Cases by Issue - Miscellaneous Conflict

California Franchise Tax Board v. Hyatt - Oral Argument

Fri, 09 Jan 2009 14:50:39 +0000

Case:

California Franchise Tax Board v. Hyatt

Media File:

02-42_20030224-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Felix Leatherwood

Chief Justice Rehnquist: We'll hear argument next in number 02-42, Franchise Tax Board of California versus Gilbert Hyatt.

Mr. Leatherwood.

Mr. Leatherwood: Mr. Chief Justice, may it please the Court:

Respondent has prompted the Nevada courts to extend their authority over California's tax process.

The Nevada court has said at Joint Appendix 138, the entire process, of FTB audits of Hyatt, including the FTB's assessment of taxes and the protests, is at issue in this case, end quote.

This has been said to mean, at Joint Appendix 138, that the tax process is under attack.

This lawsuit interferes with California's capacity to administer these taxes.

The administration of taxes is a core, sovereign responsibility from which all functions of State Government depend on.

It is protected by immunity laws of common-law tort lawsuits, like the kind presented by Respondent.

California has invoked the protection of its immunity laws, but the Nevada courts have allowed respondents laws to proceed, not by extending full faith and credit.

And this refusal threatens our constitutional system for cooperative federalism in violation of Article IV, Section 1 of the United States Code.

Justice Ginsburg: Mr. Leatherwood, may I ask you a threshold question?

Some of your friends in this case have invited an overruling of Nevada against Hall.

Of course, California was favored by that decision.

Do you join in the plea to overrule Nevada v. Hall, or do you say this case is different because it involves four sovereign functions?

Mr. Leatherwood: Justice Ginsberg, we do not join in the chorus to overrule Nevada v. Hall.

This case is different.

This case goes to footnote 24 of Nevada v. Hall.

It's our feeling that Nevada v. Hall is good law in the sense it does... it does not implicate another state managing another state's core sovereign function.

It's... Nevada v. Hall was strictly an automobile accident.

Justice Breyer: But the comparison would be between the university, education, which was the... which was the defendant, and the tax authorities.

Both of those, education and tax, seem core.

Or if you're going to compare the tort itself, it would be a comparison between negligent driving, on the one hand, and going into another state and committing... you know, peering through windows, going through garbage, totally wrongly getting all the neighbors to reveal private information, et cetera.

So comparing the particular acts, what's the difference, or comparing sovereign functions, what's the difference?

Mr. Leatherwood: I mean, compared... I thank you, Your Honor... in comparing the sovereign functions--

Justice Breyer: Education versus tax.

Mr. Leatherwood: --Yeah, and driving an automobile in another state's... on another state's highway--

Justice Breyer: That's not the sovereign function.

Mr. Leatherwood: --That's not--

Justice Breyer: I'm saying that--

Mr. Leatherwood: --the sovereign function.

Justice Breyer: --it seems like that's apples and oranges to me.

That is, in the one case, we're looking at the acts they're complaining of, and here the plaintiff is complaining of acts that took place in Nevada that were miles outside what would be reasonable.

I'm not saying he's right, but that's his complain.

In Nevada v. Hall, they were complaining about negligent driving.

So what's the difference there?

Or, alternatively, in Nevada v. Hall, it was a driver who worked for a university, and here it is an investigator who works for the tax board.

So what's the difference there?

Mr. Leatherwood: Well, to answer the Court's question directly, the most significant difference is that the tax function is... is much more significant than the education function.

Justice Kennedy: Well, that's... that... that... that would be a very difficult premise for us to say, that education is somehow secondary.

Mr. Leatherwood: Well--

Justice Kennedy: You're... you're saying Nevada can't have a great university... can have a great university by keeping its people within its own borders.

They can't go to California to get information to solicit, to recruit students?

That... that would be a very difficult decision for us to write on that premise.

Mr. Leatherwood: --No, Your Honor, I would agree with you that that would be a difficult--

Justice Kennedy: For the State of California to argue that education is not a core state function is, to me, rather astounding.

Mr. Leatherwood: --No, Your Honor, I'm not arguing that education is not a core sovereign function.

What I'm arguing is that taxation is an essential core sovereign function since that education cannot move forward--

Justice Ginsburg: Well, Mr.--

Mr. Leatherwood: --to provide taxation.

Justice Ginsburg: --Leatherwood, we... this court tried to follow a core state function test under the Tenth Amendment.

And in Garcia, kind of gave it up, didn't it, as being an unworkable thing.

Now, why would we want to resurrect that here?

And why is it that you don't say, well, if the Court wants to overrule Nevada v. Hall, that's fine; I'll win.

I mean, I don't understand your position.

You're asking us to go back to a test that we rejected under the Tenth Amendment in Garcia, but you don't want to say, sure, if you want to overrule Nevada v. Hall, be my guest.

Mr. Leatherwood: Yes, Your Honor.

Justice O'Connor, what we are attempting to say here is that this case is more analogous to this court's jurisprudence in the area of the Federal Tax Injunction Act along the line of fair assessment... the fair assessment cases, where the court has directed that the Federal Government will back off on trying to manage state taxes.

Chief Justice Rehnquist: There you have a specific act of Congress that tells the Federal Government to back off.

And I don't believe you have any such thing here.

Mr. Leatherwood: But we do have the Full Faith and Credit Clause, which directs that a state is to recognize the public acts of another state.

And we do have an immunity law applicable here, and this directs that Nevada should respect the immunity laws of the State of California.

And the immunity law, in this particular instance, provide absolute immunity for conduct as undertaken in a... in a tax audit.

Anything that's associated with tax audit, is protected.

Chief Justice Rehnquist: But Nevada did recognize California law to the extent it was similar to Nevada's... that is, saying you had immunity from the negligent acts.

And then it went on to say, no, you don't have immunity from intentional acts, even though California law does give immunity from intentional acts.

But surely you wouldn't go to the extreme that you would say someone could come over to Las Vegas from California and just beat up somebody because they haven't paid their taxes, would they?

Mr. Leatherwood: Absolutely, I agree with the Court on that point.

The--

Justice Kennedy: Why not?

Mr. Leatherwood: --the extension of that--

Justice Kennedy: Why do you agree on that point?

I don't understand that?

Mr. Leatherwood: --Because the extension of our immunity law does not cover physical torts or torts--

Justice Kennedy: Oh.

Mr. Leatherwood: --outside the scope--

Justice Stevens: I see.

Mr. Leatherwood: --of course, the scope of... of the... the acts that are incidental to--

Justice Stevens: I see.

So under California law, there would be... that would be actionable; whereas, under Nevada law, here, what they're doing is actionable.

You just want to use the California standard rather... rather than the Nevada standard.

Mr. Leatherwood: --Well, in fact, Your Honor, if they would use the Nevada standard, use the same standard that Nevada applies to its own taxing agencies, then this case would be on a hold.

What Nevada has done in this particular case is that it has gone outside its own precedent and applied a different standard to California taxing agencies, and it's not--

Justice Ginsburg: But that's not what they're... the Nevada court said, we're going to treat the tax collectors from anywhere who come in to our state and act here, and we're going to... the Nevada Supreme Court said, we're going to apply our rule, and our rule is negligence is immunity; intentional, there isn't.

So you're asking us to discredit or disbelieve the Nevada Supreme Court when it said, the law we apply to tax collectors who act in this state is the same as we apply to Nevada tax collectors.

Mr. Leatherwood: --Your Honor, I am not asking this Court to not believe the Nevada Supreme Court.

But what I'm saying is that Nevada has published precedent, as recent as 1989, where it requires that a taxpayer forego bringing a lawsuit until they... until there has been... until there's a resolution of all statutory procedures.

Justice Ginsburg: Oh, but this... but Nevada Supreme Court, I thought, made very clear that what they were dealing with is tortious conduct, harassing conduct.

They, in fact, refused... Nevada Supreme Court refused to decide where this man was domiciled, because that would interfere with the ongoing procedure in California on the tax liability.

I thought that the Nevada Supreme Court had made it clear that they were dealing with the way their resident is being harassed and not with where he was domiciled on a magic date.

Mr. Leatherwood: Your Honor, what has happened in this particular case, 97 percent of the conduct that occurred during the course of this audit occurred in California.

And, quite naturally, what Nevada is... what Nevada is doing is permitting Mr. Hyatt to go behind the actual tort and make a collateral attack on the tax itself.

Justice Souter: Well, that may be, but the that isn't the issue that we've got in front of us here.

I mean, the question in front of us is not how far can the Nevada courts go in reviewing California's tax practice.

The issue before us is, among others, in a claim of tort against your... your operative in Nevada, for the manner in which the tax is collected is their absolute immunity.

And, you know, maybe the Nevada courts are going too far in discovery, but that's not the issue in front of us.

Mr. Leatherwood: I would absolutely agree with the Court that the issue whether or not Nevada was obligated to apply our immunity laws with respect--

Justice Souter: All right.

Mr. Leatherwood: --with respect to conduct undertaken incidental to this audit.

Justice Souter: May I go back to Justice Stevens' question, because I'm not sure of your answer to it.

What if the State of California passed a statute tomorrow morning saying the use of thumbscrews in tax collection is authorized?

Is... would your answer to Justice Stevens' question be that... or wouldn't your answer to Justice Stevens' question be that if you went into Nevada and you used thumbscrews, you would be entitled, on your theory, to absolute immunity?

Isn't that correct?

Mr. Leatherwood: Your Honor, no.

What I'm saying is that, under that particular theory, I do not think that you could pass law in the State of California that will essentially sanction a crime, and there was no crimes committed within the course of this audit.

If the... if an auditor commits an intentional tort, such as a burglary or a trespass in Nevada or in California, it's... it's our position that that particular conduct is not incidental to--

Justice Breyer: It doesn't matter.

I mean, we're trying to get the... we're trying to get the analysis of it, and I'm having exactly the same problem.

Imagine that, you know, California did say there is absolute immunity, even if you beat somebody up, absolute tort immunity.

Okay?

Even for beating people up.

Now, suppose they did have that; you could prosecute it as a crime.

Now you're in Nevada, and they say, the plaintiff, he beat me up, he came across the state line, down from Lake Tahoe.

He was in a bad mood, lost too much money at the casino, and he beat me up.

All right?

Now, can Nevada bring that lawsuit or not?

That's, I think, what Justice Stevens' question was.

Mr. Leatherwood: --Well... well, I understand that, Your Honor.

My position is that even though that law does not exist in California--

Justice Breyer: Yes.

Mr. Leatherwood: --but applying--

Justice Breyer: If it did.

Mr. Leatherwood: --applying it... my... our particular theory--

Justice Breyer: Yes.

Mr. Leatherwood: --that, yes, we... then Nevada would be obligated under the Full Faith and Credit Clause to apply that particular law.

But--

Justice Breyer: And, therefore, you could not bring the lawsuit in Nevada about somebody beating somebody up.

Mr. Leatherwood: --If--

Justice Breyer: If that were the law in California.

Mr. Leatherwood: --if that were... if that was the case.

But--

Justice Breyer: Yeah, okay.

Mr. Leatherwood: --in this particular case, that's illegal in California and that's illegal in Nevada.

Justice Breyer: So how, then, do we reconcile that position, where we're back to our starting place, with the fact that he could bring an action if on his way down from Lake Tahoe in the state car, he happened to drive a little negligently and ran somebody over?

I mean, that's Nevada v. Hall, just reverse the states.

Mr. Leatherwood: No, and we're agreeing with Nevada v. Hall.

Justice Breyer: I know.

So this is why we're having a problem.

It's clear that if our tax collector, on his way down from Lake Tahoe, runs over a Nevada resident, the Nevada resident can sue and apply Nevada law.

Mr. Leatherwood: Yes, I--

Justice Breyer: You say, if, in fact, that same tax collector beats up somebody, and the California law is that you cannot sue, Nevada cannot apply its own law.

Mr. Leatherwood: --That's not what I'm saying, Your Honor.

I'm saying if that conduct... if that conduct is connected to the actual audit itself, then it's protected.

But what I'm saying, I cannot possibly see, under any possible theory, that a beating, that it... that breaking into someone's house could actually be part of the assessment... tax assessment process.

If an auditor engages in that kind of behavior, the auditor is not covered under the absolute immunity.

That is outside the scope of that--

Unknown Speaker: Okay.

Mr. Leatherwood: --of that statute.

Justice Breyer: I.

Justice Souter: And is the reason that the answer is different in the two cases, the reason that there is something special about tax collection or is the reason that there is a closer connection in the hypo of the beating up for tax collection than the driving the automobile for tax collection?

