit had been initiated, and--

Unknown Speaker: But well before judgment was reached in the district court.

Mr. Pohlman: --Yes, Your Honor, before judgment was reached and before trial, and at the trial the district court judge determined that, notwithstanding that Attorney General's opinion, given what Governor Mofford had said in public, and given the immediacy of the chilling effect on Ms. Yniguez' rights, that there was, in fact, an injury in fact to her, notwithstanding that opinion, and that is why he entered the declaratory relief--

Unknown Speaker: Is your view that there should be no vacation of any decision, not the Ninth Circuit's, and if that is your view, how can, at least with respect to the Ninth Circuit when the plaintiff was no longer in the State's employ and before the Ninth Circuit reached its judgment, how can you defend keeping that judgment on the books?

Mr. Pohlman: --Justice Ginsburg, I think what we do is, we look at the Bonner Mall Partnership case, and we find that vacatur is an equitable doctrine.

If we look at the equities as to what occurred first in the district court, there was no appeal by the Governor.

It was a final unappealed judgment long before Ms. Yniguez left Government service.

Therefore, that judgment, in our view, cannot be vacated under Bonner Mall Partnership.

But if you look at the equities with respect to the Ninth Circuit, at the time that that judgment was entered, Mr. Zall's group and the Attorney General sought to intervene for purposes of taking an appeal of the judgment at that time.

Ms. Yniguez had no reason at that juncture to appeal her claim for nominal damages because the district court said we will not allow this judgment to be appealed.

No one has an interest to appeal it.

It is going to stop right here.

And so all that was on appeal--

Unknown Speaker: Well, how can a district court prevent someone from appealing?

I can see how the court of appeals could say there is no interest, but what did the district... did the district court enter some sort of an order that they couldn't appeal?

Mr. Pohlman: --No, Your Honor.

What the district court did was to deny the motions of Mr. Zall's group, Arizonans for Official English, and the Attorney General, to intervene for the purpose of taking an appeal.

Unknown Speaker: What you're saying is no one who was then in the lawsuit was interested in appealing.

We had the plaintiff and the Governor, and that's it, right?

Mr. Pohlman: Exactly.

Unknown Speaker: And it was only after final judgment was entered with respect to those two parties that additional people asked to come in, one AOE and the other the Attorney General.

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

Unknown Speaker: And the district court said no, I deny your motion, your post judgment motion to intervene.

Mr. Pohlman: That is exactly--

Unknown Speaker: And the first thing that the court of appeals did was to reverse that denial as to AOE, right?

Mr. Pohlman: --That is correct.

Unknown Speaker: And then what the district... what the court of appeals did concerning the Attorney General I'm not altogether clear.

Was the Attorney General, in your view, a party in the case at the appellate level?

Mr. Pohlman: I... yes and no, and the reason I answer it that way, Justice Ginsburg, is because they were permitted to intervene under... and I would share Mr. Zall's view that it's kind of a bizarre application of 28 U.S.C. 2403(b), but the Attorney General is permitted to intervene for the purpose of arguing the constitutionality of the amendment.

That statute provides that the Attorney General may do so or the State may do so and has all the rights and obligations of a party, but they're not exactly a party, although they have all rights and obligations, including the right to petition for certiorari to this Court.

Unknown Speaker: But the State's position, as I understand it, is that the case became moot when the plaintiff left the State's employ, and that happened before the Ninth Circuit's judgment.

Mr. Pohlman: Justice Ginsburg, that's the State's position of the day, although their position has never been consistent throughout this litigation.

Unknown Speaker: Whose has?

Yes, that's for sure.

[Laughter]

Mr. Pohlman, I don't understand why you said it was okay for your client not to appeal the denial of nominal damages.

Mr. Pohlman: Justice--

Unknown Speaker: She was the plaintiff.

The Governor was the defendant.

The district court denied her nominal damages against the Governor.

Now, to be sure, the Governor then said, I don't want to appeal, but why couldn't your client have said, but I do?

I have been denied nominal damages.

I think I was entitled to them, and I want an appeal.

Mr. Pohlman: --Justice Scalia, she could have appealed at that juncture.

Unknown Speaker: Well, I thought Yniguez never even asked for nominal damages in the district court.

Mr. Pohlman: We did not ask for--

Unknown Speaker: For such other relief.

Mr. Pohlman: --We did not ask for nominal damages in the district court at the initial phase.

We asked for all... anything that might be just and equitable in premises in a traditional addendum clause.

In the Ninth Circuit, that is--

Unknown Speaker: Well, actually, you put in zero zero on dollar amounts, did you not?

Mr. Pohlman: --With respect to damages?

Unknown Speaker: Yes.

Mr. Pohlman: I don't recall that being in the judgment.

Unknown Speaker: Even if such other relief as may seem just and proper... are they still using that language in Arizona complaints +/?

that's good enough to keep... to leave the question open for the district court, but when the district court at the end of the case does not grant nominal damages, then it seems to me you've got a much different question.

For the Ninth Circuit to send the thing back and say you could have asked for nominal damages seems extraordinary.

Mr. Pohlman: Mr. Chief Justice, they are still using that language in Arizona, and what occurred, really, is the Ninth Circuit said, because we had requested at the time that if it goes back, and if there ever is an appeal from the judgment on the merits, which there had not been previously, there had only been an appeal that... a procedural question of whether or not Mr. Zall and his group and the Attorney General could intervene, because up to that point in time Ms. Yniguez had a declaratory judgment in her favor.

She had no reason, as long as the actual judgment was not in jeopardy, to go and ask the district court to spend the time to get $1 in nominal damages.

Unknown Speaker: When she did ultimately cross-appeal... she did ultimately cross-appeal after the Ninth Circuit reversed the district court's intervention order, correct?

Mr. Pohlman: That's correct.

Unknown Speaker: Now, what was the basis for her cross-appeal.

What was she asking on the cross-appeal?

Mr. Pohlman: She was asking for a judgment of nominal damages in her favor based upon the rights that she had... had been found to have been violated in the district--

Unknown Speaker: On the cross-appeal, but since she had made that claim only on cross-appeal, if AOE's appeal was improper because it's an improper party, then her cross-appeal fails because her cross-appeal was only derivative of the main appeal, isn't that correct?

Mr. Pohlman: --We don't believe so, Justice Kennedy, and the reason is this.

The State at that point in time was still in the case as an intervenor under 2403(b).

In fact, the State actively opposed the nominal damages cross-appeal, filed its own appeal with respect to procedural aspects of the case, and later, after the Ninth Circuit remanded for the purpose of award of nominal damages, or at least entered its decision, the State expressly waived its right, or its immunity under the Eleventh Amendment.

Unknown Speaker: When did the nominal damages cross-appeal occur?

I'm not clear on that.

When did that occur?

Mr. Pohlman: Within 30 days of the first appeal on the merits, by either of the--

Unknown Speaker: Could we go back just one step?

We have... was this a 1983 action in the district courts--

Mr. Pohlman: --Yes--

Unknown Speaker: --Section 1983?

Mr. Pohlman: --Yes, Justice O'Connor.

Unknown Speaker: And have we not held in cases like Will v. Michigan that States and State officials like the Governor are not persons under 1983?

Mr. Pohlman: For purposes of damages?

Unknown Speaker: Yes.

Mr. Pohlman: I think--

Unknown Speaker: So how could the district court ever, under a 1983 suit, assess even nominal damages against the State?

Mr. Pohlman: --It's my understanding that under the Ex parte Young doctrine there can be an award of nominal damages, and I don't have the case before me.

I would be happy to submit a letter brief, Justice O'Connor, if that would assist the Court, but in any event what occurred was the nominal damages were awarded in the face of an express waiver of immunity by the State of Arizona.

Unknown Speaker: Where do we find that express waiver in the record?

Mr. Pohlman: That would be on page 32 of our appendix in Ms. Yniguez' brief, which is the letter from the Attorney General, at that point in time Grant Woods.

Unknown Speaker: In your brief on the merits here?

Mr. Pohlman: Yes.

Our appendix in the brief on the merits, Justice O'Connor.

And it's for that reason that we believe that we properly have damages awarded for $1 and proper damages were awarded.

The judgment in fact was entered in November of last year, and that can be found at page 211 of the joint appendix.

Unknown Speaker: Mr. Pohlman, I take it you are recognizing that the Attorney General was a proper party adverse to you in the court of appeals.

I gather that from footnote 10 on page 23 of your brief.

You seem to say there that while you have consistently argued that AOE has no standing, that doesn't require vacating the Ninth Circuit's opinion because the State has standing.

Mr. Pohlman: That's quite accurate.

Unknown Speaker: Now, if that's so, the State's position here is that the case is moot, at least when the plaintiff left the employ of the State of Arizona.

When mootness occurs in between the district court and the court of appeals, isn't Munsingwear the rule that we follow?

The State is an appellant.

It says, we have no responsibility for the plaintiff leaving the employ.

We didn't get a chance to get appellate review, so the district court decision has to be vacated.

If the State is legitimately a party, as you seem to concede on appeal, doesn't that follow?

Mr. Pohlman: Justice Ginsburg, that would follow normally under Munsingwear if, in fact, there had been no judgment for nominal damages, that had not been appealed and had actually been expressly waived, that judgment by the State, and they had opposed that all the way through the Ninth Circuit and then decided after that judgment was entered to eschew a judicial review of that.

Unknown Speaker: So you're hanging everything on that $1 of nominal damages.

Mr. Pohlman: No, Justice Ginsburg, I would not say that.

I would say that that is one of the aspects of this case upon which we hang our hat for purposes of case or controversy.

Unknown Speaker: Well, what else is there?

Let's leave out the $1 nominal damages.

We have a case that's a perfectly good final judgment.

We have an appellant that you concede is a proper appellant, the State.

The case becomes moot through no... nothing that the appellant has done between the district court and the court of appeals.

Isn't our normal practice in that situation to vacate the district court's decision?

Mr. Pohlman: Absent the nominal damages under normal circumstance, Justice Ginsburg, I think that would be the case.

However, here we have a First Amendment overbreadth case, and to add to some of the procedural dilemma below at the time the suggestion of mootness was made by the Solicitor General who replaced the original Solicitor General in the case, we had at that time pending an appeal by State Senator Jaime Gutierrez, whose appeal unfortunately got lost in the docketing system of the Ninth Circuit, and it was agreed--

[Laughter]

It was agreed between the parties, and we can find this in the joint appendix, but it was agreed between the parties at that point in time, that being the State and Ms. Yniguez and AOE, that if the matter were to be remanded for consideration on the merits, then the appeal of Senator Gutierrez would also be joined with it.

That never occurred for reasons which are--

Unknown Speaker: And what was his standing?

Mr. Pohlman: --Senator Gutierrez was a State legislator at the time.

Unknown Speaker: He had the same standing as the petitioner does here, in other words.

Mr. Pohlman: I would say he had much greater standing in the sense that--

Unknown Speaker: He voted for this measure?

[Laughter]

Mr. Pohlman: --Senator Gutierrez would not have voted for this, Justice Stevens.

He's bilingual and a State legislature who often communicated with his constituents--

Unknown Speaker: In other words, he voted against it.

Mr. Pohlman: --I would expect he voted against it.

Unknown Speaker: So what... again, what is his standing?

Mr. Pohlman: A State legislator whose conduct was threatened by Article XXVIII in that he routinely, as many State legislatures... legislators do, communicated with his constituents during the performance of Government business in languages other than English.

Unknown Speaker: Your position, Mr. Pohlman, is that AOE has no standing here, I take it.

Mr. Pohlman: Yes.

Unknown Speaker: And where does that leave people who vote and perhaps organize to get a referendum passed.

Typically the Arizona constitutional convention, one of the reasons for referendum was that you couldn't get something through the legislature because of special interests, so let the people do it.

The referendum passes, and the Governor and the Attorney General hypothetically say, you know, we don't like this thing, we're not going to defend it.

Who then defends the action?

Mr. Pohlman: Once it gets to that point in time, Mr. Chief Justice, I don't think anyone defends the action.

I think it is the obligation of the State to defend that action and indeed, they did in this case.

Unknown Speaker: What if they don't, though?

I mean, they say we don't like the bill.

We're just going to let it go.

Mr. Pohlman: In that event I would suggest to Mr. Chief Justice that the voters who passed the initiative would probably change the administration when they next went to the polls.

Unknown Speaker: But there's no way for anybody to come in and defend the initiative if the Governor and the Attorney General won't do it.

Mr. Pohlman: In our view, that would be the case.

Unknown Speaker: Well, there is a citizens suit provision, and the citizens can sue in State court to enforce something that's been validly passed under the very terms of the provision that was passed, is that not so?

Mr. Pohlman: There is, indeed, an enforcement provision in the--

Unknown Speaker: Anybody who claims to be adversely affected.

Mr. Pohlman: --Anyone who desires, I believe, Your Honor, to enforce the provisions.

Unknown Speaker: So there is a citizens suit provision.

Somebody can come into court and raise it.

Mr. Pohlman: Your Honor, I'm not so sure that a citizens suit provision in an initiative like this would give any citizen of the State of Arizona then carte blanche under Article III to challenge a declaration by the--

Unknown Speaker: I guess we don't worry about Article III in State court actions.

Mr. Pohlman: --You're right, in State court they could challenge it, and that challenge would still be viable today.

Unknown Speaker: Exactly.

Well, but where the question is based on the Chief Justice's inquiry, followed by Justice O'Connor, is we're assuming the State officials do not enforce the act, and Justice O'Connor points out that the initiative does have a citizens suit provision allowing a citizen to enforce the act.

Mr. Pohlman: That's accurate, Justice Kennedy.

Unknown Speaker: But the citizens suit provision may come up against a barrier if there's previously been an action in the Federal court where the Governor and the Attorney General are enjoined from enforcing it, which went by default, so the Attorney General and the Governor would then have a perfectly good defense to the citizens suit provision of res judicata as a result of the Federal action.

Mr. Pohlman: Mr. Chief Justice, I think that may be true with respect to the Attorney General and the Governor.

My understanding of the enforcement provision is it was directed at administrative employees or anyone that... a citizen or person doing business in the State--

Unknown Speaker: And I guess there was no injunction here.

A declaratory judgment, right?

Mr. Pohlman: --It was simply a declaratory judgment.

There was no injunction, injunctive relief granted, Justice--

Unknown Speaker: Mr. Pohlman, may I go back to Justice Ginsburg's question going to the issue of whether we should vacate the district court judgment?

Would this be a position that you would espouse, that at the conclusion of the district court action, neither of the parties before the district court appealed.

It is quite true that there was then an intervention, and ultimately in the Ninth Circuit the State came in.

The Attorney General came in under the statute for the purposes of defending the constitutionality of the State act.

But the Attorney General at that point was in there only on a kind of conditional basis.

He was only in there saying, if we're going to have an appeal, then I'm here under the statute representing, in effect, the State to uphold the constitutionality of the act if I can, but I'm not an independent appealing party, and the State and the Governor are not independent appealing parties.

Given that interpretation, would it, even on our normal equitable vacatur rules, be appropriate not to vacate the district court judgment, because the parties who could have appealed in fact did not.

The parties who presumably would suffer from leaving the judgment on the books did not, in fact, appeal.

Would that be a... would you espouse that argument for opposing vacating the district court order?

Mr. Pohlman: --I would espouse that argument to oppose vacating the district court order, exactly.

Justice, Souter, I believe that the Attorney General, though, had a slightly different position insofar as the Ninth Circuit is concerned.

The Attorney General actively sought to reinsert himself as a party for the purposes of pursuing the appeal with or without AOE when they were in the district court.

Unknown Speaker: But that was... wasn't that after the appeal period had run?

Mr. Pohlman: No, Your Honor, it was not.

They appealed within the time frame that was necessary in order to... had they been granted leave to intervene.

Unknown Speaker: Oh, so--

--That was the position that you took in this footnote that I read.

You recognized the standing of the Attorney General as a proper party.

Mr. Pohlman: Exactly.

Unknown Speaker: Well, if that's the case, then, then the Attorney General was not in only on the limited basis that my suggestion gave him, so I suppose if you accept his standing as a party at that point, and you take the position that he should have been allowed in, period, then I guess the argument for vacating is a valid argument.

Mr. Pohlman: Justice Souter, we would disagree with that for some of the reasons that have been said before, but in fact, and this goes back again to the ruling by the Ninth Circuit with regard to 2403(b), in fact you're entitled to intervene as the State, not as a party, but with all the rights and obligations of a party at that point in time, and the district court recognized there is no right to intervene at that point, or at least felt that way.

The Ninth Circuit gave them a right which is not contemplated by the statute, which was a defendant standing under 2403(b), and I... and for purposes of your question I'm not so sure that was legally correct, but that was the understanding the State had, that they were in there with defendants--

Unknown Speaker: Mm-hmm.

Mr. Pohlman: --And that was the position... they never appealed that particular ruling, and that was the way that--

Unknown Speaker: Ah, so that's why they're stuck.

Yes, okay.

Could... I have two questions briefly that I'd like to hear your answer to.

The most important is, I'd like to hear clearly what your answer was to Justice O'Connor's initial question.

I take it in the district court there was a person, the plaintiff, and a defendant, the Governor, who had an argument.

The plaintiff won, and the Governor didn't appeal.

All right, but the question was, was there ever a controversy between them, and the answer to that depends upon whether there was a reasonable threat of prosecution, isn't that right?

That's the case they cited in support of that.

Mr. Pohlman: --I--

Unknown Speaker: Now, you pointed to a place in the district court's opinion which says I, the district judge, think there was a reasonable threat of prosecution.

Where in the record do I find the material upon which that conclusion rests?

Mr. Pohlman: --You will find the testimony in our appendix attached to our brief on the merits at pages 14 and 15, which is the testimony of Ms. Yniguez concerning her fear that she may be prosecuted, or that there may be a citizens suit based upon the test of Article XXVIII.

You will find the judge's conclusion on page 102a of the appendix to the petition for certiorari, where he finds that in fact Ms. Yniguez has suffered an injury in fact due to the threat of potential disciplinary action by virtue of--

Unknown Speaker: Was Ms. Yniguez... excuse me.

Where do I find what the Governor said, because what he's saying is it's the Governor's statement that leads me to think that the Governor might prosecute her.

Mr. Pohlman: --That is in the stipulated facts that are in the joint appendix, I believe.

If not, they may be in our appendix beginning at pages 5 and 6.

I don't have that right in front of me, but I can find that for you, Justice Breyer.

Unknown Speaker: Mr. Pohlman, I hate to come back to this, but I'm still not clear on it.

After the State came in on the appeal, when did the cross-appeal for the denial of nominal damages occur?

Mr. Pohlman: The cross-appeal for the denial of nominal damages occurred shortly after the first appeal on the merits was ever filed by any intervenor, and that was after the case had been remanded, following the decision on the suggestion of--

Unknown Speaker: Okay.

Mr. Pohlman: --It was the first--

Unknown Speaker: After remand, though.

It's after remand.

The original appeal to the Ninth Circuit went up and back down without any claim of nominal damages involved.

Mr. Pohlman: --The original appeal was not on the merits, Justice Scalia.

Unknown Speaker: I understand.

Mr. Pohlman: That's why the cross-appeal we are not entitled to unless there are... we don't need to cross-appeal on the judgment unless there is actually an appeal on the judgment.

There was none until it was remanded.

That's the first time a notice of appeal on the judgment itself was ever filed under Pellegrino v. Nesbit.

Unknown Speaker: Did the stipulation you... as to the facts covering the Governor's position, I thought that stipulation said nothing about the Governor intending to take enforcement actions, just that the Governor intended to comply.

Well, if the Governor intends to comply by herself speaking English, I suppose that wouldn't affect this at all.

Is there anything in the stipulation that says the Governor intends to take enforcement actions against people like Yniguez?

Mr. Pohlman: Justice O'Connor, I don't believe there's anything that says that per se.

Unknown Speaker: No, I didn't think so.

Mr. Pohlman: In our appendix at page 8 to our brief on the merits some of the stipulations appear.

Unknown Speaker: In your red brief?

Mr. Pohlman: Pardon me?

Unknown Speaker: This is in your red brief?

Mr. Pohlman: Yes, Mr. Chief Justice, in the red brief.

Unknown Speaker: Page 8?

Mr. Pohlman: Page 8 of our appendix shows some of the stipulations pertaining to what occurs in the disciplinary process.

The testimony below was Ms. Yniguez had seen people disciplined before, that she understood that she was expected to comply--

Unknown Speaker: Disciplined under this statute?

Mr. Pohlman: --Not under this statute, no.

People were disciplined for failing to follow the laws of the State or the constitution of the State--

Unknown Speaker: Well, that's scarcely surprising.

[Laughter]

Mr. Pohlman: --That they would be disciplined for that, and that's what we agreed, Mr. Chief Justice.

It is scarcely surprising.

That's why she was in fear of her job.

Unknown Speaker: Well, but the question is, did the enactment of this law put her in fear of her job.

Mr. Pohlman: Yes, it did, and that is precisely what the district court found, that she had a reasonable belief that she may be disciplined if she in fact spoke something other than English on the job.

Unknown Speaker: Thank you, Mr. Pohlman.

Mr. Zall, you have 5 minutes remaining.

Rebuttal of Barnaby W. Zall

Mr. Zall: I'd like to point the Court's attention to the rulings of the two lower courts on this case.

In the petition appendix, page 112, 113a, the order of the district court says, it is further ordered that Article XXVIII of the constitution of the State of Arizona is hereby declared to be void as being invalid on its face in violation of the First Amendment of the Constitution of the United States.

And on page 60a of the same appendix, the Ninth Circuit en banc decision says, we affirm the district court's judgment that Article XXVIII of the Arizona constitution is facially overbroad and violates the First Amendment, and that the article is unconstitutional in its entirety.

I think that is the heart of the matter here, Your Honors.

Petitioners are bound by the lower court judgment because they intervened as a party.

If Article XXVIII is void in its entirety, then petitioners do not have the enforcement rights that the court suggests that they do.

In addition, on the question of who defends the actions, I think in this case the Attorney General attempted to defend, and because of the application of 2403(b) in this case the Attorney General and the State's rights under the Eleventh Amendment were implicated because--

Unknown Speaker: Well, the Attorney General's position is, wisdom has come a little late, but now the Attorney General is enlightened and understands that long before any judgment was entered in the Ninth Circuit the case was moot, so if we accept that, that wipes out the Ninth Circuit's decision, because the Ninth Circuit has no authority to issue a judgment in a moot case.

Mr. Zall: --It would also wipe out the district court opinion.

Unknown Speaker: Not necessarily, because if the mootness occurred on appeal, you don't ordinarily wipe out a final judgment from which no party to that judgment has appealed.

If we had a lawsuit with two parties at the end of the road, neither pursued an appeal in the district court, and then we have quite different lawsuit in the Ninth Circuit and the State is telling us as to that lawsuit mootness occurred before the judgment, how do you reach back and say, but the mootness also affects the original suit and that original judgment between the plaintiff and the Governor?

Mr. Zall: Your Honor, the problem with the hypothetical is that this is not a standard contract case or an employment problem case.

This is a facial overbreadth First Amendment attack on a State constitution which was held to be void in its entirety.

This is not just Ms. Yniguez and the Governor.

The Court has held that judgments have a value in and of themselves.

People rely on them.

We cannot go into State court--

Unknown Speaker: But you can't rely on a judgment that's vacated, and the Federal court has no authority to deal with anything that isn't a genuine controversy at the time judgment was entered.

Mr. Zall: --But, Your Honor, the problem is, if we go into State court and say, sue anyone in the State, the defense by everyone is, the district court for Arizona has held this statute... this constitutional provision unconstitutional in its entirety.

Unknown Speaker: It was my understanding that a district court's judgment doesn't necessarily bind even another district judge in the same district.

Mr. Zall: But it does--

Unknown Speaker: So how does it bind a State court?

Mr. Zall: --It doesn't bind it in the sense that it's automatically controlling, but in a number of cases... FDIC v. Jennings, I think in the Tenth Amendment--

Unknown Speaker: It's like a law review article, isn't it?

Mr. Zall: --It's the prospect of an unfavorable precedent looming over the case to the extent that a State court judge is going to say, this is a question of Federal law.

Am I going to apply Federal law to this question differently than the district court of Arizona?

I would find that a prospect that would be daunting for a litigant.

Unknown Speaker: I've known some State judges who would do that.

[Laughter]

How many district... how many Federal district judges sit in Arizona?

Do you have any idea?

Three hundred?

[Laughter]

Mr. Zall: No.

No, Your Honor.

I think there's only... I think there's four.

Unknown Speaker: There's six in Phoenix and three in Tucson.

[Laughter]

Chief Justice Rehnquist: Thank you, Mr. Zall.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Chesapeake & Potomac Telephone Company Of Virginia 516 U.S. 415 - Oral Argument

Fri, 09 Jan 2009 14:49:45 +0000

Case:

United States v. Chesapeake & Potomac Telephone Company Of Virginia 516 U.S. 415

Media File:

94-1893_19951206-argument.mp3

Related Transcript:

1995_94_1893_argument.xml

Transcript:

Argument of Lawrence G. Wallace

Chief Justice Rehnquist: We'll hear argument now in Number 94-1893, United States, the Federal Communications Commission v. Chesapeake & Potomac Telephone Company, and National Cable Television v. Bell Atlantic Corporation.

Mr. Wallace.

Mr. Wallace: Thank you, Mr. Chief Justice, and may it please the Court:

The provision of the 1984 cable act that the court of appeals invalidated in this case, section 533(b) of title 47, addresses the special capacity for anticompetitive conduct by local telephone companies in providing cable television programming services.

That capacity stems from the telephone companies' established situation as regulated monopolies, and it is important to an understanding of the premises on which the commission and Congress have acted over the past 25 years not to elide too quickly over what it has meant for these companies to be regulated monopolies.

They have in the first place been given exclusive franchises.

The Virginia statutory provision involved in this case is set forth in footnote 17 of the district court's opinion on page 77a of our appendix to the petition, which protected them against competition in providing the telephone services regulated on the basis of recovery of costs and return of capital type of rate regulation still the predominant and historically the only form of rate regulation to which they've been subject in providing telephone service.

They've been granted rights of way sometimes with the exercise of the power of eminent domain to construct poles and conduits and their expenses in doing so have been included as part of their rate base, so at the advent of modern cable television, when it was replacing the old community antenna systems, they had not only the capacity to provide wire service throughout the communities they served, they had the wires in place to virtually every residence and a capacity through their Government-sponsored regulated monopolies to stifle the development of any other competition in the provision of cable television services.

I don't mean to suggest that any of this was in any way improper.

Obviously, this served an important public interest on the part of the local governments in assuring that telephone service would be available throughout their communities at a reasonable cost.

But the situation with which the commission and Congress have been concerned is that not just through their legitimate use of the advantage that they had were they in a position to stifle the development of others in providing these services, but they also would have the capacity incentive to use unfair competitive methods.

Unknown Speaker: Mr. Wallace--

Mr. Wallace: Yes, sir.

Unknown Speaker: --All that is well and good, but to date has that changed, and are cable companies competitive with each other, or are they equally in the monopoly position, and are we just talking about monopolists versus monopolists?

Mr. Wallace: Well, there have been franchises granted to the cable companies.

We're talking about an historical evolution of a provision--

Unknown Speaker: I know it, but the evolution has taken place.

The... as I understand it, the cable industry is no longer at its infancy state, it is a developed industry with over 90 percent saturation, right?

Mr. Wallace: --Well, I not only do not deny it, I'm not in a position to deny it, because it's part of the basis of the commission's Third Report and Order, which has been issued--

Unknown Speaker: Well, doesn't the Third Report, the basis of the Third Report conflict with much of what you've just said, as to the development ability of the cable industry?

Mr. Wallace: --What I have said is more of a historical nature in showing the development of regulation in this field, and why the 1984 act with its provision for good cause waivers, that was intended to have flexibility so that the commission could adapt it to changing situations in the industry and changing technologies, was a legitimate response to the congressional concerns, which were to try to nurture a multiplicity of voices in the provision of these services and to prevent unfair--

Unknown Speaker: Mr. Wallace, if we're going to get into history, wasn't it proposed to Congress and rejected early in the history of cable to prevent cable from becoming a monopoly by making the cable owners common carriers only and preventing them from programming, which would have made cable much more open to any kind of programming not within the control of a single monopolist?

That was rejected, right?

Mr. Wallace: --That was a--

Unknown Speaker: So you have cable monopolies in 99 percent of localities now, is that right?

Mr. Wallace: --The commission is undertaking--

Unknown Speaker: Yes.

Mr. Wallace: --right now to try to do something constructive about this--

Unknown Speaker: And the Government is concerned about monopoly power, having created this thing.

Mr. Wallace: --Well, we were... the concern at the outset with the 1970 commission study and regulations that were then adopted by Congress was that the telephone companies were in a position to preempt the entry of any other players into this at all.

They were allowed to enter into this business but not in their own service areas where they had these artificial advantages as monopolists.

The whole idea was to bring other players in, with the telephone companies among those standing in the wings as potential competitors.

We're talking about a longer view than... the idea was, the motivating animation of this was that otherwise no one else would ever get into it, or there was a great danger of that.

Unknown Speaker: Mr. Wallace, if the Government was worried that telephone companies would engage in unfair practices, why is it that the statute they passed just prohibited video programming instead of video transmission?

I mean, it just... it's just so illogical to me.

Mr. Wallace: Well--

Unknown Speaker: Why did they select the most speech-restrictive approach, instead of saying we won't let phone companies transmit these messages?

Mr. Wallace: --Well, we like to think of that as a form of more narrowly tailoring the restraint to the--

Unknown Speaker: You mean, it's more narrowly tailored to just prohibit speech?

Mr. Wallace: --To prohibit the conduct where there would be the greatest incentive as an economic matter for the telephone companies to engage in unfair competitive practices, including discriminatory self preference in the use of the essential facilities of the poles and the conduits as well as the cross-subsidization that is so very--

Unknown Speaker: How does that--

Mr. Wallace: --difficult to detect and monitor.

Unknown Speaker: --How does that work?

That is, the thing I couldn't... the... in trying to understand this, the point that you seem to be making now, which was the point that I thought was the strongest for your side, was contained in Professor Owen's reply affidavit, where I think he agreed with Professor Kahn that really this problem of cross-subsidy, which seems to me your only rationale, doesn't really exist in respect to cross-subsidizing programming.

I.e., the programming, you can't easily hide the cost of programming in the cost of your telephone service.

I mean, it's not very likely a regulator would think, right, the cost of producing Cecil B. DeMille's The Ten Commandments was part of the cost of picking up the phone.

They're pretty easily separable.

It's the communication part.

Then he says, but they wouldn't have the incentive to do it, to do this cross-subsidy on communication, unless they're allowed to go into programming, and then he stops, and that's the part I didn't understand.

That is, why?

Why?

What do you mean, the incentive?

Why is there... if you could make extra money by doing the cross-subsidizing of the two kinds of communication, why wouldn't you do it, irrespective of whether you're in programming?

What does programming add to the incentive?

Mr. Wallace: They're not prohibited from being in programming in the sense of making a movie or a series undertaking through investment or activities in places where these things are made to make them for marketing to others.

What--

Unknown Speaker: Well, let's call it program editing.

Mr. Wallace: --It's marketing programs the way a cable television company does that is the prohibition, putting together a package of programs mostly prepared by others, and marketing them directly to their... the customers in their own service area that is the prohibition, and that is where the big profit is to be made in comparison with what they would get from enabling others to use their wires to transport and market their packages of programming.

Unknown Speaker: How can that be cross-subsidized?

Can you tell me that, Mr. Wallace?

Give me an example of the cross-subsidy that might occur.

Mr. Wallace: Well, there--

Unknown Speaker: What... you know, what costs would be shifted over to the monopoly thing very readily--

Mr. Wallace: --There would be many--

Unknown Speaker: --and that the regulator wouldn't be able to spot?

Mr. Wallace: --There would be many common costs and cost allocation methods, as this Court recognized--

Unknown Speaker: I know.

You've said that.

Give me an example, a real life... you know, this.

Mr. Wallace: --They would share capital equipment.

They would share the fiber optic cable itself, costs of research and development, costs of administration of their telephone network, including the programming service, personnel costs, costs of raising capital--

Unknown Speaker: Mr. Wallace, but I think you--

Mr. Wallace: --All of this would have to be allocated.

Unknown Speaker: --And this doesn't happen with the cable companies, who are also rate-regulated?

Mr. Wallace: Well, but they are rate-regulated under Federal law now, but they don't have the problem of extending a regulated monopoly into an area that is less regulated--

Unknown Speaker: Into programming?

Mr. Wallace: --and having to allocate--

Unknown Speaker: Into programming?

Hasn't the Government not only not prohibited them from originating programming, but required them to originate programming?

Is there no risk of cross-subsidy there, and was the Government totally unconcerned with that?

Mr. Wallace: --Well, there may be some risk of cross-subsidization there, but the Government doesn't have to address every risk throughout the spectrum of society in order to be able to move one step at a time against risks--

Unknown Speaker: It seems to me it's been very unconcerned with all sorts of risks in this whole area, and suddenly it's picked out this one.

I'm just telling you I don't understand the argument.

I don't understand how it's supposed to work.

The telephone company charges me or you let's say $50, just like district cable, okay?

Now, if it can in fact really charge an additional $5 on my telephone bill because it's somehow hidden, the regulator doesn't understand that this optic fiber which is necessary for the cablevision part isn't really necessary for the telephone part, but you fool them, so they could get $50 from me for the cable, and they push $5 on my telephone bill.

My question is, if they're so smart and can do that and fool everybody, why don't they do it, and if, in fact, they do do it, what is being in the programming editing part got to do with it?

Professor Owen says that, well, if they go into the programming editing part they'll have greater incentive to do it.

Mr. Wallace: --Well--

Unknown Speaker: Why?

$5 is $5.

If they can fool me now, they'll fool me then.

What has the editing part got to do with this?

Mr. Wallace: --If they undertake additional expenses of a substantial nature, they have more opportunity to shift the cost.

Unknown Speaker: You mean, they're going to hide Cecil B. DeMille's Ten Commandments, which is their editing thing, and the regulators are so stupid that they're going to think that that programming business which has no common cost is really part of your telephone service?

That would be pretty stupid regulating.

Mr. Wallace: Well, I'm not talking about producing the Cecil B. DeMille film.

Unknown Speaker: The editing.

The--

Mr. Wallace: I'm talking about marketing something to their same customers over their telephone wires the way the cable television market did to their customers, and what I'm saying is--

Unknown Speaker: --So it's a common cost.

Mr. Wallace: --why they don't do it without having undertaken that, why they don't hide the same $5, as you put it, of expenses is because they don't have the expenses to hide.

Unknown Speaker: So then you're making a common cost argument, and the problem with your common cost argument is all the affidavits in this, I think, even Professor Owen I think in the reply, concedes that Kahn is right that there aren't common costs.

Mr. Wallace: Well, I've mentioned a number of categories of common costs that would be difficult to allocate, and our case doesn't rest entirely on cross-subsidization.

There is also the problem of discriminatory self preference in handling the facilities being used for their own benefit as well as for the benefit of others who are competing with them.

Unknown Speaker: So that's an argument that basically says we, Congress, would prefer to have a monopolist, the cable company, exist today because then maybe, if the telephone company runs another line into your house, it will let three or four people use that line, but if, in fact, we don't have this statute, what it will do is only one person so will use the line, namely the phone company itself.

Mr. Wallace: Well--

Unknown Speaker: Yes.

Mr. Wallace: --this was taking a long-term view.

Unknown Speaker: Is that the argument?

Yes.

Mr. Wallace: You first had to establish somebody else--

Unknown Speaker: Yes... right.

