Cases by Issue - Change in State Law

Selvage v. Collins - Oral Argument

Fri, 09 Jan 2009 14:49:18 +0000

Case:

Selvage v. Collins

Media File:

87-6700_19900117-argument.mp3

Related Transcript:

1989_87_6700_argument.xml

Transcript:

Argument of Richard H. Burr

Chief Justice Rehnquist: We'll hear argument now in No. 87-6700, John Henry Selvage v. James A. Lynaugh.

Mr. Burr.

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

As in the case of Johnny Paul Penry, the jury that sentenced John Selvage to death did so without being able to consider or give effect to the mitigating circumstances he proffered.

Unlike Penry's lawyers, however, John Selvage's lawyers did not object to this constitutional defect in his sentencing proceeding.

As a result, when the pre-Penry claims in both of these cases got to the court of criminal appeals in Texas, in the Penry case the court denied the claim on the merits, and in Mr. Selvage's case the court denied the claim on the basis of the procedural default at trial, the failure to object.

The question before the Court today is whether the court of criminal appeals' ruling should prevent the Federal habeas courts from deciding the merits of Mr. Selvage's Penry claim.

When this question was first presented to this Court in Mr. Selvage's cert. petition which was filed back in March of 1988, no issue was raised concerning the adequacy of the state procedural ruling.

Since that time, however... as a matter of fact, 15 months after that time... when this Court announced its decision in Penry at the end of June 1989, and as a result of the Penry decision, there is now no state ground barring review of the merits of the claim.

Accordingly, in the time since the question was first presented in our cert. petition to the Court, a new threshold question has arisen: whether the default ruling in the state courts is now based on an adequate state ground.

Unknown Speaker: And now is--

--Are you saying you could right now go back to the Texas Court of Criminal Appeals and have your claim considered on the merits?

Mr. Burr: Your Honor, we believe that if Texas law is applied properly, we could do that.

Unknown Speaker: Well, certainly with... the Texas Court of Criminal Appeals would know how to apply Texas law properly, I would think.

Mr. Burr: I would suspect they would.

Unknown Speaker: So do you suggest we vacate and remand?

Is that it?

Mr. Burr: Your Honor, I think that the Court is in a position, because of the clarity of Texas law and because of the posture in which this case is in... we are here on a Federal habeas proceeding with the merits not having been reached because of the default ruling... this Court certainly has the power, and, indeed, has usually given itself the obligation to determine whether the procedural ruling is an adequate state ruling.

The Court could look at state law, determine... and we would ask that the Court do this... that the ruling is no longer an adequate state ground and hold that there is no default which bars consideration of claim.

Unknown Speaker: Well, would you be raising in the state court arguments that you have not raised previously in the state court?

Mr. Burr: Not as to the merits we would not.

The merits were presented in the state court.

Unknown Speaker: No.

As to the procedural bar.

Mr. Burr: We would.

The reason for that--

Unknown Speaker: Well, why do we have jurisdiction if you haven't argued it to the state court?

Mr. Burr: --Justice Kennedy, the reason for that is this.

The procedural rules in Texas at the time that the Penry case was decided, as a result of those rules excused the procedural default at trial.

For that reason, the... the ruling of the Federal courts, which was based on that default, is now no longer, we submit, an adequate ruling because there is no default.

So, as a matter of Federal habeas procedure, we are here on a Federal habeas petition on a defaulted claim.

There is certainly a Federal interest in deciding whether there is still a viable state ground for this decision.

If not... and we submit this Court is empowered and certainly because of the State of Texas law ought to go ahead and decide the issue.

If there is no default, then the merits ought to be determined in the Federal proceeding.

Unknown Speaker: Well, but did the... the Fifth Circuit said that you were procedurally barred in this case.

Is that--

Mr. Burr: That's correct.

Unknown Speaker: --And you're saying that subsequent developments in Texas law after they ruled would lead anybody to say that you're no longer procedurally barred?

Mr. Burr: Subsequent developments from this Court's decision and how that dovetails with Texas law.

That's correct.

Unknown Speaker: Well, surely the Fifth Circuit is better... in a better position to know than we are whether there's been a change in the law of the Texas procedural bar.

Mr. Burr: Your Honor... excuse me... I don't think so for a couple of reason.

The rules of state law which are applicable here, we submit, are plain and unequivocal.

If there was any doubt so that deference to the lower Federal courts who are closer to the state law might be or benefit, then I would certainly agree with you.

Unknown Speaker: Well--

Mr. Burr: But there is no ambiguity--

Unknown Speaker: --was Penry... was Penry after the court of appeals'--

Mr. Burr: --Yes.

Unknown Speaker: --decision in this case?

Mr. Burr: Yes, it was.

Unknown Speaker: And you say Penry then is really the key to why this situation has changed.

Mr. Burr: Penry is the triggering event.

Unknown Speaker: You don't know what the court of appeals would say if it had an issue like this before it now.

Mr. Burr: The Fifth Circuit or the court of criminal appeals?

Unknown Speaker: The Fifth Circuit.

Mr. Burr: The Fifth Circuit, we would certainly argue, that they ought to do as this Court should do, that they should find that there is no longer an adequate state ground on the basis of Texas procedural rules.

Unknown Speaker: But they haven't had any chance to say that again since Penry?

Mr. Burr: They have not.

Not to my knowledge.

Certainly not in our case, and to my knowledge, they have not had that opportunity in any other case.

Unknown Speaker: Well, would the state argue abuse of the writ for your not arguing this sooner or--

Mr. Burr: The state did argue abuse of the writ in the Federal district court and in the Fifth Circuit.

It has not argued that before this Court.

So my guess is that... I certainly don't want to suggest something to the state, but--

Unknown Speaker: --Well, even if you--

Mr. Burr: --it probably would.

Unknown Speaker: --Even if you're right, what are you going to do about Teague on the Penry claim, on the merits?

Mr. Burr: Your Honor, Teague, as the Court knows in Penry, the Penry decision was held to be retroactive, so there would be no Teague problem in terms of retroactivity.

The Penry rule would apply because Penry itself decided that the rule would be retroactively applied.

So, there is no Teague problem.

Unknown Speaker: I thought Penry decided it wasn't a new rule.

I mean, it was applying existing law, was it not?

Mr. Burr: Yes, Justice O'Connor, that's--

Unknown Speaker: It wasn't a retroactivity decision at all.

Mr. Burr: --No, no.

Unknown Speaker: It was a question of determining that that was the existing state of the law.

Mr. Burr: That's correct.

So it's my understanding under the principles of Teague and... and other cases addressing retroactivity that, because it's not a new rule of law, persons like Mr. Selvage could have the benefit of the Penry substantive ruling.

Let me review, if I could, for just a--

Unknown Speaker: Now, your cert. petition didn't raise this procedural question?

Mr. Burr: --It did not, Justice O'Connor, for one reason.

At the time that we filed our petition, which was back in March of 1988, neither Franklin had been decided nor Penry.

And until actually Penry was decided, the state procedural rule which forgives a prior failure to object was not triggered.

It... it was triggered only by this Court's ruling at the end of last June in Penry.

Let me describe that procedural rule for a moment, if I could.

It is probably most often quoted from a case called Ex parte Chambers.

The Court has formulated the rule in Chambers as follows, and I quote.

"A defendant has not waived his right to assert a constitutional violation by failing to object at trial if at the time of his trial the right had not been recognized. "

Now, that rule has been applied according to, we submit, four parameters.

First of all, the Court has made plain that it applies if a supervening subsequent decision of this Court recognizes a claim which at the time of trial would have been novel... novel in the sense of Reed v. Ross... that the constitutional theories and principles were simply not available to put the claim together.

That is not our case.

The second parameter where Chambers forgives a prior default is that if the claim is, as the state courts put it, futile.

And what the state courts in Texas mean by futile is that the tools were there to make the claim.

It had been made on all the constitutional grounds to the Texas Court of Criminal Appeals and categorically rejected.

At that point Texas law does not require that a defendant continue raising claims that it has categorically rejected with no new theory available.

In that situation... indeed, that was the situation in which the Chambers case was decided... it involved the Smith v. Estelle error where prior to Smith v. Estelle the court of criminal appeals had categorically rejected Fifth and Sixth Amendment claims based upon psychiatric testimony concerning future dangerousness.

After Smith v. Estelle came down, in Chambers in a state habeas proceeding in a case which had not raised this issue at trial, the court granted relief, holding that Smith v. Estelle was the precise kind of change in law from this Court which triggers this exception to the procedural default--

Unknown Speaker: There is a certain irony... a certain irony in your argument if what you're saying is that you would argue to the Texas court that Penry was a change in the law.

And yet we held in Penry that it was not a change in the law.

Mr. Burr: --Certainly from the perspective of state law, Justice Rehnquist, it was a change.

Up until Penry--

Unknown Speaker: Well, you mean, state... state law is not governed by the Federal Constitution?

Mr. Burr: --No.

Not at all.

From the perspective of the court of criminal appeals' application of the Eighth Amendment, they had been up until Penry... the court of criminal appeals had categorically rejected every Eighth Amendment argument.

Unknown Speaker: Yeah, but why should you be excused from raising the Federal constitutional claim or why should your client be excused from failing to raise the Federal constitutional claim that would have... that would have been a winner under Penry?

Mr. Burr: Well, Your Honor, it would have been a winner under Penry after Penry.

Unknown Speaker: Well, Penry raised it, didn't he?

Mr. Burr: Penry did.

Unknown Speaker: How did he have enough foresight to raise it?

Mr. Burr: A handful of lawyers did keep raising this claim, both in the Texas courts and in Federal habeas.

Unknown Speaker: Well, in... as we... you say that Teague was no problem because Penry was old law, anybody should have known it.

Yeah.

Mr. Burr: Well, Your Honor, I think the... the reconciliation between the Teague aspect of Penry and the argument we're making here is this.

As the majority recognized in Penry, the principles embodied in Jurek, Woodson and Lockett were the principles which controlled the ruling in Penry.

And for that reason there was no evolution of legal principle.

There was simply an application of those principles to the peculiar factual situation of Penry's case.

So, for that reason it was not a new rule of constitutional law.

Now, at the time of trial... indeed, well before trial... after this Court's opinion in Jurek, trial lawyers in Texas began complaining that the Texas scheme precluded the consideration of mitigating circumstances.

When those circumstances were not relevant in a mitigating way to the special issues, they didn't get considered.

That claim was raised in numerous angles, through numerous angles.

Every time the court of criminal appeals, who, when it heard that claim, rejected it saying... distinguishing it indeed on its reading of Jurek and Woodson and later on its reading of Lockett.

Unknown Speaker: But our cases have said that futility is no reason for failing to object.

Mr. Burr: Your Honor, let--

Unknown Speaker: Then you're... you're really saying it would have been futile to take that to the Texas Court of Criminal Appeals.

Mr. Burr: --Let me separate the two concepts of futility because there is a concept in state law that is quite well recognized, and it is the concept that under the state law rule, the Chambers rule, where a constitutional--

Unknown Speaker: No, I'm talking about the futility described in our cases where we're talking about Wainwright against Sykes.

Mr. Burr: --Sure.

Unknown Speaker: Just the fact that you don't think the highest court of the state would have accepted your argument doesn't mean you're... you're excused from making it.

Mr. Burr: Let... let me address that, then, squarely.

It really gets us to the cause argument, but I'm happy to go there.

Our argument on cause asks the Court to consider whether there is a third kind of cause.

Not the same as futility described in Engle v. Isaac, and not the same as novelty described in Reed v. Ross.

There is no question this is not a novel claim.