Mr. Leatherwood: Well--

Justice Souter: Which is it?

Is it the nature of the tax collection or the nature of the activity which leads to the tort liability?

Mr. Leatherwood: --Well, I think it's both, Your Honor.

Well, first of all, tax... tax collection, by definition, is an intrusion of someone's life.

The allegations alleged here are principally invasion of privacy, disclosure of information, that sort of thing.

Ninety-seven percent of that conduct occurred in California.

You cannot possibly investigate or prosecute Mr. Hyatt's case without intruding into that tax--

Justice Stevens: Mr. Leatherwood, if I understand your position, it would be exactly the same if a hundred percent of the conduct had occurred in Nevada.

Mr. Leatherwood: --Absolutely, Your Honor.

That... but... but--

Justice Stevens: But the problem I have... may I just ask this question.

Assume there is a... there's a difference between Nevada law and California law, as I understand it.

Some things are actionable against a tax people in one state and not the other.

Why is it, in your view, that if the same conduct had occurred six months later, but by Nevada tax collectors instead of by California tax collectors, because he's been in both states and probably is subject to tax in both, Nevada would allow the suit against its own tax people but now allow it against the California tax people?

Why does that make sense?

Mr. Leatherwood: --Well, Your Honor, in this particular case, as I've indicated, according to our reading of Nevada precedent, published precedent, that they would not permit this lawsuit to proceed until the tax process has been concluded.

With respect to... to directly answer your question, it does not appear that Nevada would prosecute its own... it will permit a prosecution of its own agents in the case where the allegations are principally that there is an intrusion into Mr. Hyatt's life or that there--

Justice Stevens: Well, we understood the reasoning of the Nevada Supreme Court to say they would.

I think... I must have misread the opinion.

Is that--

Mr. Leatherwood: --No, absolutely not, Your Honor.

I don't think you misread the opinion.

What I think the Nevada Supreme Court said is that they will permit intentional tort prosecution of government employees.

This case does not involve a government employee.

This case involves a government agency itself, a tax agency.

And under Nevada law, you cannot proceed against the Nevada tax agency without first exhausting your administrative and statutory remedies to contest the underlying tax itself.

Chief Justice Rehnquist: --But certainly this sort of thing isn't the kind of thing you could have exhausted your remedies on, is it?

Mr. Leatherwood: Absolutely, Your Honor.

In our... in our... it is our position that this entire... the entire lawsuit is linked up to our tax process, because the conduct that the Respondent is complaining about here is that the tax itself is... the tax itself and the tax process is engaged in bad faith.

And I would--

Justice Souter: Now, what is... was your answer to the question?

Suppose that this tax collector were driving negligently in Nevada--

Mr. Leatherwood: --Part--

Justice Souter: --Suppose the tax collector were driving negligently in Las Vegas.

It's very important for the tax collector to go examine the record, and he's driving negligently.

What--

Mr. Leatherwood: --I think, under Nevada v. Hall, he would be... he would be subject to negligent liability.

It's not connected to a core silent function because the function here is... the function here is a tax investigation, whereas, driving is something that you can investigate independent of the tax process itself.

Justice Souter: --So suppose that we... we conclude that footnote 24 does not provide sufficient guidance for us to have a stable jurisprudence and that you will lose unless Nevada versus Hall is overruled.

Would you then ask us to overrule Nevada versus Hall?

Mr. Leatherwood: Your Honor--

Justice Souter: I know you don't want to entertain that possibility, but suppose that's what we conclude.

Mr. Leatherwood: --Well, we... we've thought about this, Your Honor, of course, and we would accept a win, if that's the Court's direction, through overruling Nevada v. Hall, but it's our contention that the Court doesn't have to go that far to get... to get to this point.

The Court can literally analogize to the special protections that are provided to state tax systems within the federal system itself.

Chief Justice Rehnquist: But then that, as I suggested earlier, is a difficult thing to do, because there are congressional statutes that mandate that here.

And all we have is the Full Faith and Credit Clause.

Now, perhaps you say that's sufficient, but isn't it possible that there might be other emanations of the Full Faith and Credit Clause, other than just footnote 24, or whatever it is, in Nevada against Hall.

I'm not talking about overruling it, but developing it, perhaps.

Mr. Leatherwood: Yes, Your Honor.

I would agree with that.

Of course, we think that Nevada's failure to recognize or give dignity to California's immunity statute is not only a violation of the Full Faith and Credit Clause, but is a hostile act, and this kind of hostility is contrary to our whole concept of--

Justice Breyer: What... what about a congressional statute?

That is, suppose the opinion read... what would your objection... I know you'll object to this possible opinion, and I want to hear what your objection is... the opinion says they're complaining here, as far as we're concerned, with a serious tort, invasion of privacy, you know, a whole lot of really bad behavior, et cetera... they're complaining about that taking place by a California official in Nevada, and we can't really distinguish that from the automobile accident taking place in Nevada.

They're both torts.

They're both very bad... you know, this is worse conduct.

Now, it's true that our investigation of this may interfere with California's tax authority's ability to sort of run investigations in general.

But if that turns out to be a problem, a big problem, Congress can legislate.

Mr. Leatherwood: --Well, that still creates... that still creates the situation where Nevada is supervising and managing California's tax practices.

Unknown Speaker: Back to activities happening in Nevada.

Mr. Leatherwood: Yeah.

In this lawsuit... this lawsuit is... is being prosecuted... is being investigated almost exclusively in California.

The... the intrusion here, the interference here, is that Nevada has permitted Mr. Hyatt to use this lawsuit both as a... as a wall and a battering ram.

It has almost suppressed the entire California tax investigation.

It's creating an entire class of possible plaintiffs that can sue California just for literally going across the state line and making an inquiry as to whether or not a former California resident, a former California taxpayer, actually owes any taxes.

Chief Justice Rehnquist: Well, they would have to show as an intentional... whatever that means under Nevada law... not just negligent when they--

Mr. Leatherwood: Well, the intentional act here is that California created a tax system in bad faith to... bad faith to extort an exit... an exit tax from... from a taxpayer.

Justice Ginsburg: --I thought that, again, the Nevada Supreme Court said, we are not going to touch the question of where this man was domiciled.

That's for California to decide.

What we are dealing with is this new thing.

One allegation was trespass and going through the man's trash, and another was calling... maybe the calls emanated in California... calling people in Nevada insinuating bad things about this person.

And that has nothing to do with where the man is domiciled.

It's a question that California is deciding and Nevada says it won't touch.

Mr. Leatherwood: Yeah, and I would... I would direct the Court to Joint Appendix 133, where... where the Court would... the Nevada courts have indicated that almost all the action in this... in this lawsuit occurred in California.

And--

Justice Ginsburg: Well, you... you recognized that there were two trips into California.

Mr. Leatherwood: --Actually, Your Honor--

Justice Ginsburg: I mean, to Nevada.

Mr. Leatherwood: --Actually, Your Honor, I believe there were three trips, and they were short trips... they were trips of extremely short duration.

Justice Ginsburg: And what was there about... on one of those trips, there was a trespass on his property and rummaging through his trash.

Mr. Leatherwood: Well, that's not part of... that's not part of the allegations of the... of the complaint itself.

The complaint is saying that--

Justice Ginsburg: It was a more... a more general interference with his privacy, but those were examples that were alleged, if not in the complaint, somewhere.

Mr. Leatherwood: --No, there has been deposition testimony that there... on one of the trips, that the investigator looked at the timing of Mr.... of Respondent's trash delivery and also looked at... determined whether or not Respondent was receiving any mail at that particular location.

That does not justify the pervasive nature and the extent in which this lawsuit has reached into California and literally attacked the tax process.

And, once again, I will refer the Court to the Joint Appendix at page 60, where it is alleged that the California tax system itself is a... is a fraud... that is, put together in bad faith for the specific purpose of extorting an exit tax from former residents who... as they leave California.

Well, if the Court has no more questions in this regard, I would like--

Chief Justice Rehnquist: Do you want to reserve your time, Mr. Leatherwood?

Mr. Leatherwood: --reserve the balance of my time, thank you.

Argument of H. Bartow Farr, III

Chief Justice Rehnquist: Very well.

Mr. Farr, we'll hear from you.

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

In our federal system, it's recognized that the states will sometimes have overlapping jurisdiction.

When that happens, the Constitution allows each state to apply its own laws against the background principle of comity where they believe it would be appropriate to defer to the laws of another state.

And I submit that the Nevada courts here have applied these principles very carefully.

Nevada, of course, correctly held that they were not required to apply California's legislative-created law of immunity.

At the same time, however, they have applied principles of comity to strike out the declaratory judgment count that would have gone to the very issue that is being contested in the Florida... excuse me... in the California tax proceeding, which is the date that Mr. Hyatt moved to Nevada.

And they have also given California complete immunity for any negligence that it has committed.

So in this case, it seems to me, the system is working--

Justice Stevens: Mr. Farr, can I ask you, do you think they were compelled by the Full Faith and Credit Clause to grant immunity on the negligence claim?

Mr. Farr: --That's an interesting question, Justice Stevens, because Nevada officials themselves have immunity.

There would be a question, I suppose, of whether the Full Faith and Credit Clause requires that.

My general feeling is probably not, but that is really not a question so much of whether... a choice of law between California law and Nevada law, but simply a question of what Nevada law would apply.

So I don't think that the Full Faith and Credit Clause itself speaks to that issue, but I do think principles of comity will traditionally reach that result.

And, in fact--

Justice Kennedy: Well, are principles of comity dictated by the Constitution?

Suppose--

Mr. Farr: --They are--

Justice Kennedy: --suppose Nevada said they were not going to grant comity?

Mr. Farr: --That's correct, yes.

And I don't think there is a federally enforceable law of state comity, but I think that is the system that has existed essentially between sovereigns for much longer than the United States is--

Justice Kennedy: Well, is it your position then the private plaintiff can always bring suit against a state in the courts of another state?

Mr. Farr: --Well, the first question, of course, is whether the court has legislative... the first Full Faith and Credit question is whether the court in which the suit is brought has legislative jurisdiction.

So there is a requirement that that state have constitutionally sufficient contacts with the law--

Justice Kennedy: Well, then under due precedent.

Well, that's easy to satisfy.

Mr. Farr: --So assuming that they've satisfied that, they are entitled to bring a suit.

Then the question is whether the state... and I... and I believe at that point the state is free to apply its own laws to protect its own interests.

I think that's what the Full Faith and Credit Clause allows.

And it is the doctrine of comity that provides the acknowledgment of the state... the other state's interests.

And that's typically, in fact, what's happened with Nevada--

Unknown Speaker: It's very--

Mr. Farr: --versus--

Justice Kennedy: --it's very odd to me that California can't be sued in its own courts and it can't be sued in a federal court, but it can be sued in a Nevada court, which, if we follow that, the question really is has the... has the least interest in maintaining the dignity of the State of California.

Mr. Farr: --Well, there are two... two factors there, Justice Kennedy.

First of all, there is the fact that Nevada has some very real interests of its own, its own sovereign interests to protect here.

I mean, there have been torts which were both committed in Nevada and directed at a Nevada resident.

So, to begin with, before one gets to the immunity question, Nevada, as a sovereign state, has important interests in assuring compensation and also in deterring that kind of conduct.

So the idea that a legislatively created immunity by another state should be able to prevent Nevada from protecting those interests seems inconsistent with the federal system.

Now, if one goes beyond that to the question of inherent immunity, the very idea that a state should have to be subject to sue in the courts of another state, I think, first of all, as you know, we don't believe that issue is properly presented on the question presented in this case.

But if you would like me to address it just for a moment, I think there... there are differences if one looks to the... to the way that the... essentially immunity has been resolved in... in the course of... of the United States.

First of all, in its own courts, it has the common-law immunity based on the idea that it is both the king being sued in its own court, and also typically it is also the progenitor of the law, so to speak, to Justice Holmes' point.

In the United States, there's... the courts of the United States, there's a very specific situation.

At the time of the convention, the states were, obviously, forming a new sovereign, and the question of whether that sovereign was going to grant them the immunity they had in their own courts or whether that sovereign would be in the same position essentially as foreign sovereigns typically were, which is that they did not have to provide sovereignty except as a matter of comity.

That's The Schooner Exchange opinion.

But... so the states, at that point, had a very real interest in deciding that question, and they did, in fact, decide that question, as the court has recognized.

That is not true with respect to the immunity that they have had in the courts of other states.

Justice Breyer: Is... how does Alden fit into this?