Mr. Wallace: --who could be in this industry with the phone company there.

Then you evolved into the two-wire situation where there were actually two providers of wires to most of the residents.

Unknown Speaker: I didn't find anywhere in the record anybody making this argument.

I could understand this argument, but I didn't under... I didn't see it anywhere.

Mr. Wallace: Well, it's developed through the history of commission regulation.

Unknown Speaker: Where... is there somewhere in the record where they're making it?

Mr. Wallace: I can't point to anything in the record in this case, but we have a long record of commission consideration of these matters, and the commission has, once the cable companies began to get established, they began to look to their wires as the best potential competitors to provide competing local telephone service.

Unknown Speaker: Mr. Wallace, it would help me if you would clarify what the Government is defending now as consistent with the First Amendment.

You set out the history very effectively, but I take it that the Government is no longer defending as consistent with the First Amendment a total prohibition, which is the principle thing that the statute did, or are you defending that?

Mr. Wallace: We're defending the statute, which in our view has always had just a presumptive bar in it with a provision for good cause waiver as situations changed and as the commission would find the waiver to be consistent with the procompetitive purposes of the statute, and--

Unknown Speaker: Good cause including the fact that the statute is no longer needed, right?

Mr. Wallace: --Well, it's not that the statute--

Unknown Speaker: Is that a good cause, essentially?

Isn't that part of your analysis?

You know, things have changed so much that this statute really is not necessary any more.

Mr. Wallace: --The commission--

Unknown Speaker: Therefore we give you a good cause exception to the statute.

Mr. Wallace: --The commission's Third Report and Order, recently adopted, does not leave the presumptive bar without bite?

Unknown Speaker: You call it a--

--Why?

Why?

--presumptive bar, but this waiver provision refers to, justified by the particular circumstances demonstrated by the petitioner.

That doesn't read to me like a basis for the commission to have a general waiver.

We waive for everybody provided they meet these regulations.

Mr. Wallace: The commission has interpreted this, and we think very defensibly in its recent report and order, to say that they can define what circumstances will warrant a waiver and still require the particular applicant to show that that applicant meets those circumstances.

Unknown Speaker: Do you have another instance where a waiver provision in a statute is interpreted to mean, going in you have a waiver if you meet these requirements, instead of, here's my particular situation, I would like a waiver because of something peculiar to my situation?

Mr. Wallace: Well, I can't say that one occurs to me off-hand, but it doesn't seem to me to be unique in administrative practice to define in advance what showing will entitle people to a waiver under a public interest standard of a provision that otherwise would apply, and those who do not meet those circumstance will not get a waiver.

They--

Unknown Speaker: It seems to me, Mr. Wallace, that in the First Amendment area, where I think this case is taking us, a standard list, or very amorphous waiver scheme, is quite inconsistent with our precedents.

I'm thinking of the police commissioner that has this open-ended discretion to allow you to parade or not, and it seems to me that in a sense your waiver argument almost makes your case weaker from a First Amendment standpoint.

Mr. Wallace: --I recognize there is First Amendment jurisprudence which says that those seeking to engage in expressive activity should not be subjected to standardless waivers.

In this case, the waiver is to be based on the taking account of the purposes of the presumptive bar itself, and those purposes were stated quite clearly in the original House report as to prevent the development of local media monopolies, and to encourage a diversity of ownership of communications outlets.

Those are legitimate purposes adverted to and... with approval in this Court's opinion in the Turner Broadcasting case, not purposes that are in any way meant to suppress speech.

Unknown Speaker: And that is the thrust and the purport of the Third Report and Order?

Does it specifically contain that rationale?

Mr. Wallace: Yes, that because of both technological changes and changes in the nature of the industry, where the cable companies have developed from a fledgling industry to one well-established, competition can now be made a reality in this industry by... and the new video dial tone system which in trial runs has been running 200 channels and can easily be doubled that and more provides opportunities to introduce several competitors.

And part... while there was reluctance in the initial work of the commission on dial tone to permit the telephone companies to go beyond being carriers for programming for others, they've recognized in this report and order that both in order to preserve the constitutionality of the statute and to give the companies an incentive to make the heavy investment that you need to make dial tone, video dial tone a reality, that they should be allowed to participate, but not to the exclusion of other participants.

Unknown Speaker: Well, does it boil down to this, Mr. Wallace, that in areas in nonrural areas where there is present cable competition, we can assume, you're suggesting to us, that the commission in fact will allow the phone companies into the business.

Where there is no competition, we can assume, I take it, that they won't allow them into the business.

Is that what it boils down to?

Mr. Wallace: Yes, except there--

Unknown Speaker: So that the bite of the statute is, where there's no competition, the statute will continue to be applied, and where there is, it probably won't be.

Mr. Wallace: --Well, that's not the only bite, or even the most important bite of the statute, because cable is well-established in most--

Unknown Speaker: What's the important bite?

Mr. Wallace: --in most parts of the country.

The important bites are that they cannot acquire an existing cable company.

They're only allowed to participate through video dial tone as a competitor, and--

Unknown Speaker: But if the bite is going to be the justification, you're going to have a statute extraordinarily broader than anything necessary to accomplish that particular justification.

Mr. Wallace: --Well, that's only... and the rest of the bite is that they have to comply with the regulations that the commission is to adopt to safeguard against cross-subsidization and discriminatory self-preference and use of the video dial tone system itself.

Unknown Speaker: And those regulations could be promulgated by the commission whether the statute stands or not, is that correct?

Mr. Wallace: Well, if the regulations--

Unknown Speaker: Can't the commission issue regs addressed to the cross-subsidization problem whether the statute stands or not?

Mr. Wallace: --It could... it could prohibit these practices, yes, but it could not do it with the bite that the prohibition would have if someone's authority to engage in this lucrative business depended on agreeing to abide by the--

Unknown Speaker: The bite is kind of an interrorum bite.

In other words, if you don't agree to this, under the statute we can make it even more restrictive for you.

Mr. Wallace: --Any of these conditions are subject to judicial review in themselves.

Any conditions, any requirements that the commission will adopt can be reviewed in the courts.

It isn't as if the commission has unreviewable sway over these companies, and there's also an agreement to share this capacity with other providers of service, that there is a common carrier aspect to this.

Unknown Speaker: May I ask you a question, Mr. Wallace?

Is it your view that appropriate regulations can avoid the cross-subsidization problem that allegedly motivated the enactment of the statute?

Mr. Wallace: Did you say can or can't avoid it?

Unknown Speaker: Can.

Mr. Wallace: Not avoid it entirely.

There's... it's very difficult--

Unknown Speaker: You're sort of in a dilemma, I suppose.

If you say it can avoid it, then we don't need the statute.

If you say it can't avoid it, then the regulation... you have all sorts of problems with the waiver.

Mr. Wallace: --Well, we--

Unknown Speaker: So your position is it can almost avoid it, I guess.

[Laughter]

Mr. Wallace: --The waiver allowing entry is a judgment made.

It's a trade-off judgment often made by regulators and/or by Congress, or the commission acting pursuant to congressional authority, of how much risk is to be accepted in order to accomplish offsetting public benefits.

Obviously, there would be less risk of cross-subsidization, virtually no risk if they weren't allowed to participate, or a much lessened risk at the very least, but a judgment has to be made by someone as an industry evolves of when it is that the risk that remains is going to be outweighed by offsetting public benefits.

That traditionally has not been the role of the courts in our system to make that calibration and decide when a change in the regulatory regime is ripe and should be made.

Unknown Speaker: May I ask you another question that kind of runs through my mind?

Let's assume for the moment that the statute was perfectly constitutional and was enacted.

If that premise is accepted, do you think the situation could change in such a way that it would thereafter become unconstitutional?

Mr. Wallace: Yes.

It could happen, and perhaps we were approaching that, and under the stimulus of the litigation that has been brought, the commission has now taken initiatives that make the waiver policy as applied more responsive to the changes that have occurred, but this was always something that they had authority to do.

Unknown Speaker: That's an interesting concept.

Does the opposite work?

Can a statute that's unconstitutional at the outset be rendered constitutional over time?

I mean--

Mr. Wallace: Well, I'm talking... I don't mean on its face, and we're dealing here with a facial challenge.

I would say only in application, a statute... and perhaps it would be unconstitutional only as applied under those circumstances, when the statute was constitutionally valid.

Unknown Speaker: --Are you saying that the regulation makes the case moot?

If their case was valid when it was brought before the Fourth Circuit, aren't we entitled to hear it based on the assumptions that the Fourth Circuit entertained?

Mr. Wallace: Well, it... we suggested that the case be remanded to the Fourth Circuit to readdress it based on what the commission has now done.

Unknown Speaker: And we declined that invitation.

Mr. Wallace: Yes.

Yes, the Court did, but that still does not erase the fact that the legal landscape has been changed, and that under the Third Report and Order, it seemed to us that the respondents could have declared victory, although they're loath to do so.

Unknown Speaker: Is there any authority justifying this agency and this sort of moving target theory of litigation?

Mr. Wallace: Well, we don't think of it as a moving target.

We think of it as admirably trying to respond to the admonition that when fairly possible statutes can be... should be construed and, I think, applied to avoid serious constitutional questions.

Unknown Speaker: --law?

Mr. Wallace: If I may, I'd like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Wallace.

Mr. Tribe, we'll hear from you.

Argument of Laurence H. Tribe

Mr. Tribe: Thank you, Mr. Chief Justice, and may it please the Court:

I think I might begin, as Justice Thomas did, by pointing out that the Third Report and Order in 1995 fairly negated virtually everything that Mr. Wallace has suggested about why perhaps at one early time when there was only one wire into every home something like this might have made sense.

Unknown Speaker: Mr. Tribe, is this a facial challenge?

Mr. Tribe: Yes, it is, Justice O'Connor.

Unknown Speaker: And do we have to look at it for its validity as of the time it was enacted?

Mr. Tribe: Well, I think as in Baker v. Carr there are a few things that with changes can suddenly become wholly irrational, as this one did, but I think even if you try to turn the clock back to 1984, this law would have completely failed to fit the alleged objective, so I don't think you need to reach the moving target question, because it seems to me this law has always been facially invalid, and facially invalid for reasons that I think were implicit in one of your questions to Mr. Wallace.

Unknown Speaker: Well then, would it be appropriate for us to examine the constitutionality as of the date of enactment, and then just ignore all this subsequent history?

Mr. Tribe: No.

I think that would be inappropriate, Justice Stevens, because the test established in this Court's decisions in Coors, Edenfield, and Turner and Ibanez basically asks does the law, as we have it, materially advance, even under intermediate scrutiny, the alleged goal?

Is there a real harm, does this really solve it, and the fact that at one time there might have been a problem that it might have solved would be interesting history.

Unknown Speaker: Well, but things change.

I mean, if it's a facial challenge, as I understand it, there has to be no situation to which it can be applied.

Mr. Tribe: That's right, and there is none.

Unknown Speaker: Well, we can say there could be a situation if, you know, everything went back to the way it was, that would be a situation that--

Mr. Tribe: A meteorite hit--

Unknown Speaker: --Whatever.

I don't--

Mr. Tribe: --I mean, my--

Unknown Speaker: --That's why there's a stock market.

Things go up and things go down.

Mr. Tribe: --Yes, but it is our position, Justice Scalia, that because of the way this law is written and because of what it means, there really are no circumstances in which it could be constitutional.

Unknown Speaker: All right.

Well, I'm willing--

Mr. Tribe: And that relieves the--

Unknown Speaker: --Even when it was initially enacted.

Isn't that--

Mr. Tribe: --That's right.

Unknown Speaker: --And you're willing to defend that position.

Mr. Tribe: And I'm willing to defend that position.

Unknown Speaker: Let me just--

Mr. Tribe: It makes no sense.

Unknown Speaker: --modify the question to this extent.

Suppose the justices were persuaded that, given the fact situation in 1984, or back to 1970, whatever dates you use, and given the precedent on you can't have cross-ownership of TV stations and newspapers and things like that, that looking at it at that time it should have been upheld if there had been immediate challenge, would that require that justices reach the same conclusion today?

Mr. Tribe: No, I don't think so, Justice Stevens.

Unknown Speaker: So you think there can be a moving target.

Mr. Tribe: I think that the Constitution is fixed.

I think that the question whether a given law is justifiable necessarily depends on the circumstances, and the circumstances can change so substantially that the law on its face might never, in current circumstances, have any permissible application.

Unknown Speaker: That's interesting.

So things change, and it becomes facially invalid.

What if they change again, does it become facially valid again, or does it--

Mr. Tribe: Well, since, Justice Scalia--

Unknown Speaker: --Congress has to repeal it, or it's sort of a... I don't know, a time bomb there.

You wait for circumstances to reawaken it, sort of like a--

Mr. Tribe: --No... like a sleeping giant.

Unknown Speaker: --a Snow White statute.

[Laughter]

Mr. Tribe: Like the Night of the Walking Dead, you try to kill the statute and it won't rise.

Unknown Speaker: No, it's a spring in use.

It's a spring in--

Mr. Tribe: A spring in use.

[Laughter]

Unknown Speaker: --Yes.

Mr. Tribe: Well, let me... I think to get away from the question whether we can hypothesize any world in which the statute could have a constitutional application, it would be useful to focus on what the statute actually does, because some of what Mr. Wallace described about the statute when he said that it's sort of about ownership and so forth I think really has nothing to do with this statute.

And let me just focus on the fact that, as Justice O'Connor suggested, the statue as designed rather perversely targets one thing and one thing only, and that is speech.

It is not a law against cross-subsidization.

It is not a law that says, for example, when there is no competition, then we will let them in, because (b)(3) itself is an exception for that.

That is, this law deals directly with the editing function.

It's true the prohibition was included in a part of the statute called ownership restrictions, but there's no dispute that this statute allows a telephone company to own video programs, to invest in companies that generate or require them, like Time-Warner, to own physical cable facilities such as Bell Atlantic does in Washington, D.C.--

The one function this law prohibits any telephone company from participating in is the editorial function of deciding which video programming channels to carry... is it going to be Disney, the Learning Channel, Discovery, Playboy +/?

how the programs are going to be arranged, which to provide in preset time slots, which to provide on demand.

That's the way it's been interpreted.

That's the way it's been enforced.

Unknown Speaker: You say editing, Mr. Tribe.

You don't mean the actual making of an individual show, but the choice between ones that have already been made.

Mr. Tribe: That's right, although it would certainly prohibit... I mean, if we wanted, for example, not only to choose the shows, but wanted in addition to engage in a more active editorial function, that would also be prohibited if this was going to be provided directly to our customers.

Now, that--

Unknown Speaker: Is that very likely that--

Mr. Tribe: --Not likely, no.

Unknown Speaker: --Bell wants to go out to Hollywood and make some programs?

Mr. Tribe: Well, I would never predict, but that's not likely, I think.

The point, however, is that as this Court has repeatedly held in the Preferred opinion recently, in... and Hurley and Turner, the function of deciding what to show and when is a core First Amendment function, and in saying that that is what telephone companies cannot provide to their subscribers, they can provide video transport, they can't provide the editorial function, the law is a complete misfire in terms of any objective it could ever have achieved even in 1970.

Unknown Speaker: But what if the Congress might think editing is a very important function in the future, and the more editors the better, and at the moment we have one, because you only can have one where you have one integrated cable and editor.

There's just one, the cable network, and you say, let's have two, why are we not having two.

Mr. Tribe: Sounds good to me.

Unknown Speaker: Why couldn't Congress think, look, if they go into the business, AT&T, of putting that line in, we've got another line here.

If we say they can be editors, there'll only be two.

If we say they can't be editors, maybe there will be three, four--

Mr. Tribe: You've done something--

Unknown Speaker: --five, because they'll have no interest in not turning that line over to as many editors as want to come in.

Mr. Tribe: --Well, the interest in somehow preventing any... a particular set of--

Unknown Speaker: It's the bird in the bush is worth giving up the bird in the hand.

That would be the--

Mr. Tribe: --Well, the point I guess is, first of all, in response to your earlier question, is there anything in the record suggesting that Congress theorized along these lines, there isn't.

But secondly, the notion that by keeping a competitor like the telephone companies out you might somehow achieve something in the very long run is really quite irrational.

That is, the second... their whole theory is that because there can be cross-subsidy of video transport, and because here you've got a captive market, the ratepayers, and we can pad the bills here and engage in predatory pricing, that this is a particularly dangerous editor, somehow, to let in.

But in response to your question, it's always puzzled me as well.

How exactly does it work?

Why does editing somehow change it?

Money is money.

If they can monopolize the video transport they'd be doing it today.

NCTA in its briefs points out that they have unique incentives to do that now because they think the telephone companies are afraid of the cable companies, so this law has nothing to do with the problem of taking a particularly powerful speaker and gagging him in order to prevent him from engaging in predatory abuses that will in the long run stifle diversity, because it doesn't eliminate the one thing that speaker could do, provide video transport that provides the alleged source of danger.

They in their briefs at various points say that it serves that function because the video transport market is regulated in price, but the video... but the cable market isn't, and so you want to go into an unregulated market, but of course that's problematic, because it's false.

Unknown Speaker: --Can I ask you one other question?

Mr. Tribe: Sure.

Unknown Speaker: And I may be the only one who's... don't spend a lot of time answering it, but I'm nervous... I don't fully understand the standard of review.

That is to say, what we have here really is classical economic regulation, and it happens to be economic regulation in an area where people are providing, like newspapers and other things, they are providing communication services which does involve... but is suddenly this whole big economic area to be turned over to courts?

Because we're going to retreat from giving Congress quite a lot of discretion when it tries to deal with the structure of industries, and we're going to use the First Amendment... other people in history have used other amendments to sort of go into economic regulation in great depth.

Mr. Tribe: I would--

Unknown Speaker: You know what I'm thinking of.

Mr. Tribe: --I think I do, Justice Breyer.

Unknown Speaker: Yes.

Mr. Tribe: Certainly the... if there were a rule of general applicability like the one in Lorain Journal or the one in Associated Press v. United States, and it incidentally, somebody argued, restricted expressive opportunity, we would not be arguing here for some version of strict scrutiny, although even under the O'Brien test there's intermediate scrutiny.

Rules about the structure of an industry, about who may own what, are really quite different.

The NCCB case deals with that in the case of broadcasters and newspapers.

This isn't even a rule about who may own what.

It's a rule about who may edit.

It's not even, as in Turner, a must-carry rule.

It's a may-not-edit rule.

Unknown Speaker: What's the provision?

Remembering the history of the court, and the use, say, of freedom of contract as a method of--

Mr. Tribe: Sure.

Unknown Speaker: --going in.

All right, what is the rule when you're dealing with economic regulation in the communications area as to when you depart from the normal rational basis, lots of deference to Congress?

When do you do it, and when don't you?

Mr. Tribe: Well, first of all, I think the most important thing, Justice Breyer, is to ask whether something is simply economic regulation, an argument that the Government made below but has abandoned, or whether this really has a significant enough impact on speech that it is a First Amendment problem in a genuine sense.

In this case we're way beyond that.

We're way beyond that along at least two dimensions, because this law I think shouldn't be categorized with a merely economic regulation that just happens to touch this industry.

It directly takes aim at a core speech function deciding what the mix of information shall be and what's available over important medium.

It doesn't do that as the incidental result of a general law of applicability, a law about camping like the law in CCNV, or a law about using or destroying Government property, like the laws in Albertini.

Unknown Speaker: Does that mean Mr. Tribe--

--This response to a concern that I had as well, and I suppose you just about answered it.

As we become more and more a speech-intensive, speech-creative, speech-obsessed society, it seems to me we're going to have more and more cases where you tell us that a software manufacturer, or the manufacturer of a video screen, is engaged in speech, and I have to say that although you're right, this is directed at a very much of a what we now know as to be a core speech activity, the Government's interest here primarily, it seems to me, is an economic one.

Mr. Tribe: In terms of its original motive.

Unknown Speaker: Yes.

Mr. Tribe: Certainly.

I think, Justice Kennedy, that as issues of speech, intellectual property and telecommunications in cases this Court will hear... Lotus v. Borland... in cases the Court has already heard, Turner, and in this case, come crashing upon the judiciary, it will be important, in addition to worrying about where we're all headed, to keep our eyes gazed on rather fixed stars of this constitutional constellation.

One of them, surely... and this Court, I guess your concurring opinion in Simon & Schuster made it clear, has helped establish it... is that you apply strict scrutiny when a law directly and demonstrably aims at speech and only speech and demonstrably reduces its quantity, even if it's not content-based.

Buckley v. Valeo was like that.

FCC v, NCCB was like that, Meyer v. Grant--

Unknown Speaker: Mr. Tribe, this raises a question that has been troubling me.

Supposes that Congress recognized the problem you describe but they still thought the concerns that motivated the statute are still valid, which they may or may not be, and they enacted a statute based on a parallel to the banking regulation, and they said, we don't want the telephone companies to take undue risks with their capital and so forth, and so they basically said telephone companies cannot engage in any business except what they do now, period.

Mr. Tribe: --Right.

I think the State, as part of its franchising authority, might have the power to say you, a corporation, are a creature of the State, this is a condition.

But even though Mr. Wallace spoke about the telephone companies as though somehow they're all franchised, and he almost made it sound as though they're all franchised by the national Government so it could impose this condition, it's important--

Unknown Speaker: Well, suppose the national Government decided to franchise all these phone companies, they could do... I mean, theoretically, it could happen.

Mr. Tribe: --I suppose given the reach... I don't know how far Lopez will end up going, but this sounds like commerce, and it does seem to me that if the Government says as a precondition of going into a particular business, you've got to agree to stick to business, you can't go out and become a speaker or an editor--

Unknown Speaker: It would have precisely the same effect on the First Amendment interests in this case.

Mr. Tribe: --I don't really think so.

I don't think so, Justice Stevens, because I think political incentives would be very different.

It's very much easier for Congress to pass a law that does not really make a general structural proposition but says there's a certain function, namely editing speech, that some speakers cannot perform.

If you look at this law, not only does it take aim at speech and nothing but speech, and in that sense misfire completely, it doesn't hit its target, but it is in fact content-based.

It seems--

Unknown Speaker: Mr. Tribe, when we talk about statutes of general applicability like Associated Press--

Mr. Tribe: --Yes.

Unknown Speaker: --And then you get to a case like NCCB, that certainly was not a statute of general applicability.

Mr. Tribe: That's... you're certainly right.

Unknown Speaker: That was strictly media ownership.

Mr. Tribe: Yes, Chief Justice Rehnquist.

Unknown Speaker: I don't think that the Court there applied the strict scrutiny.

Mr. Tribe: No, and it... as it explained in Turner, the reason it didn't is because the electromagnetic spectrum is a unique and scarce resource, and problems of physical interference allow the national Government to license it, and the Court has said consistently from NCCB through Turner that the standards applicable to rules that say who may and who may not hold a broadcast license, and if you hold a broadcast license what else may you own, do not apply to the cable industry or to anybody else.

Unknown Speaker: So you say NCCB was just kind of a red Lion extension.

Mr. Tribe: Exactly.

Exactly, Your Honor.

Let me get back to the point about this law being content-based, because I'm--

Unknown Speaker: Mr. Tribe, may I just ask one question?

Mr. Tribe: --Sure.

Unknown Speaker: If we had a regime where the FCC said, fine, you can do all this, but we want you to disclose... we're going to have good accounting rules, and we want you to disclose fully, and could the answer be, well, the disclosure is related to our speech, so we're not subject to--

Mr. Tribe: Oh, I doubt that, Justice Ginsburg.

I mean, I think disclosure requirements have been upheld in the campaign area, which is a core speech area, and in the Riley case, even though I think... Riley v. National Federation of the Blind, even though I think maybe Justice Scalia had a problem with some of the disclosure rules, those were upheld.

All kinds of rules designed to protect the public from abuses, trying to shift costs to fool regulators, not aimed at speech, and they're content-neutral, and they don't demonstrably restrict the amount of speech, and therefore they're not subject to special speech scrutiny.

Unknown Speaker: --There's a lot of economic regulation that can affect the press.

Mr. Tribe: Incidentally and indirectly, yes, but if it affects the press indirectly only, it's subject to intermediate O'Brien scrutiny, and if it's part of a law of general applicability, as opposed to a restriction on the manner of speech, then I think, as Justice Scalia pointed out in Barnes, this Court really has not used O'Brien to strike down a law of general applicability that doesn't take aim at an expressive activity.

Unknown Speaker: Well, but the problem is, when we're talking about where the First Amendment ends and economic regulation begins, it seems to me that the Congress at some point could say, we're interested in what's happening in the broadcast cable industry.

That's what we're interested in.

We're not interested in cement companies.

Mr. Tribe: And we think of this as--

Unknown Speaker: And so we're passing an economic regulation to protect consumers--

Mr. Tribe: --Right.

Unknown Speaker: --from prices, or whatever.

Mr. Tribe: Well, I think as you said in the Turner opinion, Justice Kennedy, the fact that the industry definition happens to focus on an aspect of the media doesn't in itself trigger strict scrutiny, and we've not made that argument.

What does trigger strict scrutiny here, and I do want to underscore that this law failed any level of scrutiny, including intermediate, and I hope to get back to it, but since you're talking about the future of the First Amendment, I think an important principle to establish would be that just calling a law economic regulation doesn't allow you to fail to look at what it actually says.

That is, this law says telephone companies may not directly provide, in the sense of edit, video programming, and it defines video programming as programming generally considered comparable to that provided by a television broadcast station.

The Government in its brief says, oh, this is just a matter of mechanical definition.

It's a matter of defining the mode, the method by which a message is disseminated.

That is not true.

That is true of the way the cable act that this Court reviewed in Turner defines things like cable service.

That's not true of this definition.

Indeed, the FCC itself in its video dial tone order made very clear that the line that this law draws between the video... the video impulses that may be provided by the telephone companies and those that may not within the universe of cable service is a line that, for example, does not distinguish between one-way and two-way transmissions, interactive television shows, two-way, they can't provide them--

Unknown Speaker: Mr. Tribe, would your argument be different if Congress had made findings at the time it passed this statute and the findings said, in substance, this.

We are passing the statute for purposes... for an economic regulatory purpose.

Our principal concern is, in fact, with cross-subsidization.

We find that it can occur... we find that the greatest danger of its occurrence will be in those situations in which the cable companies are engaging in the editorial function as you have designed it.

We find that that danger will exist primarily only in those instances in which cable... the companies are engaging... the telephone companies, rather, are engaging in the editorial function with respect to the same kind of programming that is going on over cable generally, what you have referred to as the video program, and therefore we're going to adopt this reference to video simply as an effective way of getting to the heart of our economic objective.

Would your argument for a level of scrutiny be different if we had that on the record?

Mr. Tribe: --No, Justice Souter.

My principal argument would be that, as this Court has often recognized, it is dangerous to make the level of scrutiny depend, except when you absolutely have to, on an inquiry into why Congress acted.

The face of the law should be the primary test.

Unknown Speaker: Then in any case in which you can make this kind of facial argument, you in effect are saying, we are precluded from the consideration that sort of animated Justice Kennedy's question of trying to, in effect, divide the universe between what may be legitimate economic regulation with an incidental effect and the rest of the speech regulatory universe.

Justice Souter, I think it would be salutary in terms of the First Amendment purposes to put... to remind the legislative branch that it may not abridge speech.

It may not use speech categories, content categories, as shorthand for other things.

Even if the only level of scrutiny were intermediate, as in Turner, the mere existence of elaborate findings, which certainly the 1992 act contained and this act does not, didn't suddenly mean that the fire power of the First Amendment receded.

This Court looked closely at, and instructed the lower court on remand to look closely, at whether, for example, the finding that the broadcast industry was in terrible danger and would be driven out unless this must-carry obligation was imposed, was in fact justifiable.

So the nub of your argument is you can't use speech as a surrogate for other regulatory objectives just as they were saying yesterday you can't use race as a surrogate for other--

Mr. Tribe: Certainly you can't use the content of speech, that speech, like race, like religion, is a matter of special sensitivity, and that content-based rules do not have to be merely a mask for some illicit objective on the part of Congress before they trigger a strict scrutiny.

Unknown Speaker: --But if--

--This would be okay, or at least it would be a lot closer to okay if the ban were just absolutely on telephone companies carrying video material.

Mr. Tribe: Carrying any video signal of any kind.

Unknown Speaker: Any video signal.

Mr. Tribe: It would certainly be less invidious in terms of a content line if it said they can't carry or transport signals of a certain megahertz frequency, just defined it in a technical way.

I think it would at that point not be subject to strict scrutiny, although if one could show, as I think is plain here, that they are foreclosing an important medium of communication... maybe not the same one as in Ladue, putting stuff on your house, but the most important medium today to a large set of speakers... it would certainly not be appropriate to subject it to the reduced level of scrutiny that some merely economic regulations get.

Unknown Speaker: No, but what about--

--That seems to me to suggest it's just the way the statute's drafted.

In other words, if, instead of saying provide video program, they'd said to transmit video program, it would be--

Mr. Tribe: Well, we might have a... we certainly would have a different case, but the way the statute is... you say just the way the statute is drafted.

A lot turns on a word here or there, the word not, the word speech.

This statute is written in a way that guarantees it will misfire.

Look at Coors, for example.

One could have said, well, there's a general problem with people drinking it up too much, and if they had not had those puzzling exceptions the statute might have been okay, and certainly alcohol is a matter of social concern.

But no, this Court looked closely, said that these exceptions don't make sense, the law doesn't fit, it subjected it to intermediate scrutiny, and struck it down because of just the way it was written.

Unknown Speaker: --The prohibition against transmission would really be broader than the one they have now.

Wouldn't that be--

Mr. Tribe: Well, it's sometimes the case that by broadening the law, by eliminating what makes it content-based, it solves the problem.

Unknown Speaker: --It would accomplish the same economic objective here, I think.

Mr. Tribe: It might... no, well, there's a difference, Justice Stevens.

If, as Justice O'Connor suggested, they actually prohibited video transport, there would at least be a prayer that they would achieve something.

This law has no such hope.

It's a lot like Justice Frankfurter said in Butler v. Michigan, when he was dealing with a very broad law designed to keep adults from reading material... children from reading material, and then they said the adults can't see it, either.

He said, this isn't just a case of... I guess it was burning the house to roast the pig.

It's a case where the pig lives somewhere else altogether.

[Laughter]

That's what's going on here.

It's not just that they are overshooting by a mile, they're shooting at the wrong target, and they're choosing speech and they're defining it by its content, and I couldn't imagine a--

Unknown Speaker: Mr. Tribe, why do you say it's not content-neutral?

I think there's some room for debate on that point.

Mr. Tribe: --Well, I suppose, Justice O'Connor, it depends on what one means by content-neutral.

That is, one could have said that the line in Discovery Network between newspapers and commercial pamphlets is not an ideological line, and so it's content-neutral, but the Court said no, you have to examine the content to tell whether the law applies.

So that's one test.

I think when you suggested in Ladue how important it is to have a bright line test for what is and what isn't content-neutral, I think one bright line test I could suggest is, if you can't tell whether the speech is prohibited without subjectively evaluating its content, then it's not content-neutral.

Unknown Speaker: Let me just interrupt for a second.

You mean you have to subjectively evaluate a transmission to determine whether it's video programming?

Mr. Tribe: Absolutely.

The FCC has said we have to look at the mix of textual and nontextual material.

The mere inclusion of video text, even though that makes it a little different from what was around in 1984, doesn't prevent it from being video programming.

They said that interactive two-way television, though it wasn't available in 1984, that's video programming.

They said that a lot of one-way stuff like stock quote transmission, and news services, even with pictures, they're not video programming.

They don't look like I Love Lucy.

It seems to me that nothing could be more manifestly content-based.

Unknown Speaker: Why... why--

--But you're saying that if you did define it by using the number of megacycles or megahertz, or whatever you do, to define the kind of picture that you normally associated with a television program, that would be all right.

Mr. Tribe: Well, it would depend on what law it was part of, and... but that would not... that would certainly prevent it from being content-based.

This law, I think, fairly speaking, is content-based, but in any event it is a direct ban on speech.

Unknown Speaker: Isn't the purpose of the content-based requirement, or a higher hurdle, that we don't want the Government to be imposing its biases against certain contents, against certain subject matters, upon the citizenry, but where the content-based nature is really based upon reference to a third party, like the Government says you can't produce any programming that he produces, the Government doesn't care what he produces.

The Government is not imposing its view of subject matter desirability.

It's just saying, you can't compete with him.

Mr. Tribe: But if it said you can't--

Unknown Speaker: Now, is that subject-based, in your view?

Mr. Tribe: --If it said you can't put paintings up if they are comparable to those by Monet--

Unknown Speaker: Yes, okay.

Mr. Tribe: --I think that would be content-based.

I think the reason is that--

Unknown Speaker: Well,... no, no.

If you mentioned Monet, yes, but anything... Monet's still alive, or it's Picasso and he's still in one of his earlier periods, so you don't know what he's going to turn out to be like.

You just say, you can't paint anything that competes with Picasso.

Mr. Tribe: --Well, that's why we have--

Unknown Speaker: Is that content-based?

Mr. Tribe: --We have... I think the real answer probably is intellectual property and copyright.

That is, there is in that context a competing constitutional provision.

There are circumstances in which people can be given property-like interests whose contour does depend on content, but I don't think the fact that that's true with respect to intellectual property means that the Government should generally be able to target content.

Unknown Speaker: The Government isn't determining the content, and it seems to me here the Government is essentially saying in a lot of words, don't compete with cable.

Mr. Tribe: Well--

Unknown Speaker: That's what they're saying.

Mr. Tribe: --I would--

Unknown Speaker: They don't care.

If cable chooses to produce nothing but cartoons, then presumably the only thing AT&T would be kept out of would be cartoons.

Mr. Tribe: --Well, since nothing in the result we seek depends on the theory one adopts for what's content-based, or even strict scrutiny, I hope--

Unknown Speaker: Well, strict... what is your... I... they have to write something on this standard, so--

Mr. Tribe: --Well--

[Laughter]

One way--

Unknown Speaker: --The one question on the standard is--

Mr. Tribe: --Yes.

Unknown Speaker: --you're saying strict scrutiny, but if you applied strict scrutiny to this thing, then wouldn't you have had to say, ab initio... you know, Congress made a bet initially, we may have monopolists here, and it may turn into AT&T Western Electric, and we don't know there will be independent cable companies, and Western Electric and AT&T is a legitimate concern, just substitute the editor of cable for the words Western Electric.

And why couldn't Congress pass a statute like that without being 100 percent certain, just 80 or 60 percent concerned that such a thing would happen?

Mr. Tribe: I think in the cable act, Justice Breyer, Congress did very much that.

It said, look, we've got this monopolist.

It then defined cable service in a neutral way, and it imposed certain obligations that didn't reduce the amount of speech.

Here, instead, whether or not you think the definition is content-based... and I don't know that you need to write an opinion about that because it so obviously flunks intermediate scrutiny.

That is, even if you assume for a moment that you could come up with some answer to your question about how it is that they have more incentive to cross-subsidize as a result of this law, the on-balance judgment made by all of the expert agencies in the Government from 1987 to 1992 and then embodied in the video dial tone order, is that this is massively counterproductive in terms of the competitive objective.

I mean, the conclusion, I think, that was in your 1987 article tentatively, they adopted it and went full fire with it.

They said that it's virtually hallucinatory to think that the telephone companies could enter this market with massive cable incumbents, win market power through this scheme of predatory pricing, and knock out those huge companies, and that on balance the law, even if you grant that regulators are so stupid that they would miss everything, that on balance the law is responsible for this massive monopoly we now have, as Justice Scalia suggested, that the law, in fact, costs consumers billions of dollars in competitive benefits.