The constitutional principles were available.

So the question is how is our situation different from the situation described in Engle v. Isaac.

We submit it's different for a number of reasons.

In Engle v. Isaac the petitioner at trial did not raise a claim because of his view that state law rulings based on state law were dead against it.

Indeed, after the state law rulings... the last state law ruling on the issue... two cases from this Court had been decided, the Winship case and Mullaney v. Wilbur, which called into serious question the continuing validity of the state law ruling.

Mr. Isaac did not go back to the state courts and present those new constitutional arguments based on cases from this Court, indeed, based on cases litigating from those principles in other state and Federal courts.

He did not go back to the state courts.

Unknown Speaker: Just as you haven't.

Mr. Burr: Just as I haven't.

But for quite a different reason.

For quite a different reason.

And that is how we distinguish ourselves from the kind of futility that the Court recognized in Engle.

What the Court recognized in Engle is that there is reason to go back to the state courts if there is some new light to be shed on prior state rulings.

Certainly there was new light in the situation of Mr. Isaac.

There were two decisions from this Court and there were a number of decisions from lower state courts and Federal courts.

In our case there was nothing of the sort.

What happened by the time of Mr. Selvage's trial, which occurred in February of 1980, was that the... what became the Penry claim, the pre-Penry defect in the statute, for lack of a better term... had been presented to the court of criminal appeals in... under every conceivable... on every conceivable basis, Eighth Amendment basis.

The argument had been made that the defines... that the terms of the special issues were not defined enough to allow consideration of mitigation.

The court of criminal appeals said no.

The argument was made that mental illness which, as the Court recognized, like the mental retardation of Henry, has an aggravating side and a mitigating side, only got consideration as aggravation.

The court of criminal appeals said no.

An argument was made, well, if... if all the special issues are answered yes, there still may be mitigating evidence that leads the jury to think life is the appropriate sentence.

The court of criminal appeals said no.

And finally, the last theory that was presented was, look, at the very least the jury ought to be given a kind of a soft nullification instruction.

They ought to be told that in answering the special issues if you think mitigation should lead to a life sentence, you can answer them no.

The court of criminal appeals said no.

And on every... in every one of those decisions the court relied on Jurek and Woodson and in the last... last couple of decisions, Lockett, saying, our job here is to guide discretion.

And we let all relevant mitigating evidence in, but it has to relate to these three special issues.

And if it doesn't relate to them, then you're asking us to unguide discretion.

Some of the Justices on this Court saw that as the problem in the Penry case, and that is the view that the court of criminal appeals had.

Unknown Speaker: After Penry it was clear that that was wrong?

Mr. Burr: That's right.

That's right.

Unknown Speaker: And... and you didn't go back to state court--

Mr. Burr: Well, Your Honor, we were--

Unknown Speaker: --once... once it was clear that it was--

Mr. Burr: --in this Court and had been in this court for 15 months at that time.

There... there probably is no legal barrier to Mr. Selvage going back into state court right now.

The constitutional and Federal habeas problem with that is that Mr.... Mr. Selvage has had a ruling in Federal habeas that his claim cannot be reached on the merits.

We believe, and believe without any hesitance, that the state law basis for that default has now been eroded, that we should be able to gain relief on the merits in the state courts.

Unknown Speaker: --Yes, but your... your argument about that has been eroded.

You keep relying on the state law ground.

But the adequacy of the procedural default rule is a Federal question.

Mr. Burr: That's correct.

Unknown Speaker: And if... if, as a Federal matter, this constitutional rule of Penry was perfectly foreseeable, I don't know why the state, if it wanted to, couldn't rely... couldn't insist that you raise it in the trial court.

If there is some state law basis for saying, well, we don't want to enforce this rule any more, why, they don't have to.

But I don't know why... why is as a Federal constitutional matter this rule isn't... isn't an adequate one.

Mr. Burr: Justice White, you've described the state law rule quite well.

As a matter of fact, the courts... the Texas courts have said when a claim is recognized on its constitutional theories, presented to us, and we reject it, you don't have to keep raising it.

If... if... in fact, you don't have to object at trial anymore.

If... if subsequently the Supreme Court say we were wrong, you may come back into state court.

Now, the reason that presents a Federal habeas procedure question is that that very rule now triggered by Penry erodes the adequacy of the state law ruling in this case.

And so the Federal question--

Unknown Speaker: But we don't--

Mr. Burr: --the adequacy question--

Unknown Speaker: --We don't know that you're right about your... your state law rule, do we?

Mr. Burr: --Your Honor, the state has presented no... no argument that I've been able to discern that speaks--

Unknown Speaker: That should be [inaudible] court of appeals to... to do that.

Mr. Burr: --That is certainly a... well, I... I think that the appropriate result here would be to ask the question to the court of criminal appeals in Texas for this reason.

Unknown Speaker: Well, we can't... we can't remand it to them.

Mr. Burr: There... the Texas Court of Criminal Appeals has a certification procedure for this Court certifying a question to it.

Indeed, prior to the briefing in this case we asked the Court do that, not because we though there was any lack of clarity in state law, but because we thought this Court might prefer to have the state court decide its procedural rule first.

The Court declined to do that.

But there is... and it's discussed by both parties in the motion for certification papers... there is a procedure for certifying a question from this Court.

Unknown Speaker: There is also a procedure to ask the court of appeals to look at it in the first instance since there--

Mr. Burr: Certainly.

Unknown Speaker: --has been a decision--

Mr. Burr: Certainly.

Unknown Speaker: --since then that you claim makes a difference.

Mr. Burr: In the Fifth Circuit?

Unknown Speaker: No.

There's been a decision here that... that might have--

Mr. Burr: That--

Unknown Speaker: --might lead to a different result than the court of appeals--

Mr. Burr: --There's no question about that.

All I'm suggesting is that from the perspective of... of judicial economy and, I believe, fairness, the... the better procedure would be if there is any question about state law, for this Court to ask the state courts directly that question.

Unknown Speaker: --Well, then it would have to... we'd have to wait for them.

Then it would have to come back here.

Mr. Burr: Well, Your Honor, I don't believe--

Unknown Speaker: And the court of appeals might solve it all for you.

Mr. Burr: --I don't believe that the delay would be very long because the court of criminal appeals has a case before it right now raising the very same issue.

The case of Harvey Ervin, Ex parte Ervin.

The case has been briefed.

It was argued in mid-September, and it is awaiting decision.

I believe it is awaiting decision, awaiting this Court.

I believe that it is a question of after Ualphonse that... that has developed by the cert. grant here.

Unknown Speaker: Why are they--

Mr. Burr: So I don't think it would be much of a delay.

Unknown Speaker: --Why are they waiting?

Mr. Burr: Your Honor, I... I don't know.

My guess is--

Unknown Speaker: Well, you... you say that there is a state law rule.

There must not be if they're waiting.

Mr. Burr: --No.

I... I don't know if they're waiting.

They have not decided the case.

That's speculation on my part.

If they wait, it would probably be a political decision to wait and not a legal--

Unknown Speaker: Well, maybe we shall wait for them.

[Laughter]

Mr. Burr: --That is certainly an option.

Unknown Speaker: We certainly have waited long enough in this.

Mr. Burr: The thing that's important... I... I think what you... what you've suggested does have some crucial significance.

This question ought to be resolved one way or the other, up or down, before the... the questions of cause and miscarriage of justice should be addressed.

Because if it is resolved, as we say it should, then this Court need not in this case look at questions of cause and miscarriage of justice, because there won't be a state law ruling barring relief in Federal... or barring a merits decision in Federal court.

Unknown Speaker: Mr. Burr--

Mr. Burr: Yes.

Unknown Speaker: --can I ask you... you're describing, and let's assume it does exist... a state law rule which says that even though you should know enough from Supreme Court cases to raise the issue, nonetheless, if we have been erroneous enough to reject that claim in the past, you don't have to raise it before us.

Right?

That's--

Mr. Burr: In order to preserve--

Unknown Speaker: --Yeah.

Mr. Burr: --the client's right--

Unknown Speaker: Now, you--

Mr. Burr: --to relief later.

Unknown Speaker: --You would acknowledge that had your client sought a direct appeal from the decision of the court of criminal appeals, we would have rejected it because the Federal issue had not been preserved below, right?

But you're saying that when he next goes into Federal habeas we should entertain the same issue.

Mr. Burr: No.

I think there's... there's--

Unknown Speaker: Why?

But I think you are.

Mr. Burr: --there's no difference for this reason.

If a direct appeal were... or a cert. petition... had been taken from the direct appeal--

Unknown Speaker: Yes.

Mr. Burr: --if Penry had intervened, then we would have been making the same argument to this Court at that point in time.

Unknown Speaker: And we would have rejected it.

We would have said it's... it's old law, you should have raised it below, wouldn't we?

Isn't that what we would have said?

Mr. Burr: If... from this Court's ruling as a Federal court imbued with the retroactivity framework, it is old law.

But--

Unknown Speaker: So we would have said you... we won't entertain it since you didn't raise it below.

Mr. Burr: --I don't think so because--

Unknown Speaker: We wouldn't say that?

Mr. Burr: --if... if the issue had... there is a question, I think, about whether the issue had been presented on the direct appeal.

If the issue had been presented in the direct appeals and rejected because it had not been... there had been no objection at trial, then the case would have come here in the very same posture on the basis of the state courts' resting their decision on a state procedural rule.

Then the question of the adequacy of the state rule would have been a question, a Federal question, for this Court to look at, just as it is now.

Unknown Speaker: But you think that if the Federal court... if... if the state court would have entertained it, we would... we would entertain it even though we thought it was old law?

Mr. Burr: If the state court's reason for not entertaining it was its state procedural rule--

Unknown Speaker: Uh-huh.

Mr. Burr: --as I believe we're both agreeing it would have been--

Unknown Speaker: Uh-huh.

Mr. Burr: --and if under the state procedural rule the Penry decision had had the effect we say... that is, it had forgiven the default essentially... then this Court should be in a position and should decide that the state ground of decision in the state courts is no longer adequate, that it has been eroded by the very operation of state law.

Unknown Speaker: Uh-huh.

Mr. Burr: That is... that is the argument.

Now, Justice Rehnquist... I'm sorry... one... to... to get back to a question that I think you were asking as to why we shouldn't go back to the Fifth Circuit, there's another reason.

If the Texas Court of Criminal Appeals or if, indeed, the Fifth Circuit, if it were asked to decide this question, said, no, that Penry doesn't trigger this exception to the default rule and we... and we then have a ruling that there is an adequate state ground for the default, we then would be in a position to get to cause and miscarriage of justice.

This Court has already indicated by its--

Unknown Speaker: xxx file a new petition for collateral relief in Texas.

Mr. Burr: --Well, no... not... I'm saying if... if the court of criminal appeals or if the Fifth Circuit said that the default has not been forgiven as a result of Penry and we still are in a default posture and there's been a definitive resolution, that we still are defaulted after Penry, then the questions that the Court has already said it wants to address... that is, the question of cause in this context and the question of miscarriage of justice... ought be addressed.

All we're saying is that before we get into those thorny and difficult questions, let's be sure it's not an academic exercise.

That's all.

And we think that the most efficient and fairest way to do that is either to simply wait and let the court of criminal appeals take its course or to ask them through the certification procedure how does the ruling in Penry, if at all, affect your ruling of procedural default in this case.

Unknown Speaker: What would you say if the... if the Texas court, different from what you think... how you think it would answer, came back and said, well, the... there was no good excuse for not raising the issue at the time and we haven't changed our mind?