In Alden, I take it the court now... we've held that a citizen of Maine suing in the State of Maine's courts alleging that Maine had violated a federal law can't do it.

Sovereign immunity.

Right?

That's Alden.

All right.

Suppose the citizen of Maine walks into a New Hampshire court and brings the same lawsuit against Maine, assuming New Hampshire has appropriate jurisdiction under its own laws.

Mr. Farr: Uh-huh.

Justice Breyer: Do we get a different result?

Mr. Farr: Okay, I think that is not a question that is within the notion of what is the question in this case.

Justice Breyer: No, no, well--

Mr. Farr: I'm sorry.

I--

Justice Breyer: --you see, what I--

Mr. Farr: --Excuse me.

Justice Breyer: --nonetheless, although--

Mr. Farr: No, I--

Justice Breyer: --what I'm trying to do is... is sort out what, in my mind, are a set of impossible anomalies, and that's why I ask you that question.

Mr. Farr: --I'm sorry.

I started to answer in the wrong way.

Justice Breyer: Go ahead.

Mr. Farr: What I... I reserve the point, of course, always, that I don't believe this is within the question presented.

Justice Breyer: Yeah, yeah, of course.

Mr. Farr: But I actually was going... what I meant to say is that I don't think it's the same kind of question in the sense that I think still when you're talking about enforcement of a federal cause of action in another state, that is still really a federal-state question.

Justice Breyer: See, but--

Mr. Farr: That's still--

Justice Breyer: --your answer, then--

Mr. Farr: --an evolving question.

Justice Breyer: --your answer to my question is Alden cannot be avoided simply by the Maine citizen walking into a New Hampshire court and bringing the same case.

Mr. Farr: That's correct.

Justice Breyer: All right.

Mr. Farr: I think that is--

Justice Breyer: And I would guess that's right.

Mr. Farr: --still a federal-state--

Justice Breyer: All right, assuming that's right--

Mr. Farr: --I think that is still a federal-state issue.

Justice Breyer: --assuming that's right, now, look at the tremendous anomaly, which you were just about to address, and I want to be sure you do.

Our citizen of Maine walks into the New Hampshire court and sues the State of Maine under federal law.

And the answer is, he can't do it because of sovereign immunity.

Our citizen of Maine does the same thing, but this time his cause of action is state law.

And now you say he can do it.

Mr. Farr: That's right.

And--

Justice Breyer: And the only difference between the two cases is that his cause of action is federal law in the first case, and he can't sue the state; but state law in the second case, and he can, which, of course, means that the law of New Hampshire binds Maine in a way that federal law cannot.

Now, that, to me, I just can't... that, to me, seems so anomalous that... that I'd like an explanation--

Mr. Farr: --Well--

Justice Breyer: --if you can give it.

And you see how I'm thinking of it as connected here, because the facts here are just part of that general anomaly.

Mr. Farr: --That's correct.

Actually, Justice Breyer, I think that's something that the court, to some extent, addressed in Alden itself--

Justice Breyer: Uh-huh.

Mr. Farr: --in distinguishing the opinion in Nevada versus Hall, when it noted that when you get into the situation of a state being sued in the courts of another state and, as in Nevada versus Hall, under a state cause of action, you have now implicated the sovereignty of a second sovereign.

So when one is now looking at the... at the issues of sovereign immunity, one is looking at a different platform of issues and also at a different historical base.

Justice Kennedy: But that seems to make their case even harder.

It would be difficult to conceive that the framers thought that Virginia could be sued in Pennsylvania but not in the federal court.

I would think that the presumption would be that this was an even stronger case for the exercise of sovereign immunity than when all of the citizens of the union are involved as in the Alden situation--

Mr. Farr: Well, I think that--

Justice Kennedy: --in the Eleventh Amendment.

Mr. Farr: --I mean, I think that there are two things going on.

I mean, first of all, the question is not whether they can be sued, but if not, why not.

For example, with Pennsylvania and Virginia, as I'm sure the Court is aware, had a... Nathan versus Virginia is a case in which that very situation came up.

But in the courts of Pennsylvania, the Pennsylvania Attorney General urged its own courts to recognize sovereign immunity.

So that could naturally fit within the idea that Schooner Exchange had made clear, which is that when you're talking about coequal sovereigns of that nature, one is talking about sovereignty that... excuse me, immunity that is extended as a matter of comity, not as a matter of absolute right of the other sovereign.

And the reason is... excuse me... the reason is that if you don't allow the sovereign to execute its own laws within its own territory, you're depriving that sovereign of part of its sovereignty.

Chief Justice Rehnquist: Well, doesn't our original jurisdiction as the states between states bear something on this question?

Mr. Farr: It bears a little bit.

But, of course, Article III itself is not a exclusive jurisdiction provision.

The Section 1251 provides exclusive jurisdiction with respect to suits between states.

Chief Justice Rehnquist: The idea that the framers would provide for its original jurisdiction in the Supreme Court in... for suits by one state against another suggests they thought it might be pretty hard to bring such a suit anywhere else.

Mr. Farr: Well, and they... certainly as a practical matter, they would have been right, Mr. Chief Justice.

I mean, as a practical matter, it has always been difficult to bring a suit against a state, either in its own courts or in the courts of another state.

I mean, even since Nevada versus Hall, typically states have granted immunity to other states for when they're sued in their own courts.

And if they haven't granted absolute immunity, what they have done, which I think is an important principle emerging... emerging principle of comity, is they have tended to look at their own immunity to see what kinds of suits could be brought against them and to try, then, to grant to the... to the outside sovereign that same type of immunity.

Justice O'Connor: Mr. Farr, have you found other examples around the country of suits by citizens of one state against another state in the other state's courts?

Mr. Farr: I--

Justice O'Connor: Is this relatively rare, or is it happening?

And in what context is it happening?

Mr. Farr: --It's relatively rare, and... but there have been some suits.

There are a few of them cited in our red brief, if I can find the page number, pages 38 and 39.

The... there are suits, for example, negligence suits involving the release of dangerous persons within another state who have created injury to citizens--

Justice O'Connor: Uh-huh.

Mr. Farr: --of that state.

There are more commercial-type things involving contracts or... one, in particular, is a it for invasion of privacy when someone who wrote a book disclosed information.

In general, though, Justice O'Connor, as I say, some of those suits, the courts have just said, we're not going to hear them whether you have a valid cause of action or not.

We're simply not going to... going to recognize that in our courts because of the sovereignty of the defendant.

Other courts have said, yes, we will open our courts, but we are going to look to our own immunity to try to have essentially a baseline to measure the sort of immunity that we are going to--

Justice Ginsburg: Mr. Farr, are you saying--

Mr. Farr: --accept.

Justice Ginsburg: --that that, too, is just a matter of comity?

Mr. Farr: I do think that that's--

Justice Ginsburg: Doesn't--

Mr. Farr: --just a matter--

Justice Ginsburg: --doesn't the Privileges and Immunity Clause of Article IV have something to say?

If you can treat a tax collector from California differently than the tax collector in Nevada, you're not giving their tax collectors equal privileges and immunities in Nevada.

Mr. Farr: --If one granted lesser immunity?

Is that the question--

Justice Ginsburg: Yes.

If one... you said that the only stopper was a notion of comity, and I'm suggesting that you might not be able to treat two officials, one from out of state, one from in state, to treat... to favor the in-state official.

But maybe Privileges and Immunities have... has something to do with that.

Mr. Farr: --If a state is entitled as a defendant to invoke Privileges and Immunities against the courts in another state, I would think that's right.

Certainly in the case--

Justice Souter: Is it?

Mr. Farr: --I--

Justice Souter: I mean, I thought--

Mr. Farr: --I would have thought not.

Justice Souter: --that would go to individual liability, but it would... it would not affect this question, but I may be wrong.

Mr. Farr: Well, no, I... that would be my assumption, also, Justice Souter.

I think that the... the Privileges and Immunities and Equal Protection are... are provisions that apply to individuals who are claiming discrimination in... in another state.

I don't think they would apply directly to a state.

But, as I say, the... the notion that comity is... is something that... that doesn't have a force, even though it's not federal enforceable, it seems to me is a little bit of a misperception.

Because, again, if one goes back to the notion of the law of nations or separate sovereigns, comity essentially has been the provision that governs their relations since well before the convention.

Justice Kennedy: Well, there is some reluctance to say that California officials can run amok in Nevada without Nevada being able to do anything about it.

I suppose if it were a pervasive practice, Nevada might be able to sue California in the original jurisdiction under some parens patriae theory.

I'm not sure about that.

Mr. Farr: Well, I mean, let me suggest a couple of other possibilities, Justice Kennedy, as well.

I don't... I don't know whether the court would take original jurisdiction of that question or not, but, I mean, the most direct example of something states could do, obviously, is they could reach agreements between themselves.

I mean, there have been two cases before this court involving suits against states in the courts of other states.

One was Nevada in California's courts.

This is California in Nevada's courts.

If those states, who are neighboring states, feel that this is an issue that they need to address, they could reach some sort of agreement and, therefore, have reciprocal legislation.

And, for example, under the Full Faith and Credit Clause for years, as the Court may know, there is a doctrine that said that states didn't have to enforce the penal laws of another state, even though Full Faith and Credit, on its face, would make you feel that maybe they would have.

But, in fact, states eventually began, through reciprocal agreements in decisions, and I think in legislation also, saying, you know, we essentially will enforce the penal laws and the tax laws of other states, so long as they do for us.

So, again, the states--

Chief Justice Rehnquist: Penal laws or penal judgments?

Mr. Farr: --No, no, penal judgments, the court said in... in Milwaukee County, have to be enforced, but they... they distinguished at that point, Mr. Chief Justice, the idea that a law itself would have to be in force before it had been reduced to--

Justice Breyer: Right, but what... what... what is the... I don't want to... I don't want you to get distracted, because I thought Justice Ginsberg and maybe Justice Kennedy and I were driving at the same problem, which is that imagine Nevada v. Hall is good law.

All right, now, the question comes up, How do you prevent Nevada from going wild?

All right.

And so now we have several answers: (a), Congress can pass a statute--

Mr. Farr: --Correct.

Justice Breyer: --(b) interstate compacts... that was what you were suggesting.

Mr. Farr: And... and--

Justice Breyer: All right.

Mr. Farr: --if I may--

Justice Breyer: Yeah, the--

Mr. Farr: --if I may intercede, it doesn't necessarily have to be a compact.

I'm not sure--

Justice Breyer: --Right, some--

Mr. Farr: --it's agreements that have to be proven.

Justice Breyer: --kind of a voluntary action by the states.

Mr. Farr: Right, correct.

Justice Breyer: (c) Privileges and Immunities, which has the problem that it refers to citizens and not states, (d) equal protection doesn't work, I don't think, because it says, again, citizens.

A due process clause, is a state a person under the Due Process Clause?

(e), what's (e)?

I mean, you see?

If Nevada... (e) is, of course, footnote 24, but then that gets us into the National League of Cities problem.

And so National League of Cities--

Mr. Farr: Well, there could--

Justice Breyer: --that... that... that approach... equal... no, Privileges and Immunities, due process of law, voluntary action states, Congress enacts a law, anything else?

Have we got... is that the exhaustive list that we must choose from?

Mr. Farr: --It's--

Justice Breyer: Or--

Mr. Farr: --it seems exhaustive--

Justice Breyer: --And the only... all right, that's... if... if nothing in that list works, then the only alternative is overrule Nevada v. Hall.

Justice Souter: Is--

Justice Breyer: --or, excuse me--

Justice Souter: --is comity on the list?

Mr. Farr: --Well, comity--

Justice Souter: Well, I mean... I mean I--

Mr. Farr: --excuse me... comity is--

Justice Breyer: --Comity... comity is not the answer to the problem, because... well, it is, in a sense.

It is, in a sense.

Mr. Farr: --Yeah, I mean--

Justice Breyer: Voluntary restraint.

Mr. Farr: --Excuse me.

I don't... I certainly don't mean to minimize the theoretical possibility that suits in courts of one state could ultimately prove to be a problem, generally.

What I'm suggesting is that there is nothing, first of all, in the history of the Full Faith and Credit Clause that would suggest that once a state has proper legislative jurisdiction, as I think everybody concedes that Nevada does here, that somehow that clause was intended to displace the law of that state simply because another state had made different policy choices about, let's say, here, compensation and immunity.

Chief Justice Rehnquist: But can you say that categorically and absolutely?

I mean, there are all sorts of permutations of facts that could up.

Mr. Farr: Well, what... the permutations and facts, I think, go particularly to what constitutes legislative jurisdiction.