Now, if you wanted to look at the big picture, one thing you surely want to say is that the Government is not entitled to say that, because speech is important and speech-related industries are important, we are entitled to have a law sustained that on the undisputed record in this case eliminates something like 99 percent of the speech that telephone companies could provide in video programming form, allowed to have it sustained on the basis of wild speculations, where all of the evidence, unlike Florida Bar where there was this--

Unknown Speaker: It's hard to explain why Congress doesn't repeal it, then.

Mr. Tribe: --Well, they did, not in a bill that the President has yet signed, but if you're going to look at post enactment history this past summer, by huge majorities, both the House and the Senate said, of course this is counterproductive.

That wasn't even one of the serious debates.

Unknown Speaker: Some--

--But it hasn't passed.

Yes.

It hasn't passed.

There's been no legislation passed.

Mr. Tribe: No, no, I understand that, Justice--

Unknown Speaker: There are those who also assert that the cable industry has extensive lobbying power.

Mr. Tribe: --I wouldn't imagine how that could be, Justice Scalia.

[Laughter]

Unknown Speaker: Mr. Tribe, I did have one question--

Mr. Tribe: Yes.

Unknown Speaker: --about this standard, and it's a concern to me that you are arguing vigorously for the top standard, the strictest scrutiny, this is content-based.

Suppose the Government said, we're going to let you video, get into the game, anything you want to do except you may not have... you may not video anything about family planning.

Now--

Mr. Tribe: That, of course--

Unknown Speaker: --wouldn't you want to reserve something higher?

Mr. Tribe: --Something higher.

Unknown Speaker: So then would we have to have super strict--

Mr. Tribe: Per se invalidity I would want to reserve for that.

I would want to say that there are some bans on speech that no justification could sustain, but it's only an accident of the half-hour I think that a lot of time we spent on content-based.

Remember the fundamental point, this law doesn't fit at all.

It's not only not narrowly tailored, it's completely untailored to any legitimate governmental objective.

If the Court ruled, as it did in Edenfield and Ibanez, and Turner, and Coors, this law is a lot worse than any of those.

It is positively counterproductive, and this Third Report and Order, which is sort of like Gertrude Stein's Oakland... I mean, you look at it and there's no there there... it doesn't promise anything.

It just says, you know, now that we have this case, we want to be speech friendly.

Maybe we'll do something if you give us a chance.

But as Justice Kennedy suggested, what they promised to do, you know, makes me worry a little bit, because it's to exercise a blank check authority over speech, and that's--

Unknown Speaker: --Thank you, Mr. Tribe.

Mr. Tribe: --Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Wallace, you have 4 minutes remaining.

Rebuttal of Lawrence G. Wallace

Mr. Wallace: Thank you, Mr. Chief Justice.

The time, place, and manner cases in this Court, the model intermediate scrutiny cases often have involved direct restraints on speech, as such Heffron v. Krishna Consciousness, Ward v. Rock Against Racism, Taxpayers for Vincent are all examples of that, and as long as there were other opportunities, as we have shown here, content-neutral regulation for a nonspeech purpose, they met intermediate scrutiny.

Now, we're not talking about the remote future when we're talking about video dial tone with the capacity to carry three, four, or five providers and not just the telephone company.

We have already had in place in DeKalb County, Georgia, in Fairfax and Arlington Counties, Virginia, model trial runs of it in which there have been about 200 channels and the phone company was restricted to 50 percent or less as the provider of programming, the others having to be leased out, and a more permanent one is to begin soon in Dover, New Jersey, a small community, where all of the programming will be provided by others than the telephone company because the regulations are not yet in place that will permit the telephone company to participate.

What is really at stake in many of the contentions being made here is the contention that the phone company should have autonomy over all its lines to be the sole user or to control who can use it, a form of asking for what Solicitor General Fried used to call Lochnerizing the First Amendment--

Unknown Speaker: I don't think he's saying that.

You know, I was worried about that, too, but I asked the question whether you could keep the phone company out of the business of video programming, and he said that's a totally different question.

That's not what you've done here if you say you have to be a common carrier, and if you're a common carrier you cannot do any video programming, any... you know, you can't do what cable does.

If it was structural like that, he says that's a different case.

Mr. Wallace: --Well, the Third Report and Order gives them the right to participate on video dial tone, precisely what it was that the Fourth Circuit posited at the urging of respondents as the less restrictive alternative that could have been adopted to accomplish the Government's purposes, and yet they're resisting the fact that this has been achieved now through administrative interpretation and application of the waiver provision--

Unknown Speaker: Well, but what can--

Mr. Wallace: --because they say they're entitled to more.

Unknown Speaker: --But counsel, what can be granted can be taken away.

We're dealing with an absolute ban as opposed to an administrative potential for waiver.

Mr. Wallace: We're dealing--

Unknown Speaker: Isn't that right?

Mr. Wallace: --What can be taken away subject to judicial challenge, and we're dealing with a facial attack where they have to show that there are no constitutionally permissible applications, and we have a constitutionally permissible application in the Third Report and Order.

Chief Justice Rehnquist: Thank you, Mr. Wallace.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Cardinal Chemical v. Morton International - Oral Argument

Fri, 09 Jan 2009 14:49:24 +0000

Case:

Cardinal Chemical v. Morton International

Media File:

92-114_19930303-argument.mp3

Related Transcript:

1992_92_114_argument.xml

Transcript:

Argument of Charles F. Schill

Chief Justice Rehnquist: We'll hear argument now in 92-114, Cardinal Chemical Company v. Morton International.

Mr. Schill.

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

The practice of the Federal Circuit at issue here has resulted in resurrecting patents which have been twice found invalid by district courts.

This practice is out of step with the precedent of this Court and commercial reality.

I want to make three points to you in my argument today.

First, the Federal Circuit has jurisdiction to decide--

Unknown Speaker: Mr. Schill, in addressing us, I hope you will tell us how, if at all, your position differs from that expressed by Mr. Coons.

Mr. Schill: --I certainly plan to, Your Honor.

Unknown Speaker: And tell us whether you think we have any controversy here at all.

Mr. Schill: I certainly shall.

May I proceed with my three points, Your Honor?

Unknown Speaker: Sure.

Mr. Schill: Okay.

The Federal Circuit had jurisdiction to decide the patent and validity issue, and this issue is not moot.

The Federal Circuit's practice ignores the strong public interest in resolving the invalidity issue, and finally, that the Federal Circuit should always reach the issue of validity when presented on appeal in a declaratory judgment counterclaim unless that issue becomes moot through happenstance during the appeal, or if a decision on another issue in the case completely resolves the controversy between the parties, and with respect to your question, Justice O'Connor, we believe that there is a case of controversy that has proceeded since the beginning in this case, there is a difference between the case brought by Morton on the infringement issue.

That is, Morton is accusing us of infringement.

That is decided by a very special set of facts, and Cardinal had separate, independent basis on which to assert its claim that the patent was invalid.

If the patent is, indeed, invalid, then not only does Morton's claim fail against us, it fails against all parties, and not only against the particular products that were at issue in this case, but all the products that Cardinal may wish to make in the future.

Since this issue, or these parties--

Unknown Speaker: I thought, though, that we granted certiorari on the question whether the Court of Appeals for the Federal Circuit errs when it vacates a declaratory judgment holding an asserted patent invalid merely because it determines that the patent is not infringed.

Now, that's the question as framed, right?

Mr. Schill: --Yes, Your Honor.

Unknown Speaker: As to that question, is there any difference between you and Mr. Coons' position?

Mr. Schill: I believe that the way I would put the issue, or resolve that issue, is that the court has erred because it has not resolved the controversy between the parties in this case.

There may be some factual situations in which it need not reach the issue of validity.

For example, one case might be where the issue of unenforceability was also there, and the court decided that the patent was unenforceable, for example, either against the particular party or parties or the world.

Unknown Speaker: Well, you take the position that the policy adopted and now followed by CAFC is in error, that it shouldn't follow that policy--

Mr. Schill: That's correct.

Unknown Speaker: --And that seems to be the same position taken by your opponent.

Mr. Schill: I agree that that is the same position, ultimately, that they take.

We differ only in how we would express it.

Unknown Speaker: And so how is there a controversy, then?

Mr. Schill: How is there... I'm not sure there is a controversy on the point of what the Federal Circuit should do on which... on which you granted cert. I'm not sure that there is a conflict between us--

Unknown Speaker: You do argue--

Mr. Schill: --We--

Unknown Speaker: --That different consequences should follow, though.

You're arguing that there's a difference between a counterclaim and a declaratory judgment, the respondent's saying that the rules should be the same in either case, or am I incorrect?

Mr. Schill: --No, you are correct, Your Honor.

I believe that this Court's precedent in the Altvater and Electrical Fittings case is still good law, and that would require that there be a difference made between cases which are only filed with a bill and answer as opposed to a counterclaim that, by the very nature of a situation such as was present in Electrical Fittings, there was only an accusation, a claim of infringement and no counterclaim.

Unknown Speaker: And the respondents differ with you on that point.

Mr. Schill: Yes.

They would reach the issue on all points.

They would say that the Federal Circuit should reach validity on all points.

Unknown Speaker: Well, there's still an underlying dispute, of course, as to the validity vel non and infringement vel non of the patent, isn't there?

Mr. Schill: Yes, there is indeed, Your Honor.

Unknown Speaker: Do you take the position that there is any difference with respect to jurisdictional mootness, depending on whether the issue is raised by counterclaim or affirmative defense?

Mr. Schill: I'm not sure I understand your question, Justice Souter.

Unknown Speaker: Well, you've argued very persuasively that there is no jurisdictional mootness when the issue of validity is raised by means of a counterclaim.

When the issue is simply raised by means of affirmative defense, does that make any difference jurisdictionally as opposed to prudentially?

Mr. Schill: Yes, I believe that it does, because a... there is no right to have a decision on a defense.

Unknown Speaker: Well, there may be no right to have it, but the court still has jurisdiction to render it, doesn't it?

Mr. Schill: The court does still have jurisdiction to render it if it wishes to reach that issue.

Unknown Speaker: So the difference is prudential, rather than jurisdictional.

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

Unknown Speaker: Okay.

Mr. Schill: In this case, the court... the Federal Circuit... vacated the declaratory judgment of invalidity that Cardinal won at the lower court.

The only reason that it provided was its reference to the case Vieau v. Japax, and in reviewing that case, the only rationale provided by the court was that, since there was no indication in that case that the dispute extended beyond the accused devices found not infringing, the court properly exercises its discretion to dismiss the cross-appeal as moot.

Unknown Speaker: If that would work, what's wrong with that?

Why isn't that a good reason?

Mr. Schill: We find that that would... that is... the court is either... is incorrect in its formulation, I believe, because either the issue is moot and it has no discretion to reach it... that is, it's jurisdictionally moot under Article 3... or it's exercising its discretion and has taken into account certain factors in order to decide whether it should reach the issue.

Here, since the court adopted this practice in 1987, it has merely cited to the Vieau v. Japax case and has gone no further.

It has not reviewed the underlying facts in the case to determine whether there was indeed a basis for the continued controversy.

Unknown Speaker: Well, to say that it has discretion is not to say that it cannot exercise its discretion on a generic basis, and to draw up entire categories of cases in which it will simply decide that it should not go any further, and I think this Court has said one large category is when the issue makes no difference to the judgment below, and it's a complex patent case.

We don't want to have to spend the time figuring out the answer to the patent question when it makes no difference to the judgment below.

Why isn't that perfectly reasonable?

Mr. Schill: Well, if it made no difference to the judgment below, perhaps that would be proper, Your Honor, but I do believe it does make a difference to the decision below, especially in this case.

This case was based on a separate counterclaim by Cardinal for invalidity of the patent.

There was good cause for Cardinal to bring that action.

There's no question that the district court felt that there was proper case or controversy jurisdiction on that issue.

He rendered a judgment.

No facts change.

All of a sudden you're trying to oust the declaratory judgment winner of its decision without any rationale.

Unknown Speaker: I agree you have a much stronger case with respect to the counterclaim, declaratory judgment action, but just talk for a minute about the no counterclaim, just--

Mr. Schill: Affirmative defense.

Unknown Speaker: --Just an affirmative defense.

Mr. Schill: Yes.

If there's an affirmative defense, the affirmative defense relies upon the claim.

Once the claim itself is gone, then there is really no basis for the defendant to prevail on its counter... or, on its affirmative defense.

Unknown Speaker: So it really makes no difference to the decision below whether the appellate court goes on to review the invalidity determination or not, and why should it expend its energy on that question?

I mean, of course you can say, well, it'll make difference to parties in future cases.

Of course it will, but courts don't usually do things for that reason unless it affects the parties in front of them.

Mr. Schill: Right.

We do not take the position that the Court has to.

I would still take the position that the Court may reach that issue.

Unknown Speaker: I'm sure it may.

I think... let's--

Mr. Schill: Yes.

Unknown Speaker: --I concede it may, but why should it?

I think you further take the position it should, don't you--

Mr. Schill: Well--

Unknown Speaker: --Or you don't care?

Mr. Schill: --Not on the issue, Your Honor, where it's raised as an affirmative defense.

I would say that we're not in that category.

I think my opposition is in that category.

Unknown Speaker: If it decided the validity issue, it would save itself a lot of work in the future, wouldn't it?

Mr. Schill: Do you mean no matter how it was raised, Your Honor?

Unknown Speaker: Yes.

No matter... no.

No matter which way you decided the validity issue.

Mr. Schill: Yes.

Well, that's something I think that's within the discretion of the Court to decide whether it should reach that issue, based on the facts and circumstances of the case, and it may well say--

Unknown Speaker: But I just ask, wouldn't it save itself some work in the future?

Mr. Schill: --It may well save itself some work in the future.

It certainly would have in this case, if it had been decided all the way in the first case, in the Argus case.

Unknown Speaker: Well, shouldn't it turn, then, simply on whether it has reasonable... reason to believe that there are going to be a series of similar cases, and then if so, then it would make sense prudentially to exercise its jurisdiction and go ahead and decide it.

Mr. Schill: I certainly agree, Your Honor, and in this case, that was the case.

It was known at the time even of the Argus appeal that there were other cases pending, that two other cases were pending on this, and that basically we're back in the situation of what happened under the Triplett case where a patentee could go on asserting its patent against a series of unrelated defendants even it had been declared invalid because there was no estoppel.

After Blonder-Tongue, when this Court created... changed the rule and allowed the future defendants to assert res judicata against the patent owner, then you would take... you allowed future defendants to defend based on the previous invalidity of the patent by the patent owner, but in effect, because the Federal Circuit does not reach the issue of validity, it returns the patent that has been found invalid to the patent owner, he can go out and reassert it again, and the patent defendant is in a worse position because he can't even use the first judgment of invalidity against the patent--

Unknown Speaker: Because it's been vacated.

Mr. Schill: --Because it's been vacated, and the only way he can really get a judgment is if he's first found to be infringing, and then presumably the court would reach the issue of validity.

So in this case, since we find that there was a case of controversy, no question about that.

The important point we think next that the Court should consider is the Court's policies that were announced in the Sinclair case and the Blonder-Tongue case.

In Sinclair, this Court said that of the two issues the validity issue is the more important.

The decision on invalidity tends to discourage future suits, saves judicial resources, parties' resources, leaves the field of invention open to others knowing that they will not be threatened with this patent.

Unknown Speaker: If we agree with you and your colleague that the... if we agree with you there should have been a decision, what do we say, abuse of discretion, or what?

Mr. Schill: To the Federal Circuit, Your Honor?

Unknown Speaker: Yes.

What do we say their error is, other than, you should have decided it?

Mr. Schill: I think really perhaps going back they seem to be depending upon this Court's judgment in the Altvater case, and I think what has taken the court off-track is the statement in that case that says that because there were additional claims and devices at issue there was proper jurisdiction.

I think that is minimal.

That's an exemplary... either an exemplary issue, or should be limited to the position of... there was in extent at that point, which was licensee estoppel.

Unknown Speaker: What do you mean by an exemplary issue?

Mr. Schill: Well, for... I think that the jurisdiction of the Court is as broad as whatever fits under the Declaratory Judgment Act, and so long as there is a case of controversy under that act, then there is a right to have a determination made, and by exemplary, I meant a case, or additional claims or devices is one example of when there is still a controversy between the parties.

Unknown Speaker: An e.g.--

Mr. Schill: Yes.

Unknown Speaker: --Do you think the court of appeals in the original case felt bound to come out that way under our cases?

Mr. Schill: That's the only learning I can get from their view in the Vieau v. Japax case.

Unknown Speaker: So do you think they've... if we thought they misconstrued those cases, do you think if we disabused them of their error that they would then decide the validity issue, or would they say, why should we fool with it?

Mr. Schill: I believe, Your Honor, that the instruction from this Court that the Altvater case should not be limited to the case of that was licensee estoppel, really, that was in extent at that point in time, and clarification that the jurisdiction, so long as there is adequate jurisdiction under the Declaratory Judgment Act, that issue should be decided so long as it is necessary to resolve the conflict between the parties.

For example, I think that if the case arrived at the Federal Circuit and the patent had just expired, the Court found noninfringement, there's probably no reason for it to go on and reach the validity issue.

The same would happen... if the Court had decided an unenforceability issue at least as to that party, or perhaps as to the world on that patent, it no longer need reach the validity issue for other... for any other reason, so that those would be situations where the Court should exercise its discretion and not decide, and there may even be instances that I haven't thought of yet where the noninfringement would be an adequate resolution of all the issues in the case, but the Court should be left with the scope to determine what those situations are.

Unknown Speaker: What was the vote in the Federal Circuit?

Mr. Schill: It was... well, Judge Lourie wrote a concurring opinion saying that he would have reached the invalidity issue in this case and found the patent invalid.

The other two judges wrote separately and would have found... did not reach that issue.

They just cited Vieau v. Japax.

Unknown Speaker: Was there some suggestion of en banc?

Mr. Schill: We had requested an en banc ruling, and three of the judges would have allowed the en banc hearing, including Chief Judge Nies.

Unknown Speaker: And did that include the dissenting judge in the--

Mr. Schill: Yes, it did.

It was Judge Lourie, Judge Nies, and Judge Rich, I believe, Your Honor.

Unknown Speaker: --But this issue has never really been addressed by the Federal Circuit en banc.

Mr. Schill: It has not, Your Honor.

Unknown Speaker: They just have a long series of panel decisions that... so this is the law of the circuit, and they looked at their--

Mr. Schill: That's correct.

They have... beginning in 1987, this was... this policy was adopted and continued since then.

In each case, they only appear to cite the Vieau v. Japax case and not give any further explanation of their reasons for making a decision in that--

Unknown Speaker: --Well, maybe we should go no further than simply to say that it is an abuse of discretion to exercise no discretion, and leave it to them to work out criteria, rather than trying to set them here in this case.

Mr. Schill: --I think... I guess I'm not sure how to respond to that, Your Honor.

I think certainly that would--

Unknown Speaker: You don't like the suggestion, I take it.

[Laughter]

Mr. Schill: --Since I appear before the Court, I'd like to... I do believe that this Court's teachings in the precedent we've cited in Sinclair and Blonder-Tongue should play an important role in coming to the decisions of whether to reach invalidity in each case.

I think it's of paramount public interest, especially... in this case, I find, you know, a situation that I found difficult to deal with all through the case.

It's hard to tell your client that you have to go back to trial on a patent that's already been found invalid merely because that issue was not reached by the Federal Circuit and given finality.

And to have the patent twice declared invalid on the exact same basis to me convinces me that there was no error, that this is a tremendous waste of resources for a very small company, and is something that will continue to happen, we believe, or could at least happen, something that is worth spending some judicial time to correct.

Unknown Speaker: Mr. Schill, it seems to me the formula that you're suggesting we adopt, or the rule, has enough imponderables and exceptions in it that it's not going to be too much guidance for the Federal Circuit.

We're just going to end up saying, you should have decided the validity of the patent in this particular case.

Mr. Schill: In the first instance, Your Honor, I believe the lower courts have the duty to decide whether there's a case or controversy.

So long as they've made that decision, then the Federal Circuit I think is in the position of a reviewing court deciding whether the lower court has properly made its decision on the existence of the case or controversy.

So long as that review convinces it that the lower court was correct, then I think it should reach the invalidity issue as long as its raised by counterclaim, because the defendant is left without its remedy to resolve the conflict, the uncertainty between the parties.

Unknown Speaker: And what are the situations in which you say that the Federal Circuit need not reach the validity issue?

Mr. Schill: The only two that I've been able to come up with so far, Your Honor, are the issue, for example, where the patent has expired somewhere around the time of the appeal, and to decide that issue would really be a moot point.

The other would be, for example, if there was a finding of unenforceability of the patent.

Also, that issue would be redundant.

It would give relief... it would not give any additional relief than the finding of noninfringement.

Unknown Speaker: Mr. Schill, what's the difference between unenforceability and invalidity?

Mr. Schill: Unenforceability, there are a couple of different circumstances of unenforceability.

It may just be unenforceable because of equitable factors against the particular defendant.

Another unenforceable... reason for finding unenforceability is--

Unknown Speaker: Well, you mean like--

Mr. Schill: --Inequitable conduct before the patent office, which would make the patent perhaps invalid or unenforceable against any person.

Unknown Speaker: --Well, but that would be... that makes the patent invalid in the... if it's procured by fraud, doesn't it--

Mr. Schill: Yes.

Unknown Speaker: --But you're suggesting there might be a case where it's unenforceable against a particular licensee or particular infringer because of inequi... I see.

Mr. Schill: Yes.

Unknown Speaker: Okay.

But I don't know why that should necessarily make the interest in having the validity of the patent determined for other parties.

I mean, totally--

Mr. Schill: I agree Your Honor, from the standpoint of the public interest--

Unknown Speaker: --Yes.

Mr. Schill: --I don't think the factors would require--

Unknown Speaker: Which is one of the things Sinclair talks about.

Mr. Schill: --Yes, but I don't see that there is a need to resolve the particular conflict before the Court to decide that issue, only from a societal need to try--

Unknown Speaker: And let me also be sure I get the thrust of your basic position.

You're challenging the Federal Circuit's rule when the district court has already decided both issues.

You're not necessarily suggesting that the district court would have the same duty to decide validity in every case.

Maybe it would, I don't know, but isn't it a little different situation when you already have a judgment than when you're still in the trial court?

Mr. Schill: --Yes, I think that is a different situation, Your Honor, and the trial court has before it the closest... is closest to the facts of the case and knows when they're... or, how to judge whether--

Unknown Speaker: Yes.

Mr. Schill: --The controversy is real between the parties or not.

Unknown Speaker: Well, I suppose you'd say the trial court is the same as far as the counterclaim is concerned.

As far as the declaratory judgment action is concerned there's no more basis for the trial court to dodge that bullet than there is for the court of appeals.

Mr. Schill: No, and I--

Unknown Speaker: I mean, I can understand on the defense, if the trial court wants to just find no infringement it may decide not to go ahead with the invalidity as a defense, but if there's a separate claim, a counterclaim on invalidity, can the trial court just say there's no infringement and that's the end of the case, case dismissed?

Mr. Schill: --Well, the Declaratory Judgment Act is discretionary, so even though there is a case or controversy, to me it seems as if that--

Unknown Speaker: To be sure, but is a proper basis for exercising that discretion merely that you have dismissed an accompanying infringement action--

Mr. Schill: --No.

Unknown Speaker: --Anymore than it would if you brought the declaratory judgment action separately, when there had been no infringement action?

Mr. Schill: That's correct.

Unknown Speaker: I mean, I can't imagine... can you say you can always dismiss a declaratory judgment action for infringement, in your discretion, with no other reason than it is a declaratory judgment action for infringement?

Mr. Schill: No, I wouldn't--

Unknown Speaker: Certainly not.

Then why can you do it simply because it happens to be attached to a... not infringement, invalidity.

Why can you do it simply because it happens to be attached to an infringement action?

I can't understand that.

In other words, there's the same unflagging obligation to pursue a declaratory judgment action as there is an injunction action, that's the position.

Virtually unflagging.

[Laughter]

Mr. Schill: --Yes, Your Honor.

I think, to sum up, in a sense we think that the Court should consider as factors, Your Honor, that part of its responsibility is to effectuate the purpose of the Declaratory Judgment Act to relieve the parties from uncertainty, insecurity, and controversy, to prevent the misallocation of resources which occurs when the litigation of the patents found invalid is allowed... that is, relitigation of those patents... and that they should reach the more important issue of patent validity in their deliberations.

This would allow... and you would allow relitigation of patents only under the terms of Blonder-Tongue.

That is, only when the patent owner has not had a full and fair opportunity to litigate the validity issue, otherwise, its rights have been protected, and its right to continue asserting the patents should not be renewed by the court's refusal to reach the merits of the issue.

So... and I'd like to reserve the remaining portion of my time for rebuttal.

Unknown Speaker: Mr. Schill, how do you think the Federal Circuit got into this box?

100 years ago, I was on a court of appeals, and it seems to me that this question was always presented and we always reversed when it was ruled the way the Federal Circuit has done it here, routinely, and I would have thought it would have been settled years ago, but the Federal Circuit went off on its own road, didn't it?

Mr. Schill: To me, it just seems as if the interpretation they felt was necessary to interpret Altvater in these situations led to the practice, that they were trying to... you know, preserve judicial economy so that they did not have to keep litigating the issue, but I don't think it saves judicial time in the long run.

Unknown Speaker: Mr. Schill, was Judge Markey still on the circuit when they adopted this rule?

Mr. Schill: Yes, Your Honor.

Unknown Speaker: He was.

Thank you, Mr. Schill.

[Laughter]

Mr. Schill: Thank you.

Unknown Speaker: Mr. Coons.

Argument of Gordon R. Coons

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

In response to the question that Justice O'Connor posed, within the confines of the specific facts of this case there is no difference whatsoever between the position of petitioner and respondent.

Unknown Speaker: As to whether they should have decided the issue--

Mr. Coons: That is correct.

Unknown Speaker: --But there's a major dispute between you on validity.

Mr. Coons: There certainly is, and there is also a major dispute with regard to those situations in which the appellate court, the Federal Circuit, should decide validity.

I think we differ both in terms of analysis and in result, and respondent's position is quite clear, because of this Court's decision in 1971 in Blonder-Tongue, that what is required there is a fundamental right, on appeal, to decide the validity issue on the merits, and that must be done in every case because of the public interest that this Court recognized in that case.

That obviously goes beyond the facts of this particular case, because as has been pointed out, this case does involve a situation in which there is a declaratory judgment action.

In fact, it is probably the rare case in which a defendant infringer does not interpose a declaratory judgment action.

But conceptually, the reason why the Federal Circuit should address the validity issue has nothing to do with whether there is the presence of a declaratory judgment count or not.

It's really bottomed in this Court's analysis in the Blonder-Tongue case, and it's kind of interesting to look at the position of the petitioners and the respondent in that case, because in both of their briefs, neither petitioner nor the respondent urged that the Triplett rule which was then in effect ought to be modified in any respect.

In fact, what they said is the Triplett rule should be maintained, and in this Court's Blonder-Tongue decision, it stated in petitioners' brief at page 12,

"Though petitioners stand to gain by any such result, we cannot urge the destruction of a long-accepted safeguard for patentees merely for the expediency of victory. "

And that safeguard that was referenced in that was the safeguard against an improvident judgment of invalidity, because under the Triplett rule, it really made no difference whether the patent was held valid or invalid except with respect to the particular parties, because in that setting it would be res judicata as between the particular parties.

But beyond that, if there was another party who was believed to infringe, then a second suit could be had, so that safeguard was the ability on the part of the patent owner to file multiple lawsuits.

And what this Court decided in Blonder-Tongue was no, that is not proper.

There is a public interest in deciding validity of patents, and what should be done is to provide the patent owner with one full and fair opportunity, and respondents submit that that one full and fair opportunity inherently includes the right to a decision on appeal with respect to the merits of the validity issue.

It doesn't make any difference--

Unknown Speaker: So you would say that if a... the district court, when it's faced with claims... infringement claims and claims on the other side of invalidity, has to decide them both.

Mr. Coons: --That's correct.

Unknown Speaker: Or maybe just decide... maybe you get to validity first, then you don't have to fool with invalidity, do you?

Mr. Coons: You mean fool with noninfringement?

Unknown Speaker: I mean, noninfringement.

You don't have--

Mr. Coons: I think that the better practice certainly... it's almost one of false economy, because I think the Federal Circuit practice is well-rooted, in fact, to have the trial courts decide both issues, because if the decision is deemed to be inappropriate on validity, for example, which before this Vieau v. Japax procedure... and that's part of the problem, that literally as many times as not, that trial court holding of invalidity was reversed, and so in those 50 percent of the cases the problem would be that not having decided infringement, then back down the case would go--

Unknown Speaker: --Yes.

Mr. Coons: --And certainly that sort of piecemeal litigation would be... I think would take up more judicial time than it would take to simply do it all at once.

Unknown Speaker: But at least your position would be the district court, if there's a validity issue presented, it should be decided.

Mr. Coons: Yes, that's correct.

Unknown Speaker: Are you telling us, or can you tell us that in almost every instance of patent litigation in the district court the district court reaches both issues?

Mr. Coons: I think that's correct.

I'm aware of certain situations in which bifurcation is done, for example, and issues are decided one by one, but in virtually every case I think the practice is that the district court does decide both issues.

Unknown Speaker: It would seem to me that there may be cases in which the evidence on infringement, the proof that's necessary to resolve the infringement is very easily managed and the patent validity question is extremely complicated, and that it's only wise for the district court to proceed to the infringement issue just to dispose of the case.

Mr. Coons: And I think that certainly could be done by the exercise of judicial restraint, and like any court which is not a court of last resort, the problem would be that what may be entirely clear to that trial court, the appellate court may decide that's not the case and then send it back down for validity, but certainly within the exercise of judicial restraint, in the first instance, if it is that clear, I think that the trial court has the discretion to decide that issue or not, but eventually--

Unknown Speaker: So that there is discretion so far as you're concerned.

Mr. Coons: --That's correct.

Unknown Speaker: Is there discretion also in the appellate court?

Mr. Coons: Well, I think I misspoke, because I think there would be discretion to do so, but if you... once there is an appeal and the issue has been... well, let me backtrack on that.

I think in those circumstances, if non... if validity was never decided, then it has never been put to issue, so I think that both the... go back and I agree with... I guess my position is the same, that if validity has never been decided, it's never been put into issue, then I don't think Blonder-Tongue would come into play, and the Federal Circuit would have the same discretion that the trial court would, because an infringement would decide the issue.

But if validity is put into play, and there is a contest between that, then... by the trial court, then under our position, as respondents, Blonder-Tongue requires a consideration of the validity issue upon appeal in any instance, except for the rare situation in which, for example, a patent has expired and which, under what has been called prudential mootness, the issue of whether the patent is valid or not is so attenuated that it doesn't make any difference.

It would be imprudent to then go ahead and consider that issue and go ahead.

But other than that sort of a circumstance, if validity has been put into issue, then it becomes part of the case or controversy and must be decided.

Unknown Speaker: If we were to adopt that rule, is there any danger that powerful and well-funded patent-holders could pick their target for declaratory relief by prompting a suit from an infringer, by suing an infringer with very little assets?

Mr. Coons: I don't think it would really make any difference.

Unknown Speaker: Why wouldn't it?

If I wanted to test a patent and to sue for infringement, I'd probably pick the weakest defendant in sight.

Mr. Coons: But even if that were done, and even if there were a decision of... that the patent was valid, technically it's the defendant's burden, so the holding would be that there has not been that clear and convincing showing that the patent was not valid.

But even if that were affirmed, all that does is decide the issue as between the parties, because there is no mutuality with respect to validity, and every time there is a presumption of validity that certainly should be attached, but the very next lawsuit it doesn't buy a patent owner anything to have selected that target because every case is independent.

The patent owner puts the patent on the line every time.

Unknown Speaker: Each time.

Mr. Coons: Now, another point--

Unknown Speaker: Well, at least, then, there's no reason to go forward if you don't think that this particular alleged infringer cares about the issue anymore, right, so it isn't just--

Mr. Coons: --Cares about the issue of validity?

Unknown Speaker: --Right.

I mean, you've just said it really is only important as to those two parties.

Mr. Coons: No, I... if I did, I spoke in error because I think in Blonder-Tongue there's a third party, and that is the public.

The public has an interest in patents, and I think that that issue is something that--

Unknown Speaker: But the public isn't affected.

You tell me later lawsuits are later lawsuits.

There's the presumption of validity that it acquires, but--

Mr. Coons: --Well, that's what we--

Unknown Speaker: --But the issue can be relitigated, right?

Mr. Coons: --It certainly can be relitigated, but there is a situation in which, if you do not resolve validity and you follow the Federal Circuit practice as has been done here... stepping back in point of time, the Federal Circuit has been around for well over 10 years, and prior to 1986, in '87 when this Vieau practice came into play, they had decided routinely both validity and infringement.

And in those cases statistically, almost as many times as not, the patents that were held valid by the district court were reversed on appeal... or, excuse me, the patents that were held invalid about 50 percent of the time were reversed on appeal and the patent was held valid.

And I think that what came out of Blonder-Tongue and why it's important to the public is that there ought to be some certainty of result once the validity issue has been raised so that you can distinguish between patents in which the validity claim has not been established and those in which the invalidity claim was in fact correct, and to the extent that there were "scarecrow patents" or the like, that those patents should be out of the rolls.

The public should not have to face--

Unknown Speaker: What I'm saying is, I don't understand what that means if you say the whole thing can be relitigated again in the next case, anyway.

Mr. Coons: --It can only be relitigated if the validity of the patent is restored, or is determined on appeal.

If it isn't, that issue can certainly come up again and... but that would be left, then, to another lawsuit, and that would be part of the multiple litigation in which this 50 percent of the patents that would have been held invalid then are still on the rolls, if you will, and it takes another lawsuit, another allocation of resources, to deal with the issue.

Unknown Speaker: You say, if you lose on invalidity, that's the end of it.

Mr. Coons: That is the end, that's right.

Once--

Unknown Speaker: But if you win on invalidity, you're going to have to keep on litigating it, no matter what.

Mr. Coons: --That's correct.

That's correct.

Unknown Speaker: But will the court of appeals on essentially the same charge of invalidity, if it has previously found a patent valid, adhere to its earlier decision?

Mr. Coons: I think that's a good question.

I don't know.

I can't recall, as I'm standing here if I can ever... if I can think of the case in which the... the Federal Circuit has looked at the issue of validity on two different occasions.

I am aware of situations in which a patent has been held valid in one case and then held invalid in a second or third case, and I think... so there are those sorts of situations, I just don't know if the Federal Circuit has itself dealt with that sort of an issue.

Unknown Speaker: Well, suppose the appellate court is dealing with a case in which the district court has found the patent to be valid.

Why can't the appellate court say, well, there's really not much use in... if I vacate the decision below without ruling on the validity issue, I'm really not depriving anybody of anything, because that validity would be relitigable anyway in the next case.

Why isn't that a situation where, in the sound exercise of its discretion, the court of appeals might say, I'll just leave it be?

Mr. Coons: Well, I think it certainly... I think it certainly could, and there certainly is a distinction between whether a patent has been held invalid in the trial court or whether it has been held valid.

Unknown Speaker: Invalid is a stronger case for getting to it on appeal, a much stronger case, isn't it?

Mr. Coons: That certainly... that certainly is the case, but if you follow Blonder-Tongue and you look at the concept of wanting to provide one full and fair opportunity, that includes the right to appeal on the merits, because just as the trial court could be wrong on either of that, you prevent that sort of a situation and it could be that the valid holding was incorrect and the patent should be held invalid.