Mr. Burr: If... if that is so, then--

Unknown Speaker: Then... then would we... would you be in a position to have us say that it was not an adequate statement of--

Mr. Burr: --I think we would be in a position to argue that it was not consistently and... and appropriately applied, as it had been before.

But that is a question that I think should be reserved for another day.

If I could just say a couple of more words about cause, then I would like to reserve the rest of my time.

If we get to the cause question now, I think it is terribly important for the Court to... to--

Unknown Speaker: --What are you doing to... what are you talking... cause for what now?

Mr. Burr: --Assuming for the moment that the state procedural ground is an adequate one, and the Court appropriately gets to the question of cause and miscarriage of justice--

Unknown Speaker: Cause for what?

Mr. Burr: --Cause for the default.

Unknown Speaker: Uh-huh.

Mr. Burr: A cause under Wainwright v. Sykes.

We think the Court needs to take close... make close scrutiny of what we say is a third kind of cause.

Again, it's related to the novelty cause exception, and it is related to Engle v. Isaac futility.

But it is a distinctly different creature.

It is a creature defined by the very reasons that Justice O'Connor said in Engle v. Isaac.

Futility, as defined there, was a cause.

And that is there was some reason to go back to the state courts with a Federal argument.

The reason was because of rulings of this Court, rulings of other Federal courts, rulings of other state courts or other grounds of state law.

There was some reason to go back into state court and to shine some new light on an old question and ask the court to reconsider that question.

At the time of trial of John Selvage that could not have been done.

That was February of 1980.

At that point, the court of criminal appeals in Texas had rejected every conceivable constitutional challenge to this defect in the Texas scheme.

It had rejected it on the basis of its reading of this Court's decisions... Jurek, Woodson, and Lockett.

There was nothing else anywhere else to utilize to go back to that court and say, please look at this again.

There were no other Federal court decisions.

There were no decisions from other jurisdictions because nobody... no other jurisdiction had a statute like Texas.

There was simply nothing counsel could do.

Counsel would be put in the position... and this is really what the state's argument suggests... counsel would have been put in the position of going to the court of criminal appeals and saying, I want you to reconsider my challenge to the preclusion of mitigation consideration at trial because you're wrong.

And the court of criminal appeals would say, well, we... we disagree with your analysis of Jurek, Woodson and Lockett and--

Unknown Speaker: Your time has expired, Mr. Burr.

Thank you.

Mr. Burr: --Thank you.

Unknown Speaker: Mr. Walt, we'll hear now from you.

Argument of Robert S. Walt

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

On April 1st, 1980, Johnny Paul Penry presented mitigating evidence he perceived had value beyond the scope of Texas' special issues.

Accordingly, he objected to the charge in compliance with state procedure and requested a special instruction to allow the jury to consider that mitigating evidence beyond the scope of the special issues.

Less than two months earlier John Selvage presented evidence to the... to his jury.

Mr. Selvage did not request any special instruction.

Ten years later, after direct appeal, after two rounds of state and Federal habeas corpus, Mr. Selvage now comes before this Court and perceives... perceiving mitigating value beyond his... of his evidence beyond the special issues and asks to be afforded the same rule that was afforded Johnny Penry.

Johnny Penry complied with state procedure, preserved his error and obtained relief from this Court.

John Selvage, who had no such respect for state procedure, should not receive the same treatment.

Selvage, though raising on certiorari a question of whether his procedural default was... should be excused for cause or in fact even if his procedural default is... there is no cause, that the default would result in a fundamental miscarriage of justice.

That's what he raised on certiorari.

He now comes before the Court and claims that in fact he is entitled to an additional claim... to review of an additional claim, and that is whether a procedural default exists at all.

I was listening to Mr. Burr.

Mr. Burr was referring to the Ex parte Chambers case.

There are two matters which I would like to just briefly discuss with the Court as... as to Chambers.

First, when he applied for a stay of execution in the United States District Court for the Southern District, Houston Division, in his application for a stay he acknowledged that the procedural bar was... was properly imposed, but he cited the Justice Brennan's dissent in the Streetman v. Lynaugh case in which Justice Brennan said Franklin is pending before us, Franklin if... if he receives relief, would constitute a new rule.

Now, I submit to the Court that Ex parte Chambers existed prior to his commencement of even state collateral review.

And if he perceived that what Mr. Franklin would receive would have been a new rule, then he was obligated at all times to have presented that claim both in... both in the lower Federal courts and, in fact, in the state courts.

He failed to--

Unknown Speaker: Mr. Walt--

Mr. Walt: --Yes, Your Honor.

Unknown Speaker: --both you and Mr. Burr have referred to... is it a Texas decision in Ex parte Chambers?

Is that what you're talking about?

Mr. Walt: Yes, Your Honor.

Ex parte Chambers is a case... and briefly it is discussed in both--

Unknown Speaker: When... when was it decided?

Mr. Walt: --Oh, boy.

Your Honor, I believe it was decided in 1985.

Unknown Speaker: Thank you.

Mr. Walt: Chambers stands for the proposition that a novel claim... and state law defines novelty... will in fact be excused, failure to object.

And Chambers relies on prior state precedent.

So that is not exclusively constitutional.

Unknown Speaker: The Fifth Circuit, though, would have had Chambers when it decided the present case, would it not?

Mr. Walt: Certainly, if it had been raised.

Unknown Speaker: But it didn't have Penry then?

Mr. Walt: It didn't have Penry, Your Honor, but it did have... it did have the idea that Franklin was pending before the Court.

And, in fact, the Court recognized that Franklin... the reason it excused abuse, to be exact, is the fact that they stated they would be blind, that the potential for a new rule was present in... in... with the Franklin case before this Court.

Unknown Speaker: To... to what extent did Selvage concede that there had been procedural default?

Mr. Walt: He conceded... the first time on his application for his stay of execution, he stated, in fact, that the default was properly imposed, but that it would now be... it would subsequently be excused under this Court's novelty... under this Court's novelty exception under Reed v. Ross because of... Franklin would announce a new rule.

Unknown Speaker: And that was in a pleading filed with the Texas Court of Criminal Appeals?

Mr. Walt: No, Your Honor.

It was with the pleading filed with the United States District Court for the Southern District of Texas, the district court below.

In Ex parte Chambers the Court recognized, as I stated, a novelty exception.

And that is exclusively a matter of state law.

I believe this Court has stated in Smith v. Murray that, of course, the states are always free to rethink their positions, and we believe that the proper consideration of this matter should be to address whether the... as this Court should... address rather whether the Federal court below... both the district court and the Fifth Circuit Court of Appeals... properly applied Federal law.

Not what... not to speculate what state law would be in the future.

Mr. Selvage is obviously free to go back into state court and obtain relief if in fact Ex parte Chambers is the white horse case that he claims it is.

I would also suggest that Ex parte Chambers is simply not that type of case, and there are two reasons.

First off, as... as Mr. Burr correctly states, the Ervin case... and I believe there are approximately three other cases, including Walter Bell which was up before this Court in which the state had previously imposed a procedural bar... those cases are pending before the court of criminal appeals.

If in fact Penry dictates a new rule under state... a novel rule under state law, then of course Mr. Ervin, Mr. Bell and the others would have already received relief.

Unknown Speaker: Is that a possibility that that is the situation in Texas?

Mr. Walt: I don't believe that there is any possibility.

And the reason I don't think there's any possibility, Your Honor, is because we have had two cases subsequent to Penry's decision, and that would be Ex parte Pastor, Ex parte Billy Joe Woods, in which procedural bars were in fact imposed in the... to back up.

In the state procedure the trial court makes findings of... findings of fact and conclusions of law and then they would be forwarded to the court of criminal appeals.

The court of criminal appeals would either reject or accept the findings, or it can just deny relief without accepting the findings.

Unknown Speaker: These are decisions of the Texas Court of Criminal Appeals?

Mr. Walt: They were both decisions of the Texas Court of--

Unknown Speaker: Since Penry?

Mr. Walt: --Pardon me?

Since Penry, Your Honor.

Unknown Speaker: And so in circumstances similar to this case, they imposed the procedural bar despite Penry?

Mr. Walt: Identical, Your Honor.

Unknown Speaker: Is the pending case... I believe it's called Harvey... on all fours with those case... cases?

Mr. Walt: Harvey Ervin is a different case.

Walter Bell might be on all fours.

Harvey Ervin definitely is not on all fours because Ervin was tried prior to Lockett.

So Lockett very well may have been... may be the... the cutoff point as far as... as far as state procedure.

xxx Bell is the same case?

I believe Walter Bell... and I apologize to the Court--

Unknown Speaker: Is that case still pending in the court of criminal appeals?

Mr. Walt: --It is being... it is being held essentially while the pending--

Unknown Speaker: Well, if it's... if it's already been... if the same issue has already been decided in two other cases, why are they holding it?

Mr. Walt: --I... I think Mr. Burr might have hit it on the head, that ever since Penry where--

Unknown Speaker: Well, I know, but you've said that since Penry they've just... they've imposed the procedural bar despite Penry in cases just like this.

Mr. Walt: --I believe that there... I believe... I cannot speak for the court.

I would suggest some possibility that the court of criminal appeals is... is, of course, waiting for this Court's pronouncement as to what constitutes novelty or fundamental miscarriage of justice for--

Unknown Speaker: Well, except that if the previous cases were controlling, you'd think that Harvey would just be immediately issued.

Mr. Walt: --It certainly, if the Ex parte Chambers were controlling, I think that they would have immediately issued--

Unknown Speaker: Well, what about the other cases you just mentioned--

Mr. Walt: --The other two cases--

Unknown Speaker: --since Penry?

Mr. Walt: --James Emory Pastor was executed and--

Unknown Speaker: What's... what's the name?

Mr. Walt: --James Emory Pastor, P-a-s-t-o-r.

Unknown Speaker: And... and... procedural bar was--

Mr. Walt: procedural bar there were... it was procedural bar and alternatively on the merits just as... as this case was, Your Honor.

Unknown Speaker: --And that was since Penry?

Mr. Walt: That was subsequent to Penry.

Unknown Speaker: And what's the other case you mentioned?

Mr. Walt: The other was a Billy Joe Woods.

That case has never made it into the Federal system.

I believe that he has gone--

Unknown Speaker: Were there... were there opinions in that case?

Mr. Walt: --The opinions were entered but they are not... they are unpublished opinions.

That's... that's quite common in the court of criminal appeals.

Unknown Speaker: And Pastor and Woods both unpublished?

Mr. Walt: Pastor is, although this Court probably has a copy of the Pastor opinion and the Pastor findings.

Because of the pending executions we do in fact forward those to the Court, to your--

Unknown Speaker: Was there a petition for cert. in Wood?

Mr. Walt: --No.

Not off... not off state collateral review, Your Honor.

There was a petition for certiorari in Woods but it was off direct appeal.

It did not raise this issue.

Unknown Speaker: Well, did he raise... that was long before Penry?

Mr. Walt: No, Billy Woods was not that long before... well, it was before Penry.

I don't know if it was long--

Unknown Speaker: Yeah, well, all right.

On direct appeal it was before Penry?

Mr. Walt: --Yes.

Yes.

But the issue was not raised on direct appeal.

Focusing--

Unknown Speaker: Is it... is it 100 percent certain that if we decide this case on the basis that for present purposes we'll assume that the court below figured out the Texas court correctly, what the Texas rule was about default?

Is it 100 percent certain that if that is wrong, this defendant can go back into the Texas courts?

Mr. Walt: --Absolutely.

There is no... there really is no viable abuse of the writ posture.