So perhaps in that sense, my statement is broader, or seems broader in the context of this case than I mean it to be.

But I do... but I do think, in general, that I don't see any warrant in the Full Faith and Credit Clause, given the fact that it was enacted with very little debate, and almost all of the debate was about judgments and not about enforcement of other states' laws, I think it would be stretching the clause beyond recognition to say that at some point it was... it was telling states, you're going to have to set your laws aside and apply the laws of another state.

Chief Justice Rehnquist: There was a time in the '30s and '20s when this court came pretty close to that, the cases that preceded Pacific Employers.

Mr. Farr: That's correct, Mr. Chief Justice.

Justice Ginsburg: Clapper and Bradford.

Chief Justice Rehnquist: THE COURT Yes.

Mr. Farr: That's correct.

And as I think my argument might suggest, I think the Court was correct to essentially back away from that kind of balancing test and essentially go back to the principle of saying when a state is competent to legislate, then it may apply its own laws, leaving the additional questions about what might happen at that point to questions comity where a state is the defendant.

And, as I've suggested, Nevada courts have shown considerable comity already here, and the case, of course, is not yet concluded.

Chief Justice Rehnquist: Comity is something like a hearty handshake.

I mean, it... it's something that you can't put any... any force to.

Mr. Farr: That's... that's true in one sense, Mr. Chief Justice.

I mean, when I say it's not... that there's no federally enforceable state law of comity, I... that's true.

But at the same time, I mean, the court's decisions about comity since back in the last 18th century have emphasized that it is a serious doctrine.

It's a doctrine built of respect for... for other sovereigns.

And in particular... and I think this... this is... also goes to the practical problem that Justices Kennedy and Breyer are asking about... it also does have a healthy measure of self interest in it.

I mean, when... when you are talking about coequal sovereigns, any sovereign that is exercising jurisdiction over another sovereign understands that that's... the first sovereign... or the second sovereign has the same power and authority over it.

Justice O'Connor: Is... is the question of comity one that has a federal component so that this court should weigh in on when it has to be exercised?

Mr. Farr: I don't believe so state versus state, Justice O'Connor.

Or course, in the... in the types of cases that the board was referring to this morning, like McNary, there are comity elements.

And there... and there is a jurisprudence of this court with respect to federal and state relations which does depend on comity, and that is, of course, federally enforceable.

I don't believe that there is a concomitant enforceable doctrine--

Justice Stevens: But you're arguing--

Mr. Farr: --state to state.

Justice O'Connor: --Even in the face... even in the face of some development by state... a state court that seems totally out of whack with our constitutional structure?

Mr. Farr: Well, Justice O'Connor, I suppose I should--

Justice O'Connor: Are there no extremes?

Is there no limitation?

Mr. Farr: --Well, I... I mean, I'm... I suppose I should pause in the sense that... that if there is something that is so threatening to the constitutional structure and something for which there is no historical basis in... in terms of the... the way that sovereigns deal with each other.

Now, see, that's... that's where I think this case is very different, because even though there was certainly a practical tradition that states were not to be sued in other states, as I say, since Schooner Exchange, and, indeed, in the Verlinden in 1980, this court has always taken the position that when you're talking about relationships between sovereigns, and they're coequal sovereigns, and the issue is immunity between them, that is a matter of comity.

Justice Breyer: All right, but leave... say, this case, I can easily see on your theory writing the part of the opinion that says the acts in Nevada, the acts in Nevada that were arguably torts are certainly up to Nevada to pursue.

But the discovery commissioner here, they say, went way too far in ordering discovery and ordered discovery that would have been relevant only to negligent action and only negligent action, really, that took place in California, though a Nevada resident was at issue.

And they can't do that, says the opinion, because... because... and now this is where it seems to me there... something... what do I fill that blank with.

They can't do that.

They can't go over and, in Nevada, complain about negligent action as this discovery commissioner may have done, negligent action in California aimed at a Nevada resident where it's a tax action.

They can't do that because... and now what?

You see... do you see what's bothering me?

I... at this point, it seems to me there has to be something in the Constitution that limits that, and this case may raise that problem because of the actions of the discovery commissioner.

And, therefore, I think I need something to fill that blank with.

Mr. Farr: Well, as... I don't think, to start with, that the answer is the Full Faith and Credit Clause.

Justice Breyer: All right, what is it?

Mr. Farr: I mean--

Justice Breyer: I... it's an odd... an awkward vehicle, Full Faith--

Mr. Farr: --Right.

Justice Breyer: --but what is the answer?

Mr. Farr: Well, I mean, I still think that, in the end, the answer is that this is a matter that one trusts to the judgment of states--

Justice Breyer: So the answer is if they want to do that, they can do it.

Mr. Farr: --that if, in fact, there is a question about discovery, that--

Justice Breyer: Uh-huh.

Mr. Farr: --I mean, that I... accepting the characterization, although I dispute it to some extent, but to the extent there's a question about discovery, that is simply part and parcel of the states being able to exercise their jurisdiction.

I don't--

Justice Ginsburg: I thought discovery was--

Justice Souter: --Okay.

Justice Ginsburg: --interlocutory.

I thought that we couldn't write in an opinion, as Justice Breyer has suggested, if I didn't think that that question was currently reviewable.

Mr. Farr: --Well, there's certainly nothing specifically in the question presented about discovery.

The... the... the... again, to come back to the question presented, because we've discussed a wide range of issues, most of which I don't think are within the question presented, but when we come back to the question presented, the question is basically was the Nevada or the Nevada courts required to dismiss this action on summary judgment because of California's law of immunity?

And... and the reason for that is because, according to California, the Full Faith and Credit Clause requires Nevada to enforce California's law of immunity.

Justice Stevens: Mr. Farr--

Mr. Farr: Our view is... yeah?

Justice Stevens: --do I understand... your comity argument basically is... it's kind a self-executing thing, because each time a state has to answer the comity question, it asks the question, what would I do if the tables were reversed?

And as history teaches us, they generally treat the other sovereign the way they would want to be treated themselves.

And that's--

Mr. Farr: Well--

Justice Stevens: --well, that's the rule that seems to have been developed without any overriding constitutional command order here.

Mr. Farr: --That's correct, Justice Stevens.

And, in fact, they have become more specific in applying comity, I believe, in saying we want to treat the other sovereign as we do treat ourselves, not just as we want to be treated.

We are treating the other sovereign the way we treat ourselves.

Justice Souter: What if the... what if the case came, and they didn't do it?

Justice Breyer's question, how do I fill in the blank?

I... if, let's say, through this intrusive discovery process, systematically applied, they really were interfering with California's taxation, couldn't California bring an original action to enjoin this interference?

Mr. Farr: I certainly think that's possible.

And, of course, as I've said, I mean, California can try to talk to Nevada and try to reach agreement at a sovereign level about this, or if, in fact... the Full Faith and Credit Clause has a specific express commitment to Congress of the right to declare the effects of other laws.

Justice Kennedy: What would be the underlying--

--Underlying--

--substantive law in Justice Souter's proposed original action?

Mr. Farr: The... I suppose, I mean, based on what California has said before... said up to now, it would bring it under the Full Faith and Credit Clause, that it would say that there is some requirement--

Justice Kennedy: Well, but we wouldn't need an original action for the Full Faith and Credit Clause.

If that's so, it could apply in this case.

Mr. Farr: --That's correct.

I mean, whether they're--

Justice Kennedy: So what's the... what would an original action... there was... there's no underlying substantive standard to apply?

Mr. Farr: --I mean, the question would be, is there... obviously, the question that's being raised.

I am not aware of the federal substantive standard--

Chief Justice Rehnquist: We haven't--

Mr. Farr: --that says--

Chief Justice Rehnquist: --in boundary cases, though, adopted, as a federal rule, something maybe different from the law of either state.

Mr. Farr: --That's correct.

Now, you do have... there are certain cases, in fact, in which you can't have overlapping jurisdiction, where you can't own the same water, you can't own the same land, you can't escheat the same property.

So that's true.

The court has addressed those kinds of cases.

In a situation where you're simply saying another state is applying its laws, I prefer that they apply our laws, and I'm troubled by the discovery that they have... they have allowed in applying their own laws, I'm not sure what the federal principle--

Justice Ginsburg: It's not simply that.

Mr. Farr: --is that entitles you to stop it.

Justice Ginsburg: It's not simply that it's a prior action pending.

That's what makes this case different, and one of the things that makes it different from Nevada v. Hall.

Why is it... is the California proceeding ongoing?

Isn't it normal for a second court to stay its operations so it won't interfere with that prior action?

Mr. Farr: it... in fact, the Nevada court dismissed the declaratory judgment action precisely because it didn't want to get into the question that was at issue in the California proceeding.

Justice Ginsburg: Yes, but what about the intrusive discovery?

Mr. Farr: Well, most of the... most of the other material... with one exception, most of the other issues involved things that have nothing to do with the merits of the California inquiry.

I mean, whether confidential information has been improperly disclosed has... is not... does not require you to adjudicate the California tax liability in order to understand that.

The only thing that has any bearing that is close to that, I submit, is something that is roughly akin to like a malicious prosecution suit.

And tort law itself, over time, takes care of that.

We've not gotten to that issue yet in the Nevada Supreme Court.

Rebuttal of Felix Leatherwood

Chief Justice Rehnquist: Thank you, Mr. Farr.

Justice Kennedy: Mr. Leatherwood, you have five minutes remaining.

Mr. Leatherwood: Thank you, Your Honor.

In this particular case, I'd like to go back to Justice Breyer's thumbscrew example.

I don't think the Full Faith and Credit Clause would actually force Cal... force Nevada to apply... apply a California thumbscrew statute, because that would actually be outside the tax function.

What I'm saying in this particular case what has happened is that Nevada's failure to give us back to California's immunity statute has resulted in interference with California's tax system.

If this court does not intervene and give us back to our particular proposed test, which would look into California to see whether or not we would grant immunity, then essentially that would permit any defendant any form of taxpayer to run to the border and literally sue the State of California or any other state to prevent the enforcement of that particular statute.

In addition, I pointed out that this gives another state the power to intrude into the actual operation of another state, and that's what has happened here.

There has been some... some discussion as to whether or not Nevada has legislative jurisdiction.

We concede that they have legislative jurisdiction over the tort.

But we... what we complain about is that they won't respect our legislative jurisdiction or our tax process over our immunity laws, and that is our particular complaint.

We submit the case.

Chief Justice Rehnquist: Thank you, Mr. Leatherwood.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Baker v. General Motors Corp. - Oral Argument

Fri, 09 Jan 2009 14:50:05 +0000

Case:

Baker v. General Motors Corp.

Media File:

96-653_19971015-argument.mp3

Related Transcript:

1997_96_653_argument.xml

Transcript:

Argument of Laurence H. Tribe

Chief Justice Rehnquist: Well, we'll hear argument first this morning in Number 96-653, Kenneth Lee Baker and Steven Robert Baker v. General Motors Corporation.

Mr. Tribe.

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

One judge in Michigan, without an adversary hearing, enters a consent decree as part of a stipulated monetary settlement between G.M. and an employee, Ron Elwell.

The employee can give testimony about G.M.'s practices that it considers damaging but is unable to suppress in the usual manner... that is, by persuading a judge that the testimony is inadmissible because of attorney-client privilege, trade secrets, and the like.

The decree permanently enjoins the employee from being deposed or testifying without the consent of General Motors as a witness of any kind in State or Federal litigation brought against G.M. anywhere by anyone, whether a private plaintiff seeking damages or a public official enforcing health and safety regulations or criminal statutes.

Unknown Speaker: Mr. Tribe, you refer to the Michigan proceeding as a consent decree.

What are you... what precisely do you mean by that?

Mr. Tribe: What I mean, Mr. Chief Justice, is that there was no adversary hearing and though consent decree is sometimes used to refer to a class action, here it was a stipulated settlement entered on the record by the judge after--

Unknown Speaker: Well, that's true of all settlements, isn't it, that there's no adversary hearing?

Mr. Tribe: --Sure.

This is not... we're not suggesting that there was anything unique or unusual about it.

What's unusual, or at least what some people think is unusual, is that the request for a subpoena to depose the employee or to call him as a witness comes from a litigant who was not a party to and had no notice of the little proceeding that led to the quite usual entry of the decree.

Now, the district--

Unknown Speaker: Well, even if Baker had had notice in Missouri, I take it your position is he wouldn't have to go to Michigan.

Mr. Tribe: --That's certainly true--

Unknown Speaker: Well--

Mr. Tribe: --but it makes it, if anything, worse that they didn't have notice.