Certainly there is a presumption of validity, and it's less of a problem, but if, in fact, patents are imbued with a public interest that is throughout this Court's opinion in Blonder-Tongue, then conceptually it should not make any difference whether the trial court's decision was valid or invalid, it ought to be considered on appeal.

Unknown Speaker: Would it make any difference as long... if validity's at issue, and infringement is at issue in a trial court, would it make any difference whether the patent was held to be infringed or noninfringed?

Mr. Coons: Not insofar as Blonder-Tongue is concerned and in our position with respect to considering that issue on appeal.

I think that it ought to be considered in either event, because if patents do in fact have a public interest, and certainly respondents contend that both good patents and bad patents ought to be identified and there ought to be a separation between the two, and that the issue ought to be resolved, then Blonder-Tongue would say regardless of whether... how the infringement issue was decided, the validity issue ought to be decided on appeal.

Now, obviously, by exercising judicial restraint and the like and in the management of legal issues, to conserve their time the Federal Circuit may choose to decide the validity issue first, as Judge Lourie had suggested.

Unknown Speaker: Wherein does your position differ from Mr. Schill's in this respect, Mr. Coons?

Mr. Coons: I think it differs in the respect with which we were just discussing.

On the limited issue before this Court, where there is a declaratory judgment held, we do not have any difference whatsoever.

But our contention is that this Court is faced with in effect rationalizing its cumulative precedent.

Altvater, Electrical Fittings, and Blonder-Tongue, and that in our position it really is immaterial whether there is a declaratory judgment count or not.

Unknown Speaker: Or just an affirmative defense.

Mr. Coons: Or just an affirmative defense.

Unknown Speaker: You say that the validity should be decided in either event--

Mr. Coons: That's correct.

Unknown Speaker: --By the Federal Circuit.

Mr. Coons: That's correct.

Unknown Speaker: At least where it's been... well, of course, where it's been decided by the lower court--

Mr. Coons: That's correct.

Unknown Speaker: --And when you were speaking earlier about when the lower court had to decide it in your view and it would be an abuse of discretion not to decide it, were you assuming that there was a declaratory judgment counterclaim or not, because frankly I... it seems to me that it's up to the district judge how many issues he wants to resolve.

I'm not inclined to say that he has to resolve two issues if one will get rid of the case, but when there's a declaratory judgment claim, I feel a little bit differently about it.

Were you addressing the declaratory judgment claim only, or do you assert that even when there's only an affirmative defense the district court has an obligation to reach the invalidity point?

Mr. Coons: I think the Federal Circuit practice and what we've all more or less grown up with is a situation in which trial courts have in fact exercised their discretion and have in fact considered both issues, and I think the reason is to attempt to avoid piecemeal--

Unknown Speaker: Right.

Mr. Coons: --litigation, because if they happen to be wrong on the issue that they decide... infringement, for example, then what happens is you then go back and you have to decide something else when it's not fresh, it takes more time and all that sort of thing, and--

Unknown Speaker: Sure, but you can say that in a lot of different contexts in a lot of different other lawsuits, and I don't know any rule that says a district judge has to decide anymore than is minimally necessary to resolve the dispute.

I don't know why this area would be any different.

Mr. Coons: --And I think that... and I don't contend to the contrary.

Unknown Speaker: May I just throw out... I don't know if this really sheds any light on anything or not, but are there not some cases in which there's a dispute about how to interpret the claims, and if you interpret the claims broadly you may have a stronger claim of invalidity, or if you construe them narrowly there's a better defense to the infringement charge, and so that you're not always... I mean, sometimes your determination of the merits of one of the two issues may color your determination of the other issue.

Am I right on that, or is it--

Mr. Coons: You are correct.

Unknown Speaker: --Yes, and I don't know if that might complicate it, and I'm... very frankly, one of the things that worries me about a case where you don't have an adversary on the precise question before us, and much of the discussion is about other cases where there's an affirmative defense, and so forth, whether we really have any business talking about that.

The case before us seems to me very easy, but we've talked hypothetically about all sorts of situations, and I'm not sure it would be appropriate for us to go much beyond what we have to do to decide this case.

Mr. Coons: Well, I think it depends on... I think I would be certainly satisfied with that result, but I think this is an opportunity for this Court to provide some definitive bright line approach that would, I think, satisfy all the parties.

Unknown Speaker: So you want us to talk about what district courts should do and all that?

Mr. Coons: Oh, I think district courts can take care of themselves right now.

Unknown Speaker: Well, all right, so you don't insist that we give the district courts a lot of advice.

Mr. Coons: Oh, I'm sure that that happens.

I think in this case to resolve it I'm looking at the Federal Circuit practice, and I think that the answer... you were quite right that oftentimes the validity issue and infringement issue are intertwined and you have to interpret the claims, and that's something which has to be done in any event.

And if that is not done, and is not done properly, it's part of what we think has occurred here, what happens is that you begin to meld the issues together, and it does affect the thinking, and so I think that that certainly has to be done.

And it is a rare case in which a declaratory judgment count is not there, so in terms of result we're probably not talking about a lot of cases, but in terms of approach, what I submit is that the Blonder-Tongue decision requires a consideration of validity when the trial court exercises discretion to decide that issue, whether it's decided valid or not.

And I think anything short of that would be a retreat from the sort of principles that were nec... that were, excuse me, enunciated in Blonder-Tongue, and I think that what we've seen, that the concern about the safeguard over the 20 years, has certainly been something that has been put to rest.

I think everyone is comfortable with the situation of one full and fair opportunity.

Unknown Speaker: Do you think that most patent lawyers around the country agree with you?

[Laughter]

Mr. Coons: I haven't made a survey.

Unknown Speaker: Do you know anyone that doesn't agree with you that we can get up here to argue the other side?

[Laughter]

Mr. Coons: I was hoping you weren't going to put me in that situation, but all I can say by way--

Unknown Speaker: You can say yes, but I don't respect him, right?

[Laughter]

Mr. Coons: --Well, I think that the point is that certainly from the amici, from the American Bar Association, the American Intellectual Property Law Association, and from the Federal Circuit Bar Association, you see a unanimity of view that this practice is not something that everybody is fond of and that it feels--

Unknown Speaker: Maybe that's why we didn't get an amicus in this case.

We couldn't find one to argue the other side.

Mr. Coons: --Well, I have been... this is all hearsay, and perhaps it's not admissible at this stage, but I have been told that Judge Bennett's law clerk, and he wrote the concurring opinion in the Vieau v. Japax--

Unknown Speaker: You mean, he drafted it, yes.

[Laughter]

Mr. Coons: --I stand corrected.

He drafted the opinion.

But at any rate, what I'm told is that he believes that that was proper, and I'm sure that it was--

Unknown Speaker: I think you're right, that's hearsay.

[Laughter]

Mr. Coons: --But I think that we're... from my point of view, that one of the things that frankly I have not found any precedent that is squarely on point, but it's the issue of, we have Article 3 case or controversy, we have prudential mootness, and we have mootness being thrown around oftentimes a little bit loosely, and I submit that a court such as the Court of Appeals for the Federal Circuit, which is not a court of last resort, cannot itself, by its own action, create either jurisdictional mootness, nor can it create prudential mootness.

If prudential mootness occurs in a situation where it's a happenstance through some extrinsic fact, something which was in dispute, a report, or whatever, was issued, a bankruptcy plan which has already gone so far along in reorganization that it would be nonsensical to provide relief, those are the sorts of prudential mootness issues that come up.

But there is no situation in which a court which is not a court of last resort can by its own action create a situation in which the case is moot, whether you look at that as jurisdictionally moot or as prudentially moot, and I think that that perhaps is where the error came into play.

I think that the only thing that I would... additional point that I would like to make is that you look at this from the standpoint of the patent owner, and part of the problem when you have the Federal Circuit practice is what has occurred here.

You have one half of an opportunity to litigate, which is accorded to Morton in the Argus case, you have one-half of an opportunity to litigate which was accorded in the Cardinal case, and the problem is that this is one situation in which one-half of an opportunity and one-half of an opportunity does not end up to be one full opportunity, that one-half of an opportunity may satisfy the cynical patent owner who only wants to save his or her patents, but that same one-half of an opportunity only serves to wholly frustrate a responsible patent owner as Morton, who believes an erroneous trial court decision was reached and would like to have that rectified on appeal.

Thank you very much.

Unknown Speaker: Thank you, Mr. Coons.

Mr. Schill, you have 4 minutes remaining.

Rebuttal of Charles F. Schill

Mr. Schill: I think I would just like to make two points.

First, the presumption of validity that's been discussed seems to be imbued with some substantive right by Morton.

It really is only a procedural device to put the burden of proof of invalidity on the person attacking the patent, and I think that should be kept in mind when you're deciding whether there is some kind of unfairness of not deciding that issue, or deciding invalidity and then not going on to reach the merits.

The difference we have with Morton is that if the counterclaim, or if the invalidity is raised only as an affirmative defense, we don't believe the Court necessarily must reach that issue, and in conclusion, I believe that we would request this Court to remand the case to the Federal Circuit with the direction that they reach the issue of validity and reach the merits substantively on that issue.

Chief Justice Rehnquist: Thank you, Mr. Schill.

Mr. Schill: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Northeastern Florida Chapter Of The Associated General Contractors Of America v. City Of Jacksonville, Florida - Oral Argument

Fri, 09 Jan 2009 14:49:26 +0000

Case:

Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida

Media File:

91-1721_19930222-argument.mp3

Related Transcript:

1992_91_1721_argument.xml

Transcript:

Argument of Deborah A. Ausburn

Chief Justice Rehnquist: We'll hear argument now in Number 91-1721, Northeastern Florida Chapter of the Associated General Contractors of America v. the City of Jacksonville, Florida.

Ms. Ausburn.

Ms Ausburn: Mr. Chief Justice and may it please the Court:

4 years ago my clients filed an equal protection challenge to an ordinance passed by the City of Jacksonville, Florida.

Today, the question is before this Court of whether nonminority contractors who do business with the City of Jacksonville have standing to challenge an ordinance that excludes nonminority contractors who do business with the City of Jacksonville from consideration for certain city contracts.

There are before this Court three--

Unknown Speaker: Ms. Ausburn, do we also have to decide whether the case is moot?

Ms Ausburn: --Yes, Your Honor, that issue has been presented to this Court.

The... as we discussed in our briefs, the city has repealed the ordinance that was originally challenged.

However, it did not simply repeal that ordinance, it repealed it and replaced it with another ordinance that for purposes of standing is identical.

Unknown Speaker: Well, is it?

The new ordinance is rather different, is it not?

Ms Ausburn: Your Honor, the city claims that it is different in the fact that it is supported by evidence that was presented to the city council before the ordinance was enacted.

That, however, is not in the record, and frankly we will not know until someone has standing to challenge that ordinance and obtain court review.

Unknown Speaker: Well, in structure it's different as well, is it not?

Ms Ausburn: Yes, Your Honor.

Rather than being a simple set-aside which the original ordinance was, this new ordinance has five different ways of granting preferences along racial lines.

There are set-asides, there are bid preferences, there are direct negotiations, there are subcontracting requirements.

The different--

Unknown Speaker: Is it possible that the standing analysis would be different under the new ordinance?

Ms Ausburn: --Your Honor, it might be that in some instances there would be a question of subcontracting requirements of whether there were contractors who would have standing to challenge the subcontracting requirements, which is not an issue under the old ordinance.

However, for purposes of the fact that nonminority contractors come into the bidding process with a distinct disadvantage for a certain percentage of city contracts, that standing analysis would be the same under--

Unknown Speaker: Has your complaint been amended anywhere down the line to address the new ordinance?

Ms Ausburn: --No, Your Honor, the case has been dismissed because of the standing issue.

Unknown Speaker: So as it comes to us, anyway, it was based on an ordinance that's now repealed.

Ms Ausburn: Yes, Your Honor, although I would use the word, replaced with another substantially similar and, for purposes of standing, identical ordinance.

Unknown Speaker: Ms. Ausburn, our judgments don't address legal issues.

I mean, I agree with you the legal issue that you raise will continue to be there under the new ordinance, maybe in somewhat different form, but courts don't address legal issues, they issue judgments, and you're essentially asking us to strike down a... or to disallow the implementation of a statute which no longer exists.

You're asking us to do something that's a useless act, aren't you?

Ms Ausburn: Not necessarily, Your Honor.

It is far from clear in this case that the injunction which the district court entered in this case originally almost 3 years ago... it is far from clear whether that permanent injunction does not cover the new ordinance.

The court's injunction stated that the city was free to reenact constitutional ordinance that met this court's guidelines in City of Richmond v. Croson.

It is no more than an assertion on the part of the City of Jacksonville that this new ordinance meets the city of... the guidelines of Croson and therefore meets the terms of the original injunction.

If it were not for the standing issue, Your Honor, either party could go back to the court under the original injunction and ask the court to review this new ordinance under the same standards and under the same legal issues that were presented 4 years ago.

Unknown Speaker: I see.

Ms Ausburn: However, no one can do this until someone has standing.

Unknown Speaker: All you're asking this Court to do is to reverse the Eleventh Circuit on the standing question.

You're not asking us to decide anything on the merits, are you?

Ms Ausburn: No, Your Honor.

There is nothing on the merits that has been preserved in this case through... from the district court through the Eleventh Circuit.

The Eleventh Circuit did not decide the merits of the old ordinance, and the merits of the new ordinance have never been challenged.

Unknown Speaker: And, of course, the Eleventh Circuit didn't decide any questions on the adequacy of the pleadings, and there was no question about your ability to amend your complaint because they invoked the standing rule to dismiss the action.

Ms Ausburn: Yes, Your Honor.

They invoked the standing rule, ordered it dismissed on the basis that our pleadings did not allege sufficient facts that they believed to be required for standing in this case.

Unknown Speaker: Was the ordinance repealed, and then a new one enacted, or was it just amended?

Ms Ausburn: It was repealed and replaced.

The beginning of the ordinance... I believe, Your Honor, at the very beginning it said that they repealed section 6 of the City of Jacksonville Purchasing Code and replaced it with this following section 6, so the... a new part section 6 is added to the code, I believe is the exact language.

So the new ordinance is in exactly the same place that the old one was.

It is part of the code.

It uses the same statutory citations and for that purpose we've argued that the case is not moot on those grounds.

The question upon which this Court granted certiorari, which is standing and whether a group of nonminority contractors have standing based on the pleadings that were present in this record, there have been three particular standards that have been identified to this Court for determining that standing issue.

The first one is the rule adopted by the Eleventh Circuit Court of Appeals, which apparently no party before this Court is defending any longer, and that is that the contractors must identify a specific bid and a specific contract that was lost due to the enactment of the ordinance.

The second rule that was presented is the City of Jacksonville's latest proposal, which is that the contractors need not show that we actually lost a contract, we need only show that we specifically bid for an ordinance.

And then the third standard is that submitted by petitioners in this case, which is that the statute creates a racial preference that disadvantages certain parties and that we are within that category of people who are disadvantaged.

We believe, Your Honors, that it is this last rule is the only one that is consistent with this Court's precedent in both standing and equal protection law.

As we explained in our brief, the categorical rule which petitioners would ask this Court to adopt stems from a number of cases, such as Baker v. Carr, Quinn v. Millsap and others, which is that the Equal Protection Clause protects access, it does not protect what the Eleventh Circuit asks the injury to be.

It does not protect actually getting a contract, it does not protect actually being able to perform the contract, the Equal Protection Clause protects access to the system, and that when a party does not have complete and fair access to the system, and that access is conditioned on an unconstitutional barrier, that is the injury, and that is sufficient injury for the Equal Protection Clause.

Now, the second rule, which is the latest version, has... sounds more perfectly reasonable that you have to identify a bid.

However, it is an unnecessary addition to the law of equal protection, or the law of standing, and it is not consistent with this Court's rulings in prior cases such as--

Unknown Speaker: I'm sorry, may I just interrupt you for a minute?

Is the difference between the first and the second essentially kind of an empirical difference in the sense that you're claiming that by identifying the contractors and the association as contractors who customarily bid on a range of contracts, that you therefore in effect have identified them as probably harmed, whereas the second category is asking simply for a more specific demonstration, or a more, maybe a heightened probability of harm?

Is that the difference between the two?

Ms Ausburn: --It could be looked at as that difference, Your Honor.

We would argue that our allegations in this case show sufficient probability.

We have alleged that we are contractors who regularly bid on and perform contracts for the City of Jacksonville, that we do business with the City of Jacksonville on a regular basis, that there are contracts that we would have bid for but we were not eligible for--

Unknown Speaker: --in your complaint specifically says that many of your members would have bid.

Ms Ausburn: --Yes, Your Honor, I believe that is in... it is in paragraph 46 of our complaint, which is in the Joint Appendix... Joint Appendix page 18,

"Numerous nonminority members of AGC have been eligible and would have bid on contracts but for the set-aside program. "

We also allege that there... as long as the set-aside program is in effect, that we are shut out from these.

The requirement of a specific bid arguably would heighten the probability, but it is the sort of mechanical requirement that becomes simply a pleading requirement, and--

Unknown Speaker: Well, being shut out, you don't really say that being shut out is enough.

I mean, I assume that contractors in Seattle, Washington are shut out, too.

You think an individual contractor in Seattle, Washington, could come and bring this suit?

Ms Ausburn: --Only if he proved that he does business with the City of Jacksonville and would like to do business with the City of Jacksonville.

Unknown Speaker: So being shut out alone is not enough.

Ms Ausburn: No, Your Honor.

There is some requirement that you be within the group of people affected by the ordinance, and the ordinance only affects those people who do business with the City of Jacksonville.

Unknown Speaker: But the city identifies in advance the reserved... at least under the old ordinance they identified in advance the bids that were reserved.

Ms Ausburn: Yes, Your Honor, under both the old ordinance, and I believe under the new ordinance, the set-aside, or the contracts that are reserved are... it is included within the bid specifications that these contracts would be let only to minority bidders.

Unknown Speaker: And that's... and nonminority contractors are shut out from bidding on those--

Ms Ausburn: Yes.

Unknown Speaker: --Particularly identified contracts.

Ms Ausburn: Yes, Your Honor.

I suppose in a technical sense we could bid for the contracts.

we simply would not be considered, and that is, of course, one of the problems with the City of Jacksonville's standard, is that they are asking our contractors to bid for contracts that on its face our contractors are not eligible for.

They are requiring a futile act in order to prove standing, which this Court has held in many cases, including criminal law standards, that... to analogize to criminal law, that a person need not submit themselves to a threat of prosecution in order to have challenge... in order to have standing to challenge a law that criminalizes some behavior unconstitutionally.

This Court has also held in many cases that an impending injury is enough, and that if there is evidence in this case or in our case allegations in the complaint of an impending injury, in our case the contractors who would have bid on these contracts and who would like to bid on these contracts, that is precisely the sort of pleading that this Court found adequate in Clemments v. Fashing, which was a statute that required politicians in Texas to resign from a current office in order to run from another office.

This Court did not require those people to actually go and run for office or apply to be a candidate for the office.

The Court simply held that the allegations, which were that they would like to run and would run if it weren't for the fact that they had to resign from their current office, was sufficient to give them standing to challenge that resign-to-run provision.

Unknown Speaker: If you were representing just one client rather than... one contractor rather than association, and the contractor was new in the business, had never bid on anything whatsoever, would you think it was sufficient for you simply to acclaim that your client would have bid but for the set-aside?

Ms Ausburn: Your Honor, there might be a... with the individual contractor there might be a heightened element of evidence in order to prove that he would have bid, and that would come down to the difference between allegations and evidence submitted at summary judgment in order to prove that.

Unknown Speaker: --allegation.

Ms Ausburn: I would believe, Your Honor, that would be sufficient to establish standing and to get the case... to get the case into court so that those allegations could be tested.

There would be all sorts of evidence required that this person was competent to perform contracts for the City of Jacksonville, that he was otherwise eligible; there would be many issues, but those would be evidentiary proof issues rather than pleadings issues for allegations.

The question of what... whether a person would have to submit a bid, that second test that has been presented to this Court is not one that is necessary to protect the principles that are at issue in standing cases.

This Court has stated that the issue in standing cases is whether you have the proper plaintiff before the Court, a plaintiff who is likely to be injured, a plaintiff who is concerned about what is happening in this case.

We would submit that, on the basis of our allegations, that we do business with the City of Jacksonville, that we would like to continue to do business with the City of Jacksonville, that you have the proper plaintiffs before this Court.

After all, the ordinance is directed towards contractors who do business with the City of Jacksonville, and if we can prove we are within that category, then there is no one else that is going to be able to challenge the ordinance, other than people within that category.

The third rule is the one that this Court originally granted cert on, which is the Eleventh Circuit rule requiring proof of an actual contract.

We believe that the Eleventh Circuit confused the standards for standing in equal protection cases with the standards at issue for a bid protest or your standard civil suit where damages are sought, and for all the reasons contained in our brief we believe that injunctive relief, and particularly injunctive relief under the Equal Protection Clause, does not require proof of a specific lost contract but simply being allowed to... or, excuse me, not being considered or not being able to compete on an equal basis is sufficient.

The finally issue that has arisen in the briefs is the level of evidence that is required.

The posture of this case is that everything about standing has been decided on the pleadings.

There is no evidence in the record that our clients submitted a bid and were refused, or that they would have gotten a contract.

The reason we believe that this Court should focus on the allegations and determine whether the allegations are sufficient for standing is because in many cases, this... or in most cases where the Court has focused on the... considered standing, they have focused on the allegations in the complaint unless, if standing came up as an issue in the lower courts, in the issue of summary judgment or in other standards, then this Court has considered that the nonmoving party or the party plaintiff who has proved standing has had adequate notice.

Celotex is an example where this Court made a point that the plaintiff in that case had not presented sufficient evidence to sustain her pleadings, but that she had sufficient notice, and all of these cases... many of these cases that the Court has considered have used language that if it is contested at trial, if the question is brought up... in Lujan, the language was, in response to a motion for summary judgment evidence is needed.

There was no such motion, there was no such notice for the petitioners in this case.

The question never came up until... as I believe the briefs adequately show, the question never came up until 6 months before this case came up on appeal when the Eleventh Circuit adopted its new rule and then applied it in this case.

This Court has never dismissed pleadings or never decided a case on standing for lack of evidence unless there was notice in the lower courts that this has come up.

In this case, the City of Jacksonville never raised the issue.

In fact, at a hearing on the preliminary injunction when the judge asked them if they were claiming that we had no standing, they said no.

The issue of bids and being denied for a bid went to irreparable injury for a preliminary injunction, which was the issue at that time 4 years ago, when we sought preliminary injunction.

The issue of injury and requiring a bid has never been an issue in this case until the Eleventh Circuit's... the Eleventh Circuit decided its decision.

Unknown Speaker: What do you do about our language in Warth v Seldin, where we denied standing to the homebuilders saying,

"The complaint refers to no specific project of any of its members that is currently precluded by the ordinance? "

Remember, this was an ordinance that--

Ms Ausburn: Yes.

Your Honor, the--

Unknown Speaker: "There is no averment that any member has applied to respondents for a building permit. "

Ms Ausburn: --Yes.

Unknown Speaker: Were we just... why were we saying that?

Ms Ausburn: Well, because in Warth v. Seldin, that was the only injury that those homeowners... that those homebuilders could allege, was economic injury.

They were not the targets, or they were not suffering any discrimination as a result of that zoning ordinance.

The injury that the homebuilders were alleging was indirect injury, injury to them resulting from the violation of someone else's rights.

It was the rights of the people to live in that community, the other rights.

They had no equal protection rights for discrimination, and it's that distance, there, that economic injury was all that they could claim, and therefore this Court rightly went back to the standard for damages in the case.

Unknown Speaker: Your clients don't have any separate equal protection rights here, apart from the contracts.

They're not complaining of some violation of equal protection rights in the abstract, they're complaining about denial of particular contracts.

Ms Ausburn: Yes, Your Honor, but the statute has created racial classifications and has put our clients within those racial classifications.

In Warth v. Seldin the homeowners... excuse me, the homebuilders association, none of their clients were classified and directly affected--

Unknown Speaker: Well, that's very true, but I don't see how that has anything to do with the standing question.

Ms Ausburn: --Your Honor, the... again, I would go back to the injury that they were claiming--

Unknown Speaker: Right.

Ms Ausburn: --In Warth was not related to the Equal Protection Clause.

The injury to those particular plaintiffs was purely economic.

In our case, we are alleging more than economic injury.

Unknown Speaker: You are.

What is the injury you are alleging?

Ms Ausburn: The... the... being excluded from the process.

That encompasses--

Unknown Speaker: Being excluded from the process?

Ms Ausburn: --Yes, Your Honor, being excluded from consideration.

Unknown Speaker: I don't understand that.

I thought you were complaining about not being able to get contracts with the city.

Ms Ausburn: We're not even considered for contracts.

It is true that what we're looking at is economic, that it is the contracts, but I believe there is a difference between the contracts and saying that it is all economic injury.

I'm not denying that there is economic injury in this case and that if it is only economic injury then you must quantify it to the extent of damages.

Unknown Speaker: Well, is there any difference between your case and Croson in the sense of the kind of injury you're talking about?

Ms Ausburn: Your Honor, the injury that this Court identified in Croson was the injury of not being considered... or being lumped in a category because of racial preferences and not being allowed.

We would put ourselves in the Croson category as opposed to the Warth v. Seldin category, because we are directly affected by the statute and it is our directly Equal Protection rights that are being affected.

Unknown Speaker: You say it's more... more proximate in your case than it was in Warth, then.

Ms Ausburn: Your Honor, we're saying that the injury, the Equal Protection injury is more proximate to us than it was in Warth.

They had no Equal Protection injury in Warth v. Seldin.

All that they had was economic injury.

Unknown Speaker: It seems to me the question is not so much the kind of injury but the likelihood of its occurrence, and in Warth v. Seldin we found there was just no likelihood shown that the injury would ever occur, and it seems to me that that should be the distinction, not the constitutional basis that underlies the cause of action for asserting the injury.

Ms Ausburn: That is true, Your Honor, there is a difference in Warth between the proximity.

We look to the Equal Protection Clause not to determine proximity, we simply look to the Equal Protection Clause to determine the injury that is acceptable, and that is the main area of disagreement that we have with the Eleventh Circuit's argument.

They looked at the only injury that is acceptable is economic injury.

Unknown Speaker: Well, I... I guess that's a different answer... I mean, if you said that language in Warth may go too far, but the proximity is different, that language aside... but that language seemed to say not just, it isn't proximate enough, but that it can't be proximate enough unless you will identify a particular contract.

Ms Ausburn: Yes, Your Honor, and if Warth requires people who suffer Equal Protection injury to prove a bid or to show that they had submitted themselves to the process, then Warth is not consistent with this court's prior holdings in standing and equal protection, because there are many cases where... the voters in Baker v. Carr did not have to show that they had actually voted.

The plaintiffs in Gilmore, where they were excluded from the parks, they didn't have to show that they had gone out and tried to enter the parks.

All they had to show is that the ordinance said only these people are allowed in the parks, and you are not one of these people.

And Warth v. Seldin, we believe that the only way to reconcile it with the other cases is to make the difference between the rights that are asserted and the proximity in this case.

Unknown Speaker: But when you say that your members would have bid on these contracts, are you telling us that we should read that allegation to mean, in effect, that they would have bid and that, given the large number of them and the fact that they customarily seek contracts for this kind of work, that there is a reasonable probability that one of them would have gotten at least some of these set-aside contracts?

Are you telling us that's the way we should read that allegation?

Ms Ausburn: Certainly you can read that, Your Honor.

We do not believe that it's necessary for there to be at the end of any chain of reasoning a decision that someone would have gotten a contract.

Unknown Speaker: So then you really are saying, I guess, that you're not complaining of economic injury, you are simply complaining of kind of an abstract exclusion from a bidding process, and it seems to me that that is weaker than read your allegations to be.

Ms Ausburn: We--

Unknown Speaker: You're not complaining of... at least, I didn't think you were complaining of a mere abstract classification which excludes you from a bidding process.

I thought you were complaining of an exclusion in the course of which some of your members would obtain contracts.

Ms Ausburn: --Yes, Your Honor, I believe that that is true and that it can be read that way.

Unknown Speaker: So ultimately you are complaining of an economic injury, and the debate seems to be how specific must you articulate your allegations to raise a probability, or a claim of probability of actual economic injury.

That's fair to say, isn't it?

Ms Ausburn: Your Honor, it is true that in this case our clients would not be bidding for contracts if they didn't think they could get them.

They are in business, and they would like to perform contracts and be paid for performing those contracts.

However, it's simply a question of whether performing the contracts, receiving the contracts, is a necessity, and we believe that there is certainly--

Unknown Speaker: Well, you mean whether obtaining a particular contract is a necessity.

Ms Ausburn: --Is a necessity for standing.

Unknown Speaker: Yes.

Ms Ausburn: Yes.

Yes, Your Honor, and we believe that the Court can find from our pleadings that certainly someone within the Association of General Contractors is going to be performing, or is going to receive and perform adequately a contract for the City of Jacksonville.

Unknown Speaker: Of course, the court below insisted that you prove not only that you would have bid for the contract, but that you would have gotten it.

Ms Ausburn: Yes.

Yes, Your Honor, but for... again, it was a simple damages type of analysis that they applied to this case, and given all those reasons, we believe that the only standard that is consistent with this Court's precedent, and consistent with this Court's precedents in both the Equal Protection Clause and standing, is the standard that our allegations meet, which is that the City of Jacksonville passed an ordinance that affects contractors who do business with the City of Jacksonville, and we do business with that city.

Thank you.

Unknown Speaker: Thank you, Ms. Ausburn.

Mr. Magid.

Am I pronouncing your name correctly?

Argument of Leonard S. Magid

Mr. Magid: Magid.

Unknown Speaker: Magid.

Mr. Magid, we'll hear from you.

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

The Eleventh Circuit decision on standing should be affirmed, and we are here to defend that decision, because it correctly held the AGC to the economic injury stated in its complaint.

Even if the injury is found to be noneconomic, the AGC failed to allege such injury or any other injury, economic or noneconomic, with any particularity in accordance with the Warth case and others of this Court.

Unknown Speaker: Are you talking about some sort of a pleading rule that would require alleging with particularity economic injury, or are you talking about a substantive rule as to what sort of a showing you would have to make to win your lawsuit?

Mr. Magid: Initially, Your Honor, it would be a pleading rule.

It's a pleading rule in the sense that from the complaint it must appear that standing is present.

Without standing being present, the court has no jurisdiction to proceed further.

That is why we're here today, because the allegations in the AGC complaint are not very clear, and the court... at least, it took an appellate court to realize that the case should not have proceeded on the pleadings alone, and of course, as you go through the different stages of the case, and you get to the summary judgment stage of the case, that rule would be heightened and you would need more evidence, and we were at that stage in this case.

Unknown Speaker: The district court granted summary judgment--

Mr. Magid: Against the city.

Unknown Speaker: --Against the city, and issued a preliminary injunction.

Mr. Magid: And a permanent injunction.

Unknown Speaker: And a permanent injunction, and so the Eleventh... there were no more proceedings to be had in the district court, then.

Mr. Magid: No, Your Honor.

Unknown Speaker: And the Eleventh Circuit reversed because of no showing of standing, in its view.

So why are we talking about a pleading rule if the case went on summary judgment and there were no further proceedings to be had in the district court?

It went beyond... it had gotten beyond the pleading stage in this case.

Mr. Magid: We agree with you wholeheartedly, Judge... Your Honor... Chief... Mr. Chief Justice.

Even if--

[Laughter]

Sorry... I got it.

[Laughter]

Even if the pleadings are found to be sufficient, we're not at that stage in this case.

The AGC failed to support the general allegations of its complaint at the summary judgment stage with any evidence, and again, like Your... Mr. Chief Justice, you said, the case had already gone to judgment.

It seems a little late to say well, we can show you we should have been here in the first place.

Unknown Speaker: Did you challenge standing at that stage?

Mr. Magid: Your Honor, we never challenged standing until the appeal.

Unknown Speaker: Until the appeal, so... and now you complain that they didn't put in more evidence of standing, when you never challenged... surely, at least in those circumstances the standard we should apply is the pleading standard, they come in and plead something that would show enough standing.

Mr. Magid: Your Honor, we assumed that standing was present.

We assumed that if a group of nonminority contractors were challenging a minority program, that you basically had standing.

Unknown Speaker: But you've changed your mind now.

Mr. Magid: Correct.

The Eleventh Circuit... the Eleventh Circuit, which has an obligation, and every court... and it's really between... almost between the plaintiff and the court.

Unknown Speaker: I don't deny their obligation, but I'm just... it doesn't seem to me to apply to them a higher standard than would be necessary to pass a judgment on the pleadings, when you have never at any point, until they're in the court of appeals, challenged the standing, and then you want us to apply the test that ought to be applied either at summary judgment or later still, at trial.

That doesn't seem to me very fair.

Mr. Magid: They had notice, like any other litigant, that standing is an essential element of their case.

They moved for summary judgment.

When they moved for summary judgment, they represented to the court that the court should grant that judgment as a matter of law, and here's all our evidence that we need.

Again, they had notice that standing is an essential element of the case, but they did not submit any evidence establishing that standing for the court to rule, for the court and the Eleventh Circuit to render a ruling and to exercise its lawful authority in this case.

Unknown Speaker: But the Eleventh Circuit orders the action to be dismissed, it doesn't remand so that the pleadings can be amended.

Mr. Magid: The effect, Your Honor, is the same.

The case was dismissed without prejudice.

If they do... in fact they're able to show an actual case in controversy, they can be back at our doorstep and sue us tomorrow.

Unknown Speaker: Is it without... if you dismiss someone for no standing, that's without prejudice?

You can come back in the next day and say oh, I really do have standing, I just didn't allege enough facts.

You can't do that.

Mr. Magid: Your Honor, I think the decision is worded that it's without prejudice, and it should be anyway because it has no res judicata effect.

Unknown Speaker: A decision on standing has no res judicata effect.

Mr. Magid: As to showing later on that there is an injury.

If your allegations are insufficient and you lack evidence, tomorrow you may have an actual case in controversy.

The problem in this case, Your Honor--

Unknown Speaker: Well, if you get... if this further... I mean, if there was a further event, but not if you simply want to come back in with allegations that you could have made in the first instance.

You can't do that.

Mr. Magid: --Then, Your Honor, the only thing I can refer to is the decision in this case.

It is without prejudice.

Unknown Speaker: Well, Mr. Magid, the question presented in the petition for certiorari is whether an association challenging a racially exclusive Government ordinance may establish standing by showing its members are precluded from bidding on certain municipal contracts, or whether the association must show that its members actually would have received one or more of those contracts.

That is a question of substantive standing law, not pleading law, and you know, you're entitled to urge affirmance on any other ground of the court of appeals, but I suggest that you do discuss somewhere in your 30 minutes the standing question.

Mr. Magid: We believe, Your Honor, that in this case the Eleventh Circuit has not established a new rule of standing... has not changed anything substantively on the basis of constitutional standing.

The Eleventh Circuit does not require litigants challenging an affirmative action program or reverse discrimination to show a denial of a benefit or a lost contract.

In this case, it merely required the plaintiff, who was the AGC, to prove specifically... or to allege, first specifically, and then to establish by evidentiary... by evidence that standing was present.

Unknown Speaker: They said that in order to do that they had to show that they would have successfully bid on contracts, didn't they?

Mr. Magid: Correct, and the reason the Eleventh Circuit did that is because the complaint itself states the injury as being economic, and I refer you to paragraphs 48, 49, and 52.

It says, we were harmed.

How were we harmed?

We were harmed because we lost economically.

What did you lose economically?

We lost... lost contracts.