And, in fact, if there is any abuse of the writ concept in the Texas courts in capital cases, it would certainly be excused by the fact that... if he is correct, that this is a change in the law, then he would be certainly free to go back into state court.

There is no... there is nothing to stop that.

Mr. Penry... oh, excuse me, I'm sorry.

Mr. Selvage asserts that cause exists for his procedural default.

As this Court noted... as some of the questions that I've heard noted, Lockett v. Ohio clearly predated Mr. Penry... or, Mr. Selvage's trial.

This Court's opinion in Penry dictates the result on... as far as whether there is novelty for his procedural bar.

Clearly, a claim that is dictated by precedent that exists prior to the trial, a person can never claim novelty as an exception to the procedural default.

Selvage asserts that his default involves a claim of basic trial process... pardon me.

Excuse me, I'd like to back up for a moment.

The concept of futility... and this is nothing more than futility... has been firmly established that that cannot constitute cause for a procedural default.

It was established in Engle; it was reaffirmed in Smith v. Murray.

It was... and particularly in Smith v. Murray.

I believe that that is probably more on point than would be even Engle.

In Smith v. Murray, it was a constitutional claim that was presented to the state courts.

And that was whether there was a violation... or the defaulting claim was one of whether there was an Estelle v. Smith error for... in having the psychiatrist testify in violation of the Fifth and Sixth Amendment.

In that case, specifically, the... this Court found that that claim had been percolating and that even though the state court... even though counsel could reasonably have concluded that the state court would never have granted him relief, the fact remains that the tools were available for him to formulate a constitutional challenge.

There simply is no difference in this case.

In this case, for instance, Mr. Selvage suggests that the state rule foreclosed consideration of the claim.

If one looks at the existence of the state... of the state law at the time, there could be nothing further than the truth.

The claim... most of the cases that Mr. Selvage cites involve not as applied constitutional challenge but, rather, facial challenges.

In each of the cases, even though they state that mitigating evidence couldn't be considered, it was in the abstract, stating that because the concepts of deliberate... the "deliberately" was not defined, for instance; therefore, it was somehow... somehow might have allowed in the abstract the... that mitigating evidence could not be considered.

In... in none of those cases did... did the Petitioner... or did the Appellant state that he presented mitigating evidence which could not be considered.

As I understand the difference between "as applied" and "facial challenges", is a person... especially in the Penry context, it would be the idea that I have mitigating evidence; it cannot be considered.

Certainly, none of those cases stand for that proposition.

The one case that does stand for the proposition is Quinones v. State.

Quinones was decided one month prior to Selvage's trial.

Quinones had not sought, and this Court had not ruled on certiorari by the time Selvage's trial resulted.

Even if the Court were to somehow adopt any concept of foreclosure one case subsequent to Lockett... and no determination of certiorari by this Court could hardly constitute foreclosure.

This Court has... turning to the question of whether there is a fundamental miscarriage of justice... this Court has recognized that principles of finality underlying the procedural default obviously have to give way where such fundamental miscarriages have resulted.

The case of Carrier... Murray v. Carrier first addressed the question of what constituted a fundamental miscarriage of justice.

In previous cases, both in Engle... in Engle and in fact Carrier, they rejected the concept that there would be a fundamental miscarriage of justice... this Court rejected the concept that a fundamental miscarriage of justice would constitute an undermining of the fact... reliability of the fact-finding process.

It rejected the concept that if... that the error impacted on fundamental... the fundamental fairness of the trial.

This Court stated that that was nothing more than the... a restatement of the prejudice prong of Sykes.

The one thread that runs through the... this Court's jurisprudence in regard to the... in regard to what a fundamental miscarriage of justice is, is that whatever happens, a fundamental miscarriage of justice must be a far narrower focus than whatever would constitute cause under... under Wainwright v. Sykes.

To have any... any larger focus than that, or the same focus, would in fact undermine the cause and prejudice standard.

Therefore, this Court adopted the concept that there would be fundamental miscarriage of justice only in the event that a defendant could show that the error probably resulted in the conviction of a person who was actually innocent.

The Court specifically--

Unknown Speaker: Well, of course, the problem is how to apply that in the capital sentencing context.

How does that point--

Mr. Walt: --Absolutely.

Unknown Speaker: --That's the difficulty.

Mr. Walt: And this Court has... this Court has, of course, encountered that problem, has expressed a... a... a problem with it.

How to... how to translate actual innocence into the concept... into the concept of capital sentencing.

The... the... this Court was undoubtedly... undoubtedly aware of the problem that resulted from the fact that we have used the concepts of guilt and innocence and translated it, which is a... a question of historical fact... and translated those into the concept of a largely... of a profoundly moral question of whether somebody should... should live or should die.

Now, this Court has, of course, decided that certain classes of persons are not eligible for a death sentence.

Persons who are under the age of 16.

Persons who are... persons who would fit within the Enmund or Tison rule.

Those people are... and... and... those people are not eligible for sentence and obviously a defendant who... those would be historical facts that a court could conclude.

So if, of course, Penry, alleged Penry error resulted in the exclusion of evidence that would establish that, we could of course demonstrate that a person was actually innocent or the death sentence in that regard.

Amicus for the state suggest that this Court should go no further and just avoid entering the subjective morass of morality which would inevitably result from this Court adopting, particularly the rule of that Mr. Selvage suggests, any concept that somehow he deserves... that a Federal court, years after the fact, would state that he deserves the death penalty, number one, in my opinion, it would... would do nothing more than restate what the prejudice prong of... of Strickland v. Washington is since in effect of assistance of counsel is in fact a standard for cause to excuse a procedural default.

To repeat nothing more than the prejudice standard of Strickland would in fact negate in effect of assistance of counsel as cause for a procedural default.

Since this Court obviously intends... or, certainly appears to want to have a far narrower focus than that which constitutes cause, it necessarily has to be a greater... a narrower inquiry than whether a person deserves a death sentence.

Moreover, to say that he... to have a habeas court ten... in this case, ten years later, decide what... whether a person deserves a death sentence is... is nothing more than to ask for de novo fact-finding on a moral question when the Court has neither heard the evidence, viewed the evidence, viewed the demeanor of the witnessed who testified; and, in fact, would amount to... would amount to nothing more than a habeas court imposing its moral judgment on... on fact-finders who very well may never have possessed the identical moral judgment.

Thus, the state has suggested a standard which would... which would, I think, narrow the discretion... so narrow the discretion of the... of the habeas court reviewing for a fundamental miscarriage of justice and actual innocence of the death penalty.

And that would be to revise the Jackson v. Virginia standard so that... to force the habeas court to look through the eyes of a rational juror.

If the jury were properly instructed, if it were presented with the evidence, would that jury... would a jury... or could a habeas court conclude that no rational juror would have reached the same result, that being a death sentence?

We fell that adopting that standard, if a standard is to be adopted at all... and I'm... I... we agree entirely with amicus that we should probably stop at the... whether they fit within an excluded class of the death penalty... but if this Court is to adopt a standard, it must take pains to avoid the... the idea of imposing moral judgment years after the fact... upon... upon the proper... the proper vehicle... the proper fact-finders which would be, of course, the jury or a judge in a--

To adopt Mr. Selvage's rule, the Court would do... pardon me.

In... I would wish to close at this point and I would ask the Court to recall that it has taken great strides to ensure the reliability... or assure... ensure the preeminence of a trial and the direct appeal process.

It's commenced with Wainwright v. Sykes, it concluded at this point in Teague v. Lane.

To adopt... to adopt Selvage's proposal as to what constitutes cause would be nothing more than to allow Selvage to do what Penry could not do, and that would be a de facto overruling or Jurek v. Texas.

To adopt his concept of actual innocence would do nothing more than ask... than render a trial as a preliminary hearing, at which... a preliminary hearing to be reviewed years later de novo by a Federal habeas judge who neither heard nor viewed the evidence and would be imposing his moral judgment upon the proper fact-finders.

If the Court has no further questions, we ask that the matter be affirmed and the judgment of the court below be affirmed.

Chief Justice Rehnquist: Thank you, Mr. Walt.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Paulussen v. Herion - Oral Argument

Fri, 09 Jan 2009 14:48:35 +0000

Case:

Paulussen v. Herion

Media File:

85-88_19860305-argument.mp3

Related Transcript:

1985_85_88_argument.xml

Transcript:

ORAL ARGUMENT OF ESTHER L. HORNIK, ESQ. ON BEHALF OF APPELLANT

Chief Justice Burger: We will hear arguments first this morning in Paulussen versus Herion.

Ms. Hornik, you may proceed whenever you are ready.

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

The issue in this case is whether the Pennsylvania statute of limitations of six years from birth in a support action for illegitimate children violates the equal protection clause of the Fourteenth Amendment where no similar restriction exists in support actions for legitimate children.

There are two points to be made: first, the statute is unconstitutional.

It treats legitimate and illegitimate children differently without a substantial state interest for such discrimination.

In particular, the only conceivable state interest of protection from stale and fraudulent claims is clearly weak.

Current scientific procedures are sufficiently precise so that the risk of false paternity charges in no sense balances against unfair loss of support for illegitimate children.

Secondly, this case is not moot.

Although current Pennsylvania law establishes an 18-year statute of limitations in response to federal law, the law operates only from December 1st of 1985.

Pennsylvania precedent suggests that the new law does not apply retroactively to a back child support award so that the illegitimate child in this case would lose all right to child support from the date of filing of the complaint in this action, February 11th of 1980.

Unidentified Justice: Mrs. Hornik, may I ask, that statute was enacted since this case was decided below?

Mr. Hornik: Yes, that is correct.

The statute was enacted--

Unidentified Justice: If it did apply retroactively, would there be any issue for us to decide?

Mr. Hornik: --If it did apply retroactively, no, there would be no issue.

But Pennsylvania precedent suggests that the law--

Unidentified Justice: Well, suggests, you say?

Mr. Hornik: --Well, actually, no, there's definite Pennsylvania precedent, the cases of Williams versus Wolfe, Hatfield versus Hazel, Hatfield versus--

Unidentified Justice: Well, I just wondered if we ought not to... why should we address this issue if in fact a new statute applies to this case?

Why shouldn't we send it back to find out?

Mr. Hornik: --Because this new... the new statute, the one that gives an 18-year limitation period, contains no language in it to suggest that it would apply retroactively.

Pennsylvania has a rule of statutory construction that in the absence of--

Unidentified Justice: Well, my only suggestion is, wouldn't the Pennsylvania courts be better able to... more qualified to address this application than we are?

Mr. Hornik: --No, because it's already been decided under Pennsylvania precedent that the law in existence at the time of the filing of a paternity complaint is the law to be applied in the case, and since this case was filed in February of 1980, the law to be applied would be the six-year statute of limitations that was in existence in 1980.

Unidentified Justice: And has the... the courts of Pennsylvania, in any case other than yours here, dealt with this statute?

Mr. Hornik: With the six-year, statute, or with the 18-year?

Unidentified Justice: The 18-year.

Mr. Hornik: No, because it's so new, it just became effective on December 31st of 1985.

No court to my knowledge has had an opportunity to review its implications.

Unidentified Justice: Well, as Justice Brennan has suggested, can you suggest a reason why the Pennsylvania courts shouldn't deal with this first before we undertake to do something, just as a matter of policy and practice if nothing else?

Mr. Hornik: I believe that it's more important for this Court to make a determination regarding the constitutionality of the six-year statute of limitations that was in existence at the time of the filing of the complaint rather than sending the case back to the Pennsylvania court for a determination that has already been made under Pennsylvania precedent.