Unknown Speaker: --I take it your position would be the same if there had been an adversarial proceeding and... which had resulted in--

Mr. Tribe: Absolutely.

Absolutely.

I make that point only because at various points in the brief by General Motors it's suggested that there were some elaborate findings that this was the only possible way of protecting privilege.

Our position would be the same anyway, but I just wanted to note the fact.

The district--

Unknown Speaker: --I thought, Mr. Tribe, that you made that point to underscore that issue preclusion has no part in this case at all, because nothing was ever actually litigated.

Mr. Tribe: --That's certainly true, Justice Ginsburg--

Unknown Speaker: So--

Mr. Tribe: --and it's in addition true that if there had been litigation, it's somewhat ironic that a determination by Judge Hathaway in Michigan that, for example, some document was privileged in a proceeding between General Motors and Elwell would obviously not be binding against the Bakers here, and yet the intriguing thing is that this decree, the injunction, has this enormous effect on them.

The question is, does it matter that they weren't there?

The district court thought it mattered a great deal, invoked what it called the rights of third parties... at page 28a--and essentially took the position that the full--

Unknown Speaker: --This is the district court in Missouri now?

Mr. Tribe: --No, I'm sorry, the district... yes, the district court below, in Missouri, Mr. Chief Justice... took the position that the full faith and credit statute should not be read to mean that a decree of this kind, and I quote him, forever defines the rights of innocent third parties who have a keen interest in the information that Elwell holds.

Now, the Eighth Circuit disagreed, took the position that the whole point of the decree was to dispose of what it called these discovery rights of litigants, and to do so in all of the other lawsuits that the Michigan judge assumed would follow.

Of course, if the Eighth Circuit is right, the consequences are pretty sweeping.

The old maxim that the public has a right to every man's evidence will need a footnote saying, unless he has sold his silence--

Unknown Speaker: Why is that?

Mr. Tribe: --evidence might expose.

Unknown Speaker: Why is that?

Isn't the issue just whether the Baker... what's the... the plaintiff--

Mr. Tribe: The plaintiffs here are the Bakers.

Unknown Speaker: --The Bakers--

Mr. Tribe: The children.

Unknown Speaker: --would have to go to Michigan and say, we're not bound by the Michigan decree.

Of course they're not bound by it.

So they'd go to Michigan and they'd say, look, we've never litigated this, and therefore will you please modify the decree because, after all, we don't want to ask him about any privileged information.

We don't want to ask him about any confidential information.

We want information that we have a right to.

Your decree is too broad, so modify it.

We were never parties.

And they'd be totally right in that, wouldn't they?

So the issue is just what court they have to go to.

Mr. Tribe: Well, that's one way of putting it.

If that were the only issue, then I think this Court's decision... really several decisions.

Crider v. Zurich, a decision of this Court, holds that a local venue rule like the one Michigan has saying that you've got to go to the original issuing court in order to make a change in a decree or a judgment or an injunction, because that denies the full faith and credit premise of the equal competence of the courts of other States to entertain the matter, that kind of venue rule is not entitled to full faith and credit.

Unknown Speaker: Well, isn't another way to answer the question to just say that it's not Baker's burden to undo the injunction, it's G.M.'s burden to show that Baker is bound, and it can't do that when Baker wasn't a party.

Mr. Tribe: That's certainly right, Justice Kennedy, and in fact--

Unknown Speaker: That's precisely the issue, because... you might come to this when you want, but what's worrying me is, if you require the Bakers to go to Michigan you run into the problem that Justice Kennedy raised.

Why should they have to go to Michigan?

Mr. Tribe: --Yes.

Unknown Speaker: All right.

But if you don't require them to go to Michigan, you run into the possibility that Elwell, the Elwells of the world, i.e., those under injunctions, will get under conflicting injunctions, and then they'll really be in a mess because in... you know, you have one State telling them you have to do a thing and another State saying you can't do a thing--

Mr. Tribe: Well, the--

Unknown Speaker: --and that would produce a terrible practical mess, so between those two evils, it seems better to send them to Michigan.

Mr. Tribe: --Well, let me back into that, Justice Breyer.

I certainly don't agree that that's better, and I also don't agree that it's a hopeless clash of evils.

This very settlement took care of that.

There was a side agreement that said that if he is ordered to testify, then he cannot be sanctioned.

He, indeed, has testified against G.M. in some 30 trials.

Not once--

Unknown Speaker: This is a really important point in the case.

Let's assume there's no settlement agreement.

Let's just talk about conflicting injunctions.

What would be the answer if there were no settlement agreement?

G.M. says, well... or, Elwell says well, I'm being told one thing in one State and the other thing in the other State, and what's the answer to that?

Mr. Tribe: --Well, I think the answer is that contempt requires a certain mens rea, and that in that case he cannot be held in contempt for following the order of a court that appears to have competent jurisdiction--

Unknown Speaker: Well, doesn't the Missouri court also have the capacity to instruct G.M. not to enforce the injunction against Elwell in defiance of Missouri's orders?

Mr. Tribe: --I think that's certainly right.

G.M. has to be before the Missouri court to create the problem.

In this case, the way it was indeed structured was with a side agreement that eliminated the very problem that the Court--

Unknown Speaker: But what I'm actually worried is not this case.

I'm worried about custody cases, antitrust cases, dozens of cases in which very complicated injunctive decrees could have been entered against defendants in State 1, and then grandma in Florida in a custody case, or any supplier in an antitrust case produces a different action in Florida and puts Alcoa or Swift or mummy or daddy or somebody under a conflicting injunctive decree, and that's what I'm worried about.

Mr. Tribe: --Well, but I do think first there's obviously a certain wisdom in taking these one case at a time, and it seems to me very clear that in a case like this, where it is just wordplay to say that this is not being used against the Bakers, that they're not being bound, of course they are.

They are being deprived of the procedures that would otherwise be available to get this evidence, and the only thing that's being invoked to deprive them of it, in a sense a legal defense to their claim, is the Michigan judgment.

In that circumstance, just as in--

Unknown Speaker: That's what full faith and credit always produces, some result like that.

Supposing the Michigan decree hadn't involved testimony.

Suppose it involved a car, and you go to Missouri and you say well, why should this Missouri creditor be denied the resort to Missouri courts over this claim to a car?

Mr. Tribe: --Well, what--

Unknown Speaker: And the answer is, full faith and credit.

Mr. Tribe: --Well, Chief Justice Rehnquist, this Court in in personam as opposed to in rem cases, where there is, in fact, a finite object and it has to be allocated, and once it is you can't continually relitigate it, has never held that we can simply let the chips fall where they may when a judgment has been entered not over an object but over knowledge in someone's head, a judgment that says we're going to say you can't testify it.

That is, in Martin v. Wilks it could also have been said in response to your opinion for the court could also have been said, well, consent decrees often have side effects and, indeed, the way that General Motors tries to make this look like anything other than an easy case is to suggest that the decree is only being enforced against Mr. Elwell, and that my clients are simply in the wrong place at the wrong time, the way their mother was in that car.

Now, that, I think, is sheer sophistry.

It's not true, because unlike a judgment that changes something physical, it reduces the assets available, it eliminates a job, this judgment has effect on the Bakers only because it is used to preclude them from arguing to the court in Missouri that they are entitled to have Elwell's testimony.

It has preclusive effect.

It involves the absentee adjudication of their rights.

That's what this Court has never allowed.

Unknown Speaker: Mr. Tribe, would you distinguish what the... we're told by your colleague that this is just an incidental effect.

It's like, creditor 1 sues debtor, and debtor, paying that judgment, wipes out debtor's fortune.

Creditor 2 comes along, just as good a case, tough luck.

Mr. Tribe: Right, and this, Justice Ginsburg, is nothing like that.

A case like that shows that a judgment can be for some people a natural disaster.

The landscape has changed and you can't reconstruct it.

The judgment in this case didn't change anything physical.

It's not, for example, as though this was a judgment that Mr. Elwell did something terrible and should be executed in the State of Michigan which would, of course, render him unavailable.

The only way... just... you have to ask yourself, I think, what the causal chain is.

Their argument is, so what, too bad, the judgment in Michigan has made this fellow essentially unavailable, just as though he were incarcerated.

But of course then, under the Federal rules, one could at least depose him.

The fact is, if you ask, what's the causal chain by which he was made unavailable, he's unavailable only to the extent... and this goes back to Justice Kennedy's question... that General Motors' request to the judge in the State of Missouri that the judgment in Michigan be treated as preclusive of the rights of the litigants in Missouri, who weren't there, weren't represented, weren't privies, had no notice, it's only to the extent that that request is granted.

Unknown Speaker: But if Elwell really is not available, then couldn't you, on behalf of the Bakers, introduce Elwell's testimony from the Georgia case, where he did testify, I think about the same defect.

Mr. Tribe: Well, the testimony about the Ivey memorandum was particularly helpful here, and rather damning, I think, to General Motors, but certainly one ought not to be... it's really... the idea that there are second best solutions all build on the wrong premise, that you can bind them to this decree, bind in a strictly technical, legal sense.

That is, Justice Stevens, for example, in the dissent in Martin v. Wilks came up with a possible way that a consent decree in a case like that might be used against the other side without really binding them.

That is, it might bear on the state of mind of the person subject to the decree.

It might help the employer in a title VII case negate a claim of bad faith.

No such indirect use of the decree is involved here.

The decree is being brought to bear fully on the only people who are hurt by it.

It's not being enforced against Mr. Elwell, who's never sanctioned.

The entire structure of the situation is that General Motors obtains a settlement in which it has a chance to argue to courts around the country you ought to prevent the plaintiffs in these cases from getting this evidence that they could otherwise get, to which they would be entitled under the Federal rules, not because you have a right to some kind of evidence in the abstract, but because you have an entitlement to use the rules in place.

Unknown Speaker: If we were to rule in your favor and cite the Full Faith and Credit Clause, would we also have to talk about due process, or would we say that the Full Faith and Credit Clause is complementary to the basic principles of the law of judgments, and that Baker is just not bound under standard principles of the laws of judgment?

Would--

Mr. Tribe: The latter.

The latter, Justice Kennedy.

That is, and this Court's precedents make clear that full faith and credit and the law of judgments and of res judicata are bound up historically and analytically, and the only reason you might want to reach--

Unknown Speaker: --We don't have any square holding.

We've intimated that in some of the cases, I think.

Mr. Tribe: --Well, I... there's certainly alternative holding in... some of the earlier cases before the 1970's, when the Court began positivizing procedural due process, there were cases, a fair number of them, including Hansberry v. Lee and others, in which the language of the Court is that it has been a principle since time immemorial that people are not bound by judgments in proceedings that they don't have a chance to participate in, and occasionally the phrase, full faith and credit, has entered those opinions.

But that has been axiomatic throughout.

You only reach procedural due process if you think that Congress for some reason in section 1738 departed from that normal understanding of full faith and credit and the law of judgments, in which case we argue that it would have been a deprivation of property in the form of an entitlement to invoke the procedural rules, much like Logan v. Zimmerman, without due process, even considering Justice Breyer's--

Unknown Speaker: Excuse me.

The property involved here is the right to invoke the procedural rules?

Mr. Tribe: --Yes, as in--

Unknown Speaker: I thought the property was your cause of action, which--

Mr. Tribe: --Well, there are two.

There's a State-created property, Justice Souter, the tort cause of action, and a second State-created property interest in the Missouri-created separate cause of action for damages for aggravated action.

It's a kind of punitive damage--

Unknown Speaker: --I don't think you'll find much disposition on the Court to enlarge on Logan v. Zimmerman.

Mr. Tribe: --I don't have any desire to urge the Court to enlarge on Logan.

Unknown Speaker: I think you'd have to to rely on it the way you said you did.

Mr. Tribe: Well, with respect to the federally created entitlement to invoke the rules, I don't think... the key point is, we're not talking, Mr. Chief Justice, about some takings argument.

We're only talking about the fact that when the rules provide a clear right to obtain or to seek to obtain a subpoena or a deposition, then that is enough of an entitlement so that it would not be constitutional for a court to say well, we'll decide that by a flip of a coin.

Unknown Speaker: Would you say that it's liberty or property, or do you have to say that it's one of the three?

Mr. Tribe: I don't think one has to choose--

Unknown Speaker: One of the two?

Mr. Tribe: --but it could be... it could be either, but I--

Unknown Speaker: Does it have to be one?

Mr. Tribe: --Well, I think it is both.