So the Eleventh Circuit thereupon said, show us an actual case in controversy, show us an actual concrete case in this matter where that happened.

Where is a particular project that you lost, and they didn't plead one, they didn't submit one in evidence on summary judgment, and therefore the Eleventh Circuit ruled against them, and it was no new rule of the Eleventh Circuit.

Unknown Speaker: Mr. Magid, suppose... suppose Alaska, having a budget surplus from the sale of the State's oil, decides, instead of dividing it up among all our citizens we're going to have a lottery.

This will be much more exciting and will... but we won't give everybody in the State a lottery ticket.

We'll just give a ticket to minorities in the State.

Or, I mean, better yet, we'll only give tickets to the majority in the State.

We will not give tickets to minorities.

Now, do you think that those minorities have not been deprived of any economic benefit because they cannot prove that they will win in the drawing?

Those tickets will sell for a certain amount of money, won't they?

The tickets will be worth something.

I mean, that--

Mr. Magid: Right.

Unknown Speaker: --That's why lottery tickets are sold.

Mr. Magid: Your Honor, in your example, race is an absolute barrier to their participation.

Unknown Speaker: I'm talking about whether there's any economic value to a chance of getting something.

Mr. Magid: The injury in that case, in your example, is not an opportunity, it's very--

Unknown Speaker: I'm not complaining about my race being demeaned, I'm complaining about the fact that I don't have a lottery ticket, which is worth something, isn't it, even though I don't know for sure that it's going to win?

Mr. Magid: --Even a losing lottery ticket.

Unknown Speaker: Well, I don't... if I know it's a losing lottery ticket, it's worth nothing.

[Laughter]

But at the outset I don't know whether it's a winner or loser, just as here.

In submitting a bid you don't know whether you're going to be a winner or loser, but it's worth something to be able to submit a bid, is it not?

Mr. Magid: I would submit to you that the injury that you're stating in your complaint, your hypothetical complaint, is an injury more of a racial stigma, of a personal indignity, saying I'm not allowed to have that lottery ticket based upon my race.

Unknown Speaker: Nonsense.

Assume it wasn't upon my race, it was upon the letter of the alphabet that my name begins with.

I'd still be mad, because these other people got lottery tickets and I didn't.

I've been deprived of economic value, and hasn't... haven't these people been deprived of economic value?

They have a chance of getting the contracts.

Mr. Magid: They've been deprived of economic value, but again, they state in their complaint that their injury is economic, and their injury is economic because, again, if read paragraphs 48, 49, and 52, their injury is that we lost business.

Not that we lost the right to participate in the system, but that we lost a contract.

That's why they're here.

They're here because they claim that they have not... they are unable to win certain contracts let by the city, but we don't know which ones.

Unknown Speaker: Well, how could these members possibly expect to win a contract for a project that's listed as reserved for minorities?

How can the... they just wouldn't even consider the bid.

Mr. Magid: This relates... your question, Your Honor, relates to the imminence of the injury.

In order to warrant a--

Unknown Speaker: Well, didn't the city set aside certain contracts that would be awarded only to minorities?

Mr. Magid: --Yes, but it is--

Unknown Speaker: And so what should somebody do, go perform a futile act, a nonminority... you go bid, and certainly how could you ever prove that you would have gotten the contract when they're reserved for minorities?

Mr. Magid: --Well, facially on the record, Your Honor, and the ordinance is the only thing we have in the record, we don't have any bid specifications, and if you look at the ordinance, the ordinance specifically has a waiver provision.

The ordinance is not a quota.

It's not an absolute bar.

It does not state that 10 percent of the City of Jacksonville contracts will be let to a certain class of people.

It says, that is the city's goal.

In fact, an application much... as a matter of fact, there also is a gender classification in the ordinance that is not challenged by the AGC, and the ordinance can let all the contracts under the ordinance to women-owned businesses.

Unknown Speaker: Mr. Magid, may I just interrupt you with a question?

Isn't it also an allegation in the case, which we are taking as true at this point, that the city manager, whoever it was, identified particular contracts as subject to the set-aside, and that the only claim that these people are making is that as to those contracts they were excluded from bidding, and if that is true, then the fact that there may be a waiver provision is irrelevant to our issue, isn't it?

Mr. Magid: Well, Your Honor--

Unknown Speaker: Because there was no waiver as to those identified contracts.

Mr. Magid: --But again, the complaint does not identify the particular contracts that the city might set aside in the future.

Unknown Speaker: No, I... that, I assume, is the case but you were placing some emphasis on the fact that the city can waive the set-aside requirement.

My only point is, as I understand it, the pleadings here include a claim that there have been specific contracts as identified as being subject only to minority bids, and those are the only contracts which we have before us, and if that is so, the fact that there could have been a waiver is irrelevant, isn't it?

Mr. Magid: I would submit to you, Your Honor, that provision has to be... that allegation should be read in context with the evidence, which is the ordinance, and the ordinance--

Unknown Speaker: Well, I'm willing to do that, and I still don't see what difference it makes, and why we should consider the possibility of a waiver when the subject matter of this litigation goes to contracts which have... or to bids as to which there has been no waiver of the ordinance.

Mr. Magid: --Well, Your Honor, again, that is the problem with this case, is that, like the Warth case, there is no particular project.

We don't know from the complaint--

Unknown Speaker: Well, let me ask you just a question about allegations.

Is it true, or is it not true... maybe I'm wrong on this... that the allegation is that as to specifically identified contracts, i.e., those which are set aside by the city manager as being subject to the set-aside, the members of this association are excluded from bidding, is that correct?

Mr. Magid: --It is uncertain from the pleading in that no particular contract is identified--

Unknown Speaker: No specific contract, i.e., the contract to pave, you know, West Rollins Street, is not identified, but the class of contracts is identified, and that class of contracts is described as those which are set aside by the city which are identified by the city manager as subject to the set-aside, isn't that true?

Mr. Magid: --But it's unclear that--

Unknown Speaker: Well, isn't that true?

Mr. Magid: --Your Honor, no, because it is unclear from the ordinance itself whether--

Unknown Speaker: But I'm asking about the pleadings.

Isn't that what they've pleaded?

Mr. Magid: --They have alleged... correct, Your Honor.

They have alleged generally that they have been precluded in the past from certain business.

Unknown Speaker: Okay.

Mr. Magid: However, the ordinance itself does not state whether the particular projects that they might be interested in have ever been set aside or will be set aside in the future.

It doesn't say, construction contracts, or within the area of construction contracts, electrical contracts, plumbing contracts, whatever contracts--

Unknown Speaker: Right, I understand that, yes.

Mr. Magid: --So there's no matching, so there's no... we don't know if--

Unknown Speaker: Well, it says it.

It just doesn't say it specifically.

It says, some of those set aside we would have bid on, doesn't it?

Mr. Magid: --That's correct, Your Honor.

Unknown Speaker: Well, when you say there's no matching, you mean there's no matching between this contractor and this contract.

Mr. Magid: Correct, Your Honor.

Unknown Speaker: Okay.

Mr. Magid: And also... and I would submit to you that there is a contradiction facially with the ordinance.

The ordinance allows the waiver provision, and allows them to bid.

It doesn't preclude them from bidding, and again that 10 percent is no absolute bar.

The problem in this case is the fact that they sued as an association, and as an association they may sue as a representative of its members, but the associational standing does not negate the requirement that you have actual case in controversy.

A representative standing case or an association can't hide behind its associational standing.

The general allegations of the complaint that our members are suffering under this ordinance are unsupported even in the complaint, in the complaint and later on in summary judgment, with any specific instance, and like any other litigant an association should have to come forward and show a specific instance of actual case in controversy so the court... a court doesn't find itself in a situation where we are today.

Unknown Speaker: Well, certainly... certainly it very likely... it should at some stage of the litigation, if you say you can't show that there was any contract you were excluded from, they should have to show that their allegation in their complaint that the city had set aside certain ones was true, but I don't think you can focus just on the complaint in that inquiry.

There are all sorts of ways in litigation to bring out specific answers to questions that may have to be asked at trial.

Mr. Magid: The only thing I would refer you to, Your Honor, is that of course, as you get through the stages of the litigation like the Lujan case specifically talked about, you have a higher threshold of evidence to show the court that you fulfilled the obligation, and you can assure the court that there was an actual case in controversy.

However, there's a case... Bender v. Williamsport... where the court talks in language of any doubt that that actual case in controversy is present should be resolved in favor of not allowing a case to proceed, or the presumption is that... the presumption is that actual case in controversy is not present.

Based upon those very... the law is exacting when it comes to standing.

Based upon those opinions, we would submit to you that you should put it in your pleadings and specifically allege, and put the court on alert, that you have standing.

If you continually... if litigants continually to allege... continue... associations continue to allege our members are hurt generally, a court can't be satisfied that standing is present.

Unknown Speaker: Well, the test is whether that allegation is sufficient to show standing.

You wouldn't insist that in a separate paragraph of the complaint the plaintiff would say the plaintiff had standing, would you?

Mr. Magid: No.

That would be a general conclusory allegation and of course would be insufficient, but something to say here is our actual case, here is the elements of our... here is a particular... like Warth suggested, here is a particular project.

We are injured because in this particular project company A was minimally eligible to bid, the city was going to set aside that project, we bid, we didn't get it.

Unknown Speaker: Well, rule 8(a) says the complaint should set aside, what, a short, simple statement of the claim.

Are you saying there must be a different rule for complaints where there might be any challenge to standing?

Mr. Magid: I would suggest to you, Your Honor... Mr. Chief Justice, sorry... that when it comes to standing, standing is such a critical doctrine that goes to the separation of powers, of... and the lawful exercise of the court's authority, that when it comes to that doctrine, that standing should be evident from the face of the pleadings, and conclusory allegations alone put us in a situation where we are here, where a case actually went to judgment and there is no record evidence that at least one AGC member in one instance has ever been injured by the ordinance.

Unknown Speaker: But isn't that attributable to the fact that standing was never raised until it got to the Eleventh Circuit?

Mr. Magid: Partly, Your Honor.

Unknown Speaker: Well--

Mr. Magid: I mean... well, wholly, but the idea is that if there was a pleading rule, that it should be from the face of the pleadings that it should appear, and I think there is some language in Bender v. Williamsport that it should appear from the pleadings that presumptively... the presumption is that it doesn't exist, so you must... when you have to overcome a presumption, there's something more you would have to do than just do... cite conclusory allegations.

And I know there's a conflict with the Federal Rules of Civil Procedure when it comes to Rule 8, but standing is so important, and there's a presumption that a court... at the minimum, a court at the pleading stage would dismiss the case and say, you know... not dismiss the case, dismiss the pleading, and allow you to replead.

But again, in this case we have gone to the summary judgment stage, and when you're at the summary judgment stage, and you move for summary judgment, you're on notice that that standing element is present.

Unknown Speaker: --May I ask another question?

We've talked mostly about the set-aside of 10 percent that your opponents say they were entirely excluded from getting contracts.

Did they not also allege that even as to the contracts they got they had an obligation under the ordinance to have subcontracted 10 percent of that work, and that that had caused them extra expense, and is that the subject of a different analysis?

Mr. Magid: Your Honor, I'm aware of the allegation that you're reading.

The ordinance does not suggest... actually, the allegation of the complaint is that all city contracts require 10 percent subcontracts.

The ordinance itself does not require all contracts be... have 10 percent participation of minorities.

There's no place in the ordinance that requires--

Unknown Speaker: But does it require some contracts given to nonminority contractors to have 10 percent for minority contractors?

Mr. Magid: --Yes, but it doesn't say 10 percent.

It leaves it open as to what the percentage might be.

The provision that you're referring to--

Unknown Speaker: But in any event, they did allege that that provision of the ordinance caused them to make subcontracts that were less advantageous than if they'd not had to do that.

Mr. Magid: --Right, Your Honor, but that allegation, again there is... on its face, and I think the Eleventh Circuit has stated this previously, that an allegation that it costs you more to hire somebody else, you're just going to pass it on in your bid, anyway.

I mean, everybody has the same equal playing field.

As a general contractor you're trying to meet your subcontracting requirements and therefore it's not going to cost anybody anybody... anything extra, so there is no economic injury for that alone.

In this case, Your Honor, the litigants and lawyers and courts need to be reminded that sometimes... that they are blinded by the ultimate ends a lawsuit might bring, and in this case the litigant's zealousness to stop a Government program that they did not like, did not wait for the time when an actual case had arisen.

The fact that the issue was raised by the court only... or the appellate court in this case, only underscores the importance of the standing doctrine to the court's lawful exercise of its authority.

The AGC in this case rushed to court after the Croson decision attempting to halt the city's program, and successfully did, without ever showing that an actual case, an actual instance where one AGC member was injured during the 5 years of the existence of the program, and they were able to get an opinion that now stands as an advisory opinion because there's no record of evidence in that record, even though the case had gone to judgment, that there is an actual case in controversy.

In conclusion, conclusory allegations of injury are not sufficient to establish constitutional standing.

Without allegations of specific injury, a court cannot be assured that standing is present and that it should resolve a dispute between the parties.

Relaxing standing doctrine would only upset the delicate balance of power among the branches of Government, expand judicial power unnecessarily, and sanction advisory opinions.

The court in this case, the appellate court in this case provided a check, and if that check is not fulfilled, the legitimacy of the court can ultimately be undermined.

Thank you.

Unknown Speaker: Thank you, Mr. Magid.

Ms. Ausburn, you have 3 minutes remaining.

Rebuttal of Deborah A. Ausburn

Ms Ausburn: Thank you, Your Honor.

The standard that the City of Jacksonville would have this Court use is one that imposes evidentiary standards on pleading requirements.

We believe that our allegations are sufficient to show that we were excluded from contracts because of an ordinance that was adjudicated to be unconstitutional, and that we will continue to be excluded from those contracts.

If this Court believes that more evidence is necessary, we are prepared, certainly, to present that.

We would simply ask that this Court decide what it is that we must show in the lower court, whether we must show a specific contract, or whether we must show the matching contracts that the City of Jacksonville is asking for.

In the final analysis, however, we believe that in order to be consistent with prior precedent, that the correct rule in this case is the one that we have already met, which is that the City of Jacksonville has an ordinance that excludes contractors from consideration if they fit within the category, and that we, as nonminority contractors who do business with the City of Jacksonville, are within that category.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Ausburn.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Green - Oral Argument

Fri, 09 Jan 2009 14:49:24 +0000

Case:

United States v. Green

Media File:

91-1521_19921130-argument.mp3

Related Transcript:

1992_91_1521_argument.xml

Transcript:

Argument of Joseph R. Conte

Chief Justice Rehnquist: We'll hear argument next in number 91-1521, United States against Lowell Green.

Mr. Roberts, you may proceed whenever you're ready.

Justice Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

This case is here from the District of Columbia Court of Appeals.

That court held that in respondent's trial for first degree murder, the jury must never know that he voluntarily confessed to the crime after receiving Miranda warnings and expressly waiving his rights because 5 months before confessing, he invoked his right to counsel when he was arrested on an unrelated drug charge, a charge he resolved with a guilty plea 3 months before being questioned about the murder.

The decision of the court of appeals should be reversed.

The facts are not in dispute.

Respondent was arrested on a drug charge.

He was read his Miranda rights by the book.

He invoked his right to counsel.

The police immediately stopped the proceedings, and respondent was provided with an attorney.

2 months later, he pled guilty to a lesser drug charge as part of a plea bargain.

3 months after that, he was... while still in custody, he was arrested for murder, a charge unrelated to the drug offense.

He was again read his Miranda rights, and this time he chose to waive them, giving the police a videotaped statement in which he confessed to his role in the murder.

The lower courts reluctantly suppressed the confession, even though they found it voluntary and found respondent's waiver knowing and intelligent.

They thought this result compelled by this Court's decision in Edwards against Arizona and the rule that once a suspect invokes his right to counsel, the police may not reinitiate questioning, and if they do, the suspect's statements are presumed to be involuntary.

We--

Unknown Speaker: You'd be making the same argument I suppose if the officers went back to him a day after he had invoked his right to counsel as long as it was about a different crime?

Justice Roberts: --No, Your Honor.

That I think would be barred by Roberson.

The first argument--

Unknown Speaker: Well, where is your line then?

Justice Roberts: --Well, the first line... our basic submission this morning is that the guilty plea is a dramatic change in circumstances that justifies lifting the presumption.

This Court has never had occasion to consider whether the Edwards presumption continues in the face of a guilty verdict, let alone a guilty plea.

In Edwards, in Roberson, and in Minnick, the subject was in the same position when he invoked his right to counsel as when the police reinitiated questioning, a pretrial suspect.

Here, however, in the meantime, the respondent has been found guilty on the matter that led to his arrest and on which he... which triggered his Miranda rights in the first place.

Unknown Speaker: Would it make any difference if he had counsel?

I suppose he still had counsel.

He hadn't been sentenced yet.

Justice Roberts: He had counsel, of course, in entering the guilty plea and had consulted with his attorney.

Unknown Speaker: Yes, and then he was going to have counsel I suppose at sentencing.

Justice Roberts: Yes.

And, of course, the police--

Unknown Speaker: Suppose the counsel had said to the government and, by the way, I don't want you talking... going back and quizzing my client about anything.

Justice Roberts: --Well, he didn't even have to say that, of course, with respect to the drug charge.

The Sixth Amendment would prevent the police from interrogating the respondent on the drug charge and using that at sentencing.

So, that's not an issue.

The only question would be then whether there's a... an invocation of the Fifth Amendment right.

Unknown Speaker: Yes.

Justice Roberts: And there it seems to us that the invocation is respected, as it was here.

The police immediately stopped the proceedings, but when there has been a change in circumstances like the entry of a guilty plea, that there is no reasor to presume that the suspect's wishes continue.

Now, we're not saying that the police have free rein to question him, and they should presume now that he's willing to talk to the police without his attorney, just that the situation has changed sufficiently that it's--

Unknown Speaker: Well, it's strange.

Isn't it strange that he invoked his right to counsel on a drug charge and... but with a much more serious charge, he didn't invoke his right to counsel?

Justice Roberts: --Well, I don't know what his reasoning was.

He may have thought, as suspects often do, that by giving a statement--

Unknown Speaker: Well, he had been in custody all this time, hadn't he?

Justice Roberts: --He had been in custody.

He may have thought that by giving a statement, he would exculpate himself and direct the police in another direction.

The statement had the exact opposite effect.

It was tantamount to a confession.

But the point is that the matter on which he was originally arrested and which originally triggered his Miranda rights has been resolved.

The investigative process--

Unknown Speaker: You say it has been resolved, and there's a dramatic change in circumstances, but a moment ago you said the Government still could not question him after the guilty plea.

Justice Roberts: --On... and use that material in enhancing his sentence on the drug charge.

Unknown Speaker: Because he is still represented by counsel on the drug charge.

Justice Roberts: On the drug charge, and the Sixth Amendment right to counsel attaches.

The issue here is the Fifth Amendment right to counsel and whether or not the Edwards presumption should continue in effect after a guilty plea.

Unknown Speaker: But what is the dramatic change other than the fact that if you win this case, there will be a dramatic change?

But what else is dramatically different before and after the guilty plea?

Justice Roberts: The investigative process--

Unknown Speaker: In terms of rights to talk to people and rights to have access to counsel, what's the difference?

Justice Roberts: --The difference is that the investigative process on the drug charge, which is of course what Miranda was centrally concerned about, is over.

Unknown Speaker: No, it isn't because he hadn't been sentenced yet.

Justice Roberts: The police are unlikely to continue an investigation on sentencing, and if they do, his attorney--

Unknown Speaker: No, but aren't matters relevant to the drug charge, even though he has pleaded guilty, still relevant to the sentencing decision that is yet to be made?

Justice Roberts: --And if he is questioned--

Unknown Speaker: And isn't that why they can't talk to him?

Isn't that why the Sixth Amendment right still applies?

Justice Roberts: --As to the drug charge and sentencing on the drug charge.

It doesn't apply... the Sixth Amendment right--

Unknown Speaker: I still don't see what's so dramatically different.

That's what I--

Justice Roberts: --What's dramatically different is that when he invoked his right to counsel, he was a suspect on a drug charge.

When the police reapproached him, he was no longer a suspect.

He was a convict.

He had been found guilty.

Unknown Speaker: --Right.

Justice Roberts: It is reasonable to assume that that dramatic change in circumstances might alter his judgment about whether to talk to the police without a lawyer.

Unknown Speaker: It seems to me that argument would justify questioning about the drug charge as well.

Justice Roberts: No, it would not because the Sixth Amendment protects him there.

He has the right to counsel in any custodial interrogation with respect to the drug charge, but as the court explained in McNeil, that doesn't apply to the murder charge.

Unknown Speaker: Well, presumably, if he were allowed to be questioned about the murder charge and confessed it, couldn't that be used at the sentencing then on the drug charge to augment his sentence in some way?

Justice Roberts: I think not, because again, his lawyer wasn't present at that proceeding.

It would then become a stage in the drug proceeding, and I don't think that could be used because of the Sixth Amendment right.

Unknown Speaker: I mean, I'm wondering whether the cutoff time might not be the sentencing on the drug charge rather than the entry of the plea, because it isn't clear to me how the information you would learn on questioning him after the plea and before sentencing wouldn't somehow be used at the sentencing on the drug charge.

Justice Roberts: Well, it's not how guilty pleas have been treated elsewhere, for example, in the Federal Rules of Evidence.

A guilty plea that is still subject to an appeal, for example, may still be used for impeachment purposes.

And the cases have also held, although it's not specifically addressed in the Federal Rules, that if sentencing is still pending on the guilty plea, the guilty plea may be used for impeachment purposes.

Unknown Speaker: Do you agree that there should be some bright line test for any cutoff of the duration of the Edwards rule?

Justice Roberts: No, Your Honor, I don't think that the brightness of the line is absolutely paramount to all other factors.

The guilty--

Unknown Speaker: You'd have us apply a totality of the circumstances test?

Justice Roberts: --I don't think it goes that far.

The dichotomy between the clear Edwards rule and our proposal today I think is a very false one.

When the Court applies Edwards today, it looks at the circumstances of each case.

It has to look to see if the individual is in custody.

It has to look to see if what he has done amounts to an invocation of his right to counsel.

It has to look to see whether or not he has waived that invocation by subsequent initiation.

It has to look to see whether or not what the police are doing is interrogation, and although this Court hasn't decided it yet, we think they have to look to see to make sure he has been continuously in custody.

All we are suggesting is that there are additional relevant factors to consider, factors that look to the same concerns that the ones the Court already considers to look to, to determine if there's a reasonable end to the Edwards presumption.

Now, to the extent a bright line is needed, the guilty verdict is, of course, a bright line, but beyond that--

Unknown Speaker: And so would sentencing be.

Justice Roberts: --Sentencing would be another bright line.

The guilty verdict is significant because it is addressed to the same concerns that trigger Miranda.

Miranda is concerned about the investigative process.

That's at an end when the defendant has been found guilty.

Unknown Speaker: Well, but after a guilty plea and before sentencing, the defendant may feel very real pressure to cooperate with the police in order to obtain lenient treatment on his sentencing.

Justice Roberts: And if he's--

Unknown Speaker: And it seems to me that's... if we're going to draw this line, sentencing is a much more sensible place to draw it if this is how we're going to do it.

Justice Roberts: --Well, I don't think so, Your Honor, because sentencing isn't directed to the concern of Miranda, which is investigation.

A suspect invokes his right to counsel presumably because he's afraid that without counsel he'll say something incriminating and be found guilty.

Unknown Speaker: Well, it's a question of coercive pressures.

There are substantial coercive pressures on the prisoner when he knows that he's going to be sentenced.

Justice Roberts: Well, Miranda applies to coercive pressures in custodial interrogation.

Now, the Sixth Amendment, as I indicated, protects if the police are questioning him for information to use at sentencing.

With a probation officer or something like that, there's certainly a split as to whether the Sixth Amendment applies, but even if it doesn't, that is in our position not custodial interrogation.

And so, Miranda and Edwards wouldn't apply in any event.

But with respect to the need for a bright line, our position is that, first of all, the guilty plea is a bright line, but a line needs more than brightness to commend it when it has the consequence of excluding a voluntary, warned confession in the circumstances of this case.

Unknown Speaker: May I just be sure I understand your position, Mr. Roberts?

Your view is that after a man pleads guilty, the prosecutor's office may call him in and say we don't want to ask you about the specific crime to which you've pleaded guilty, but we would like you to tell about everything else in your life that might have a bearing on your sentencing.

Justice Roberts: It's... that is what the probation officer does, not the prosecutor's office.

Unknown Speaker: That's what your rule would allow, isn't it?

No, but that's what your rule would allow, wouldn't it?

Justice Roberts: Well, it would because--

Unknown Speaker: Of course, you have to give Miranda warnings--

Justice Roberts: --Assuming there's no Sixth Amendment right in the probation process... and that's an issue on which the courts have split, yes.

But it's because we don't regard the probation procedure as custodial interrogation.

So, Miranda isn't triggered by that at all, and neither then, of course, would Edwards be.

But the brightness of the line in our view cannot be the only consideration.

You need to look, as this Court has indicated, to the purpose that the rule is serving.

This is a prophylactic rule created and imposed by this Court, and it must be justified by reference to its purpose.

Now, the purpose here is not, as it was in Edwards, in Roberson, in Minnick, to prevent police badgering.

There's no plausible basis on which that is a concern in this case.

The suspect was not questioned by the police for 5 months after he invoked his right to counsel.

The police promptly respected his right to counsel when he invoked it.

They approached him on a different offense.

He has consulted with his attorney.

It is implausible to suppose that that suspect's reaction, when the police come back to him, is going to be I wish you would stop badgering me.

The purpose--

Unknown Speaker: --Did the Government take a position in Roberson?

Justice Roberts: --Yes, Your Honor, we did.

Our position there was that the approach on a different offense was sufficient to dissipate the concern that Edwards was based upon.

The purpose not... is here not to prevent police badgering.

It's to protect the ease of administration, the bright line aspect, of a prophylactic rule, Edwards, created by this Court to protect another prophylactic rule, Miranda, which in turn is designed to protect the Fifth Amendment.

Here we have no violation of the Fifth Amendment itself.

The confession was found by both lower courts to be voluntary.

Nor do we have any violation of Miranda itself.

The familiar warnings were given and were found by both lower courts to be knowingly and intelligently waived.

Nor is there any concern here with police badgering, the concern that led to Edwards in the first place.

In those circumstances, we think protecting the ease of administration of a second level prophylactic rule is an insufficient justification to keep out this voluntary, warned confession.

Unknown Speaker: I would think your argument so far would cover going back to the defendant asking him about another crime.

Say he's out on bail for 5 months before trial.

Well, during the fifth month the Government goes back to him and said we don't want to ask... question you about this drug charge that you're about to be tried for.

We want to ask you about a murder.

Justice Roberts: Yes, they certainly could do that.

We think they could ask him about the drug charge in those circumstances as well, because the break in custody would lift, we think, and all the--

Unknown Speaker: What if he's in jail?

Justice Roberts: --If he's in jail, we think with a sufficient passage of time, yes, they can.

Now, the first thing they say--

Unknown Speaker: Even though he hasn't been tried on the drug charge.

Justice Roberts: --Yes.

Now, the first thing they say, of course--

Unknown Speaker: So, your argument would... there has been a sufficient passage of time to justify going back to him contrary to Edwards or that Edwards just wears out after 2 or 3 months?

Justice Roberts: --We think that if the presumption is no longer justified by its purpose, then there's no basis for the imposition of the prophylactic rule that this Court has imposed.

Now, Edwards, of course, was a quite different case.

The second approach was not 5 months later; it was the next morning.

It concerned not an entirely unrelated offense, but the same offense.

In the meantime, the suspect had no opportunity, was not permitted to consult with his attorney.

And, in fact, when the police officers came back the second time, the suspect said I don't want to talk to them, and he was told that he had to.

The facts are not at all similar to those in this case, and therefore, we think that yes, the presumption should not continue on indefinitely.

Unknown Speaker: Well, it isn't clear to me what you would say.

Suppose he had remained in custody and it had been 3 months and the police hadn't asked him anything and no guilty plea.

Now, is that enough?

Justice Roberts: Yes, it is, and--

Unknown Speaker: 2 months?

Justice Roberts: --2 months is enough and--

Unknown Speaker: 1 month?

Justice Roberts: --1 month is enough.

Unknown Speaker: 2 days?

Justice Roberts: 2 days is probably not enough.

Now, it isn't a bright line.

Unknown Speaker: It isn't even a line, is it?

Justice Roberts: Well, it is a line that looks... first of all, as I'll reiterate, our principal submission is the finding of guilt.

If brightness is the paramount concern that trumps even keeping out this voluntary, warned confession--

Unknown Speaker: Well, it's one concern certainly.

Justice Roberts: --Well, then the guilty plea, the finding of guilt, is of course a very sharp and bright line, and that is our principal submission.

We also think that the combination of the factors in Roberson and Minnick, having an opportunity to consult with an attorney and the approach being on an entirely unrelated offense, is also sufficient to lift the Edwards presumption, and that also is a bright line.

Beyond that, we do think time is a relevant factor.

Whether or not a suspect is in custody is a critical factor to consider in applying Edwards, and as Your Honor indicated in a prior opinion, that's a very slippery concept, not a bright line.

Whether the suspect has invoked his right to counsel, his Miranda right, not his Sixth Amendment right, is not a bright line, as this Court has experienced in some of those cases.

Unknown Speaker: Mr. Roberts, can I ask about a provision that I didn't even know about?

I've been listening to Miranda cases and Edwards cases and Minnick cases for seven terms now.

Why has the United States never cited in any of those cases 18 U.S.C. section 3501?

Is there some reason?

Justice Roberts: Well, I don't know why it has never been cited.

That's the provision, of course, that on its face purports to overturn this Court's decision in Miranda.

Unknown Speaker: It says that voluntary confessions shall be admissible and that voluntariness shall be decided on the basis of the totality of circumstances and that no single item, such as whether the defendant was advised or knew that he was required to make a statement, shall alone be determinative.

Justice Roberts: Yes.

Well--

Unknown Speaker: It's certainly very relevant to this case, very relevant to a lot of other cases.

It has never been cited to us.

Justice Roberts: --Well, we didn't rely on it below in this case, and so we're not in a position to rely upon it here.

Unknown Speaker: Is this sort of executive nullification of a congressional statute?

Justice Roberts: I can't explain why it hasn't been repeatedly cited other than perhaps some concern--

Unknown Speaker: Repeatedly or ever cited?

Justice Roberts: --Well, I'm not aware that it ever has been.

All I can say is it wasn't relied on in this case and, therefore, we're not relying on it here.

The--

Unknown Speaker: Does the Government not rely on that statute in any lower court?

Justice Roberts: --I'm not aware that we have taken the position that the statute does overrule the need for the Miranda warnings.

Unknown Speaker: Well, but don't... does the Government not feel any duty to call the statute to the attention of lower courts?

Or to this Court?

Justice Roberts: I'm not aware that we have relied on it at any point.

Unknown Speaker: Well, do you feel no obligation to call the statute to the attention of this Court?

Justice Roberts: Well, I think in this case I'm not sure... and in cases like this where we're arguing that the confession should be admitted, it's because we believe it's consistent with Miranda and the other cases as we believe this one is.

And so, there's no need to take what would be the ultimate fall-back position that it doesn't matter that it violated Miranda because the statute says Miranda is no longer good law.

Unknown Speaker: Well, ordinarily we prefer to decide a case on a statutory basis rather than a constitutional basis.

Justice Roberts: Well, yes, and of course, it's open to the Court to decide it on that basis.

I just... since we have not relied on it below, we're not relying on it here.

The reason we think it is important that there be some limitation to the Edwards presumption that it not extend indefinitely into the future is that it imposes a very serious impediment upon law enforcement.

People in custody are a very valuable investigative resource for the police.

Not only have they often committed other crimes themselves, but often have information about who has committed other crimes.

The question posed by Edwards to the police officer is, can I question this individual who's in custody.

People arrive at custody by very circuitous routes.

It's not unusual for a defendant to be arrested in California, detained and questioned there, transferred to New York, detained and questioned there by different authorities, and then transferred to Illinois to await trial on still different charges.

A police officer in Illinois may know nothing more than that the individual is in custody and may have information about an offense that he's investigating.

Now, what does the officer have to do?

The officer, under the supposedly clear guidance of Edwards, has to find out if the individual has ever invoked his right to counsel, anytime, anyplace before any authorities, whether he has been continuously in custody since that time, whether at any time he has initiated contact with the police and thereby waived his previous invocation.

And the answers to those questions don't follow the prisoner around on a card.

They may be with the State officials in California, the bail officer in Illinois, with the FBI in New York.

And the reason it is important that there be clear guidance to the police... we think our rule provides clear guidance... is that these people have oftentimes valuable information about other crimes.

Our submission today would put a reasonable parameter on what the officer has to ask.

If he finds out that the defendant is there because he has pled guilty or been found guilty, then the officer doesn't need to go back beyond that in this little mini-investigation he must conduct before even approaching the individual.

And keep in mind that the first thing the officer says when he approaches is not tell us about this murder.

It is, you have the right to have an attorney present before answering any of my questions.

Now, the one thing that a suspect in respondent's position knows from experience and is reminded of by the second administration of the rights is that that right will be respected.

That is why this case is very different from Edwards, where he was not allowed to consult with his attorney, and also very different from Roberson where 3 days went by and he was not allowed to consult with his attorney.

It's also different from Minnick because there, although he was allowed to consult with his attorney, the second approach concerned the same offense, and a very short period of time, only 3 days, had elapsed.

And again, as in Edwards, the suspect was told he had to talk to the police when he refused to do so.

In all of those cases, Edwards, Roberson, and Minnick, there was a very real concern, the Court concluded, that the suspect would reasonably think that the Miranda rights he was being given were not real.

If the police keep coming back to the suspect after he invokes his rights, he could decide they don't mean it when they say I have these various rights.

That's not a plausible concern on the facts of this case.

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

Unknown Speaker: Very well, Mr. Roberts.

Mr. Conte, we'll hear from you.

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

Mr. Green was incarcerated.

At 4:00 in the morning, he's taken from his bed.

At 6:00 in the morning, he arrives at the District of Columbia courthouse.

He's feet away from the courtroom.

He's feet away from the Criminal Justice Act, but he sits for another 4 hours and 17 minutes, at which time he is taken from the District of Columbia courthouse to the homicide branch one block away.

He sits another 2 hours before he's advised of his Miranda rights.

We believe that this case... if this case is reversed, that there will create an exception to the bright line rule that has been created by this Court in Edwards, in Roberson, and in Minnick which will have no countervailing... nothing on the positive side.

The Government says in their brief that there is nothing in affirming this case that would not advance the purpose underlying the bright line rule.

Look at the... what we expect to get from a bright line rule: provide 100 percent assurance that confessions are not the result of a coercive pressure.

Unknown Speaker: Well, do you think Edwards has no time limits at all?

Mr. Conte: That's correct.

Unknown Speaker: None.

Mr. Conte: No, and--

Unknown Speaker: So, if the defendant is sentenced, let's say, to a life sentence in connection with the drug charge, at no time then would the Government ever be able to go back and ask him if he had waived... give him his Miranda rights and talk to him about the murder.

Mr. Conte: --That's correct, and if I may explain.

You must keep in mind that this is retroactive.

It's not prospective.

It only applies to those offenses that the person may have committed before he invoked his Miranda rights.

Something that the person does after say, while he's in prison, that previous request for counsel doesn't apply.

The police could question him about that offense.

What we're speaking of here is only those activities that he did prior to the date that he was arrested, he requested an attorney, and he was continually incarcerated thereafter.