In other words, in the Hatfield versus Hazel Baker case, in the Jenner versus Stillman case, and most particularly the Williams versus Wolfe case, the Pennsylvania courts have spoken and said the appropriate... that the date of the filing of the complaint is the date--

Unidentified Justice: May I ask you this.

Supposing you filed this complaint on the 1st of December of last year instead of now, and then on January 15th of something they came in with the statute of limitations defense.

Would you not then have argued that the new statute applies?

You wouldn't have just thrown in the towel on the issue, would you?

Mr. Hornik: --Well--

Unidentified Justice: I mean, there must at least be an arguable position to the contrary?

Are you willing to concede on behalf of your client that it does not apply?

I hope you won't, but--

Mr. Hornik: --Well, I... there's one peculiarity of Pennsylvania law which must be made clear, and that is that the order of child support in every support case is retroactive to the date of the filing of the complaint, and so that in Pennsylvania--

Unidentified Justice: --I understand.

You're making the argument against the statute applying.

It seems to me if you were really put to the test you might come up with some arguments for the other position, wouldn't you?

Mr. Hornik: --Well--

Unidentified Justice: After all, you're representing a client here.

You're not trying to get a constitutional issue decided.

Mr. Hornik: --That's correct, Justice Stevens, but since there's this particular rule of civil procedure which states that an order of support is retroactive to the date of the filing of the complaint, and I know of no Pennsylvania case in which child support was awarded for a period prior to the date of the filing of a child support complaint, I think I would have a difficult time in the Pennsylvania court, finding a favorable response to that argument.

Unidentified Justice: I don't understand why we can't allow the State of Pennsylvania to interpret its own laws.

Isn't that what we normally do?

Mr. Hornik: No, for example--

Unidentified Justice: Well, tell me where we didn't.

Mr. Hornik: --In the Mills case that was before you the same thing happened.

During the pendency of the Mills case the Texas statute was changed from one year to four years, and you decided the constitutionality of the one-year statute of limitations in paternity cases in the Mills case, because you made the determination that the child in that case would not have gotten the benefit of the four-year statute and would have been barred from continuing on in a paternity case.

Unidentified Justice: It's a little different.

Mr. Hornik: Well, in this case--

Unidentified Justice: All we're saying is, there's a Pennsylvania statute that's come in between this case and this Court, and in the interim we will send it back to let the State pass on it, on its statute.

Mr. Hornik: --Justice Marshall, I believe that one must distinguish between the right to file a complaint and the remedy in this... now, under the new statute it's clear that Georgeann would have the right to file a new paternity and support petition.

That petition... her award of child support would be retroactive to the date of the new filing, which would be a date after December 31st of 1985.

Her rights to back support from February 1980 are jeopardized, and it's an amount--

Unidentified Justice: Well, I didn't suggest that.

I suggested that we send this case back, not the new case.

Mr. Hornik: --The new statute is not in issue in this case.

This case falls under the old statute.

Unidentified Justice: We send it back... well, who decides whether it is under this statute or the old one?

Mr. Hornik: That's--

Unidentified Justice: The state court should decide that.

The state court decides its jurisdiction, not us.

Mr. Hornik: --I believe that the state court has already decided that.

Unidentified Justice: Under the old statute?

Mr. Hornik: But the old statute... well, okay, the old statute was enacted in 1978.

For example, in this case, this child was born in 1973.

Now, in Williams versus Wolfe the Court was considering the retroactivity of a statute of limitations, and if you look at the facts in that case the child was already six years old in 1979 when the complaint was filed.

And so, what the Court was asking is, can we apply a newly enacted statute of limitations of six years to a case which has been filed one year after the effective date of this Act, and the child was already five at the age of the enactment of any statute, and the Court ruled that the date of the complaint determined the law that would be applied in the case, not the date that the child was born, and not the effective date of the Act, but the effective date that the complaint was filed.

Georgeann Veronica Paulussen was born on today's date, March 5th, in 1972.

At the time of Georgeann's birth her mother, Barbara Paulussen and her putative father, George Ronald Herion, were not married to each other.

Georgeann's mother and father continued to have a relationship through April of 1975, and throughout this time George Herion made voluntary contributions to Georgeann's support, and then in April of 1975 all support ceased.

Barbara Paulussen filed a paternity action on behalf of Georgeann in the Court of Common Pleas of Bucks County on February 11th of 1980.

In this complaint George Herion is named as her father.

George Herion immediately raised at bar the six-year statute of limitations to Georgeann's claim, pleading that the case was filed more than six years after Georgeann's birth and more than two years after he had made voluntary contributions to her support.

There was no trial on the merits of Georgeann's claim in the lower court.

By operation of law, she was barred from presenting her evidence to a tryer of fact.

Her evidence included results of red and white blood tests in which samples had been taken from her, from her mother, Barbara Paulussen, and from George Herion.

The results of these tests indicated that there was a 99.8 probability that George Herion was the father.

Cross motions for summary judgment were filed.

The mother's motion challenged the constitutionality of the six-year statute.

The father's motion raised the bar of the statute.

The lower court granted the father's motion, George Herion, and denied Barbara Paulussen's motion thereby dismissing the complaint.

The matter was then appealed to the Superior Court of Pennsylvania where again Barbara Paulussen's constitutional challenge was denied.

A Petition for Allowance of Appeal was filed in the Supreme Court of Pennsylvania.

It too was denied and the appeal to this Court followed.

The Superior Court of Pennsylvania ruled against Barbara Paulussen on the basis of a Pennsylvania precedent.

In the Pennsylvania Supreme Court case of Astemborski versus Sasmalzki, the Pennsylvania Supreme Court upheld the constitutionality of the six-year statute, and the Superior Court, being a lower court, felt compelled to follow the precedent of the higher court.

The Astemborski case had... the Astemborski court had initially considered the constitutionality of the six-year statute.

A petition for certiorari was granted by this Court, and then Judgment was vacated and the case was remanded back to the Supreme Court of Pennsylvania for consideration in light of this Court's decision in Pickett versus Brown.

The Astemborski court reconsidered the constitutional question in light of this Court's decision and reaffirmed its original decision, finding the six-year statute constitutional.

In Mills, this Court struck down a one-year statute of limitations from Texas as constitutionally invalid, and in Pickett a unanimous court struck down a two-year statute of limitations on the same basis.

In Mills and in Pickett this Court established a two-part test for analysis of the constitutionality of a paternity statute of limitations.

There had to be an adequate time frame for a paternity action to be instituted on behalf of illegitimate children.

There had to be a substantial state interest in avoiding stale and fraudulent claims to justify the discriminatory impact of this statute on the rights of illegitimate children, and other countervailing state interests.

Despite these guidelines for constitutional analysis, the Astemborski court found that the Pennsylvania six-year statute was constitutionally adequate.

The holding of the Astemborski court was in error.

First, is six years a constitutionally adequate length of time to bring a paternity action?

The answer must be no.

First, the child, Georgeann Paulussen, is a real party in interest here although her mother's name appears in the caption, and there can be no assurance that her interest is identical to her mother's interest.

The child cannot act on her own behalf but she loses important rights.

She cannot toddle into court to find her Daddy.

Her mother may be unwilling to sue in a timely fashion for her own reasons, whether these reasons be out of hate, love or utter indifference to the father.

The mother's feelings can continue for many years, even if the father makes voluntary contributions to the support of the child or acknowledges the child's paternity in writing after the six-year period.

Second, the financial needs of a minor child are not always predictable before he or she is six.

A child may not require her father's financial assistance at age five, but at age 12 or age 17 may be in desperate need of such assistance.

As to the second prong of the test suggested by this Court, does the prevention of stale and fraudulent claims counterbalance the interest of the child and the countervailing interest of the State?

We present this issue by issue.

Is the prevention of stale claims really an issue?

No.

Can an illegitimate child's claim for ongoing financial support be considered stale?

The claim of a legitimate child is not considered stale.

Then, is the prevention of fraudulent claims a substantial state interest?

As this Court has noted, advances in scientific testing have attenuated the relationship between the statute of limitations and the State's interest in the prevention of prosecution of stale and fraudulent claims.

In the Congressional report accompanying the Child Support Enforcement amendment of 1985, it was noted that,

"Increased reliability of scientific paternity testing can exclude over 99 percent of those wrongfully accused fathers, regardless of the age of the child. "

Pennsylvania recognizes that the results of HLA testing are so reliable that they can be introduced as affirmative evidence of paternity in a paternity proceeding.

In our concern over the prevention of fraudulent claims, it should be recalled that in addition to the right to call upon powerful scientific tests, the accused father does not lose other defenses in contesting paternity.

The accused father has the right to a jury trial.

If indigent, the accused father has the right to counsel.

If indigent, the accused father has the right to free blood tests.

The accused father has the right to have the petition dismissed immediately if blood tests and tissue tests show that he is excluded as the father.

If the father is not indigent, then he has the right to be notified that he can have counsel at the proceeding and he has to be given an adequate amount of time to secure such counsel.

Also, the accused father can appeal the lower court decision on the basis of ineffective assistance of counsel.

And it's clear in another context that Pennsylvania recognizes that it is possible to establish paternity well after six years have passed.

An illegitimate child can probe paternity after the father is dead, for purposes of intestate succession, if he or she can show paternity by clear and convincing evidence.

Ironically, more liberal rights are given to a child after the after the lips of his father have been sealed by death than when the father is alive to contest the claim.

In sum, it is Barbara Paulussen's belief that the state interest in preventing stale and fraudulent claims is now as it was in 1980, quite minimal.

In contrast the countervailing state interest and the child's interest in the timely determination of paternity are much greater.

As this Court has noted, there is a substantial countervailing state interest in seeing that justice is done and genuine claims for child support are litigated.

This conflicts with the arbitrary nature of a limitations period, that provides no exceptions for determination of a child's paternity after the statutory deadline has passed, based on either the case's unique facts and circumstances, or the quantity or quality of the evidence that a particular child can produce to prove that a particular man is its father.

Another countervailing state interest requires consideration of the cost benefit of a statute which grants financial immunity to a father for support obligations and possibly shifts that support obligation to taxpayers when the child's mother is unable to support the illegitimate child, or is not adequately able to support the illegitimate child.

Unidentified Justice: Counsel, I take it you would make the same argument whatever the statutory period is?

Mr. Hornik: That's correct, and in Pennsylvania a child beyond the age of 18 has a right to ask the father for child support if she needs money for college expenses, if she's impoverished or disabled, and so that the right for a legitimate child could continue on throughout the father's lifetime, and so that even under the 18-year statute, I believe that there is an equal protection problem.

Unidentified Justice: Of course, there is an important issue in the case of the illegitimate child, is the question of paternity, and with your legitimate child you generally don't have that issue.

All you're talking about is, how much does the father make and what are the needs of the child.

Mr. Hornik: Justice Rehnquist, that's correct, but the illegitimate child never has the same procedure as the legitimate child because the illegitimate child has a two-part procedure.

For every case of an illegitimate child, you have to go through a paternity proceeding and then a support proceeding.

A paternity proceeding is a safeguard.

If you can't make it through the paternity proceeding, you don't go on to the support proceeding.

Whereas, for the legitimate child, because of the presumptions that operate in favor of legitimacy, all a legitimate child has to do is say, my parents were married, you know, at the time I was conceived or at the time I was born, or my parents were married after I was born, and I'm legitimate so I have the right to proceed to--

Unidentified Justice: Well, that was really my point, that there is this separate issue in the case of the illegitimate child that might justify a state in treating that sort of issue and the time you can raise it differently, and all you're arguing about, really, are the assets of the father and the needs of the child.

Mr. Hornik: --Well, the thing is that the procedure itself is a safeguard.