It would have to--

Unknown Speaker: It has to be one, doesn't it?

Mr. Tribe: --It certainly has to be one of the three, and it's not life.

But it doesn't really in this case have to be--

[Laughter]

--any of the three, because full faith and credit doesn't extend in this way, doesn't extend in this way to judgments that were rendered in a proceeding that one was an utter stranger to.

I mean, whatever you think of the practical problems that Justice Breyer was discussing, I think you can rule out as one of the possible solutions a solution that says, well, the grandmother in his hypothetical, or the children in mine, will simply have to be bound by a judgment in another jurisdiction.

That can't be right.

Unknown Speaker: Mr.--

Mr. Tribe: Now, if you say, Justice Breyer, well, I'm not saying they're bound, I'm just saying they have to travel to Michigan to seek relief, Justice Brandeis in the Chase National Bank case in 1934 essentially was addressing that problem when he said that you should have a right to stay at home, mind your business, and know that the rights won't be affected by a judgment--

Unknown Speaker: --Fine.

Do you--

Mr. Tribe: --in a district court.

Besides--

Unknown Speaker: --What has surprised me in this... maybe you can just suggest something I could read.

It seems to me in 200 years of history, it must have come up before that State A enters an injunction against Smith, and a person in a different State who wasn't a party and isn't bound would either have to go to the first State to get it modified or could sue in his own State and would discover that that person whom the injunction was aimed at could be made subject to conflicting injunctive orders.

Mr. Tribe: --Well--

Unknown Speaker: I'm amazed that there isn't something written that's absolutely clear, explaining--

Mr. Tribe: --What--

Unknown Speaker: --that it's either the one way or the other way.

Mr. Tribe: --Justice Breyer, I hate to disappoint you, but I have not found anything that is clear enough that it would bear on an injunction remotely like this one.

Unknown Speaker: Well, but you see, maybe your injunction is not like what I'm saying, but what's bothering me is the instance that I'm saying--

Mr. Tribe: The effect--

Unknown Speaker: --other injunctions, so is there something you can point me to that would say why it's better to have the possibility of conflicting injunctions than to require the plaintiff to travel to the State where he's not bound and get the modification.

Mr. Tribe: --Well, the other party can travel, but his... I don't understand why General Motors, given its vehicular mobility--

[Laughter]

--couldn't just go back to Michigan and ask for some kind of relief.

Unknown Speaker: Mr. Tribe, I thought when you were concentrating on preclusion principles rather than a due process personal right that what you were talking about is one State's right to dictate the rules of admissibility of evidence in another State, and the full faith and credit is about relations to the... between the States in the national union more than it is about personal rights of individuals, and here there's a question of the allocation of authority between Michigan--

--Right.

--and Missouri.

Mr. Tribe: If I might, Justice Ginsburg, simply jump to that for a moment, because it seems to me that's a very important feature of the case that I'm not sure is as thoroughly explicated in the briefs as it might be, and that is the following.

Set aside for the moment the question of whether under normal principles of preclusion these children who were strangers to the proceeding could be bound.

I think the answer to that is clearly no.

Secondly, I think it's clear they're being bound.

But the point you make is the one that intrigues me most in a way, and that is, the whole premise of full faith and credit in a Federal union like ours is a premise of mutual respect, the premise that says a State is not to assume that the courts of another State just can't do justice as well as its courts can and, indeed, that premise pervades our system.

The Anti-Injunction Act and the Younger doctrine means the Federal courts can't presume inadequacy on the part of the State courts, and this Court's decisions in Donovan v. Dallas and General Atomic indicate, too, that a State court cannot tell litigants, even litigants in its courts, that they may not invoke certain procedures in a Federal court.

In General Atomic it wasn't even an antisuit injunction.

They were being told that they could not use Rule 14 as an impleader.

This case is a classic example of that.

Essentially, if the Eighth Circuit's use of the decree from Michigan is affirmed, it will follow that the courts of a State can not only make decisions that will have res judicata and preclusive and sometimes collateral estoppel effect substantively in the courts of another State, it will follow that the courts of a State can control who can be called as a witness, who can be deposed, what evidence can be introduced in another State or in the Federal courts.

That, it seems to me, is impermissible.

I mean, decisions--

Unknown Speaker: But... you know, this is troublesome because Michigan isn't telling Missouri what to do.

Missouri can allow Elwell to be called to the stand, and Elwell can say, but I can't testify to this.

I decline to answer.

So Missouri isn't being deprived of the--

Mr. Tribe: --No, Missouri, Justice O'Connor--

Unknown Speaker: --process.

Mr. Tribe: --Well, Missouri is being told that it's--

Unknown Speaker: Plenty of times witnesses have some privilege that can be asserted so that the Bakers wouldn't be entitled to certain testimony.

They can call the witness to the stand.

The witness says, sorry, I'm here, but this is privileged information.

Mr. Tribe: --But if it's privileged because of some background rule like the Fifth Amendment privilege, that's one thing, but if a State can create this kind of special witness protection program under which it can decide which witnesses it would be utterly futile to call in the courts of... in the Federal courts despite their own independent interest in the administration of justice, that would be an interpenetration--

Unknown Speaker: Do we know how other courts in Michigan would treat this injunction?

Has it been tested in another suit against G.M. in Michigan, for instance?

Mr. Tribe: --There are several cases, Justice O'Connor, in which judges have washed their hands of it and have said, under our venue rules go to Judge Hathaway.

Even though it was the same court in Michigan, they treated the venue rule as a kind of rule of personality, and Judge Hathaway apparently has sort of washed his hands of it and has said, I put the injunction in place, so that it appears to be--

Unknown Speaker: Mr. Tribe, can I ask you a question about your understanding of the meaning of the injunction?

There's some difference between the side agreement that says we won't seek contempt charges if you testify and the text of the injunction itself.

Do you agree that the injunction in effect says to the... this witness, if you are subpoenaed to testify or ordered by a court in another State to testify, you shall not comply with that order?

Mr. Tribe: --The answer is yes.

I think it probably means that, but it's ambiguous, and the record doesn't resolve the ambiguity.

Unknown Speaker: Well, if it means that, do you concede or do you dispute that the Michigan court will have the power to enter such an order?

Mr. Tribe: I dispute that the Michigan court has the power to enter an order that directly tells someone to defy the order of another jurisdiction--

Unknown Speaker: Well then, if you're right on that, the order would not be entitled to full faith and credit under elementary jurisdictional principles.

Mr. Tribe: --Well, I think that's right as well.

Unknown Speaker: But you don't seem to make that argument.

Mr. Tribe: Well, we make it indirectly in the point that I was elaborating to Justice Ginsburg.

That is, if it is true that the courts of the united States and of the various States are not authorized to put people in this circumstance and in effect to make inroads in the internal operation of the systems of other States and of the Federal Government, then this order is completely void independent of the nonparty status of the Bakers.

Unknown Speaker: So you want us to have some kind of a standard to say that you can't interfere with the vital or important interests of the sister State?

Mr. Tribe: Well--

Unknown Speaker: I mean, is that--

Mr. Tribe: --No, it's not quite as big as that, Justice Kennedy.

I think as in Prince and in New York this is a case that's... that I think, though, there are much easier ways to decide it.

Under normal principles of judgments, I think it's possible to say--

Unknown Speaker: --Well, what--

--What is the standard?

Excuse me.

Mr. Tribe: --That the internal operations of the judicial systems of each State cannot be manipulated or commandeered by the judgments of other States, but I don't myself suggest that a case that can be disposed of as simply as this one because of the Bakers' nonparty status should be the vehicle either for exploring the puzzles that Justice Breyer raises or for adopting this add-on to Prince.

Unknown Speaker: What if the Michigan court had litigated the issue of privilege as between Elwell and General Motors--

Mr. Tribe: Yes.

Unknown Speaker: --and had concluded that information about subject X was privileged, and made that determination and then said, and you can't disclose that, Mr. Elwell, anywhere, anytime.

Is that entitled to full faith and credit when Elwell is called then as a witness in another jurisdiction?

Mr. Tribe: I think as between Elwell and G.M., yes, although the Bakers or others like them are not bound by that determination under standard principles of preclusion.

Unknown Speaker: That is no.

I mean, your answer is no--

Mr. Tribe: Well--

Unknown Speaker: --in the context of this case.

Mr. Tribe: --It depends whether there is a nonparty whom one is seeking to bind.

Unknown Speaker: The only point at which the one State is commandeering the process of the other, I take it, is the point at which the second State simply will not hear the third party.

The State... the second State says, I don't care what you tell me, there is a decree, full faith and credit, that's the end of the issue.

That's the point at which it commandeers, isn't it?

Mr. Tribe: I think, Justice Souter, yes, and that's what the Eighth Circuit is basically telling the courts of Missouri to do.

I think I perhaps should reserve the balance of my time.

Unknown Speaker: Very well, Mr. Tribe.

Mr. Cappuccio, we'll hear from you.

Argument of Paul T. Cappuccio

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

There are two reasons why there cannot possibly be a due process objection to the application of full faith and credit here and Justice Breyer, your question raised one of those grounds and, Justice Kennedy, you picked up on it and I'm going to try to answer both of you, and Mr. Chief Justice, you raised the other ground, and probably the simplest reason is that ultimately by the application of full faith and credit here we are just talking about what court will decide whether or not in this case Elwell will be allowed to testify.

That's the application of full faith and credit, and that--

Unknown Speaker: The application of full faith and credit as far as I know, in all the history of that clause, this Court has never even said that full faith and credit is owed to a decree ordering a person to do an act.

Indeed, wasn't it entirely clear under the regime that existed until the thirties under the First Restatement of Conflicts that a granting or denying... and I'm reading you from the First Restatement section 449... granting or denying equitable relief other than in order to pay money is a matter of discretion, and the decision of one court to give specific relief will not limit another court and thus exclude the use of discretion by the second court.

That was talking even as between the two parties to the first judgment, and here you're saying, oh, but we can enforce an order to act not only as to the party who was ordered to act, which this Court has never said comes within full faith and credit, but to... against a stranger.

Now, that is really asking this Court to take a giant step.

Mr. Cappuccio: --Your Honor, I respectfully disagree.

I don't think it is.

I think the Restatement is flatly wrong in what it said.

This Court has never denied full faith and credit to equitable decrees, and there is no basis for distinguishing--

Unknown Speaker: Just give me one citation where this Court has said State 2 must compel X to do an act simply because State 1 compelled X to do an act.

Mr. Cappuccio: --Well, I can give you... a custody decree, for example, will require someone to have or not have the child.

A... Cole v. Cunningham, which was an antisuit case which went very far--

Unknown Speaker: All that Cole v. Cunningham said was that State 1 can issue an antisuit injunction.

It did not say that State 2 had to pay that injunction any mind.

Mr. Cappuccio: --But Your Honor, there is no basis in either the language of section 1738 or any policy of full faith and credit to treat an injunction or an affirmative injunction, as opposed to a prohibitory one, any different.

They are both judicial proceedings--

Unknown Speaker: I'm simply asking you, has there ever been such a case in the history of the United States... custody is a status, child custody.

Those decrees are modifiable.

Mr. Cappuccio: --I am unaware--

Unknown Speaker: I am not aware... I am aware of some, as you no doubt know, the land cases, Fall v. Eastin, Klopp v. Klopp say even the very actor that was told to convey a piece of property in State 1 doesn't have to do it if he's in State 2 and that's where the property is.

Mr. Cappuccio: --Well, I'm not sure that's the holding of Fall v. Eastin.

Actually, the problem in that case was that the court tried to effect title to land directly.

But I think in that case the husband could be directed to convey the land, and I think the concurrence in that case--

Unknown Speaker: Well, it's a long extension.

I'm simply making the point that you are asking this Court to make a ruling that it has never made.

You may be right that it should.

Mr. Cappuccio: --Your Honor--

Unknown Speaker: You may be right that the Restatement was wrong and that those cases were wrong, but it is something very novel you're asking us to do.

Mr. Cappuccio: --Your Honor, two answers to that.

Fall v. Eastin is actually an example for me, because I think it was Justice Holmes in his concurrence thought it was quite plain that the order requiring the husband to convey the land was entitled to full faith and credit, and second, we cite a number of lower court cases in our briefs, including from the Seventh Circuit, that established that this is a fairly well-settled issue that full faith and credit is entitled to injunctions, both prohibitory injunctions and affirmative injunctions.

Unknown Speaker: But in all events, the other problem is that you're trying to make this applicable to Baker, and Baker is simply not bound.