Unknown Speaker: Well, I would have thought that the Edwards rule might expire at some point, certainly after he is sentenced under the drug charge.

Mr. Conte: Well, he... at the point where he's arrested, he says, I do not feel that I am capable of talking to the police without an attorney present.

Why should that expire?

We would argue that it doesn't need to expire.

Unknown Speaker: What if--

--The concern, of course, was... in Edwards was to prevent a defendant from being badgered by the police in an effort to get information in connection with the charge that had been made, the drug charge in this case.

Now, I wouldn't think that after sentencing, there would be any risk of badgering him about that.

Mr. Conte: Certainly there... the risk of badgering decreases over time, and certainly after sentencing, the person is in a much stronger psychological position to deal with the authorities.

Presentencing he's certainly in his weakest psychological state of mind.

He's sitting there waiting for a court to sentence him, and the pressures that bear on a person in that position have to be greater presentencing than postsentencing.

Although my position is that his Edwards right should apply postsentencing, certainly we would still have a bright line if the Court said that after he has been sentenced, then the Edwards rule doesn't apply.

But my position still would be that since it only applies to those activities that occurred prior to the request for his attorney, that truly the need... extending it past the time of sentencing just lowers the likelihood that they're going to come to him and question him about a case that occurred in that time frame prior to it.

Unknown Speaker: Do you know the answer to Justice Scalia's question about why the statute, 18 U.S. Code 3501, does not bear on this question?

Mr. Conte: No, I don't.

3501, though, is a... anytime a statement is made, it seems as though that there is always a hearing to find out whether it was voluntary, whether it met... meets all the parameters that have been dictated by the United States Code and by this Court.

Although not raised by the Government, I think those hearings... I think 3501 is something that's litigated every day in the criminal courts of this country.

Nobody raises that statute by name, but that's the hearings that they have.

Unknown Speaker: But that statute says something to the effect of the presence or absence of the various factors is not conclusive.

Mr. Conte: They still rely on the opinions given by this Court in the Miranda and the Edwards line of cases and not on section 3501 of the criminal code.

In addition to maintaining the bright line we have, in reversing this case, we would... of the four factors that have been identified on the need for a bright rule in this area, one, 100 percent assurance that there's no coercive pressure; two, to prevent badgering; three, to conserve judicial resources.

Reversing this case will send us then into another totality of the circumstance scenario where we must--

Unknown Speaker: You say there's nothing to be gained by a reversal here, Mr. Conte.

Certainly one thing that would be gained would be the admission of more reliable evidence in a trial.

Mr. Conte: --When I said nothing to be gained, I was speaking in terms of the bright line rule that this Court has established in Edwards and Roberson.

Yes, without the bright line rule, there may be circumstances where more probative confessions or statements are admitted.

However, we still don't know at that point whether we've met the first requirement, and that is whether that statement was a result of any coercive pressure.

Unknown Speaker: Well, but you've certainly got a good deal of assurance with, first, the Miranda prophylactic rule and then the Edwards prophylactic rule that any coercive pressure that might... even if it had existed at one time, would have been attenuated by then.

Mr. Conte: Well, if we're talking... in this... in Mr. Green's case, in this case, we're talking about eliminating or carving an exception out of the bright line rule.

We don't know whether... if we carve this exception, whether we're making a... allowing a statement in that was given as a result of some coercive pressures.

Unknown Speaker: Well, would you say... what if we agree with the Government?

Once the plea of guilty is accepted, that's as bright as you can get, isn't it?

So is sentencing, I suppose.

Mr. Conte: If you apply it after the guilty plea, you still have a bright line, but one of the purposes of the bright line is to ensure that these things are not the result of coercive pressure.

And I think just at the guilty plea, you don't have that assurance.

I think--

Unknown Speaker: What about after sentencing?

Mr. Conte: --After sentencing, I think you would have that assurance.

I think the person is in a much different psychological state of mind after sentencing.

Unknown Speaker: So, you don't... you say Edwards wouldn't last forever, but after sentencing?

Mr. Conte: I still think it should last forever, but after sentencing would certainly be a better break if this Court was going to end it than it would be after a plea and before sentencing.

Unknown Speaker: Nothing lasts forever, Mr. Conte.

[Laughter]

Mr. Conte: That's true, Your Honor.

Unknown Speaker: In your experience, what is the usual time between a conviction and sentencing or a plea of guilty and sentencing?

Mr. Conte: In the District of Columbia Superior Court, it's 6 weeks to prepare a presentence report.

In the United States District Court in most of the jurisdictions, it's now a period of 2 months between the entry of a plea and the preparation of the presentence report and the sentencing hearing.

Unknown Speaker: That's just because of the load, I suppose.

Mr. Conte: And the... and certainly the load in Superior Court.

The Federal sentencing guidelines created... extended it after... once they were--

Unknown Speaker: In preparing a presentence report, is it characteristic to talk to the defendant?

Mr. Conte: --Yes.

Unknown Speaker: With his lawyer?

Mr. Conte: It can be done with his lawyer.

A lot of times the presence of a lawyer is waived.

Unknown Speaker: Well, if the defendant requests--

Mr. Conte: If the defendant requests, it can be done in the District of Columbia.

I know of other jurisdictions where an attorney is allowed to be present.

Unknown Speaker: --What goes into the presentence report if the defendant refuses to talk to the probation officer?

Mr. Conte: They still put his background in, whatever they can gain from his family from the--

Unknown Speaker: But there... but all they say is he refused to talk?

Mr. Conte: --Yes, and some reports... the person will talk about his background, but not about the offense itself, in which case his background is there, but the offense conduct is missing.

Unknown Speaker: That... I suppose if he refuses to talk about the offense itself, that would prevent him from getting any points for accepting responsibility under the guidelines.

Mr. Conte: Well, the guidelines changed as of November 1 of this year so that a plea of guilty automatically entitles him to two points off and possibly three if he does it at an early time.

Unknown Speaker: Because he admits his--

Mr. Conte: Just because he stands up in court and says I'm guilty.

He does not have to talk about the offense whatsoever to get either two and possibly even three points off.

Unknown Speaker: --Can he get any more points off if he talks about it as well as pleads guilty?

Mr. Conte: The only way he can get any further points off is for him to cooperate with the United States and receive a letter under section 5k.1 of the Federal Sentencing Guidelines.

So... and if he's--

Unknown Speaker: And would that cooperation extend to other offenses and other investigations?

Mr. Conte: --Almost exclusively they're not interested in somebody who has already pled guilty.

They want his cooperation in charging somebody else.

They want him to cooperate either--

Unknown Speaker: Well, I take it that if the defendant cooperated as to other investigations with reference to other crimes, including those that he might have committed, that would be grounds for these additional points and for the letter?

Mr. Conte: --For the letter.

There's no additional points.

It's just... it's either a 5k.1 letter... motion to reduce the sentence--

Unknown Speaker: Where is the interview... where does the interview normally take place with the probation officer in... for the purpose of preparing the presentence report?

Mr. Conte: --In the District of Columbia, they take place at the District of Columbia jail.

At the Federal court, if it's a Federal prisoner--

Unknown Speaker: So, why doesn't Edwards apply at that juncture?

Mr. Conte: --Edwards does apply.

Unknown Speaker: Well, you mean it's violating his rights for the probation officer to go to the jail and approach him?

Mr. Conte: Well, the probation officer isn't law enforcement.

Unknown Speaker: Isn't what?

Mr. Conte: I wouldn't consider the probation officer--

Unknown Speaker: He's part of the government.

He's a law enforcement--

Mr. Conte: --He's part of the government.

Unknown Speaker: --He's a law enforcement officer.

Mr. Conte: He's part of the court system.

Unknown Speaker: Well--

Mr. Conte: And he's only talking in the context of the one offense when he talks to the probation officer.

Unknown Speaker: --Well, he talks... he approaches him and talks to him.

Does the probation officer give him Miranda warnings?

Mr. Conte: No.

Unknown Speaker: So, he talks to them and he... the defendant says a lot of things that is going to harm him at sentencing.

Mr. Conte: He can.

On the other hand, he may hold something back.

Unknown Speaker: So, why doesn't Edwards apply at that juncture?

Mr. Conte: He has the right not to answer the questions of the probation officer--

Unknown Speaker: I know, but he isn't told that he does.

Mr. Conte: --Pardon me?

Unknown Speaker: He isn't told that he does.

Mr. Conte: His attorney... at that time, he should have a Sixth... he has an attorney at that time who could tell him to cooperate or not to cooperate.

And I think the Sixth Amendment right would take over and control that situation.

Indeed, if he has a lawyer and there is something out there about the offense that could increase his penalty, the lawyer wouldn't instruct him not to cooperate with the presentence report writer.

Unknown Speaker: Well, it's just a different context I suppose that you don't say... you don't tell the probation officer, now, remember, don't go near him unless he asks you to come.

You don't say that--

Mr. Conte: No.

Unknown Speaker: --to the probation officer.

Why not?

Mr. Conte: It's--

Unknown Speaker: It's just different.

Mr. Conte: --Yes.

It's certainly not the police investigating a different offense.

They're only there to talk about that offense and his background.

And while we're talking about a guilty plea, there's nothing in a guilty plea that says, listen, I want to open the dialogue with the law enforcement people.

Here I am.

I'm... in this limited purpose, I am entering a plea just to this offense, and I have my attorney present.

Those are the considerations, and those are what the Government argues in their brief, one of the three considerations that we should... this Court should change the rule in Edwards, that by pleading guilty, he has opened the dialogue with the police.

But as the court of appeals said, he has only opened the dialogue with the police in the context of the one offense with his lawyer present.

The Government's third argument that this case differs from Roberson v. Arizona and Minnick v. Mississippi... I believe those two cases should be read together.

In Roberson we have police who at 3 days later came and talked to Roberson, and in Minnick we had the case where he comes... the defendant was permitted to speak with his counsel, but his counsel wasn't present.

I think if we read those two cases together, we have exactly the same case that Mr. Green has.

He was held.

He was permitted to speak with his attorney, and they came and spoke to him about a different offense than the one he was held on.

The 5 months lapse which the Government argues... the second thing the Government argues as a reason to distinguish Mr. Green.

Again, as this Court pointed out in Roberson, coercive pressures increase as custody is prolonged.

Keep in mind that every occasion that Mr. Green left the Lorton or D.C. jail, he was met by his attorney in a courtroom.

He was dependent upon his attorney during the whole 5 months that he was present.

He was pending sentencing.

He's most vulnerable at that time to any... than any other time in his life.

He's waiting for a judge to pronounce the sentence.

What sentence that's going to be depends on what he does, what he tells his probation officer, what the police or what the United... what Government may tell the judge at the time of sentencing as to--

Unknown Speaker: And yet, at this most vulnerable time, when the probation officer comes to him, you say that the practice is not to give any renewed Miranda warning.

Mr. Conte: --That's correct.

But he has been advised by his attorney at that time in what context he should speak with the probation officer.

He has been advised that they're only going to ask him about the one offense, the offense that he pled guilty to.

Unknown Speaker: Mr. Conte, is it the practice in the probation interview to give the defendant's lawyer notice of when the interview is going to take place so the lawyer can be present if he wants to?

Mr. Conte: Not in my experience.

Unknown Speaker: It's not.

Mr. Conte: There are judges I am aware of who require the lawyers to be present during the interview, and that's all occurred since they passed the Federal Sentencing Guidelines, and those would be district court cases, Federal court cases.

Unknown Speaker: Is it characteristic of lawyers to try to find out when the interview is going to take place?

Mr. Conte: Yes.

In the District of Columbia it is.

Unknown Speaker: And the... I don't suppose the probation officer... who do they ask?

The probation officer?

Mr. Conte: Yes.

Unknown Speaker: And he rarely says it's none of your business, I suppose.

Mr. Conte: No.

The lawyer is allowed to attend in the District of Columbia.

Unknown Speaker: Yes.

Let me put the question a little differently.

Does the defendant himself get advance notice or do they just kind of walk in on him?

Mr. Conte: They just walk in.

Unknown Speaker: They just walk in.

Mr. Conte: If there's no further questions.

Unknown Speaker: Thank you, Mr. Conte.

Mr. Roberts, you have 8 minutes remaining.

Justice Roberts: Thank you, Your Honor.

I think it's important to remember exactly what it is that we're suggesting today.

It is not that when there is a finding of guilt or, we think in particular, a guilty plea, police may now presume that the suspect is willing to talk to them without his attorney.

All we're saying is that the facts have changed to such an extent that it is reasonable to once again regard that question as an open question, and the first thing that the suspect will be reminded of is that he has a right not to talk to the police without his attorney.

If he still... given the change in the situation, if he still does not wish to talk to the police without an attorney, all he has to do is say so.

It worked the last time, and he knows it will work again.

In other words, the deck has been reshuffled, he has been dealt a new hand, and there's no reason to presume that his opening bid is going to be the same.

That's why we think it is the finding of guilt and the guilty plea that is a sufficient change in circumstances that justifies reopening the question once again.

With respect to the difference between the guilty plea and sentencing, under the Sixth Amendment, he cannot be interrogated for information to be used at sentencing on the drug charge, and under... because it is not custodial interrogation, questioning by a court official... that's why the warnings are not given... the Edwards presumption doesn't apply in the first place.

That's why we think it is the guilty plea, the guilty verdict, rather than sentencing that is a determining factor.

Unknown Speaker: The probation officer is a court official?

Justice Roberts: Is an officer of the court, yes.

Unknown Speaker: Are there cases in the lower courts, Mr. Roberts, involving admissions of statements made to the probation officers that inculpate the defendant in other crimes?

Justice Roberts: I'm not aware of those.

There are... there is a split among the... in the lower courts over whether or not the Sixth Amendment right applies at the probation officer interview.

And if it does, of course, then they can't be used at sentencing.

Unknown Speaker: Is counsel correct that the probation officer does not routinely give Miranda warnings when other crimes are to be discussed?

Justice Roberts: That's my understanding, yes, that a probation officer does not give Miranda warnings and, we submit, is not required to because that's not custodial interrogation.

If there are no further questions, thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

The case is submitted.

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Featured:

Church Of Scientology Of California v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:27 +0000

Case:

Church Of Scientology Of California v. United States

Media File:

91-946_19921006-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Eric M. Lieberman

Chief Justice Rehnquist: We'll hear argument next in No. 91-946, Church of Scientology of California v. United States and Frank S. Zolin.

Mr. Lieberman, you may proceed whenever you're ready.

Mr. Lieberman: Thank you.

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

This case raises the question whether compliance with a district court order enforcing an Internal Revenue Service summons renders any subsequent appeal moot.

The district court below on remand enforced an IRS summons for production of audio tapes held by a disinterested third party record holder, the clerk of the Superior Court of California.

While the case was on appeal, after the notice of appeal was filed, the clerk of the Superior Court complied with the district court's order and permitted the IRS to inspect and copy the tapes.

Subsequently, the Ninth Circuit Court of Appeals dismissed the appeal from the production order as moot without considering or hearing argument on the merits.

In doing so, the court of appeals held that once a district court enforces an Internal Revenue Service summons for the production of documents, and once the documents are turned over the IRS by either the taxpayer or by a disinterested third-party record holder, the case becomes moot.

This rule applies no matter what proprietary, privacy, or other interests the taxpayer may have in the documents and, of course, no matter how meritorious the taxpayer's appeal may be on the merits, even if the taxpayer is claiming privilege, IRS bad faith, or that there is no legitimate, ongoing Internal Revenue Service investigation.

The court of appeals' rule here is contrary to well-established mootness doctrine as enunciated by this Court and by the lower Federal courts.

Determination of whether a case is moot has long rested on two interrelated considerations: first, the existence of an actual, live controversy between the parties; and second, whether the courts may grant any effectual relief to the prevailing party.

The emphasis here is upon the question of whether any relief may be afforded even if it is only partial relief or relief other than that originally sought at the outset of the case.

Unknown Speaker: Well, Mr. Lieberman, I take it all the issues on the merits in this litigation are finished.

They're decided.

They're resolved, are they not?

Mr. Lieberman: Well, no, Your Honor, I don't believe that's true.

First of all, when this Court decided the first Zolin case, it found that in deciding the crime-fraud issue on an attorney-client privilege issue, the district court could look at any evidence not privileged and lawfully obtained by the Government, and it specifically noted that the question of whether the partial transcripts in this case were lawfully obtained.

It then remanded to the Ninth Circuit, which again declined to reach the issue of whether the transcripts were lawfully obtained, and remanded to the district court for determination of whatever other objections the parties may raise, specifically noting that it was not reaching that particular issue.

Secondly--

Unknown Speaker: And you did not take... certiorari was not granted from that order.

That order is final.

That's the June 20 order, and that is final.

Mr. Lieberman: --That's correct, Your Honor.

That's correct.

But certiorari was not sought on that issue.

Unknown Speaker: So, it's the law of the case that the court is not going to consider these transcripts.

Mr. Lieberman: Oh, no, Your Honor.

We did not seek certiorari on that issue, and the court of appeals did not hold that that issue was precluded from the district court.

It simply said on this appeal, we are not going to be considering that issue.

It did not say that the issue had been waived, and it remanded to the district court to consider that issue and any other objections the party might raise.

In our petition for certiorari from that particular Ninth Circuit Court of Appeals decision, the question of whether or not the transcripts had been obtained lawfully, either on the merits or how it was dealt with procedurally, was not even raised.

Now, the other issue--

Unknown Speaker: Well, but isn't that the problem?

You didn't even raise it in your original appeal.

Mr. Lieberman: --Well, there was no reason to, Your Honor, because we were being remanded for the opportunity to raise it in the district court.

The court of appeals did not preclude us from raising it on the remand that the court of appeals was then ordering to the district court.

The court of appeals said subject to whatever other issues the parties may raise, and footnoted right at that point, that it is not reaching the issue of unlawfully obtained.

It does not say it is precluded.

Unknown Speaker: Are these transcripts just duplicate copies of the materials that are... the principal materials in issue?

Mr. Lieberman: Well, they're partial transcripts, Your Honor, and--

Unknown Speaker: So, everything in the transcript was covered by the documents themselves, and we've said you can look at the documents themselves in order to determine the privilege.

So it seems to me that that's another reason this case is over no matter what we do.

Mr. Lieberman: --Well, one thing that we were urging below, Your Honor, was that the district court look at the entire tapes because we believe that they would show that the privilege still remained.

Now, if it's true that it was improper for the court of appeals to look at the partial transcripts, then the whole issue of looking... of what evidence the district court has available to it to look at becomes a live issue, and it must look then, if it is going to look at anything, at the entire case.

But there is another issue... live issue before the district court as well, which arose even subsequent to the Ninth Circuit's decision, and that issue is whether or not there is at the time of the production order in this case, whether there was a live, ongoing Internal Revenue Service investigation.

As we showed to the district court, which refused to consider the issue on the merits--

Unknown Speaker: But if the district court wouldn't consider it, and you say it has happened since the Ninth Circuit ruled in this case that we're hearing now--

Mr. Lieberman: --It gets a little confusing, Your Honor.

Unknown Speaker: --It certainly does.

Mr. Lieberman: Since the Ninth Circuit ruled and the opinion reported at 905 F. 2d, which is not the opinion from which this certiorari petition was granted, the Ninth Circuit remanded to the district court.

When the case was back before the district court, evidence was developed at the... from the testimony of Internal Revenue Service agents in other cases that there was no ongoing investigation.

We wished then to raise with the district court that there no longer could be a basis for an order disclosing documents since there was no longer a legitimate purpose.

That issue was denied us by the district court.

That was the... one of the issues we wished to raise on the merits on the appeal back to the Ninth Circuit, which the Ninth Circuit refused to hear on the grounds that the case was now moot because the IRS now had the documents.

Unknown Speaker: Well, what relief could the Ninth Circuit have granted you had it heard your appeal on the merits?

Mr. Lieberman: The Ninth Circuit could have granted us the following relief.

One, it could have held that there... at the time of the production order, there was no... we had proved that there was no ongoing legitimate Internal Revenue Service investigation.

Unknown Speaker: What good would that do you?

Mr. Lieberman: The IRS wouldn't get the documents.

Unknown Speaker: But they have the documents, don't they?

Mr. Lieberman: Well, but... oh, and then it could have required the IRS to return the documents and the copies, just as this Court ordered, for example, the Justice Department to do in the Sells case.

Unknown Speaker: Well, but the documents wouldn't go to you.

They'd go to the clerk of the Superior Court of Los Angeles County, wouldn't they?

Mr. Lieberman: Under seal, Your Honor.

Unknown Speaker: Well, what good would that have done you?

Mr. Lieberman: It would have protected our privacy interest in the documents.

Unknown Speaker: After they've already copied what they want to copy?

Mr. Lieberman: No.

We were asking for return of the copies as well, relief twice afforded in this case by the district court.

Unknown Speaker: Well, but to say to return the copies as well suggests that you want an order precluding their use in any future proceedings.

Mr. Lieberman: No, that's not right, Your Honor.

No more true... that is no more true in this case than it was in the Sells case or in the G.M. Leasing case.

In both of those cases... first, take Sells.

In the Sells case, where the grand jury, pursuant to court order, had turned over records to the Civil Department of the Justice Department and the Government claimed that therefore the appeal from that order was moot, the Ninth Circuit and this Court both agreed that the case was not moot because the court of appeals had the power to order the Civil Department of the Justice Department to turn over the originals and the copies of the record, and that would afford partial relief to the individual.

Similarly, in each and every one of the cases involving Federal Trade Commission subpoenas, for which the Government must seek a court order of enforcement, in numerous cases, the similar situation has arisen where in the course of the appeal, because of a lack of a stay, the documents were, in fact, turned over to the Federal Trade Commission and--

Unknown Speaker: I thought in Sells, the Court said we can prevent future disclosure or further disclosure.

Mr. Lieberman: --Let me be quite clear about that.

Unknown Speaker: Well, I think you should be clearer than you were when you just described Sells.

Mr. Lieberman: In Sells, the issue was not whether there were going to be further disclosures from the grand jury to the Justice Department.

That disclosure had been--

Unknown Speaker: Further disclosures within the Justice Department.

Mr. Lieberman: --That's right.

Further disclosures within the Civil Division of the Justice Department and, as this Court noted in Sells, to prevent the continuing access of those to whom the materials have already been disclosed.

Unknown Speaker: So, you're talking about something that is going to happen in the future.

Mr. Lieberman: No.

We are talking about something that's--

Unknown Speaker: Continuing access.

Mr. Lieberman: --going on today, tomorrow--

Unknown Speaker: Well, but not in the past.

Mr. Lieberman: --Not in the past.

That's right.

Unknown Speaker: And so, what good is an order like that to say that the IRS shall not further look at your copies, which perhaps would be the counterpart of the Sells order?

What good is that going to do you?

Mr. Lieberman: Well, precisely the same good that it was going to do the person in the Sells case, Your Honor.

Unknown Speaker: Well, but the complaint in Sells was that these people were disclosing things among themselves, and that it would keep right on going.

Mr. Lieberman: Precisely the same thing as here too.

The IRS has these tapes and is disclosing these things among itself, and the people who have had access have continuing access, just as in Sells.

Similarly, in G.M. Leasing.

Unknown Speaker: Well, how is it that so many courts of appeals haven't really caught on to this argument of yours?

Mr. Lieberman: Well, that's a very good question, Your Honor, and I think if you look at the cases--

Unknown Speaker: There are only 10 of them, aren't there?

Mr. Lieberman: --That's right.

That's right.

If you look at the cases, other than the Third Circuit cases which, of course, hold in our favor, you have about 28 decisions.

I submit not one of them analyzes the question.

The first case, Lawhon or Lawhon--

Unknown Speaker: Well, you mean they haven't analyzed it like you have.

Mr. Lieberman: --I submit that if you look at them, they haven't analyzed it very much at all.

The first case, Lawhon, Fifth Circuit, appeal dismissed as moot because the documents, says the Fifth Circuit, were already turned over to the IRS and were returned to the taxpayer.

So, that case was correctly decided.

That was moot.

The next case and the next case after that--

Unknown Speaker: Excuse me.

Were the copies returned to the taxpayer too?

Mr. Lieberman: --That's not clear from--

Unknown Speaker: Well, then it's not clear that it was moot.

Mr. Lieberman: --Well, that's true.

Unknown Speaker: That's not what you said.

Mr. Lieberman: That's true.

From everything we can tell, it would appear that it was--

Unknown Speaker: I suggest you try to be more accurate, Counsel, in your description of the cases.

Mr. Lieberman: --Your Honor, the Fifth Circuit in Lawhon specifically stated the documents were returned to the taxpayer.

I don't know whether there may have been additional copies or not.

But if you look at every subsequent decision, it says we rely on Lawhon... or we rely on the last case, which relied on Lawhon.

This is moot.

There is no analysis in those cases.

The only cases dealing with IRS summons enforcement, which analyzed the question--

Unknown Speaker: Well, if I take you literally, every single case was like the Fifth Circuit case; namely, the documents had been returned.

Mr. Lieberman: --No, but that's not true.

Unknown Speaker: Well, that isn't what you--

Mr. Lieberman: That's not true.

That's precisely my point, Justice White.

In Lawhon, from what we can tell--

Unknown Speaker: --All right.

How about the other cases?

Mr. Lieberman: --The other cases, the documents weren't returned, and therefore we think they were incorrectly decided.

Unknown Speaker: Mr. Lieberman, there's a similar statute for subpoena power that covers the FTC.

Is that right?

Mr. Lieberman: That's precisely right, Justice O'Connor.

Unknown Speaker: Is the language of that statute the same as here?

Mr. Lieberman: The language of that statute, as with this statute, permits... authorizes the Federal courts to enforce a subpoena order when the FTC brings a proceeding.

In those cases... and here there is a line of authority which is also fairly uniform, and it's in direct contradiction to the line of authority in the summons enforcement cases.

Unknown Speaker: There are a series of cases in which the FTC has subpoenaed material in the course of its investigations, I suppose.

Mr. Lieberman: That's correct.

Unknown Speaker: And in which the appellate courts have held that they still have jurisdiction to order a return of the documents--

Mr. Lieberman: That's correct.

Unknown Speaker: --subpoenaed and the copies?

Mr. Lieberman: That's precisely correct.

And the Government attempts to make a distinction with the FTC cases by saying that those cases are all adjudicatory subpoena cases and, therefore, that it's the equivalent of a suppression order, but that's not true.

Some of the cases are adjudicatory.

Some of them are investigatory subpoenas.

The most recent case, the Invention Submission case, cited in our briefs, in the D.C. Circuit, was clearly an investigatory subpoena, and the Government acknowledged that the case was not moot merely because the documents had been turned over to the FTC because, it said, the documents and the copies can be returned or the copies can be destroyed, just as in Sells.

In the search and seizure area, the Government cites the General Motors Leasing Corporation case to support its view, and quite frankly, I find that rather peculiar because I think, if anything, G.M. Leasing suggests that we are correct in this.

Unknown Speaker: Well, why don't you just say that the case can't possibly be moot since at least the original of the tapes is your property?

Mr. Lieberman: Well, Your Honor, because the original of the tapes is still--

Unknown Speaker: Well, whatever--

Mr. Lieberman: --with the Superior Court of Los Angeles County.

The Government inspected and copied the tapes.

It did not keep the originals.

Unknown Speaker: --And so, you have no right to the copy unless you win the... this case on your ground.

Mr. Lieberman: That's right.

That's right.

Unknown Speaker: May I ask kind of a general question that... I always have trouble figuring out what the people are fighting about here.

If I understand, one of your submissions was that the civil investigation is all over.

So, they have no right to keep this stuff.

Mr. Lieberman: That's correct.

Unknown Speaker: And the other thing that's in the back of my mind is your... the individual client is deceased now, so there's no danger of criminal proceedings against him.

What is the risk of something happening to somebody that may be affected by the outcome of this case?

Mr. Lieberman: Well, Your Honor, if we're correct that there is no ongoing investigation, then the risk is simply the risk that any citizen faces in having his or her private papers in the possession of the Government for it to rummage through or use as it wishes when there's no particular legitimate law enforcement or other purpose for it having done so.

And that is--

Unknown Speaker: Well, that's just some imaginary person.

Mr. Lieberman: --Well, I don't know whether it's an imaginary person.

This is a live... there is a live party here who has live records involving conversations and private activities which it retains an interest in.

In fact.

Congress specifically recognized this interest.

Unknown Speaker: Is it going to hurt your clients if the investigation is all over?

Mr. Lieberman: Well, Congress thought it would, Your Honor, because Congress provided a scheme whereby the IRS, when it seeks documents in the summons proceeding... its summons is not self-executing.

It must go to the Federal court.

It must invoke the jurisdiction of the Federal courts to obtain the documents, and it provides the taxpayer with a defense, a defense that the IRS is not entitled to the documents unless it can show, one, that there is an ongoing investigation, and two, that they're relevant to that investigation.

If there's not an ongoing investigation, the taxpayer has a right to the privacy of his documents.

Unknown Speaker: But that's just another argument on the merits, isn't it?

The... you're saying the district court's order of disclosure was wrong.

Mr. Lieberman: That's right.

That is our argument on the merits.

Unknown Speaker: That's not an argument why this case isn't moot.

Mr. Lieberman: Well, I was addressing the specific question.

Unknown Speaker: You're addressing the merits of your argument--

Mr. Lieberman: Yes.

Unknown Speaker: --for reversal of the district court order.

Mr. Lieberman, if the investigation is over, can members of the public gain access to these copies, do you suppose?

Mr. Lieberman: No, not under the order that the district court granted in the original case and which the court of appeals affirmed and which this Court affirmed by an equally divided Court.

The IRS is precluded from making those documents public.

Unknown Speaker: So, the risk of further disclosure is limited to employees of the IRS?

Mr. Lieberman: That's right.

It's within the IRS for use as it may deem fit and where there is no continuing investigation.

Congress--

Unknown Speaker: So, it may be a smaller risk, in effect, than would be the case with the FTC, I suppose, where very significant client information or even information about how goods are made or produced could be obtained by the public if they weren't returned.

Is that... is there a difference at all in the risk?

Mr. Lieberman: --Well, I'm not sure that the FTC would ordinarily be free to just make public documents it obtained through a subpoena in a situation like that.

I mean, if it wound up introducing them into a court proceeding, then of course, they would become public.

But in the FTC situation, the party who turned over the documents would certainly have an interest in receiving return of those documents and destruction of copies if the FTC, it turned out, was not conducting an investigation and that they served no legitimate purpose for the FTC.

Congress also... I just want to point out a second way in which Congress has recognized this interest.

When Congress amended section 7609 to provide for the automatic right of a taxpayer to intervene when a summons is directed to a disinterested third-party record holder, Congress took the position that the taxpayer... and this is made manifest in the legislative history... taxpayer may have civil or privacy rights in those documents and thus has a right of intervention, per se, to protect that interest.

Unknown Speaker: Have you exhausted your remedies below to get these papers back now that the investigation is over?

Mr. Lieberman: I think we've done everything that one could possibly imagine.

We certainly sought stays of the production order pending appeal.

Unknown Speaker: Well, I know, but what has happened since the investigation is over?

Mr. Lieberman: Well, it's very interesting, Your Honor.

Unknown Speaker: Well, have you asked for the papers back where you say, look, the investigation is over, and you've made copies of our papers, and we have an interest in getting them back?

Mr. Lieberman: Well, not since this case went up, Your Honor.

I must say that.

The Government has maintained its position on this appeal that it has a continuing right to these documents.

If it--

Unknown Speaker: Mr. Lieberman--

Mr. Lieberman: --If it... I'm sorry.

Yes?

Unknown Speaker: --Would you go back?

Am I wrong in my understanding that the Ninth Circuit has already ruled that the crime fraud exception applies to the conversations in question and that, therefore, the documents have to be turned over?

Am I wrong in that?

Mr. Lieberman: Well, you're right that the Ninth Circuit ruled that based upon the evidence before it at the time, the crime fraud exception had been made out, but it did not rule that the documents had to be turned over.

It remanded for further objections, including objection to the question whether the evidence that was the... upon which the Ninth Circuit was ruling was properly before it and also for determination of any further objections the taxpayer might make.

That was the specific basis for the remand.

So, the Ninth Circuit did not end the case.

The Ninth Circuit remanded with an opportunity to make further objections and specifically reserved one of the particular objections we're making.

Unknown Speaker: Could the Ninth Circuit then in this case, instead of dismissing on mootness grounds, simply say the taxpayer has had an opportunity to raise any further objections?

It has not.

The crime fraud exception, therefore, is dispositive and we have already ruled on the case and, therefore, hold against you on that ground.

Mr. Lieberman: Well, the issue on the appeal... on the merits of the appeal... of course, we think we were correct that we had meritorious issues.

Certainly it's possible that we could have lost the appeal.

Unknown Speaker: But you think you're correct, but the Ninth Circuit had held against you.

And could they simply have said you have raised no new evidentiary issue.

There is no investigation, in fact.

I suppose the simple way to do it is that the investigation is over.

There's no evidentiary issue to raise.

The only possibility for them to bar the IRS from getting this was crime fraud exception.

We've already ruled on it.

They've lost.

We hold against them on the grounds that we've already decided the only remaining issue.

Could they have done that?

Mr. Lieberman: Well, it's conceivable they could have done that, certainly.

Unknown Speaker: Well, they would have been right, wouldn't they?

Mr. Lieberman: They wouldn't, no.

I think they would have been incorrect.

Unknown Speaker: Why?

Mr. Lieberman: For the reasons I've stated.

The remand order left open certain questions.

Those questions... take--

Unknown Speaker: Yes, but those... weren't those questions about evidentiary use?

Maybe I'm not remembering accurately.

Mr. Lieberman: --Well, the Ninth Circuit remand order was somewhat--

Unknown Speaker: The investigation is over.

There's not going to be any issue.

If the investigation is over, there's not going to be any further issue of evidentiary use unless there's a new investigation, I suppose.

Mr. Lieberman: --Well, there was... actually there was never any question of evidentiary use, and the Ninth Circuit's remand--

Unknown Speaker: Well, there never was in the sense that you claim... and perhaps rightly... that there was no such objection that could have been raised, but the Ninth Circuit at least left it open.

Mr. Lieberman: --Well, that's right.

And when on remand... I'm sorry.

On remand, when it went down to the district court, the district court noted that the Ninth Circuit obviously was somewhat confused about the status of the case.

The question wasn't whether the tapes were to be introduced or not introduced into an ongoing proceeding.

The question was whether they were to be produced to the Internal Revenue Service.

Unknown Speaker: But that was an explanation for the objections that the Ninth Circuit won't hear it... heard it.

The order is at page 15a of your appendix, and I agree that it's imprecise.

But it seems to me the best reading of it is that the Ninth Circuit thought that these were going to be admitted into evidence and said if you have any other evidentiary objections, you can make those objections.

But so far as the crime fraud exception, we've ruled.

It seems to me that that's the most plausible reading of the order.

Mr. Lieberman: Well, Your Honor, I must take exception with that, precisely because they footnoted right there the question of not reaching the issue of whether the documents were lawfully obtained.

In addition, there is the additional objection we raised of whether there was an ongoing investigation.

Now, I think the important issue, the thing to keep in mind here, is that the issue before this Court is whether or not our appeal was moot, not whether or not we would have won or lost that appeal.

This is an issue which has broad reference to summons enforcement cases.

As has been noted, there is a split in the circuits on it.

Most of the circuits go against us, and... but most of those circuit decisions against us, I submit, are contrary to parallel lines of authority dealing with the Federal Trade Commission cases, dealing with the Sells Engineering case, and that those cases really do not come to terms with the issues.

I reserve the rest of my time.

Unknown Speaker: Very well, Mr. Lieberman.