In other words, as long as... in other words, the legitimate child and illegitimate child should have equal opportunity to ask for a father's support, and if a legitimate child has through age 50, to ask for a father's support, then the illegitimate child should have the same time period.

However, the illegitimate child will always have the burden of proving paternity.

Now, as I stated before, over 99 percent of fathers today can be excluded by tests as potential fathers.

So that you're looking at a fractional class of fathers whose rights are being affected here, one percent are going to go to trial.

Whereas, you have the entire class of illegitimates which is over 18 percent now, of all births in the United States, are children born out of wedlock, which I believe the last statistic was that over 700,000 children being born out of wedlock each year.

Finally, the interests of the child are sacrificed, and the interest here... the child's interests are paramount and I think that that's out of focus in the way that these cases are being analyzed.

And the child's interests are far more substantial than any risks associated with a post-six year paternity suit.

There is clear discrimination in the statute against an illegitimate child, and this Court has stated very clearly in many opinions that there must be special concern shown for an illegitimate child, and there are statutes that have classifications based on illegitimacy, are subject to a heigtened level of scrutiny, because an illegitimate child is not responsible for his or her status.

It's the parents who produced the child.

Had Georgeann been considered a legitimate child on the date that her support petition was filed, she would have been receiving support from both of her parents in accordance with their means and needs as determined by a court using a best interest of the child standard, and she would have been receiving support from February of 1980, unlike in this case where she has never received one penny of support from her father because she's never had an opportunity to litigate the paternity case.

It's also submitted that Georgeann's right to a determination--

Unidentified Justice: Well, when you say that, I thought she had received some support from her father in the early days.

Mr. Hornik: --Oh, yes, she did in the early days, but after her complaint was filed she hadn't.

It's submitted that Georgeann's right to a determination of paternity is a fundamental personal right.

This determination is the keystone upon which all of her rights as her father's child depend.

Chief Justice Burger: Mr. Onek.

ORAL ARGUMENT OF JOSEPH N. ONEK, ESQ., ON BEHALF OF APPELLEE

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

At the outset, we do not oppose remand in this case.

Although in fact we agree with appellant's view on retroactivity, the cases we both rely on are cases from the intermediate courts in Pennsylvania such as Williams v. Wolfe.

There has been no definitive resolution by the Supreme Court of Pennsylvania on the retroactivity of the 18-year statute and we would not oppose a remand on that issue.

Unidentified Justice: But you think the law of Pennsylvania is as your opponent has stated it?

Mr. Onek: Yes, we do agree to that.

In fact, the Pennsylvania courts, at least as we understand the law, would interpret it the way appellant has.

But there has been no definitive resolution, and indeed the cases we both rely on, Williams versus Wolfe, are Superior Court, not Supreme Court cases.

Unidentified Justice: And if a new action were filed, is the law settled that the Pennsylvania courts would not permit recoveries for that interval prior to the filing of the new paternity--

Mr. Onek: That is my understanding.

Unidentified Justice: --Is your Supreme Court still so far behind as it used to be, so that a new action would take forever?

Mr. Onek: Your Honor, I'm a Washington lawyer, not a Philadelphia lawyer.

I do not know how long it would take the Pennsylvania Supreme Court to resolve this issue.

And, I turn to the constitutional issue.

In 1980 petitioner filed... appellant filed a petition for support, at issue in this case.

At that time there was a six-year statute of limitations for paternity actions.

We submit that that statute of limitations was constitutional and that therefore appellant's petition was properly barred.

This Court has established the criteria for determining whether a statute of limitations in a paternity action is constitutional under the Equal Protection clause.

Unidentified Justice: Mr. Onek, incidentally, is there much argument here that this is the father of the child?

Mr. Onek: That has always been denied in this case.

Unidentified Justice: It has always been denied?

Mr. Onek: That is correct.

Unidentified Justice: On the other hand, I take it he has contributed to the support?

Mr. Onek: That was also denied, Your Honor.

I don't think that appellee has admitted support during the early years of the child.

The first criterion is whether the statute of limitations is substantially related to the state's interest in preventing stale or fraudulent claims.

The second criterion is whether the statute of limitations provides a reasonable opportunity for the child to obtain child support through litigation.

Unidentified Justice: If I might interrupt, to get back to that question of whether or not he has ever contributed support, was there a finding, a judicial finding, that he had?

Mr. Onek: No, I believe there has been no such finding.

Unidentified Justice: But is it not true that there's an allegation that he did support--

Mr. Onek: Yes, there was an allegation.

Unidentified Justice: --on the face of the complaint?

Mr. Onek: Yes, we take it on the face of the complaint.

There was an allegation that he contributed support through--

Unidentified Justice: For purposes of our decision we assume that's true, even though it may not be?

Mr. Onek: --That is right.

Unidentified Justice: He did concede, as I understand it, that he is potentially liable to pay the child support today?

Mr. Onek: No, no, that just states that he is potentially liable on a going forward basis if paternity is proved.

Unidentified Justice: It's really not much of a concession.

Mr. Onek: I hope not.

I certainly hope not.

Let me turn to the state's interest in this case.

Every statute of limitations has two purposes, first to assure the accuracy of the fact finding process, and second, to maintain settled expectations, so-called principle of repose.

With respect to the fact finding issue, it is of course true that scientific tasting has reduced the possibility of false accusations of paternity, but the new scientific tests, including the HLA test which is used in Pennsylvania, is not conclusive.

The leading study, the one cited by amici, the Terasaki study of 1,000 people, shows that in ten percent of those cases the HLA test could make no resolution at all, and in the other cases where it did indicate probatively that the defendant was the rather, the degree of probability ranged from 90 percent to higher.

There is no court in the United States which treats HLA tests as conclusive.

To the contrary, all of them permit a defendant to submit evidence on such issues as non-access to the mother during the relevant time period.

What kind of evidence must the defendant rely on?

Obviously, he must rely on witnesses who are available, on the memory of those witnesses and his own memory, and in some cases, of course, he must rely on documentary evidence like appointment calendars, credit card records and so forth.

There can be no question that the accuracy and reliability of that evidence diminishes over time.

It is far more difficult for a defendant to reconstruct his activities and the activities of the mother six years or ten years after the event than it would be for him to reconstruct those activities one year, two years, or three years after the event.

Unidentified Justice: May I just be sure I understand your reference to the scientific tests.

Do you acknowledge, that in nine cases out of ten the test is accurate?

Mr. Onek: Your Honor, I think that, regrettably, is too simple a way of putting it.

The statistical basis for these tests is very complex.

In some cases the tests will show up nothing at all.

In the--

Unidentified Justice: Ten percent?

Mr. Onek: --Ten percent, the cases will provide no evidence whatsoever, and of course in advance--

Unidentified Justice: But in the other 90 percent, as I understand, the range is from 90 to something higher?

Mr. Onek: --That is correct.

Unidentified Justice: So that, it's not one out of ten, it's... I mean, there's nine chances out of ten you'll be in a predictable group?

Mr. Onek: That is correct.

Unidentified Justice: Then if you're in that group, the chances are ten to one that they can identify--

Mr. Onek: That is correct, and in some cases even higher.

But nevertheless, every court enables defendant to put on evidence, and as I said, that evidence diminishes over time.

It becomes more and more difficult.

Now, there's no magic to a six-year statute of limitations, but we do think that a state could reasonably conclude that after that period of time the reliability of all the evidence that it does permit the defendant to put in, testimony from the mother and the defendant, testimony of other witnesses and so forth, decreases.

And so, with respect to the fact-finding process, we submit that six years is a reasonable period.

Unidentified Justice: --May I ask again, is it possible... I gather the Pennsylvania statute in effect treated these as two kinds of claims, those in which there had been no support at all, the flat six years, and the second category is one in which there would be a finding there had been support for a period of time.

And they allege that they're in the second category.

Do you think your argument applies with the same force in that category as--

Mr. Onek: Under Pennsylvania law, if the father has contributed support, that's an exception to his six-year statute and it gives the mother more time.

In other words, if the father had provided support for seven years, then the mother could come in two years later, even in nine years, and bring it.

But that's not the case here.

That is, even the allegation of support says that it ended in 1975.

Unidentified Justice: --I understand, but do you think your argument on the fact finding process applies with the same force to a case in which there had been a period... it had to be proved, of course... of support?

Mr. Onek: Oh, absolutely, Your Honor, because there are many circumstances in which a man may support a child of a friend because he admires and loves the mother, not because he concedes in any way that he is the father of that child.

So, I don't think the argument is changed.

There was a second purpose of the statute of limitations.

It's to maintain settled expectations, and I think that's particularly important in defendant's... in these types of cases.

After all, the defendant does not necessarily know that he's the father.

He's contesting that.

And in some cases he may not even know that the child in question has been born.

Yet, under appellant's theory, ten years after the fact or 25 years after the fact, he can suddenly be accused of being the father of an illegitimate child.

And what are the consequences of that?

I think there are two sets of... first, there can be enormously significant adverse emotional and social consequences to being accused 15 years after the event of being the father of an illegitimate child.

It can disrupt your relationship with your current family.

It can jeopardize your status in the community, even your employment.

For that reason we think that a state can reasonably say, give the defendant fair notice.

If you think he's the father, tell him within six years so he can make the necessary adjustments.

Unidentified Justice: I suppose in light of the federal requirements today, there is hardly any state that isn't going to an 18-year--

Mr. Onek: That is correct, Your Honor.

Unidentified Justice: --period of limitations?

Mr. Onek: That is correct.

Unidentified Justice: Your argument may fall on deaf ears for the most part because states just aren't going for the shorter time period?

Mr. Onek: I believe that every state, Your Honor, will move to the 18-year period.

I'm merely saying that when this petition was filled and when Pennsylvania passed this law, was it reasonable for them to say, fair notice should be given to the defendant within six years, and we think it should.

In addition to these emotional and social consequences, of course there are the financial consequences.

A defendant who has not known that he has a child for ten or 15 years, has not saved up money or made the other kind of planning that legitimate fathers often do to take care of their children.

So, in some cases, there can be a sudden and unexpected burden.

Unidentified Justice: Well, that could happen under the '85 statute, couldn't it?

Mr. Onek: Oh, under the new statute, that is correct.

I'm merely saying--

Unidentified Justice: Mr. Onek, you draw a distinction between the six-year statute here and the one and two year statutes have been stricken down.

Where is the dividing line, five, four, three?

Mr. Onek: --Your Honor, I don't think there is a magic dividing line, but I think there are several things that can be said about the six-year statute of limitations.

If you look at statutes of limitations generally, in the State of Pennsylvania or other states, six years is on the high end.

In Pennsylvania, for example, generally torts are two years; contracts are four years.

Six years, if you look at the state's general policies with regard to settled expectations, with regard to the accuracy of the fact finding process, six is on the high end.

Unidentified Justice: Well, it's a slippery slope.

We have the same problem with the six-man jury case--

Mr. Onek: I am familiar with that case, Your Honor, and I don't deny the slippery slope.

I merely say that if you look at statutes of limitations generally, six years is at the high end, and that leads me to this point--

Unidentified Justice: --In the Pickett case, Mr. Onek, the Court looked at the incongruity of a longer statute of limitations in the event of the death of the father, and recovery by the illegitimate child, and that same peculiarity or incongruity exists in Pennsylvania, does it not?

Mr. Onek: --Yes, but I think it's a very different situation because all the arguments I have just made about fairness to the father don't apply with the same force when the father is dead.

The emotional and social impact on the father obviously doesn't exist when the father is already deceased.

So, I think you have different factors.