Now, if G.M. finds itself in the position of Elwell testifying, and it tries to hold Elwell in contempt back in Michigan, would Elwell have a defense on some sort of due process grounds, do you think, that he was ordered to do what the Missouri court told him to do because due process concerns and full faith and credit concerns simply did not allow the injunction to be enforced?

Mr. Cappuccio: No, sir.

He would be in contempt of the injunction.

But I understand the problem here, and the problem here is to 1) ask what sort of effect is this having on third parties, and is that effect so great as to violate due process, or does it leave them with a way to defend their rights in a manner that is consistent with due process?

Unknown Speaker: Well, I'm not sure that we have to address it in the due process context and, frankly, I hope we don't have to.

Can't we just ask whether this is required by the Full Faith and Credit Clause?

Why do we have to pin it on some due process--

Mr. Cappuccio: Well, Your Honor, because the application of full faith and credit is fairly straightforward here, and this picks up on another question you had.

The full faith and credit statute says that the Michigan injunction is entitled to the very same force and effect that it would have within the State of Michigan.

That's common ground.

The Michigan courts, we were fortunate in this case, have interpreted the force and effect of this very injunction, and the case that we cite in the red brief is the Brisborne case, and what second courts who people have gone to have said is that the force and effect that this injunction is due is that Ron Elwell is prohibited from testifying unless and until somebody goes back and presents their claim to the Wayne County, Michigan court to allow him to testify.

Unknown Speaker: --But those people were all within the jurisdiction of the Michigan courts, were they not?

Mr. Cappuccio: They were, and I--

Unknown Speaker: And that's different, because the Bakers are not.

Mr. Cappuccio: --Well, Your Honor, it is different from... on the due process question, I agree with you.

It is not different--

Unknown Speaker: But as Justice O'Connor was indicating, it seems to me it's also different because of the fundamental law of judgments, which is that you can't apply a judgment or enforce a judgment against a person... against... where there was no personal jurisdiction over that person originally.

Mr. Cappuccio: --Well, that--

Unknown Speaker: It's just a simple personal jurisdiction.

Mr. Cappuccio: --That sort of raises the question as to whether these people are being bound by the judgment rather than being affected by the judgment in some incidental way, but I think that bound debate, which the Court has had in Martin v. Wilks, is just a proxy for the due process analysis.

The question--

Unknown Speaker: Mr. Cappuccio, it isn't in this respect.

You know, you gave the creditor 1, creditor 2, and I followed that, creditor 2 comes too late, and it's just an incidental effect.

But here, the whole purpose of this injunction was to control litigation not in Michigan but elsewhere.

The whole purpose was to say, in effect, Michigan rules the world.

It determines what evidence will be admissible in courts all across the country, although... and I think you'll agree with me that to this extent the Restatement of Conflicts is right... each State applies its own rules to determine the admissibility of evidence.

So here is Michigan in effect preempting the ordinary operation of the rules of evidence of all the courts in the country--

Mr. Cappuccio: --Your--

Unknown Speaker: --and I've never seen any decree quite like that.

Mr. Cappuccio: --Your Honor, this is just Michigan deciding something between Ron Elwell and General Motors and preventing Elwell from hurting General Motors.

What makes this apply elsewhere is the Full Faith and Credit Clause, nothing that the Michigan court did, and what that says is, we have decided as a Nation because someone can step over the line and hurt General Motors just as well in another State, that the... that that judgment is enforceable everywhere.

Unknown Speaker: May I--

--Mr. Cappuccio, why isn't it the case that we say, in accordance with the Restatement rule, that the Full Faith and Credit Clause does not bind Bakers, who were not privy to that proceeding in Michigan, and that General Motors' remedy is to go after Elwell for contempt in Michigan--

Mr. Cappuccio: Because, Your Honor--

Unknown Speaker: --if he agrees to in fact testify?

Mr. Cappuccio: --Because, Your Honor, with the Full Faith and Credit Clause requires, again, is that the Michigan injunction be given the same force and effect, and at a minimum I would argue that requires--

Unknown Speaker: Do you have any authority that the Michigan courts say that their judgments bind persons who were not before the court, and over whom the court had no personal jurisdiction?

Mr. Cappuccio: --I'm sorry, Your Honor, they do not say that.

The Michigan courts--

Unknown Speaker: Well then, it doesn't have the effect that you seek to give it here.

Mr. Cappuccio: --No, I'm sorry, Your Honor, the Michigan courts' cases simply say that someone who is affected by the judgment and seeks to reopen it, or seeks to modify it or challenge it, must go back to the court that rendered it.

It is merely a litigation channeling provision.

Unknown Speaker: If they're already in Michigan.

Mr. Cappuccio: Well, but by... that's right, Your Honor, because that rule is just for Michigan, but by operation... this is the most important point.

By operation of the Full Faith and Credit Clause, that Michigan rule applies to govern this judgment.

It is--

Unknown Speaker: Mr. Cappuccio, would you tell me how Michigan has the power to drag somebody in Alaska, in Hawaii, and say you can't... plaintiff, you can't choose your own forum.

You have to come to Michigan to litigate.

The scene that I get from what Michigan... what you are attempting to extract from this Michigan judgment is in effect Michigan rules the world, like the old story about Tobago rules the world, only now it's Michigan is going to decide what evidence comes in all over.

Mr. Cappuccio: --I understand that, and I lay that at the feet of the U.S. Congress, and they were wise to have done that.

That is what section 1738 does.

Unknown Speaker: No, but Mr. Cappuccio, may I ask this question?

Mr. Cappuccio: Sure.

Unknown Speaker: It only does it if the Michigan court had the power to enter the order it did enter.

You would agree with that much, I assume.

Mr. Cappuccio: Jurisdiction over the person or subject matter, yes, sir.

Unknown Speaker: And would you think there is any question at all about the power of a Michigan court to order a litigant before it to refuse to comply with any normally lawful court order that might be entered anywhere else in the country?

Does that bother you at all?

I'm just looking... I'm not looking about third parties.

Mr. Cappuccio: I understand.

Unknown Speaker: I'm just looking just at Elwell.

You are saying to him if... under your reading of the injunction, as I understand it, it in effect says no matter how lawful the court order may be that directs you to testify, you must refuse on pain of contempt.

Mr. Cappuccio: I agree.

He would be in contempt if he did that.

Unknown Speaker: And you think it's perfectly clear that there's no jurisdictional issue as to the power of a court to enter such an order as required full... must be given full faith and credit.

Mr. Cappuccio: I can't imagine what the jurisdictional issue would be.

The court had jurisdiction overt the persons, and the court had jurisdiction over the subject matter, and they entered an injunction that prevents Elwell from testifying against General Motors.

What makes it extraterritorial in its effect--

Unknown Speaker: Well--

Mr. Cappuccio: --is the Full Faith and Credit Clause.

Unknown Speaker: --as between Elwell and General Motors I suppose it's a settlement.

If it had been contested he could have appealed through the Michigan courts, but he can't collaterally attack the decree--

Mr. Cappuccio: That's--

Unknown Speaker: --just because it may be improper.

Mr. Cappuccio: --That's right, Your Honor.

That's absolutely right, and that's an important distinction here which is separating the difference between whether this injunction is overbroad, which I'm not asking this Court to decide... I'm not trying to stifle debate as to whether this injunction, by covering evidence that might not be privileged, is overbroad, and whether it's entitled to full faith and credit.

Unknown Speaker: But you're saying any claim that an injunction is overbroad in this sense must be litigated in the court entering the injunction.

Mr. Cappuccio: Absolutely, sir, Justice Stevens.

Unknown Speaker: May I propose a variant on Justice Stevens' question?

Let's assume we're simply talking about proceedings in Michigan.

As I understand your characterization of what the Michigan court has already said, it is that it may bind a... an individual who was not party to the original litigation between Elwell and G.M. as to the opportunity of that third party to seek the normal process of any Michigan court.

As I understand it, you are saying that Michigan says, no, you may not, third party, now a plaintiff in a new case against G.M., go into the normal, whatever would be the normal venue in Michigan and say, I want this evidence.

You are bound by an earlier decree to which you were not party to come into a different court and raise a different issue, which is, should I be bound by a decree between these two other individuals?

Isn't that the predicate for a due process issue?

Mr. Cappuccio: Your Honor, no, because I disagree with your use of the word bind there, because the question is, what sort of impact does it have on the third party?

You would... I assume that the Court would agree that if it were a merely incidental impact there'd be no due process problem at all, so the first question you have to ask is, what is the degree of the impact?

Does it foreclose a property right, which is the question the Chief Justice asked, and then second, what process are you given?

And I'm saying there's no due process objection either to the Michigan rule or to the application of full faith and credit, or, I may add, to what Congress has mandated, which is the exact same thing in the 1991 Civil Rights Act in the wake of Martin v. Wilks.

Petitioners in their brief cite the statute that was passed in the wake of Martin v. Wilks, and what Congress requires is exactly the same sort of channeling of third party collateral... not collateral attacks, third party challenges to consent decrees back to the court that issued it.

Petitioners raised it.

Allow me to read the rule.

First of all, Congress precludes certain third parties from raising challenges... if they had notice, if they were adequately represented... but they recognized there might be new third parties who came along later who weren't--

Unknown Speaker: In other words, real third parties.

Mr. Cappuccio: --Real third parties.

Unknown Speaker: People who were not in fact substantially represented the first time.

Okay.

Mr. Cappuccio: Absolutely, Your Honor, and Congress says in that section, which is section 2000... 2000... do you have it here +/?

it's 28 U.S.C. 2000e-2n.

I have the actual bill.

Any action not precluded under this section, meaning real third parties, the challenges in employment a consent judgment or order described in paragraph 1 shall be brought in the court and, if possible, before the judge that entered such judgment or order, and my position is the constitutionality here of the effect of full faith and credit is indistinguishable from the constitutionality of this provision by Congress, which is plainly constitutional, because all it does is require parties to go back to the court that issued it, and then the question is yours, Justice Kennedy--

Unknown Speaker: Let me interrupt you again--

Mr. Cappuccio: --Sorry.

Unknown Speaker: --If I just might... supposing the order... they found out he had a lot of documents that he had in his summer home in Wisconsin, and they were under subpoena, and the judge in Michigan said, I want you to burn those documents to protect General Motors from the unlawful access to those documents, and there was an order in Wisconsin said he can't, he could only get relief from that in Michigan, I guess.

He'd have to go burn the documents.

Mr. Cappuccio: That order would be entitled... well, it depends if there were a prior final order--

Unknown Speaker: Would that be entitled... section order be entitled to full faith and credit even though he had jurisdiction of the person and the subject matter?

Mr. Cappuccio: --It would be entitled to full faith and credit, and it would be reversed in a split second, Your Honor, because it would be an abuse and an illegal order.

Unknown Speaker: Why would that be reversed any more than this one?

They might claim they were privileged documents.

Mr. Cappuccio: Well, but that would be reviewed, and that's the point.

It is not that the Michigan court has done something that nobody can review.

There are at least two opportunities to review.

There's an opportunity for direct review when it's entered, okay.

Unknown Speaker: But you're talking about the party to it, but this is a consent decree.

The parties are not going to litigate anything.

We're talking about the effect in another forum on that forum and the normal operation of its courts, and someone who was a nonparty and can't be required to go any place.

I asked you... I started out asking about the old Restatement, and you corrected me by saying that's flatly wrong, but the current restatement has this interpretation.

It's entitled, limitations on full faith and credit, not about due process.

It says, a judgment rendered in one State need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State, here the important business being determining for itself what evidence is admissible.

Mr. Cappuccio: And the cites to that proposition are dissents, and dicta, and concurrence is not essential to holding.

And I commend to you, Justice Ginsburg, two law review articles, one written by a man named William Reynolds in the Maryland Law Review, and one written by a man named Ron Hecker, I think it... Hecker in the California Law Review, and you will see that there is absolutely no support for the rather inaptly called Restatement on that point, because in fact all of those cases--

Unknown Speaker: Well, you can quarrel for that one way or another, and I can say to you, you will see that there is no decision of this Court saying State 2 enforces X to do an act simply because State 1 did.

Mr. Cappuccio: --I--

Unknown Speaker: You may be right that we should--

Mr. Cappuccio: --Sure.

Unknown Speaker: --do that, but there... I could say there is no authority for it and be right.

Mr. Cappuccio: Yes, that's absolutely right, Your Honor, but I come from just the opposite, which is, I start with 1738, which says they are all enforceable unless there is a reason to not make them enforceable, and this Court has never, ever recognized in any single case an exception based either upon the policy interests of the forum court, the, worded somewhat differently, institutional integrity of the forum court, or the nature of the decree, whether it's legal or injunctive, and I am saying--

Unknown Speaker: Well, didn't Fauntleroy v. Lum say there wasn't any public policy exception?