Mr. Wallace, we'll hear from you.

Argument of Lawrence G. Wallace

Mr. Wallace: Thank you, Mr. Chief Justice, and may it please the Court:

In the current appeal to the Ninth Circuit that is under review, we argued both that petitioner's claims were res judicata and that the appeal was moot because all of the materials had, in fact, been produced because of the denial of stays and the originals had been returned.

The court of appeals did not reach our res judicata contentions, but decided only that the appeal was moot.

We argued both that the claims that are being made are claims that have already been resolved against petitioners, and even if some of the claims were not, they could have been raised at the earlier stage, and unlike collateral estoppel, under principles of res judicata, the claims are barred because it's the same litigation between the same parties, and petitioner is not free to raise these claims seriatim rather than all at once.

But we have not urged the court... we've pointed out this obstacle to petitioner's prevailing, but we have not urged this Court to reach and sort out the res judicata issues which the court of appeals did not reach.

We assumed that the Court granted certiorari to decide the question presented in the petition, which was the mootness question on which there is a conflict in the circuits, and that is what we have addressed.

It's possible that the Court would conclude that the res judicata obstacle to petitioner's prevailing is a reason to dismiss the writ as improvidently granted, but we have not urged that either.

Unknown Speaker: I suppose our problem is that if we're going to discuss mootness, we should undertake some analysis of the remedies that might be available below, and in this case, it doesn't look like the petitioner is going to prevail in any event.

And so, it's just an awkward posture to hear the case.

Mr. Wallace: It is indeed, and I thought we had satisfied our duty to the Court in pointing out these problems in our brief in opposition, perhaps not as elaborately as one might.

Briefs in opposition are done in quantities.

Unknown Speaker: Well, Mr. Wallace, I think my concern is really the effect of saying this case is moot, what effect that would have in the FTC context where I think people have a lot at stake there in getting back their documents.

And it seems to me that courts have followed two different tracks under virtually identical subpoena statutes.

Mr. Wallace: I quite agree with you that the courts have followed a different track, certainly the D.C. Circuit, in the Federal Trade Commission cases.

We would not urge in this case for the Court to resolve how those questions should be decided under the Federal Trade Commission Act.

Unknown Speaker: Well, I mean, the plain fact is there's a lot at stake in leaving some of this privileged information in the hands of offices that have no further use for them.

Mr. Wallace: There can be protective orders, and there are various statutory restrictions on disclosure of confidential information.

The ones in the Internal Revenue Code happen to be among the most comprehensive in any Federal statute.

There are specific provisions in the Internal Revenue Code governing the Service's disclosure of confidential information.

We summarize these in some detail in the brief that we filed in this Court the last time around in this case in United States against Zolin.

Unknown Speaker: Yes, Mr. Wallace, but those are statutory protections for the taxpayers.

Mr. Wallace: That is correct.

Unknown Speaker: And one of the issues before was whether in addition to the statutory protections, the district court had any authority to enter specific protective provisions.

What's your position now on that?

Do you still take the position there's no such authority?

Mr. Wallace: Well, that is our position in litigation in other cases.

This Court, by an equally divided Court, affirmed the judgment in this case.

Unknown Speaker: Right.

Mr. Wallace: So, that issue is no longer open in this case.

The law of this case is that the particular restrictions entered in this order have been upheld by this Court in affirming that judgment, but we have won an en banc decision to the contrary in another circuit, and we continue to litigate that issue elsewhere.

But that is--

Unknown Speaker: Isn't your... can I just kind of ask you?

I'm not as familiar nearly as you are with these new statutory provisions, but the case that runs through my mind is supposing I've got some corporate minute books that are subpoenaed, and I resist the subpoena on the ground that it's not relevant or burdensome or something or other.

And the judge rules against me and says you got to... you must deliver the corporate minute books, and I deliver them.

Could the judge have said, I'm entitled to get copies of those from the... say I've complied with the subpoena and delivered the books.

And would the judge say to the... have the power to say to the Government, you must give copies of these... either return them within 30 days or give them copies so they can work... run the office?

Mr. Wallace: --Well, there probably is authority in dealing with subpoenas under other statutes.

Unknown Speaker: No, no.

I'm talking about this statute.

Mr. Wallace: Under this statute, there is a statutory requirement that production, when it's ordered, be for a reasonable time and under reasonable circumstances.

I'm referring to section 7605(a), and that generally has been understood to mean that we can keep the originals only for a reasonable time and then should return the originals.

Unknown Speaker: But can the order... my question is really can the district court say to you I think the reasonable time is 30 days, return them after 30 days?

Would that be within the authority of the district court to fix the reasonable time?

Mr. Wallace: It's rather seldom done in these summons enforcement orders, but there would be nothing wrong with that because one could even argue that there's a condition implied in law when the summons is enforced--

Unknown Speaker: Well, then if he has that authority--

Mr. Wallace: --that we can only keep the originals for a reasonable time under 7605(a).

Unknown Speaker: --If the judge has that authority, could he not say there's no request for it at the time of the delivery?

Could the subpoenaed party go into court 10 days later and say we find we need the documents, would you direct the Government to give us... give them back to us in the next 3 weeks or else give us copies?

Could they do that?

Mr. Wallace: Well, we think that once a production has occurred, the jurisdiction of the court has ended under the narrow jurisdiction conferred to enforce an Internal Revenue summons, but that the court, as any court does, retains authority to enforce its order.

And if, in fact, an implied in law condition of the order is that the originals can be kept for inspection only for a reasonable time, because that's what 7605(a) says, then the court retains authority to see whether we have exceeded that implied condition in his order.

Unknown Speaker: Well, why wouldn't there be an implied condition in a case like this that the copies... if the original or copies are being used by the Government, they shall not be kept any... for any period of time beyond the time they serve some useful purpose?

Mr. Wallace: Well, because that--

Unknown Speaker: If that was an implied condition, then under your explanation, the judge would have the power to say, well, look, you've had these things for 7 years and you haven't done anything.

Give them back.

Mr. Wallace: --That would be an implied condition that would contradict the overall pattern of statute and decision law concerning judicial anticipation and direction of Internal Revenue Service investigations.

I think the answer to this case emerges with greater clarity if we put the particular summons enforcement question into the landscape in which the summons authority is placed.

There is... throughout the U.S. Code, there's a thematic pattern that this Court has recognized in its decisions repeatedly, and that is that Congress has, with only very narrowly delimited exceptions, prohibited preassessment litigation about tax controversies because that litigation could interfere with the Service's investigatory and collection efforts.

There's the Tax Anti-Injunction Act.

There's the Tax Exception to the Declaratory Judgment Act, and there are these comprehensive provisions governing disclosure of confidential information in the hands of the IRS in section 6103, which is very elaborate and detailed with many subsections.

And this applies to a very broadly defined return information which includes any data collected by the Secretary with respect to a return or with respect to the determination of the existence or possible existence of liability under the Code.

So, it would apply to information received through summons enforcement proceedings or received through voluntary compliance with a summons without any court order or otherwise received by the--

Unknown Speaker: On that very point of voluntary compliance, supposing I turned over the minute books, I got the subpoena, I gave you the minute books, and you used them.

And about 4 years later, I think, gee, I need those because I got to make... bring my minute books up to date.

How does the... what right does the taxpayer have to get those minute books back?

Is there any statutory provision for that?

Mr. Wallace: --Without a court order in the first place, you said--

Unknown Speaker: Just... they just complied with the subpoena.

Mr. Wallace: --turned over by voluntary compliance.

Unknown Speaker: And then 3 years later, I say, gee, I want those... my records back.

Does he have a right to get the records back, and if so, what is the statutory basis for getting them back?

Mr. Wallace: The answer would be that he could sue for a violation of his rights to get his property back the way he would from any other agency of the Government that property has wrongfully been withheld.

Unknown Speaker: Is there any statutory provision--

Mr. Wallace: There's no particular statute.

Unknown Speaker: --Sort of the common law rights of--

Mr. Wallace: He would have to... he would have to do that and bring a Federal question case and come within the very narrow exception to the Tax Anti-Injunction Act that this Court has recognized.

The leading case is Enochs against Williams Packing Company, 370 U.S. 1, a standard that was articulated with great care.

If it's clear that under no circumstances could the Government ultimately prevail under the most liberal view of the law and the facts, then there is this narrow exception to the Anti-Injunction Act, which the Court reaffirmed that standard in Commissioner against Shapiro in Volume 424 U.S., and that would be the only avenue.

Unknown Speaker: --Well, what does the... what does the statute requiring production for the IRS... does it say anything more than that the taxpayer shall produce certain books?

Mr. Wallace: Nothing more than that at all.

Unknown Speaker: Well, certainly that can't contemplate that the property interests in the books turns... goes over to the Government.

Mr. Wallace: Well, that is correct, Your Honor, and we can only examine them for a reasonable time, but we can during that time and, of course, in the modern practice, make copies of them.

Or in some instances, records are now on computers, and we just get a printout that they don't even want back.

Unknown Speaker: But the originals of these records have been returned to where they got them from--

Mr. Wallace: That is correct.

Unknown Speaker: --which is the clerk of the Superior Court.

Mr. Wallace: That is correct.

And the controversy now is about getting us to turn over the copies that we made.

The copies were not anyone else's property.

They are a form of fruits of the original disclosure.

Unknown Speaker: Mr. Wallace, there were two previous occasions when the tapes were surrendered to the IRS and then ordered returned.

Did those both deal with the originals, or did those orders deal also with copies?

In this case, were there not two previous occasions?

Mr. Wallace: They were and they dealt with the originals.

I don't know whether they also dealt with copies, but I know they dealt with the originals.

Unknown Speaker: Did the Government in those cases... in those instances argue mootness or raise this same--

Mr. Wallace: We did not because, as I recall, we had not even made copies at that point, as we explained in our brief.

So, whether the order would have addressed copies or not, there were no copies to be turned over.

And our view... we've set this forth in a footnote... is that the proceeding had not become moot at that point because this wasn't full production until we had an opportunity to examine and use the materials.

So--

Unknown Speaker: --Mr. Wallace, can I ask you another question about... just a general question, not the details of this very complex case.

You've explained to me that when there's a production of originals, there's a kind of an implied condition of keeping them for a reasonable period of time.

Is there also an implied condition that if the Government decides to make copies and return the originals, that the copies will be returned within a reasonable period of time if they've served their purpose and so forth?

Mr. Wallace: --The copies are not to be... we recognize no obligation to return copies to anyone.

Unknown Speaker: So, your view is--

Mr. Wallace: The copies are not anyone else's property.

Unknown Speaker: --Just so that I understand this, if you do manage to get... successfully subpoena something and overcome an objection to production, you have an absolute statutory right to retain copies forever.

Mr. Wallace: Well, of course, we don't for our own purposes do that.

Unknown Speaker: I know you don't do that, but that's what the law would authorize you to.

Mr. Wallace: But that is correct, as well as anything else that we have learned in our investigation as a result of having scrutinized the originals, whether we made copies or not.

Unknown Speaker: No.

I understand.

But just so I'm clear on it, your position is that the law entitles you to retain the copies forever if you lawfully get possession of the originals pursuant to a subpoena.

Mr. Wallace: Copies like notes or like further--

Unknown Speaker: I mean, the answer is yes.

Is that right?

Mr. Wallace: --The answer is yes.

Copies like notes or like further inquiries that we made on the basis of scrutinizing the original are a species of fruits.

They are not the original materials that were produced.

In their reply brief in support of their petition, what petitioners emphasize... and I'm reading from their reply brief at the top of page 4.

Effective relief is available to the Church here by way of an order that the tapes and any documents derived from the tapes be returned to the custody and control of the district court, and that any information derived therefrom not be further disclosed to any other person or otherwise used by the IRS which would effectively return the parties to the status quo ante.

Unknown Speaker: Mr. Wallace, leaving aside the question of whether that argument should succeed or not, are they barred from raising it below?

Mr. Wallace: Well, we think that it was all res judicata, but as I said, we argued that to the court of appeals, but they didn't reach that argument because they accepted our other argument, that the contention was moot.

Unknown Speaker: But it's not moot if, in fact, they may raise this issue.

So, are you saying that the mootness issue necessarily subsumed this claim?

Mr. Wallace: Well, that... they do... there is a controversy asserted between the parties.

Our position is that that controversy is not right, that that is a premature claim, as this Court said in the G.M. Leasing claim.

Unknown Speaker: Okay, no.

I recognize that as being your position, but so far as their opportunity to raise that issue and for you to assert that position now, you're saying that the mootness determination necessarily subsumed that.

Mr. Wallace: Well, that is the mootness issue.

They say that that's--

Unknown Speaker: So, that's properly... so, that's properly before us.

Mr. Wallace: --Exactly.

They say that that's--

Unknown Speaker: And if we think that issue ought to be explored, we could remand for that purpose.

Mr. Wallace: --Well, but the--

Unknown Speaker: Couldn't we?

Mr. Wallace: --Well--

Unknown Speaker: Couldn't we say that they were entitled to explore that on the merits before the Ninth Circuit and they were not allowed to do so?

Mr. Wallace: --Well, that is the mootness question.

The Ninth Circuit correctly in our view agreed with all other circuits except the Third by saying that once production had occurred under this summons enforcement order, the summons enforcement proceeding was ended, and therefore the case is moot regardless of the merits of these claims.

The only reason to reach--

Unknown Speaker: Well, your--

Mr. Wallace: --the merits if they're correct on mootness.

Unknown Speaker: --Well, did they... excuse me, Chief.

No, I was going... did they specifically make the argument below about the... about legitimate restrictions on use that a court could enforce against you, or did they attempt to make that argument below?

Mr. Wallace: Well, there were restrictions on use in this order that this Court upheld by an equally divided Court last time around, United States against Zolin.

Unknown Speaker: Were they the same rescrictions that they're talking about now?

Mr. Wallace: No.

Now, they're asking for further relief.

Unknown Speaker: And so, you're saying they should have raised any request for restriction the first time around, and that goes back to your argument they can't raise these things seriatim.

Mr. Wallace: That is correct.

Unknown Speaker: Yes, okay.

Mr. Wallace: That's our res judicata point, but that's not our argument to this Court.

Unknown Speaker: I recognize that.

Well, your position with respect to one of these issues, Mr. Wallace, is that, I take it, that since you cannot, under G.M. Leasing, forbid future use in yet unbrought proceedings, that is not a form of relief which they could obtain that would do them any good to prevent them from being moot.

Mr. Wallace: That is not a form of relief open to the district court sitting in a summons enforcement proceeding, and therefore the summons enforcement proceeding, which is all that the court of appeals had before it, is moot.

That is correct.

That is our position, and that--

Unknown Speaker: Mr. Wallace, why isn't... you acknowledge that any implicit terms of the order can be enforced by subsequent action of the court.

Why isn't a reasonable implicit term of an order to produce that if I, the district judge, am wrong about my decision that these documents must be produced, why of course the Government will return them and all copies of them, since they shouldn't have had them in the first place?

Why isn't that a reasonably implicit term?

Mr. Wallace: --Well, because there's no statutory requirement that the Government return copies or other fruits of the disclosure after the disclosure has occurred.

Unknown Speaker: I know that, but that's why it's implicit.

I acknowledge there's no explicit statutory requirement, but isn't it fairly implicit?

If I may just add a further note to that, that's the question before us, isn't it?

Mr. Wallace: The question before you is whether that contention can be made in a summons enforcement proceeding after the records have been produced, whether that proceeding can extend to monitoring of the IRS' investigation by requiring that what the IRS has learned from the production be expunged from the IRS' records in one way or another.

Unknown Speaker: So, we could properly decide the case based on Justice Scalia's suggestion.

Mr. Wallace: One could decide it except there is no statutory basis for it as there is for return of the originals after a reasonable time--

Unknown Speaker: I thought the return of the originals--

Mr. Wallace: --in 7605(a).

Unknown Speaker: --after a reasonable time was also implied.

Mr. Wallace: I said it's implied because of the... it's implied in the order because it's express in the statute.

It's not implied in the statute.

Unknown Speaker: The Government doesn't have the original anymore anyway, does it?

Mr. Wallace: It does not.

It has returned the originals.

That's what this--

Unknown Speaker: But when did you make the copies?

Mr. Wallace: --I can't tell you precisely.

I don't even know if the record even shows it.

Unknown Speaker: Well, at the second time... the second time that the Government was ordered to return the documents, on March 13 the district court ordered that any copies of the tapes and any notes or transcripts in possession of the Government be returned to the district court.

On March 14, 1991, the Government complied with that order.

Did they comply with that order?

Mr. Wallace: Yes, we had nothing but the originals.

Unknown Speaker: So, the copies--

Mr. Wallace: And we returned them.

We hadn't made the copies at that point.

Unknown Speaker: --Oh, when did you make them?

Mr. Wallace: We made them later after we got the records on this last go-around from the district court.

Unknown Speaker: Yes, but at the time of this order, the original had already been returned, I think.

Mr. Wallace: But then we got them back in this latest round at the district court.

All of these details about the case really only obscure what is the legal question, which is whether, as we contend, the limited jurisdiction given to the district courts to decide under the statutory language that we have set out on page 15 of our brief at the top to decide whether to compel production in whole or in part or to deny production, extends to something beyond doing what the statute says, issuing an order about whether the records should or should not be produced depending on whether we've made the showing required in Powell.

This is a summary proceeding.

Both this Court and Congress have said it's a summary preemptory proceeding that is just used because the summons is not, like most administrative summonses are not, self-executing, self--

Unknown Speaker: But the statute says that the court exercises its jurisdiction by appropriate process.

Is your position that that is narrower than if it said by appropriate order, or is that the same?

Mr. Wallace: --I think it's really the same.

It amounts to--

Unknown Speaker: So, by appropriate order, wouldn't... if we can interpolate that with your consent, would that not indicate that the court can use its discretion in protecting the interest of the owner of the documents?

Mr. Wallace: --Well, as I started to explain, to some extent, to the extent that it doesn't contradict other provisions of the Code.

Unknown Speaker: Well, it's just as a condition to their being produced.

Mr. Wallace: Yes, and there were conditions imposed here which were upheld by the court.

We're not quarreling with that at this point, although we do in other cases.

We think that the Code itself has a system of remedies for improper disclosures and specifies what disclosures and for what purposes may be made with elaboration about redactions and the like.

Unknown Speaker: But if the court could make all of those orders in conjunction with the production order, surely it could retain jurisdiction.

Mr. Wallace: It retains jurisdiction to enforce its order.

We admit that.

Other than that, the court... the proceeding is over once production has occurred pursuant to the order.

Unknown Speaker: Mr. Wallace, what about the originals?

Suppose on appeal the appellate court found it was wrong to compel the production of the originals.

Do you contest that the district court can require the originals to be returned?

Mr. Wallace: Well, as I said, because of 7605, we can only inspect originals that belong to the person on whom we've served the summons for a reasonable period of time.

So, that could be an implied in law condition in the order.

Unknown Speaker: Oh, no.

I'm not talking about a reasonable period of time.

It's still a reasonable period of time.

There's a really quick appeal.

It's still a reasonable... well within the reasonable period of time for the IRS to hold them, but they've been wrongly required to be produced, and the court of appeals tells the district court you did... you made a mistake.

Can the court of appeals get them... require them to be given back?

Mr. Wallace: Well, I think the case would have been moot before the court of appeals on the merits of the production order.

Unknown Speaker: You have to take my hypothetical, Mr. Wallace--

Mr. Wallace: Yes.

Unknown Speaker: --and how I've given it there.

Mr. Wallace: Well, I'm taking your hypothetical.

The materials were produced.

That made the case moot except for enforcement of the district court's order.

Unknown Speaker: Cannot even get the originals back.

So, it's no use taking an appeal then, I guess.

Mr. Wallace: He can take an appeal if he thinks the--

Unknown Speaker: You have to get a stay.

Mr. Wallace: --district court has misconstrued his order and is erring in not enforcing it properly.

And that would become something of a legal question rather than a question about the particular order if the provision being enforced is one implied by law.

But, of course, stays are available.

The issue in the stay here was--

Unknown Speaker: Well, I thought your position was he had to--

Mr. Wallace: --whether the case would become moot.

Unknown Speaker: --put himself in contempt of court in order to appeal.

He has to just not produce the documents, but if he does produce them, even if he... the judge was wrong, that's the end of the ball game in your view.

Mr. Wallace: That's the end of this proceeding.

Unknown Speaker: Well, how does one ever enforce against the Government the obligation to return the original within a reasonable time?

The case is moot.

Mr. Wallace: The summons enforcement case is moot except for enforcing the order compelling the summons.

If the materials were voluntarily given over, there has to be an original proceeding brought that is within the Enochs against Williams Packing exception to the Tax Anti-Injunction Act.

That's the only way to do it.

Unknown Speaker: Well, that might be for return of property.

Mr. Wallace: Right.

Unknown Speaker: But is that going to be broad enough to allow for restrictions on use?

Mr. Wallace: We don't think restrictions on use are proper to be posed.

Unknown Speaker: You agree... certainly you don't think there should be any restrictions on use, but if a taxpayer wants to raise it, can he at least have a shot at raising it by the process you describe?

Mr. Wallace: Well, some of the cases we have cited in our lengthy footnote about the Tax Anti-Injunction Act were ones that said that attempts to get restrictions on use were not within the Enochs against Williams Packing Company exception.

Unknown Speaker: So, therefore, if that's the law, he will never have an opportunity to raise a restriction on use unless he, in effect, refuses to turn it over, unless the Government agrees to such a restriction.

Mr. Wallace: Or until proceedings are brought against him, which is the time to move--

Unknown Speaker: For involuntary--

Mr. Wallace: --for suppression--

Unknown Speaker: --Right.

Mr. Wallace: --under this Court's jurisprudence and not in an anticipatory way getting the courts in to supervise and delay the conduct of IRS investigations and collections.

That's what Congress has said... it should not be done.

Unknown Speaker: You would say to wait in this case wouldn't do them any good because it's res judicata.

Mr. Wallace: Well, it happens to be res judicata in this case.

That's correct.

And I would have a lot of basis for saying it.

Unknown Speaker: Thank you, Mr. Wallace.

Mr. Lieberman, you have 3 minutes remaining.

Rebuttal of Eric M. Lieberman

Mr. Lieberman: Thank you, Your Honor.

Mr. Wallace is incorrect in stating that the Government never made copies and never returned copies previously.

As we point out on pages 9 to 10 of our reply brief, the Government made seven copies of the tapes and they reduced them to two cassette tapes and a computer disk.

Unknown Speaker: When?

When?

Mr. Lieberman: When the Government returned the copies on March 14, 1991, after having received them the second time... and this is noted on the docket--

Unknown Speaker: So, they had copies at the time the... that the district court ordered them to return the copies.

Mr. Lieberman: --That's right.

They had had them for 50 days.

Their action--

Unknown Speaker: Had they had copies at the time the district court first ordered them to return?

Mr. Lieberman: --Yes, they did, and those were returned as well.

Unknown Speaker: And yet, the Government never claimed the case was moot at that time.

Mr. Lieberman: That's precisely correct, and by their action in seeking them for a third time, they thereby demonstrated that the case was not moot because the relief had been effectual.

Unknown Speaker: Well, did they have--

Mr. Lieberman: They needed them again.

Unknown Speaker: --Did they have copies of each and every document?

Mr. Lieberman: Yes, absolutely.

Unknown Speaker: Well, so the Government is just wrong in saying that they didn't have copies.

Mr. Lieberman: That's precisely correct.

Unknown Speaker: How do we know that?

Mr. Lieberman: It's in the record, Your Honor; if you look at the docket sheet on items number 75 and 77 on pages 74 and 75 of the excerpts of record.

I just want to clarify one other point.

We are arguing that there was no legitimate purpose... no legitimate investigation at the time of the disclosure order, and therefore the Government never had a right to obtain the documents, not that at some reasonable time thereafter, the documents had to be returned.

Therefore, the original jurisdiction of the court invoked by the Government pursuant to an act of Congress was still applicable.

Unknown Speaker: But you know, there are other areas of the law where you... you're compelled to stand on your rights.

If you want to challenge the Government action, you have to do it right then and there, take your chances.

That's not unheard of.

Why isn't this... why isn't that appropriate here in this area, where Congress has displayed great sensitivity about staying the process of tax collection?

Mr. Lieberman: Well, you raise a very interesting question which we raise in this case, Your Honor.

We had no opportunity to stand on our rights because this summons was directed to a disinterested third-party record holder, and in... we particularly urged that in that context, the case cannot be deemed as moot because even if in the taxpayer disclosure situation, you can argue that the taxpayer, albeit it under threat of contempt, gave up his interest in the controversy, that certainly can't be said as here--

Unknown Speaker: Yes, I had forgotten that.

Mr. Lieberman: --where the taxpayer had no opportunity to do so.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Lieberman.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Norman v. Reed - Oral Argument

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Case:

Norman v. Reed

Media File:

90-1126_19911007-argument.mp3

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transcript.xml

Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

BARBARA J. NORMAN, ET AL., Petitioners v. DOROTHY REED, ET AL., and COOK COUNTY OFFICERS ELECTORAL BOARD, ET AL., Petitioners v. DOROTHY REED, ET AL.

Nos. 90-1126, 90-1435

October 7, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:55 p.m.

APPEARANCES:

ROBERT E. PINCHAM, JR. ESQ., Chicago, Illinois; on behalf of the Petitioners Barbara Norman, et al.

KENNETH L. GILLIS, ESQ., First Assistant State's Attorney, Chicago, Illinois; on behalf of the Petitioners Cook County Electoral Board, et al.

GREGORY A. ADAMSKI, ESQ., Chicago, Illinois; on behalf of the Respondent.

PROCEEDINGS

1:55 p.m.

CHIEF JUSTICE REHNQUIST: We will hear argument next in No. 90-1126, Barbara Norman v. Dorothy Reed, and 90-1435, Cook County Officers Electoral Board v. Dorothy Reed.

Mr. Pincham, you may proceed.

ORAL ARGUMENT OF ROBERT E. PINCHAM ON BEHALF OF THE PETITIONERS BARBARA J. NORMAN, ET AL.

MR. PINCHAM: Mr. Chief Justice, may it please the Court:

We are here today because the Democratic Party, partisan politics, continues to permeate the Illinois judiciary up to and including the Illinois Supreme Court.

The October 12, 1990, order of the Illinois Supreme Court completely disregarded this Court's precedent in Illinois State Board of Elections v. Socialist Workers Party and Moore v. Ogilvie. More importantly, not only did it disregard the precedent previously set by this Court, but it was a flagrant and blatant attempt to limit political opposition to the existing Democratic Party machine.

I hasten to point out to this Court that the Harold Washington Party is now the second largest political party in the city of Chicago and of the municipality of Chicago. It regularly out-polls the Republican Party, for example, and today offers the only viable alternative to the Democratic Party in the city of Chicago.

QUESTION: Mr. Pincham, is it the same party? I mean that's one of the controversies here.

MR. PINCHAM: Indeed it is, Your Honor. I hasten to point out to Your Honor that the Illinois legislature has promulgated no statute or regulation controlling the expansion of an established political party from one jurisdiction or one subdivision of the State into the next. The striking of the entire Harold Washington Party from the ballot was a judicially contrived remedy by the four Democratic Party justices of the Illinois Supreme Court, and indeed, contradicted the rule of law as previously set forth by that court in Anderson v. Schneider.

QUESTION: How do -- how do we know that it was the same party?

MR. PINCHAM: The record is --

QUESTION: All the record says, if I recollect it, is that the city Harold Washington Party had no objection to the use of the name.

MR. PINCHAM: Actually it went further than that, Your Honor. The leader of the city Harold Washington Party and the founder of that party appeared before the county officers electoral board, and went even further and said not only is it the same party, I give my permission to expand this party outside of the municipality of Chicago and into suburban Cook County. The record is clear on that point.

Moreover, and I hasten to point out to Your Honor, that there is no competing group here saying no, this isn't the Harold Washington Party, we are. There is but one Harold Washington Party, and references to the contrary by opposing counsel are simply misrepresentations of the fact. There is but one Harold Washington Party, and it now seeks to expand beyond the city limits of Chicago and into Cook County.

The question then becomes --

QUESTION: Was that evident to those who had to make the initial judgment --

MR. PINCHAM: Yes, Your Honor.

QUESTION: -- as to whether the party had the proper number of signatures? I mean, in retrospect, maybe we can say, well it is one in the same. But was that evident to those that had to make the judgment?

MR. PINCHAM: Yes, indeed it was.

QUESTION: From what?

MR. PINCHAM: From the testimony of Mr. Timothy Evans and from the affidavits that were submitted to the Cook County Officers Electoral Board. And they, in fact, so found in their opinion.

QUESTION: You're talking about testimony before the election board.

MR. PINCHAM: Before the Cook County Officers Election Board, that is correct. That testimony was given.

QUESTION: Where is that?

MR. PINCHAM: Where in the record before you?

QUESTION: Yes. And you don't have to give it right away, but before you're done, if you could refer me to that part of the record, I'd be --

MR. PINCHAM: Certainly, I'd be more than happy to, Your Honor.

QUESTION: What did the supreme court of your State say about this matter, about the party?

MR. PINCHAM: Frankly, Your Honor, that's one of the reason's we're here. They said nothing. They simply entered an order striking the Harold Washington Party from the ballot, and in that order stated that they would write an opinion in the near future. That opinion has never been written. We don't know why that opinion was never written. I point out to Your Honor --

QUESTION: Well, so you don't know why they struck the Harold Washington Party?

MR. PINCHAM: We know the reasons that the dissenters gave for disagreeing, but the opinion analyzing the reasons for striking the Harold Washington Party were not fully set forth in an opinion. What the -- four Democratic Party judges of the Illinois Supreme Court in effect ruled is that, contrary to the prior precedent of this Court, this political party much have, not 25,000 petition signatures, but 50,000 signatures, and that those 50,000 signatures must be divided geographically 25,000 from the city of Chicago, and 25,000 from suburban Cook County outside the city of Chicago.

I point out to Your Honor that the total number of signatures required statewide for the entire State of Illinois is only 25,000 signatures. Thus, the ruling of the Illinois Supreme Court would not only require twice the number of signatures, but would require those signatures be obtained from a smaller portion of the State than, of course, the entire State itself.

So in ruling that --

QUESTION: So you think they couldn't write the opinion, that's why they never wrote it. It would not write itself, you think.

MR. PINCHAM: I think that the -- to be perfectly candid and frank with Your Honor, I think that the opinion would have been an embarrassment to the justices of the Illinois Supreme Court.

QUESTION: Well, the court also changed, though, didn't they? I mean, there were new justices so --

MR. PINCHAM: Yes, Your Honor, but it did not change between the date that Justice Stevens issued the initial stay or the date upon which the full Court issued the stay and December 6. The court had 2 months within which to write that opinion. And of course, that opinion was not written. Moreover, had the court acted in good faith, or intended to act in good faith, it could have asked this Court, for example, to stay its proceedings and to give it an opportunity to write its opinion so that this Court would have the benefit of the analysis of the four Democratic Party justices of the Illinois Supreme Court. But that, too, was not done.

More importantly, or perhaps equally importantly, the Illinois Supreme Court did not distinguish its own prior opinion in Anderson v. Schneider. We are, of course, sensitive to the precarious and perhaps irreconcilable dilemma of co-petitioner Cook County Officers Electoral Board. They find themselves in the untenable position of trying to reconcile self-contradictory language of the statute.

First, the statute provides that the entire petition shall contain not more than 25,000 signatures as the minimum requirement. Elsewhere, in the same section of the statute, Section 10-2, it provides that each component of the petition shall provide 25,000 --

QUESTION: So I take it your principal argument is that the each component portion of the statute is invalid.

MR. PINCHAM: Well, as the three Republican justices of the court pointed out, that need not be reached. However, and I also point out to this --

QUESTION: Well, but is that one of your principal contentions before us?

MR. PINCHAM: That it is invalid? Absolutely. Absolutely.

QUESTION: Now, what's your best authority for that?

MR. PINCHAM: It is invalid because this Court said in the Socialist Workers Party case and in Moore v. Ogilvie, that it is unconstitutional to require a third political party to obtain more signatures on its petition, nominating petition ballots, than are required for an entire State.

QUESTION: Suppose that in your case the requirement was for a total of 25,000 signatures, roughly apportioned between the suburban and the city area, so you could have, say 40, percent of your signatures from the suburban area and 60 percent of the city. What result there?

MR. PINCHAM: That, too, would be unconstitutional --

QUESTION: Why?

MR. PINCHAM: -- under this Court's ruling in Moore v. Ogilvie, because then you would in effect give veto power to suburban voters as the Harold Washington Party expands from the city. Where the Harold Washington Party is strongest --

QUESTION: And that is so even if the signature requirement were in proportion to the number of registered voters in each of the districts?

MR. PINCHAM: No. That, perhaps would correct that constitutional infirmity. But I hasten to point to Your Honor, the statute does not say that. The legislature --

QUESTION: Well, I'm trying to find out the rationale for your argument so that if we do decide to write an opinion we can.

(Laughter.)

MR. PINCHAM: I base my argument and the rationale of my argument on this Court's prior decisions in Moore v. Ogilvie and Socialist Workers Party, along with the rationale employed by the Illinois Supreme Court in Anderson v. Schneider, where, in that case, the court ruled that even if the party failed to file a full slate, for one reason or another, the remedy is not to exclude the entire party from the ballot. And that is the rationale that I urge upon this Court at this time.

We further point to this Court that in ruling on the objections, the Cook County Officers Electoral Board considered the fact that the objections themselves were not properly obtained. While the Cook County Officers Electoral Board ruled that they did not consider the manner in which they were obtained to be fraudulent, it is clear that false affidavits were submitted to the County Officers Electoral Board with those objections through the nominating petition of the Harold Washington Party. Generally, such false affidavits submitted to a tribunal will result in the objections for other document being stricken in its entirety. That was not done here.

Had that been done, of course, we would not have the problem that we're faced with today. In reviewing the statute, I would point out to Justice Kennedy that the burden of analyzing the statute has been removed from this Court. The Illinois Supreme Court, the highest tribunal of the State of Illinois, has interpreted that State statute in a manner that is repugnant to the Constitution as previously set forth by this Court's rulings in Anderson -- I'm sorry, in Socialist Workers Party and Moore v. Ogilvie.

So as we stand here today, Your Honor, we urge upon this Court to enforce its own prior decision over the Illinois Supreme Court, which did not deem fit to bless us with its opinion before the justices changed, nor have they taken any effort subsequent to that change to rehear the case and to provide us with an opinion.

QUESTION: Mr. Pincham, can I ask you this question? There are really two different issues, as I understand, well, putting aside the name problem for a minute, just the 50,000 vote requirement. The 50,000 vote requirement applies to the commissioners who are elected from the suburbs and to the officers like State's Attorney who ran county wide. They had to have 50. But you also challenge, as I understand -- under the Illinois Supreme Court's holding -- under the Illinois Supreme --

MR. PINCHAM: The county-wide offices would only require 25,000. Those county commissioners running from the city of Chicago itself would require 25,000 and those running from suburban Cook County would require 25,000. Those running county wide could combine their signatures with either one or the other.

QUESTION: No, but the effect of the Illinois Supreme Court's decision, as I understand it, is to disqualify the entire ballot.

MR. PINCHAM: That's correct.

QUESTION: Even though those running for like State's attorney had more than 25,000.

MR. PINCHAM: Absolutely, Your Honor.

QUESTION: Because they, in effect, require 50,000 for those offices. And I understand your position on those officers and on the county commissioners running from the suburbs -- rather from the city -- from the city.

But now with respect to the county commissioners running from the county only, the suburban area, they did not get 25,000 signatures from the suburbs.

MR. PINCHAM: That is correct.