In addition, in Pennsylvania you do have a much higher standard when the father is dead, clear and convincing as opposed to preponderance of the evidence.

Now, in assessing, and I think this goes to your point, Justice O'Connor, in assessing the validity of Pennsylvania's interest in the statute of limitations, it's important to emphasize that prior to 1984 Pennsylvania did not have a provision generally totalling the statute of limitations during impact.

In other words, any child, a legitimate child or illegitimate child who was involved in a slip and fall case had a two year statute of limitations.

I think this demonstrates that Pennsylvania took very seriously its statute of limitations.

It also demonstrates that you cannot say that Pennsylvania was somehow singling out paternity actions and discriminating against paternity actions.

To the contrary, the six-year statute of limitations, in effect, the paternity action in 1980, was substantially longer than the two-year statute of limitations that was in affect for tort cases, for illegitimate or legitimate children.

Now, it is true that in 1984 Pennsylvania changed its position.

It did adopt, like many other states, a general totalling provision.

The question then becomes whether, when Pennsylvania eliminated the statute of limitations for infants, in most general cases, did it also have to eliminate the six-year statute of limitation for paternity actions, and we submit that it did not.

There are very different interests at stake in a paternity action situation.

The general totalling provision applies primarily to tort cases.

It is one thing for a defendant to be accused 15 years after the fact of being a tort feasor.

It is another thing for a defendant to be accused 15 years after the fact of being a father of an illegitimate child.

As I have just noted, the emotional and social consequences of that accusation and that determination are much greater, so that any state--

Unidentified Justice: May I just interrupt.

Maybe your argument is valid, because you are arguing as of the time the statute was passed.

But that risk is available now, and now we're only talking about past due support obligations?

Mr. Onek: --That is correct.

Pennsylvania has changed its law.

I'm just saying--

Unidentified Justice: Supposing that were the only state interest that supported the statute.

I'm not suggesting it is, and if that state interest is no longer viable because of the change in law, would that be a proper ground on which to uphold an otherwise discriminatory statute?

Mr. Onek: --I'm not certain, now, which statute we're talking about.

Unidentified Justice: Well, I'm talking about the one at issue here.

Supposing... and this is not right, it's kind of a hypothetical... supposing the only interest the state has to justify the statute, with this concern about the emotional impact on the father who is sued too late, and supposing now that possibility will exist regardless of how we decide this case because you've got a new statute, and that therefore there really is no present state interest to justify the statute.

Would it be valid or invalid?

Mr. Onek: I think the statute as it existed prior to the new statute is still valid.

I think that when the state--

Unidentified Justice: Even if there's no longer any state interest to justify the discrimination?

Mr. Onek: --Yes, because I believe that when a state changes its policy on a going-forward basis, that doesn't mean that prior to that, the previous statute was unconstitutional.

Also, on the facts of this case, you'd have a very awkward way of making that argument because here it is probably true that Pennsylvania changed its law, not because it revisited the question of its interest but under duress from the federal legislation.

Unidentified Justice: Well, whatever the reason, the interest is no longer... no longer carries any weight?

Mr. Onek: That is correct, but I don't believe that when a new statute is enacted, the previous statute suddenly becomes unconstitutional.

As I was saying about the change in 1984, I believe the Legislature in 1984 could legitimately say, we are changing the statute of limitations in tort cases.

Paternity actions are much more sensitive and we're not sure what we're going to do about that.

After all, this Court has often said that a state does not have to reform all its laws all at once.

Just last week in the City of Renton case, this Court held that a city did not have to resolve all its problems with so-called adult entertainment at the same time.

To the contrary, the Court said, we can resolve the problems posed by adult theaters, without at the same time dealing with other adult entertainment such as bookstores and night clubs and so forth.

And this case is similar.

Pennsylvania was entitled to say in 1984, we are going to change the law with respect to tort actions but we are not at this point going to deal with the tougher problem of paternity actions.

As it turned out, of course, Pennsylvania did deal with the problem of paternity actions less than a year and a half later, because a year and a half later Pennsylvania did in fact, in effect, eliminate the statute of limitations.

Let me turn now to the other criteria established by this Court for equal protection, and that is, does the statute of limitations provide an ample opportunity for paternity and child support actions to be brought.

Again, we submit that the six-year statute passes muster.

We believe that six years gives an ample opportunity for the mother to overcome the various problems which might inhibit her from bringing a child support action.

First, let's take a look at the financial problems.

In the state of Pennsylvania, if a mother is on welfare, the Department of Public Welfare will provide legal assistance to bring a paternity and a child support action.

Other poor mothers can use community legal services to bring paternity or child support actions.

I don't think it can be fairly said, in the State of Pennsylvania, that a mother will be financially unable to obtain the legal assistance that she needs to pursue a paternity or a child support action within the requisite six-year period.

Now, this Court has suggested that there are other barriers that a mother may face, personal, psychological barriers that might inhibit her from bringing a suit within six years.

Let me say first that there is little evidence that there is a substantial number of women who will not overcome whatever inhibitions they have within the six-year period.

Furthermore, there is little evidence that--

Unidentified Justice: Well, I think the concern is with the person who is living with the father out of wedlock and doesn't want to interrupt that ongoing relationship by bringing action against him.

There's an allegation of that sort of situation in the Carey case.

Mr. Onek: --If the man and woman are living together and the man is contributing any support, any amount of support for the child, the statute isn't running because the woman would then have two years after the ceasing of support to file it.

So, your hypothetical only exists in a situation where the man and woman are living together and the man is not Providing a jot of support to the child, which is a highly unlikely situation.

The father is paying... or if the defendant is even paying a dollar of rent, he presumably is helping to contribute to the support of the child, and as long as that is true the mother is not bound by the six-year statute of limitations.

She can sue two years after the defendant's support stops.

So, I think that problem, which was a very real problem in the Mills case, as this Court pointed out, is not a problem under the Pennsylvania statute.

Under the Pennsylvania statute that is not a problem.

So, we don't think that there are going to be a great many women inhibited from filing within six years.

Furthermore, even if there are such women, there may be some women who will not file at any time.

In other words, what evidence is there that a woman who won't file in six years will file in the interim between six and 18 years?

We have to recognize the fact that there are some women who for whatever reason will not file the child support action.

That is not a statute of limitations problem.

There's simply nothing in the statute of limitations--

Unidentified Justice: Then why in the world did Pennsylvania change its law?

Mr. Onek: --Pennsylvania changed the law... the short answer, I think, is that it was required to do so in order to receive AFDC money.

As you know, in 1984 Congress enacted a law which said that unless a state moves to an 18-year statute of limitations, it would be deprived of AFDC money.

Although I don't know the exact amount of AFDC money that Pennsylvania receives, I assume that it's in the tens or hundreds of millions of dollars.

Therefore, Pennsylvania and I assume every other state in the union will now move to an 18-year statute of limitations.

That may in fact be a good policy judgment.

All I am arguing here is that the State of Pennsylvania prior to that was not required constitutionally to have an 18-year statute, that it could have a six-year statute, and that such a statute is constitutional.

If you have no further questions, I conclude my argument.

Chief Justice Burger: All right, Ms. Hornik.

ORAL ARGUMENT OF ESTHER L. HORNIK ON BEHALF OF APPELLANT -- REBUTTAL

Mr. Hornik: In my opponent's argument, first of all it seems to be more like a due process argument in favor of fathers, rather than the issue that's before this Court, is how legitimate children are treated differently than illegitimate children.

And who is to say that every birth of every child is a planned event?

You can have families where the parents are married and they can have a surprise child, and then they have to plan for the financial future of that child, and so that, this kind of argument that a father... that especially a father who has been engaging in sexual relations outside of the bounds of matrimony gets financial immunity if someone happens to haul him into court after six years, is absurd.

Now, this Court has pointed out that in this kind of situation the children's interest... the child's interest is paramount.

Not one word here was said about the child.

What about the social embarrassment of the illegitimate child?

What about the child who is given a school assignment to fill out his family tree and she can only fill out one branch, her mother's side.

She has nothing to put on her father's side.

And so that, an illegitimate child, because of what the father has done, his irresponsibility, is stuck with the consequences and if you can follow that argument, that the statute of limitations is supposed to work as a statute of repose for the father, it's plainly unfair and doesn't balance against the interests of the child.

In closing, I would like to state that this statute of limitations is a violation of the due process... pardon me, of the right to equal protection of an illegitimate child, and I would urge this Court to find the six-year statute of limitations unconstitutional, and reverse the Superior Court of Pennsylvania.

Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Mills v. Rogers - Oral Argument

Fri, 09 Jan 2009 14:46:53 +0000

Case:

Mills v. Rogers

Media File:

80-1417_19820113-argument.mp3

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transcript.xml

Transcript:

ORAL ARGUMENT OF STEPHEN SCHULTZ, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in Mills against Rogers.

Mr. Schultz, I think you may proceed when you are ready.

Mr. Schultz: Mr. Chief Justice, and may it please the Court, in argument today I would like to focus on what the defendants believe to be the two fundamental reasons that there is no constitutional right to refuse treatment.

First would be that allowing one patient to refuse treatment is necessarily going to negatively impair the state's ability to perform its legitimate objective of maintaining order in its hospitals, and second of all, of treating those patients who are not themselves refusing treatment.

In other words, what I am saying is that to allow one patient to refuse treatment, there will necessarily be an increase of violence in our institutions.

The First Circuit talks about allowing forced medication for emergency situations, but they simply do not focus on the fact of the unpredictability of violence in mentally ill patients, the impulsivity of violent acts, the fact that mental patients are acting upon irrational thoughts, and that this simply cannot always be predicted.

The second--

Unidentified Justice: Well, they did give you a broader mandate than Judge Toro had done, didn't they?

Mr. Schultz: --There is no doubt that the First Circuit opinion in our mind is less wrong than the district court opinion.

I could say that maybe less people will be hurt under the First Circuit opinion than would be hurt under the district court opinion.

I hardly feel that justifies the opinion.

The second point that I want to make as to this first fundamental reason is that if you allow one patient to remain in your hospital in a deteriorated state, this is going to affect the health of other patients, whether or not there is violence.

A hospital is a milieu setting, and if you have patients who are deteriorated, this will set off the illnesses of other patients, and I will talk about this more later.

The second major point that I want to discuss in argument today which we believe to be a second fundamental reason is that we suggest that the original decision to commit an individual against his will for treatment purposes when it is known at the time that the patient is committed that antipsychotic medications are a necessary part of the treatment of the vast majority of the seriously mentally ill acts as a sufficient predicate for the later administration of this medication against the patient's will after the commitment.

In other words, let me just reword what we consider this basic argument to be all about.

There is no determination of incompetency at the time that a patient is committed, yet the state is empowered, despite this lack of a finding of incompetency, is empowered to commit an individual against his will for treatment.

We suggest similarly without any finding of incompetency the state should be empowered to carry out that treatment against the patient's will which was ordered at the time of commitment.

In order to fully understand these two fundamental arguments that we believe necessitate there being a finding of no right to refuse treatment, I think it is first necessary to focus very, very briefly on what exactly is the role of antipsychotic medications in our state hospitals.

The record in this case is clear that antipsychotic medications are a necessary part of the treatment for the vast majority of seriously mentally ill patients.

Unidentified Justice: Do those drugs have a component of tranquilizer in them?

Mr. Schultz: They do, but they are not very good tranquilizers.

You shouldn't use them and it wouldn't be proper practice to use them as a tranquilizer.

They are a poor tranquilizer, and to the extent that they do tranquilize, the sedative effects wear off in two or three weeks.