Mr. Cappuccio: --Absolutely, Mr. Chief Justice, and my position is, in order to rule for petitioners in this case you would be effectively overruling Fauntleroy v. Lum, because in that case--

Unknown Speaker: Fauntleroy was a question of a judgment, a litigated judgment, and a determination had been made, and then in State 2 a party to that judgment wanted to look behind it, and that's a no-no, and that's well-established.

Here, we're not talking about Elwell.

We're talking about Bakers.

Mr. Cappuccio: --We are, Your Honor, but I think the point that the Chief Justice was making with Fauntleroy is that this Court has never recognized that the effect on the policy forum is to be balanced against a final judgment.

And what I am saying is, petitioner's formulation of the exception they're looking for, which is to interfere or commandeer the judicial process, is merely a reformulation of the policy interest in Fauntleroy.

Certainly the supreme court of Mississippi would feel that it was being commandeered and its institutional integrity is being interfered with.

Unknown Speaker: Yes, but that went to whether, and a question that's going to the merits of the holding rather than the power to enter the decree.

Mr. Cappuccio: Excuse me, Your Honor.

Unknown Speaker: But that reasoning went to the merits of the decision rather than the power to enter the judgment.

Mr. Cappuccio: That's correct.

Unknown Speaker: And that distinction is very clear in Fauntleroy, and the question I keep coming back to is the question of, is there no limit on the power to enter any kind of judgment whatsoever other than a personal jurisdiction and subject matter jurisdiction?

I agree, just difference in policy, but here you're asking him to say you must disobey an order that every jurisdiction in the country would normally say is a valid order when you subpoena somebody to testify, and you're saying this decree says, we don't care how universal the approval is of such lawful order, you must disobey it.

Mr. Cappuccio: Two answers to that.

First, the decree is not saying to disobey an order.

There was no order in place.

It is the first judgment--

Unknown Speaker: Well, the decree does say you don't have to interfere with the jurisdiction of the Georgia court, but presumably that means that any other court's jurisdiction must be interfered with.

That's in the decree itself.

Mr. Cappuccio: --It means only that Ron Elwell cannot testify, and the effect of the Full Faith and Credit Clause is to extend that extraterritorially.

Unknown Speaker: And the question is whether that impairs the jurisdiction of any of these other courts, which the decree seems to assume it would.

Mr. Cappuccio: Well, it would affect their ability to have one witness come in.

I don't think it would impair their jurisdiction, but I do not see--

Unknown Speaker: Mr. Cappuccio, may I ask in reference--

Mr. Cappuccio: --Sure.

Unknown Speaker: --to Fauntleroy v. Lum there was a later decision by Justice Stone... was it Pacific Employers +/?

and I'll just read you what he said some years after Fauntleroy v. Lum.

Perhaps he was wrong, too.

It has often been recognized by this Court that there are some limitations upon the extent to which a State may be required by the Full Faith and Credit Clause to enforce even the judgment of another State in contravention of its own policy.

Mr. Cappuccio: There is plainly some broad statements, particularly by Justice Stone, who dissented originally in Yarborough and threw some dicta in later, that makes it--

Unknown Speaker: This wasn't in a dissenting opinion.

Mr. Cappuccio: --No, I understand it was in a majority opinion, but in that case it was absolutely unnecessary to the holding, because that case was a choice of law case and, of course, this Court has held precisely because Congress has not litigated the effect of acts, and because there's a necessity to balance interests--

Unknown Speaker: Yes, but this sentence was about judgments, so you say that was wrong.

Mr. Cappuccio: --It is, Your Honor, one of the quotes that the Restatement relies on, and I am saying that if the proverbial, as Justice Scalia said once in his opinion, hapless law clerk goes back through those cases, in none of those cases does the Court hold that there is an exception to judgments when the interests of the other State need to be weighed.

There are statements--

Unknown Speaker: Let me just clarify one thing--

Mr. Cappuccio: --Sure.

Unknown Speaker: --because you didn't quite finish your answer when Justice Gins... it is your position... I'm just not looking at authorities or law review articles or Restatement... it is your position that there is no full faith and credit limitation whatsoever, other than personal jurisdiction and subject matter jurisdiction in the court entering a judgment?

Mr. Cappuccio: Yes, Your Honor, that's it.

Unknown Speaker: Well, Mr. Cappuccio, by way of another example, sometimes we see court orders ordering a... an employee or a former employee not to compete with the employer in situations where the employee and the first employer get in a dispute and go to court and there is a covenant not to compete, and that's enforced by a court order in, let's say, Michigan, and the Michigan court says, Mr. X, you will not compete for a period of 5 years with this employer number 1, and any contract you enter into anywhere to do that is void and of no effect.

Employee goes to State 2 and enters into a contract with a new employer to go to work in competition, in violation.

Now, I guess on your theory that contract is unenforceable in the second State in any way for the employer, the new employer who tries to hire him.

Mr. Cappuccio: Absolutely, Your Honor, and in that first judgment--

Unknown Speaker: Let's add to the fact that it was not litigated, so that there's no... no, you know, res judicata effect.

It was a consent decree in the first suit.

Mr. Cappuccio: --Yes, sir, and my answer--

Unknown Speaker: And you'd still say that the second court is--

Mr. Cappuccio: --My answer is, is that is preposterous to think that the person who is affected, the person who wants to enter into the contract--

Unknown Speaker: --Mm-hmm.

Mr. Cappuccio: --could go into the court of the second State and say, ignore the judgment.

Rather, they would have to go back to the first court and show that they had the kind of interest that was affected.

Unknown Speaker: Gee, I would have thought that in the second State the new employer could sue the employee who entered into this contract perhaps when he shouldn't have, and that the first employer could sue him for breaching the original order.

I mean, what--

Mr. Cappuccio: No, Your Honor, I think in that case the suit in the second case, the first order would plainly be entitled to full faith and credit and if somebody wants to go back and claim that that is wrong, be it a party or a third party, they have to go back to the original court.

That's all full faith and credit is about.

Unknown Speaker: But what is the authority for that?

That is... let me go through exactly the same question I asked Professor Tribe.

In Justice O'Connor's case you have a third person who was not party to the first action who wants the services of the employee.

We agree that that third person is not bound, and you agree that the Bakers here are not bound.

Moreover, if the Bakers have a claim to this evidence, and it sounds as if they do, there's no doubt they get it.

They will get this evidence.

Only question is whether they have to go back to Michigan.

Well, similarly, what's the authority?

In 200 years, there's never been a case that says that either this employer in the second State, i.e., the third party, that says either, of course the second State has to follow the injunction of the first against the employee, not the employer, so go to the first State, get it modified, or that says the opposite, and there's never been a law review article that explores that question deeply?

I mean, what I'm looking for is the case or the law review article in 200 years that went into what I would think was the most simple basic question under injunctions and the Full Faith and Credit Clause.

Is--

Mr. Cappuccio: --Well, Your Honor, there are two questions, and let me try to answer the first one and then the second one.

The first... the answer to the first one is, it does not matter whether you say they are bound or not bound.

That is a legal conclusion about what due process requires.

What matters is the degree of impact on him.

Does it affect a property right, and I agree with the Chief Justice, you're not going to... I hope you won't extend Logan v. Zimmerman.

They don't have a property right here.

That disposes of this case.

But even if it does, what process are they entitled to, and the only question is, is it too much of a burden to send them back to Michigan, and I'm saying no--

Unknown Speaker: --Back.

Back.

That's a very revealing word.

They never were there in the first place.

Mr. Cappuccio: --Okay... sorry.

[Laughter]

Whether it's too much of a--

Unknown Speaker: You spoke... in your brief, you spoke about, you must return to Michigan, and now twice you said go back to Michigan.

Michigan has no power over them.

Mr. Cappuccio: --I'm sorry, I shouldn't have said back, but this is the whole issue in this case, is it too much of a burden, does it violate due process, and I'm saying no.

Because of the important interest of full faith and credit to avoid conflicting judgments, as Justice Breyer talked about--

Unknown Speaker: So Michigan can rule the world to that extent.

Mr. Cappuccio: --The Full Faith and Credit Clause--

Unknown Speaker: It can require anybody from anyplace... even though Michigan would have no power over them, by having a judgment, a plaintiff against defendant, third party, wherever she may be, will have to go to that one place to litigate.

It sounds very strange.

Mr. Cappuccio: --That's exactly what Congress did in the Civil Rights Act of 1991.

It's exactly what Congress did by reason of the Full Faith and Credit Clause.

And the burden, Justice Kennedy, is not an undue burden.

It's the same exact burden that a litigant faces when they want to get an out-of-State witness.

Unknown Speaker: I suppose, Mr. Cappuccio, that... I also... it was the exact example that Justice O'Connor gave which has occurred to me.

These injunctions against competition are very, very common, and I guess they're not worth a whole lot if they're only enforceable in the particular State.

Mr. Cappuccio: Your Honor, I--

Unknown Speaker: I would expect a lot of literature on the other side.

I would have expected a lot of lawsuits in which people simply said, I don't have to obey this injunction in the other State because your writ doesn't run this far.

Mr. Cappuccio: --I would think that it would be... the reason we don't have anything is because it is so plain that that is a final judgment entitled to full faith and credit.

Unknown Speaker: Thank you, Mr. Cappuccio.

Mr. Cappuccio: Thank you, Your Honor.

Unknown Speaker: Mr. Tribe, you have 2 minutes remaining.

Rebuttal of Laurence H. Tribe

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

Let me begin by saying that the power of Congress in response to Martin v. Wilks to have a national venue provision has nothing to do with the power of a State to say, come back to Michigan though you've never been here.

Congress was not acting in connection with full faith and credit.

What Congress was doing was exactly analogous to Michigan's in-State rule saying venue is in the court that did it in the first place.

Unknown Speaker: Mr. Tribe, I don't understand one thing about your position.

Is it your position not only that the... that courts in States other than Michigan are not bound by the judgment, but that also, if he complies with the decrees of these other courts, that Mr. Elwood is not liable for contempt in Michigan?

Mr. Tribe: No.

Justice Scalia, if third parties are effectively bound, that's my problem.

I'm not saying that General Motors could not have arranged to have sanctions imposed on him as he travels around the country if he testifies in response to the... in response to orders.

That would be a matter of contract between General Motors and this employee.

Unknown Speaker: No, no, not by contract.

May the Michigan court cite him for contempt if he complies with the order of the court of another State and gives testimony?

Mr. Tribe: I think not, Justice Scalia.

Unknown Speaker: Okay.

That's your position--

Mr. Tribe: Right.

That's right.

Unknown Speaker: --not only that the State court is not bound, but also that Elwood is not bound?

Mr. Tribe: In all likelihood, though--

Unknown Speaker: And what is the principle?

Why can't he be cited for contempt?

What's the principle?

Mr. Tribe: --The principle is that as a matter of due process one cannot be held in contempt for refusing to comply with the order of a court.

One can--

Unknown Speaker: But he could be held in contempt if he acquiesced, couldn't he?

Mr. Tribe: --You can waive your right, certainly Justice Souter.

Unknown Speaker: No, but I mean, if he--

--If he's not subpoenaed.

If he voluntarily testifies--

Mr. Tribe: Oh, yes, that's... sure.

Unknown Speaker: --Or if his objection is a sham--

Mr. Tribe: Then there's no--

Unknown Speaker: --then, of course they can go after--

Mr. Tribe: --Then there's no problem.

Of course--

Unknown Speaker: --Or if he goes to that State in order to be subpoenaed, which is what happened here, apparently.

Mr. Tribe: --There's no evidence in the record of what... of that.

Unknown Speaker: All right.

Well, let's--

Mr. Tribe: And the briefs in opposition don't even suggest it.

Unknown Speaker: --Let's hypothesize it, then.

Suppose he goes to that State expecting and hoping to be--

Mr. Tribe: Yes.

I would think if you have such a case he could be in contempt.

Unknown Speaker: --Okay.

Mr. Tribe: The opposition to cert didn't suggest this was such a case.

Unknown Speaker: You're not suggesting that it wouldn't be, just between those two parties, perfectly all right for General Motors to say, if you are indeed subpoenaed by somebody--

Mr. Tribe: Right.

Unknown Speaker: --then you can't help it, but don't walk into a place that would otherwise have no power over you.

Mr. Tribe: That's right, and I'm afraid my time is up.

Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

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