QUESTION: And you nevertheless contend they are entitled to be on the ballot, too. This is a point in which you differ with the election board.

MR. PINCHAM: That is exactly correct, Your Honor.

QUESTION: And I don't think you've explained why the Socialist Party case supports you with respect to those candidates.

MR. PINCHAM: The ruling of this Court was that, as we understand it and we have read it and as it has set forth by other courts, including the Seventh Circuit Court of Appeals, is that the total number of signatures, the total number for the entire petition, is 25,000. It has never been suggested, and in fact, the same section of the statute that provides for each component to have 25,000, also says that the entire petition shall not be -- shall not be required to exceed 25,000. So it can't be both. The language of the statute itself is self-contradictory. And that alone would invalidate the statute.

QUESTION: We shouldn't be involved in interpreting the Illinois statue. Is there any Federal constitutional requirement that would prohibit the State of Illinois from saying that if you want to run from the suburbs of Cook County for a position on the county board representing the suburbs only, that you must get 25,000 signatures from the suburbs? What in the Federal Constitution prohibits that?

MR. PINCHAM: The brief of amicus curiae, American Civil Liberties Union, addresses that at great length. First of all, when you ask me about the constitutional requirement, the equal protection clause of the Fourteenth Amendment, the freedom of association under the First Amendment, the liberty provision of the Fourteenth Amendment all would seem to suggest that that would be unconstitutional in that it requires the Harold Washington Party to obtain more signatures from a smaller geographical unit, that is suburban Cook County, than would be required for the entire State.

We also point out the obvious that -- Chicago itself is, of course, within Cook County.

QUESTION: Is it more or the same?

QUESTION: But the statewide officers only need to get 25,000.

MR. PINCHAM: That's correct.

QUESTION: So it's the same.

MR. PINCHAM: But we're being asked to get 50,000 for county-wide office.

QUESTION: Why?

MR. PINCHAM: Because the Supreme Court has determined that --

QUESTION: But you're saying that -- you're in effect saying that it must be unconstitutional to divide Cook County into Chicago and the suburban area.

MR. PINCHAM: No, sir, not at all. That's not what's unconstitutional about it. What's unconstitutional is requiring the excessive number of signature petitions, in effect giving suburban voters veto power over the expansion of the Harold Washington Party.

QUESTION: We're just talking about the -- Justice Stevens is just talking about those officers running for places on the suburban.

MR. PINCHAM: He asked about those as well as the county-wide offices. Perhaps I should clarify.

QUESTION: I did originally. I said I understand your position on the county-wide officers and on the commissioner residents of Chicago who are elected.

MR. PINCHAM: Yes, sir.

QUESTION: I'm asking for further enlightenment only with respect to your argument pertaining to the county commissioners elected from the suburbs. I think that's the point in which you differ with the election board.

MR. PINCHAM: That is correct. That is correct. We don't know what that provision would provide, Your Honor, because the supreme court of our State has not addressed that adequately to give us any insight.

QUESTION: Well, if they say that you didn't get on the ballot at all because you didn't get a sufficient number of votes --

MR. PINCHAM: Signatures.

QUESTION: -- signatures in the suburban area, you got fewer than 25,000 in the suburban area.

MR. PINCHAM: That's correct.

QUESTION: Now if the State may constitutionally divide Cook County into city and suburban area, and say each area -- signatures from each area must be over 25,000, what's wrong with that?

MR. PINCHAM: Because that then requires the expansion of the party to produce 50,000 rather than the 25,000 signatures. But more -- which is the statewide requirement. So you now have a party running county wide, getting 25,000 signatures for suburban Cook County, 25,000 for the City of Chicago, which is also within Cook County, and using --

QUESTION: Does that mean that if they got 26,000 in Chicago they wouldn't need any signatures in the suburbs to run a slate in the suburbs?

MR. PINCHAM: No, not at all. Not at all. But we don't know how many to produce from the suburbs and how many to produce from the city to give us the total number of signatures of 25,000. And our State Supreme Court has not given us the insight into that question.

Thank you, Your Honor.

QUESTION: Thank you, Mr. Pincham.

Mr. Gillis, we'll hear now from you.

ORAL ARGUMENT OF KENNETH L. GILLIS ON BEHALF OF THE PETITIONERS COOK COUNTRY OFFICERS ELECTORAL BOARD, ET AL.

MR. GILLIS: Mr. Chief Justice, may it please the Court:

If I might follow up on the last question. There are two districts in Cook County, the large City of Chicago and the large suburban area. Each has over a million registered voters.

The -- after this Court's ruling in 1979 in the Socialist Workers case, Illinois put a cap of 25,000 signatures on any large district. So that's what you need in this case. In this case, the Harold Washington Party did obtain 25,000 -- in fact, 44,000 -- signatures in the city of Chicago. And these petitions had two components, the county-wide candidates at the top, and the city of Chicago candidates also on the same petition. So my client, the electoral board ruled that they had qualified to run county-wide at-large candidates as well as candidates in the city of Chicago for county commissioner.

On the other hand, and this is the one point we differ with the Harold Washington Party, the Harold Washington Party only filed 7,800 signatures in the suburban area, or about one-half of 1 percent of the million and some registered voters there are in the area. The Cook County Electoral Board held that that did not show a modicum of support, and hence did not let them on the ballot in the suburban area.

What the Illinois Supreme Court seems to have done, although they did not use these words, is to apply what's known in Illinois law as the complete slate requirement. It amounts to a rule that if any one of your candidates is off, they all go off. The Illinois Supreme Court's order stated that since there were not sufficient signatures in the suburbs, all the candidates went off.

This Court's order of last October 25th stayed that order and upheld the order of my client, the electoral board, which says if you qualify in the city, and you can show a modicum of support there, those candidates go on. And also the at-large candidates went on. It seems to me that the Illinois Supreme Court's order, and the feeling behind that, could be shown in a dissenting opinion in a 1977 Illinois case called Anderson v. Schneider. That shows the workings of the complete slate rule, or the -- at least the thoughts of some of the justices about that.

I submit that is a harsh rule and one that intends to block ballot access.

QUESTION: Mr. Gillis, is the question concerning that rule one of the ones included in the petition for certiorari?

MR. GILLIS: I believe it was. The grant of certiorari was general and I believe that it covers the complete slate requirement. It's in the last page of the appendix.

QUESTION: Now your client, which as I understand it, is the Board of Elections --

MR. GILLIS: Right. The Cook County Officers Electoral --

QUESTION: -- held or decided that the Harold Washington Party candidates did not qualify for the -- is it the Sanitary District Offices -- where the suburbs elect, and they simply represent the suburbs only.

MR. GILLIS: Well, that issue did not get by -- that was not decided by the Illinois Supreme Court, so I do not believe that issue is before the Court. But they ruled an insufficient number of signatures on those petitions.

QUESTION: Well, the Supreme Court of Illinois didn't upset that determination, did it?

MR. GILLIS: No. They were held insufficient.

QUESTION: Mr. Gillis, it may well be a harsh rule, but what is wrong with a State rule that does not require you to run on a slate? If they required you to run on slate, and then said if you -- you must run on a slate and everybody on the slate must get all the votes, then that would be, in effect, requiring more than 25,000 votes. But if they just say it's up to you, you can run on a slate or not. However, if you chose to run on a slate, everybody on that slate must be properly qualified. Why is that an unconstitutional rule?

MR. GILLIS: I think to run with a political party, to run with other persons of a like mind set and a like platform, is a political advantage. If you said that these people can just run individually, I think that puts them in an inferior position when facing other -- the established political parties that have a banner and have a number of candidates.

QUESTION: Well, that may be, but it seems to me a State can say, you know, voters are going to be misled. They think their voting for a slate when, you know, when in fact some of the people on that slate don't make it. They might have voted differently. They might have signed the petitions differently. You don't know how many people would have signed the petitions for these individuals. They signed for them as members of a slate.

MR. GILLIS: I really see no State interest in requiring a complete slate. The -- what is required --

QUESTION: That's not my hypothetical. They do not require a complete slate. They just say if you chose to go as a slate, and that's how you get your petitions signed, then, by George, every member of that slate has to be qualified, otherwise, you've misrepresented what you're doing.

MR. GILLIS: Well, one vice to that is Moore v. Ogilvie, which if you required them to get a complete slate in both the city and the county, a party could be quite popular and show a modicum of support in one district, but not in the other. If you would --

QUESTION: You're not listening to -- I am not requiring them to get a slate. You don't have to get a slate. If you want to run individually, you may. But if you run on a slate, everybody on your slate has to be qualified. Now what's wrong with that?

MR. GILLIS: I think it's -- I'm sorry, I think it violates the requirement that if a person -- party qualifies in one district that they should be on the ballot as happened in this case. And if -- that there, in this case, the petitioners chose to run under a party banner. And I think that's their right.

QUESTION: Well, isn't it true also that in this case, the petitions, at least the ones at the beginning of the appendix, for the 19 candidates, were the 19 that were elected either from Chicago or county wide. And the seven others, who were just from the suburbs, were on an entirely different petition.

MR. GILLIS: That's right. And that that was the one --

QUESTION: So there wasn't any danger of the kind of confusion.

QUESTION: Mr. Gillis, do I take it you are not here supporting the decision of the Cook County Electoral Board across the board, so to speak?

MR. GILLIS: No, I am. I am supporting.

QUESTION: You are. And you are supporting its decision to exclude the suburban candidates running for suburban offices only?

MR. GILLIS: Yes, because only 7,008 signatures were brought forth and the board found that that does not show a modicum of support. To the --

QUESTION: Would 25,000 signatures have been the required number in the suburban area for suburban candidates?

MR. GILLIS: Right. That would be about 2-1/2 percent.

QUESTION: Mr. Gillis, you know, I simply can't find in the questions presented, in either petition, a question on the whole slate question. Am I overlooking one of the questions?

MR. GILLIS: When the supreme court -- I'm sorry, I may have used a shorthand, but when the Supreme Court held that by failing to qualify in the suburbs --

QUESTION: The Illinois Supreme Court?

MR. GILLIS: The Illinois Supreme Court's order said you failed to get enough signatures in the suburbs, then you're off the ballot entirely. That is the workings of what we call in Illinois the complete slate requirement.

QUESTION: Well, that may be, but I guess what we're looking at here, as far as I know, are the questions presented in these blue petitions. And I simply fail to see a question presenting that complete slate requirement. Am I missing one?

MR. GILLIS: Well, it is wrapped up in the issue about whether it's constitutionally permissible to take the complete -- to take the Harold Washington Party off the ballot. That's how it's phrased in the petition.

QUESTION: Which question do you say covers it?

MR. GILLIS: The first one: whether it's constitutionally impermissible to knock the Harold Washington Party off the ballot. Because it imposes conditions that there's no compelling State interest. What's at work there is the State rule that if one candidate is off, they all go off. And that's illustrated, as I said in Anderson v. Schneider.

QUESTION: Well, that would -- you were reading from your argument, not your question.

MR. GILLIS: Yes.

QUESTION: I think that's part of the confusion.

MR. GILLIS: Going to Justice Steven's point about the name, that is displayed in a transcript of August 21st at page 25, and August 24th at page 4. The Cook County Officers Electoral Board interpreted Section 10-5, one of the members said that 10-5 did not even apply to this. And they found -- the board found that there was no violation of 10-5.

I think what's implicit in that is the Court's opinion in Eu v. San Francisco, which states that political parties ought to be allowed to fashion their own business if that doesn't interfere with some compelling State interest such as the manner of running elections or things of that nature.

QUESTION: Well, what would be your position on a State law which required a complete slate within say, just the city of Chicago? Say they required -- say they had 25,000 signatures, but they were required to run a complete slate of officers?

MR. GILLIS: I don't think there's any State interest. I think that would be constitutionally impermissible. The only thing that Mr. Adamski --

QUESTION: Is it because it's not indicative of the existence of a viable party that it can field candidates for all of the ballot positions?

MR. GILLIS: I think it's discriminatory against new political parties. Established political parties don't have to do that. The Illinois Supreme Court has held in the case I've been citing, Anderson v. Schneider, that if one candidate goes off, in some instances the others go on. And I think basically there's no compelling State interest, no good reason, to knock all of the candidates off if one happens to go off or be found unqualified for the ballot.

And in this case it works a further vexatious result that these candidates brought forth 44,000 signatures and enough to qualify under Illinois law, and oops, because they did not qualify in one district, they could be off. This could go on in many jurisdictions. We just have to find one county or one State representative district where somebody doesn't qualify, and you could disqualify the whole ticket, I think that's just constitutionally impermissible.

It's another hoop to make new political parties jump through that existing political parties do not have to.

The name issue, I think the board found the name was not improper. The trial court affirmed on that issue. And I submit that the political party should be allowed to manage its own business.

If there's no other questions, I thank the Court and ask the Court to affirm the decision of the Cook County Officers Electoral Board.

QUESTION: Thank you, Mr. Gillis.

Mr. Adamski, we'll hear now from you.

ORAL ARGUMENT OF GREGORY A. ADAMSKI ON BEHALF OF THE RESPONDENTS

MR. ADAMSKI: Mr. Chief Justice, may it please the Court:

The Illinois Supreme Court said nothing about complete slate. The issue concerning the complete slate is simply this. That seven people who were on this ticket did not get enough nomination signatures. As a result of that, the nomination petition that was submitted for the formation of the new political party, that is the county-wide Harold Washington Party, was not in proper form. The fact that the Illinois Supreme Court struck it down was for that very reason.

There were three things before the Illinois Supreme Court. The first issue was the Harold Washington Party use -- the use of the Harold Washington Party name by this new political party. The second was the 25 signature requirement for each of the units. And the third was the propriety of the form -- of the petition. And on behalf of my clients, who were objectors to these petitions, the Illinois Supreme Court was correct in all three instances.

Now unfortunately, I don't know what the reasons were for their decisions, but I can read their decisions, and I believe their decisions are correct.

Concerning the name violation, the petition that was actually submitted here was a petition for a new political party. It was a petition for a new political party that was called the Harold Washington Party. Mr. Evans, in fact --

QUESTION: May I ask at that point, is that the petition at page 4 of the joint appendix?

MR. ADAMSKI: Yes, it is.

QUESTION: And the only names on that are the 19 candidates who either ran from the city or ran county wide. Is that --

MR. ADAMSKI: Yes. And then if you look at the next page, there's -- you are correct, Justice, that there were -- there are two separate petitions here. One petition is for the city and one petition is for the county.

But this is a party formation party. This is a party formation issue, Your Honor. These people were forming a party to run concerning county issues, the needs of the county, the goals of the county, the aspirations of the county. And it's not unreasonable, and it's certainly -- it certainly is not, I believe, unconstitutional that the State of Illinois requires that if you're going to run in the county, and the county has more than one political subdivision, that you have to come up with -- a modicum of support. In this instance, 25,000 signatures.

QUESTION: Maybe that's right. But just -- because I'm really a little puzzled by it. The first of the two petitions is the one that has the candidates who did get the 25,000 signatures.

MR. ADAMSKI: That's correct.

QUESTION: And the second is the group that go the 7,800 or whatever it is.

MR. ADAMSKI: That's correct.

QUESTION: Now, were they two separate petitions, or are they two parts of the same petition?

MR. ADAMSKI: They were submitted as part of the same petition, I believe.

QUESTION: I see. And so that you're saying the failure to qualify in the one part should disqualify the part --

MR. ADAMSKI: That's correct. That's correct because they're running as a party. And the fact is that when you form -- the law gives special benefits the --

QUESTION: But you would not have been able to make the argument if they'd simply omitted the second part? If they had confined their petition to page 1 and left page 2 out entirely, then you would have no objection?

MR. ADAMSKI: No, I would have a different objection. And that is there is a section of the statute that says you have to put forward a complete slate of candidates for all positions -- for all offices that are to be filled. So in order for them to have complied with the electoral --

QUESTION: For all offices to be filled throughout the State or throughout the area from -- throughout the area that you're petitioning from?

MR. ADAMSKI: For that -- for the particular contest that you are petitioning to run in.

QUESTION: In the particular context on page 1 was county wide and commissioners from Chicago.

MR. ADAMSKI: But the contest included the election of commissioners from the city and from the suburbs.

QUESTION: Well, it also included running for Governor, possibly, too.

MR. ADAMSKI: It didn't. The fact is that the section of the -- I believe it's 10-5, the section of the electoral code that concerns this issue specifically says that you must put forth a complete slate. And that has been upheld in Anderson v. Schneider.

QUESTION: A complete slate for all county officers?

MR. ADAMSKI: All county officers and county commissioners. For everyone who is running in that particular political subdistrict election at that time. And the idea of that, if I may suggest this to the Court, is that you not only want to show that people that you have 25,000 voters, or a modicum of support, you not only want to show that you have that modicum of support from both areas, but you want to show that you have people in both areas who will represent both areas. And the idea here is that there are 10 --

QUESTION: And you couldn't form a new political party to elect just those members of the county commission from Chicago?

MR. ADAMSKI: That's correct. I don't believe that the Illinois electoral code gives that advantage to --

QUESTION: And that must be true or the supreme court wouldn't have ruled the way it did.

MR. ADAMSKI: Well, the supreme court could have ruled otherwise.

QUESTION: Isn't it -- The supreme court could have come down on other grounds then. The supreme court could say that because -- and I suggest to you this is what the supreme court did conclude did conclude -- that the petition was in improper form, that the entire petition was not properly presented because it did not have candidates.

QUESTION: Isn't it -- aren't their instances in Illinois where the two major parties don't put up complete slates?

MR. ADAMSKI: Yes.

QUESTION: Well then, what is the justification if the major parties aren't subject to the complete slate rule, for requiring it of a new party?

MR. ADAMSKI: Well, Your Honor, this goes to the issue that this Court has addressed in Anderson and in the other, what we'll call classification scheme, cases. The --

QUESTION: You're referring to the Supreme Court of Illinois' decision in the Anderson case?

MR. ADAMSKI: No, I'm referring to Anderson v. Celebrezzi, this Court's decision.

The fact is that there is an interest in promoting the two-party system and I believe that Monroe stands for that proposition. I believe that there's language to that effect in Socials Workers. The State has a right to set up certain restrictions in allowing new parties. Now there's a gigantic advantage, and the State of Illinois favors, in fact, party formation. There's a gigantic advantage to running as a party, because the party only has to come up with 25,000. It only has to comply with the number of votes -- signatures on the nominating ballots for the district in which it is running. If individuals ran, if you are running as an Independent, you have to come up with 25,000 each yourself.

So what the State does is, the State of Illinois makes a determination. We can run the whole spectrum of ballot access here. There can be no ballot access or you can have complete ballot access. And the State of Illinois says for new party formation it's 25,000. And the additional price that you have to pay to get that advantage is that you have to show us that you have a full slate of candidates that you -- that you can field people of common interest, common goals --

QUESTION: I think that in our cases, the talk about a two-party system as being a valid electoral goal, we were talking in terms of requiring new parties to do almost as much, or perhaps as much, as the established parties. But Illinois requires a new party to do more, apparently.

MR. ADAMSKI: Well, Your Honor, the fact is that all the States that require new parties to come up with certain -- a number of nominating petitions require those new parties to do more than a party where that for instance --

QUESTION: Well, where there's been a past track record --

MR. ADAMSKI: Right.

QUESTION: -- of support.

MR. ADAMSKI: No, that isn't what I was going to say, if I may excuse you. In the instance --

QUESTION: You don't have to excuse me, just say what you were going to say.

(Laughter.)

MR. ADAMSKI: In the instance where no one has run for an officer, in the instance where say, an office has been held by Democratic Party holders for years and years and years, and there is no Republican Party holder, there's no restriction there. And there's a restriction -- there's a greater restriction on the person who's coming into that area.

QUESTION: But supposing that there has been no republican candidate in a particular part of Chicago for many, many years. And then the Republicans want to start having a candidate there. They're not subject to this full slate requirement, are they?

MR. ADAMSKI: No, they're not because they're an established party. And that -- if it please the Court, that is the price that Illinois puts on new parties. If you're going to come in and be a new party, if you're going to take advantage of this liberal 25,000 requirement, then you simply have to have a full slate of people.

QUESTION: May I pursue that just a little. There are seven or eight offices -- I can't remember -- State's Attorney of Cook County, Assessor of Cook County, Clerk of Cook County, Sheriff of the County, Treasurer of Cook County, Superintendent of Eduction, and so forth. Supposing a party wanted to run for six of those, but not all seven or eight, whatever it is. The law would not permit them to qualify as a party unless they got 25,000 -- and what is the State interest in requiring all eight instead of just six or seven?

MR. ADAMSKI: The State interest is that the State while it encourages party formation wants to be certain that individuals -- that you put forth a full party. That you are putting forth for the voters --

QUESTION: Why doesn't that apply equally to the Republicans or the Democrats who might decide they haven't got a chance of electing the Clerk of Cook County for some reason -- maybe the incumbent is so terribly popular that they don't have to run a candidate. What is the State interest that justifies the disparate treatment?

MR. ADAMSKI: I don't know that you're correct that the Republican would not be subject to attack. I don't know -- or the Democrat, whoever it is --

QUESTION: Well, what's the State interest in making them run somebody that they know is going to lose, and they aren't going to spend any money trying to elect?

MR. ADAMSKI: Well, I -- there's no State interest in that. There's none.

I think the Court has taken in these cases -- the Court -- the language of the Court is that there is no litmus paper test. And the Court has looked in a fact-intensive basis into each one of these cases to see where the burdens are. Now the State's interest, and Mr. Justice White in the Monroe case specifically said and noted that this Court has never made a particularized review -- required a particularized proof from a State as to the needs, as to the State's interest in regulations, so long as those regulations are reasonable. And so the Court has to look on a factual basis, in effect, as to the reasonableness of these.

Now the requirement of 25,000 -- we've thrown that around, but in fact the requirement is a percentage requirement. It is the percentage requirement of 5 percent maxed out under the Socialist Workers case at 25,000. There is no evidence in this record, no evidence in this record whatsoever, that unduly burdened these people.

These people simply came in, they put their ballot -- they put their nominee -- nomination petitions in and made no effort or record that they had a difficulty to expand. Essentially what they're telling you here, what they're asking you to do is because they didn't comply with the law, they want you to strike the law down so they can run anywhere they want.

Now the State has an interest, and I think all the parties agree, the State has an interest in regulating these elections, and there's no, I suggest to the Court, there's no --

QUESTION: What -- I gather that though in this case because the suburban -- the party, new party didn't get enough signatures in the suburban area and they got plenty in the city.

MR. ADAMSKI: That's correct.

QUESTION: But nevertheless the new party couldn't run in either the city or the county.

MR. ADAMSKI: For the county positions. That's correct.

QUESTION: Yeah, for the county positions.

MR. ADAMSKI: That's correct.

QUESTION: In effect, then, the people who are running for county commissioners from Chicago, even though they had more than 25,000 votes -- or signatures, were off the ballot.

MR. ADAMSKI: That's correct.

QUESTION: Because there weren't 50,000 in the whole county.

MR. ADAMSKI: That's correct.

QUESTION: Why is -- why doesn't that violate our cases?

MR. ADAMSKI: Your Honor, the cases say that the State has a right to put restrictions on to show that a particular party has a modicum of support. These people were saying -- these people were representing to the public, and to their competitors in the other parties, that they were a party that had county-wide interests. They didn't. They didn't have --

QUESTION: But our cases also say that you can't require more support for a subdivision of the State than you require for the whole State. And the whole State you only require 25,000, whereas for Cook County you require 50,000.

MR. ADAMSKI: Unless --

QUESTION: How do you figure that?

MR. ADAMSKI: The case -- I think you're referring to the Socialist Workers case in particular, that case says unless there's a good reason. Socialist Workers was a situation, Your Honor, where because of this Court's decision in Moore, the City of Chicago had requirements for ballots, ballot nominations, three times greater than the State of Illinois. And this Court struck that down and in effect amended -- our legislature did it, but in effect amended the State law to say 25,000 was the cap. But in that very case, that 25,000 that this Court was talking about was the 25,000 from Chicago.

And this Court recognizes, Justice Stevens recognized in his footnote 3 of that opinion, that the 25,000 requirement was a requirement for all political subcomponents. Our law in Illinois requires if -- let's take for example one of our counties is called Sangamon County. It's in Springfield, Illinois. If these people wanted to go to Sangamon County, they'd have to -- and they wanted to form their new party there -- there's nothing in our law that stops them from doing that -- they'd have to come up with 5 percent of the people in Sangamon County.

If they're going to go around and form parties in every city and every county in the State, they're going -- I'm saying this to you, Your Honor, because I want you to understand we're talking about a lot more than 50,000 here. The fact is that before they get to go into those areas --

QUESTION: I understand, but Cook County is just one county. Sangamon and Cook County are two counties, and that's 50,000, and that's fine. 25,000 in each county. Cook county is just one county.

MR. ADAMSKI: Cook County has 900 -- 650,000 registered voters in the last election. The City of Chicago has 850,000. When you're looking -- let's take this first on the idea of reasonableness. When you're looking at the reasonableness of this, this is a drop in the bucket, I suggest to you.

When you're talking next about why have the difference, the difference is based upon this Court's discipline in all of its cases that says that the State has a right to demand that someone has a modicum of support. These people should not have the right, under our State law and under good representative participatory government and democracy, they should not have the right to simply go into any area they want and run their party, unless they have people there who are going to support them. And the 5 percent rule, I suggest to you is not unreasonable and does not unduly burden them.

QUESTION: It's only unreasonable when you require more from the county than you would to have for somebody to run statewide. I mean, yes, they are big numbers you gave me for the number of voters in Cook County and in the city of Chicago, which is part of Cook County, for the purposes of the breakout in counties, right? This is one county we're talking about.

MR. ADAMSKI: But the city of Chicago is a completely separate political subdistrict under the Illinois Electoral Board.

QUESTION: Of the county.

MR. ADAMSKI: Of the State. Of the State.

QUESTION: I take it you're really not arguing that they struck this whole -- that they disqualified the candidates from Chicago as well as from suburbia because they didn't get 50,000 votes?

MR. ADAMSKI: You wouldn't permit the people from Chicago who got their 25,000 votes to run in the election because the suburbanites didn't get enough votes.

MR. ADAMSKI: That's correct.

QUESTION: So you're really saying they were -- the Chicago people were disqualified because of the full slate rule.

MR. ADAMSKI: Well, I don't know --

QUESTION: Isn't that right?

MR. ADAMSKI: I don't know about a full slate rule. I know that the petition wasn't in proper form.

QUESTION: Why wouldn't you let the county people who got 25,000 -- the Chicago people who got 25,000 votes run on the ballot? Why couldn't they get on the ballot? Why?

MR. ADAMSKI: Your Honor, well, because that's not what the rules provide. If they want to run as independents, then each of them has to get 25,000 --

QUESTION: No, they want to run under the party name.

MR. ADAMSKI: But the party they put forward, and this goes back, I guess to what Justice Stevens was pointing out, the party that they ran for was a party that had more people in it than they had support from. And that made their petition infirm. It made their petition improper. It made their petition invalid.

QUESTION: Yeah, but it's because the party just didn't have candidates from suburbia that had enough votes.

MR. ADAMSKI: That's exactly why.

QUESTION: All right. And therefore, you disqualified the Chicago people as well.

MR. ADAMSKI: The Chicago people were running -- this is a county election, Your Honor. The Chicago people were running in a county election for county positions.

QUESTION: Sure.

MR. ADAMSKI: And there's good reasons why you shouldn't let that happen. You shouldn't allow the city people -- in this instance, you shouldn't allow the city people to attempt to take over county positions without having support throughout the county. That seems to me to be axiomatic.

QUESTION: Yes, but you don't really mean that because on the position for State's Attorney or County Clerk, for example, you would accept 25,000 signatures all from Hyde Park or one tiny area in Chicago that would qualify them to run for State's Attorney, if they filed the right form.

MR. ADAMSKI: If they were a party?

QUESTION: Yes.

MR. ADAMSKI: No. No, I don't agree with that. They were --

QUESTION: Even if they ran a full slate?

MR. ADAMSKI: If they ran a full slate --

QUESTION: But the people running for the offices I'm describing, all of the signatures came from a tiny area within the city of Chicago.

MR. ADAMSKI: Right.

QUESTION: Those petitions would still be good. Assuming --

MR. ADAMSKI: I agree with that. Yes, I do agree.

QUESTION: So that a candidate for a county-wide office does not have to have any support at all outside the city of Chicago to get on the ballot.

MR. ADAMSKI: So long as the candidate for county --

QUESTION: So long as the slate is -- you know, a complete slate.

MR. ADAMSKI: Yes. Yes.

QUESTION: So people in the city of Chicago do vote, say, for Treasurer of Cook County.

MR. ADAMSKI: Yes, Your Honor. The --

QUESTION: Well, excuse me. And the Board of County Commissions, they are county commissioners of Cook County.

MR. ADAMSKI: That's correct.

QUESTION: And some of them are elected from the city of Chicago.

MR. ADAMSKI: 10 of them are.

QUESTION: Right.

MR. ADAMSKI: That's correct.

QUESTION: So how is that a separate political sub -- I mean, I don't understand what you mean by a separate political subdivision if you have a Board of County Commissioners that governs both the county and the City of Chicago.

MR. ADAMSKI: For purposes of the county board elections, the statute -- and this is not just in Chicago, this is in any county that has a similar county board -- the statutes provide that if you have -- if you're running for more than one component, then you have to show a modicum of support from both components.

An example might be for the -- I'm not sure if this is accurate -- I'll give this example to the Court and tell you that I think it is, but the State Senate positions run for more than one county. You have to show a modicum of support from the various places that you run from that is outside the City of Chicago, in the southern areas of the State, the central areas of the State, and western areas of the State. So I don't think that that's unreasonable.

This is a county position and you need to show county support if you want to take advantage of the ameliorative party formation laws in the State of Illinois. If you want to run -- if a group of individuals want to run as a group of individuals, then each of them has to go and get that number of votes, 25,000 or 5 percent. But if they want to run together as a group and take advantage of this, this law, then they have to get the support from every component that there is.

The other point that I wanted to make about the factual basis here is that I said first that there's no reason to believe that the 25,000 requirement burdens anyone. There's no evidence to that effect before the Court.

Likewise, there's no evidence to the effect that the filing of a proper form burdens anyone. They simply didn't do that.

The Harold Washington Party is alive and well in Chicago. It has run in two city elections in the last 2 years and has done very well for itself.

The brief that I filed points out, and I don't think I need to go into much detail on this, that if they want to expand, the mechanisms are there for them to expand. They simply, in this case, did not follow those mechanisms. And I suggest to the court that there is nothing unreasonable about a requirement, the two requirements -- that you file a proper form and the requirement that you file 25,000 signatures from each unit to get to -- take advantage of the new party laws in Illinois.

QUESTION: Mr. Adamski, you don't contest that the Harold Washington Party is the Harold Washington Party, do you?

MR. ADAMSKI: I do.

QUESTION: You do.

MR. ADAMSKI: Yes, Your Honor, yes. It's not. It's not.

QUESTION: It's not.

MR. ADAMSKI: This Harold Washington Party is Mr. Pincham's Harold Washington Party. Mr. Evans ran in a special election against Mayor Daly in 1989, I believe, and he formed the Harold Washington Party for the City of Chicago. He never appointed any committeemen, he never held any caucuses, he never held any -- he had no primaries, nothing.

In August of 1990, Mr. Pincham came in with petitions at this time and at the time he ran on the Harold Washington Party -- Mr. Evans, by the way, was a functionary of the Democratic Party, he held an office in the Democratic Party of Cook County -- Mr. Pincham came in and filed these document. And the documents say that it's a new political party. The documents say that.

Now, at the hearing before the board, the electoral board, Mr. Evans testified that he had authorized it. Well, the law doesn't give Mr. Evans the right to authorize it. The law -- once parties are formed, parties are very serious matters, and once they are formed they are regulated by law. They had to hold a convention, they had to hold a caucus, they had to hold a primary. Mr. Evans only had authority to point interim committeemen under Section 10-2 of the Electoral Code, I believe.

QUESTION: I take it you are saying a political party is either a new one or an old one, and this was a new -- this had to be a new party.

MR. ADAMSKI: This is a party formation case.

QUESTION: It was said -- and then they said it was new when they filed their petition.

MR. ADAMSKI: No, they've taken the position -- they said it was new, yes.

QUESTION: Well, I mean -- they wanted to file a new -- for a new party.

MR. ADAMSKI: Since then they've taken the position that all they were really doing was expanding.

Be that as it may --

QUESTION: Oh, no wait. Could they have come into Cook County and said we are an old party?

MR. ADAMSKI: I believe they could have, yes. I believe that they could have filed nominating petitions for the formation of the Harold Washington Party in Cook County, yes.

QUESTION: I thought that you're a new party if you are new in the elective unit that the election pertains to. They were -- they had to --

MR. ADAMSKI: They are new.

QUESTION: Well, okay. That's why they said they were a new party. Of course they were a new party in Cook County, in suburban Cook County.

MR. ADAMSKI: The were a new party. They were a new party.

QUESTION: Before you were criticizing them for being a new party, now you say yeah, of course, they were a new party. Well which is it?

MR. ADAMSKI: They were Mr. Pincham -- I've taken a -- maybe I just --

QUESTION: Even if Evans -- even if Alderman Evans had come in, he would have been a new party under your view.

MR. ADAMSKI: Yes.

QUESTION: Because the old party was just formed for the city of Chicago.

MR. ADAMSKI: Right. That's correct.

QUESTION: And you're now talking about a new political unit.

MR. ADAMSKI: That's correct.

QUESTION: So there had to be a new party.

MR. ADAMSKI: That's correct. That's exactly right.

QUESTION: So the distinction isn't between the Evans Harold Washington Party and the Pincham Harold Washington Party. It's the distinction between the Chicago Harold Washington Party and anything else.

MR. ADAMSKI: That's correct.

QUESTION: Now, what evidence is there that -- did the Supreme Court of Illinois say that this party was not qualified to use the Harold Washington name?

MR. ADAMSKI: Yes.

QUESTION: It didn't say why, but it said that.

MR. ADAMSKI: Yes. It did not say why.

QUESTION: And you would say because it was a new party and a new party can't use the same name as an old party.

MR. ADAMSKI: It can use somebody else's name. The party continuity issue there is a different issue. You can't -- they can't come forward and say we're going to use somebody else's name when the name's already been -- in use. They can't do that.

QUESTION: Well, they're forming a new party and they want to use an old party's name. Can they do that?

MR. ADAMSKI: No.

QUESTION: And is that basis for the Supreme Court of Illinois judgment?

MR. ADAMSKI: I'd like to think so.

(Laughter.)

QUESTION: Now, wait a minute. Of course a new party can use an old party's name.

MR. ADAMSKI: If it has the permission of the old party.

QUESTION: It depends on what you mean by a new party. A new party in the political unit, in the sense that it's new to that political unit, can use the name of an old party from another political unit. You mean a party cannot expand in your State?

MR. ADAMSKI: A party can expand, but it has to be the same party. They weren't the same party. This was a brand new political party.

QUESTION: Oh, you're saying that it was new in that sense, that it is not the same party.

MR. ADAMSKI: If there's no more questions, I would --

QUESTION: Weren't there findings against you on that? Didn't the board simply find that it was the same party?

MR. ADAMSKI: Yes. The board found that it was the same party. The circuit court, which reviewed it de novo, essentially affirmed the board. I don't think that circuit court made any findings on that issue, but it essentially affirmed the board.

I would ask that the Court affirm the decision of the Illinois Supreme Court. And I thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Adamski.

The case is submitted.

(Whereupon, at 2:48 p.m., the case in the above-entitled matter was submitted.)

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