If you want to tranquilize, there are other drugs which are tranquilizers.

We are talking about a specific group of patients, and it must be recognized, and that group of patients are patients who are so seriously mentally ill that they could be committed, plus it is acceptable medical practice to use antipsychotic medications for those patients.

Unidentified Justice: Mr. Schultz, do you disagree with the district court's findings about the drugs themselves, that they are mind-altering and they have significant side effects and so forth?

Mr. Schultz: I certainly disagree with the finding that they are mind-altering.

What they do is restore a chemical imbalance in the brain to the original balance.

It is the psychosis that is mind-altering, as I think a very cogent article points out.

The non-conformist treated of his illness, the psychotic non-conformist will remain a non-conformist.

A conformist treated of his illness will remain a conformist.

They don't alter the mind.

The psychosis alters the mind.

As for the effects, the side effects, there are side effects, but simply put, the state's position, and I think the First Circuit so found, is that the dangers of psychosis untreated are far greater than the dangers of any of these side effects.

The one other point that I can point out about the side effects is that there has sort of been a pendulum in the knowledge of these side effects.

At first there wasn't much knowledge of them.

Then everybody thought everything was a side effect, and now they are finding that the side effects are more limited than they thought, and are certainly more treatable.

Let me turn back to the question of what these medications are all about.

A point which the defendants want to emphasize is not only is the record clear that these medications are effective when taken voluntarily; the record is also overwhelming that these medications are effective when forcibly administered, the district court's finding notwithstanding.

There is no way... To argue that these drugs are not administered... are not effective when administered forcibly simply ignores the tens of case histories in this case of patients who refused antipsychotic medication and deteriorated, and then against their will were forcibly medicated and improved, and there is simply no explanation for that other than the fact that these are chemicals, and they make the brain... they restore an imbalance, and this balance is restored whether or not a person voluntarily takes these medications or whether a person is forced to take these medications.

Let me turn to what the Commonwealth feels is another very important point in this case, and that is the recognition that we are talking about seriously mentally ill individuals, as the patients who have been given the right to refuse medication, and specifically, what do we know about the serious mental illness which is sufficient to commit an individual?

We know that an acutely psychotic patient is terrorized, in a state of panic, unbearable agony, pain, and distress.

That is undisputed in the record.

We know that schizophrenic patients, which are the majority of patients for whom it would be a proper practice to give antipsychotic medications, don't think rationally, that they think on their own autistic terms.

We know that a classic symptom of mental illness which leads these patients to being committed is ambivalence, including ambivalence to treatment.

We know that... it is undisputed in the record that many, many patients who were forcibly medicated in the past, after they were forcibly medicated, thanked the doctors for forcibly medicating them when they weren't speaking their own true mind.

Now, despite--

Unidentified Justice: Could I ask you one question--

Mr. Schultz: --Certainly.

Unidentified Justice: --about the basic facts that I just didn't recall as you are developing your argument.

The institution houses both voluntarily committed and involuntarily committed persons.

Is that correct?

Mr. Schultz: That's correct.

Unidentified Justice: What is the rough proportion of the two?

Mr. Schultz: I believe it is 90 percent voluntary and around 10 percent involuntary.

The reason for that is that in Massachusetts the laws changed in 1970 requiring you to, even if you could commit somebody, ask them if you wanted them to come in voluntarily, because they felt there would be a benefit to patients being voluntary patients.

There is not necessarily much of a difference in the illnesses between the two.

Unidentified Justice: Do I correctly recall that those who are voluntarily committed do have a right to refuse this treatment?

Mr. Schultz: Or leave the hospital, or face a petition for their commitment.

Unidentified Justice: But as a matter of fact, is something comparable to the district court or the court of appeals procedure being followed with respect to the 90 percent who are voluntarily committed?

Mr. Schultz: Yes, except that many of them... it used to be felt that you could ask them to leave the hospital and if you didn't you could forcibly medicate them.

Now what is happening is, after this opinion, if you feel they have to be forcibly medicated, they are making them involuntary patients.

So when the patient refuses medication now, there could well be a shift in this percentage, given if the kind of opinions that the First Circuit and the district court issued would have become the law.

I simply don't know the statistics as to whether or not there has been a change over the last several years.

Unidentified Justice: In any event, basically what is at issue here is whether you must follow with respect to the 10 plus percent, because presumably the number would grow by reason of the circumstances you describe, whether you must follow the same procedure with respect to them that you follow with the other patients in the hospital.

Mr. Schultz: I am afraid I don't understand your question.

Unidentified Justice: Well, the court has ordered you to follow certain procedures before you involuntarily administer these drugs to the 10 percent who have been involuntarily committed.

Mr. Schultz: That's correct.

Unidentified Justice: And as I understand it, you are applying those procedures, or substantially those procedures, as to the 90 percent of the people in the hospital.

So the question is whether the 10 percent must be treated like the rest of the patients.

Mr. Schultz: Well, what they are doing with the 90 percent is saying, you have a choice of leaving, if you want, and if you don't, we are going to make you an involuntary patient.

Unidentified Justice: Well, I know, but if they don't leave.

If you could.

You may not be able to.

Mr. Schultz: That is correct.

That is correct.

Unidentified Justice: Mr. Schultz, I would like to pursue something that may be somewhat similar to Justice Stevens' question.

As I understand it, the court of appeals required that an individualized estimation be made by the physicians in attendance of the possibility and type of violence in which the patient might engage, and the likely effects of the particular drugs on the patient, and an appraisal of the alternative means of treatment, and then if the physicians determine, having applied that standard, that the drug should be given, it may be given involuntarily.

Now, I think that is what the court of appeals has said.

I also believe that that is the procedure that you have outlined in your brief that you assert the state follows anyway.

Is that right?

Mr. Schultz: No, that is not right, because what they... first, what the court of appeals has done is, they set up two procedures for what they call dangerous patients and non-dangerous patients.

What happened before the temporary restraining order, there was no decision about dangerousness.

It was recognized that this was not something which was predictable necessarily for these patients.

It was decided whether or not the medication was medically necessary on an individual basis, but there was never a decision made on, do I believe that because the possibility of dangerous outweighs the individual's private rights, which is what the individual decision has to be according to the First Circuit, that decision wasn't made.

Yes, it was an individual determination, but the questions that were asked were quite different.

I want to go back to the point of who these patients are, because I want to talk briefly, because the state, I think, has been misconstrued on this point in both courts below, on who is this competent mentally ill patient that is talked about by the two courts below.

The district court found that a majority of the committed patients are capable of appreciating the benefits, the risks, the side effects of these medications.

The Commonwealth suggests simply there is absolutely no basis in the record for that finding, but putting that aside, the major problem with both the district court opinion and the First Circuit opinion in this respect is that nobody discusses what they mean by such terms as appreciate, benefits, competent, or capability.

And it is quite one thing to say that a patient is able to understand that there may be risks to medication and to understand that he has been told he will get better if he is given the medication, and it is quite another thing to say that a seriously mentally ill patient can appreciate the benefits of being well when by definition part of his illness is that he doesn't understand that what he is is not well, and let me make the Commonwealth's position clear here.

We are not stating that a petition of commitment is the same as a legal finding of incompetency.

We recognize that people may be delusional in some aspects, but clearheaded in other aspects of their life.

Unidentified Justice: What does Massachusetts require to be found in the case of a commitment?

Mr. Schultz: At a commitment there must be a finding of mental illness, there must be a finding of a serious risk of harm to an individual by reason of mental illness.

Serious risk of harm is defined as three types of patients, danger to others, danger to yourself, or incapability of taking care of yourself.

Let's look at those three kinds of patient.

You talk about the kind of patient who is a serious risk to himself.

This patient by definition, if he is going to be committed, is seriously depressed, his affect is impaired, he feels that there is really... he doesn't understand that there is a better world.

He feels usually that the only way out is by killing himself.

Now, certainly, this patient is not going to be able to understand the benefits of what it means to be well, because in his world the whole world is bleak.

Look at the second kind of patient.

The second kind of patient is a patient who is a danger to others.

This person by definition has basically... has a distorted view of interpersonal relations with somebody.

Classically, he is either in a state of rage or he is in a state of panic, a rage at somebody or a panic that somebody else is going to hurt him.

Yes, the rage and the panic may wax and wane on a given day or in a given period, but the basic underlying problem of his illness is that he doesn't understand that his rage or panic is unreasonable, and there is no way that patient can weigh the benefit of what the medication is going to be--

Unidentified Justice: Well, counsel, under the court of appeals opinion, if the physician determines that there is this element of violence which is a possibility, and as you have indicated, to commit the person in the first place the court had to decide that violence was a substantial possibility, I don't understand why the court of appeals requirement adds anything in addition to what the doctors would be looking at anyway.

Mr. Schultz: --What the court of appeals does is require... they say that the fact of violence at the time of commitment is not enough to later forcibly medicate the person in the hospital.

They say that dangerous on the outside may not mean dangerousness on the inside.

And they set up this arbitrary distinction of, you can forcibly medicate some people if you think they are violent, and forcibly medicate other people if what you want is treatment.

What the Commonwealth says is, everybody is committed for treatment.

It is simply not accurate to say that there is anybody in Massachusetts hospitals because they are dangerous.

That is not why they are there.

They are there because they are dangerous by reason of mental illness.

Unidentified Justice: Well, here, the court of appeals gave alternative standards.

It said that the petitioner... the hospital may forcibly administer drugs without a finding of incompetence if it is reasonably believed to be necessary to prevent further deterioration in the patient's mental health or the other standard that I have been talking to you about.

Mr. Schultz: That's right.

Unidentified Justice: Now, isn't that enough to encompass the patient's needs and the hospital's needs as well?

Mr. Schultz: No, absolutely not.

Under the first standard... it is more than that.

They require that they go to a court to get a finding of incompetence, and the question is, why--

Unidentified Justice: In addition to the initial finding on commitment.

Mr. Schultz: --That's right.

This is the First Circuit and the district court.

They say the mere fact that you have to treat the patient, that in your mind treatment may be necessary, unless you can find these exceptions that you gave, you are going to have to go to a court for a finding of competence, and--

Unidentified Justice: But I thought one of the exceptions that the court of appeals found and modified the district court was that the patient could be forcibly medicated without a finding of incompetence when it is reasonably believed to be necessary to prevent further deterioration of the patient's mental health.

Well, what they say is for the significant deterioration, and you run into two situations.

First of all, what does significant mean?

You take the Rennie versus Klein case.

I will use that as an example of the facts.

This is an individual who slowly, when the district court told him he couldn't be forcibly medicated, he slowly deteriorated.

Where was the significant deterioration?

It was on a daily basis, until his life was endangered.

Because of the district court opinion that you had to have a determination of incompetency, Mr. Rennie's life was unnecessarily endangered.

So why not focus on significant?

Second of all, you have the problem of, we are talking about a milieu setting.

What about the patient who is seriously ill, who is suffering, who is in agony and distress, but isn't deteriorating?

He is already so deteriorated.

What about that particular patient?

I think it is important to maybe look again at some of the examples.

Maybe I can help answer your question by looking at some specifics of what is in the record of this case.

I have an example of one of the plaintiffs in this case.

Her name is Betty Bybel, and the testimony is that when Betty Bybel was deteriorated, not only could she become violent, but one thing she would do is sadistically taunt the other patients about their personal lives, causing a deterioration in their health.

That wouldn't fall under any of these exceptions, yet under the First Circuit Betty Bybel is going to continue to cause the other patients to deteriorate.

The record is that when Betty Bybel would start yelling, everybody would start yelling.

That is not covered under either of those exceptions.

There is no significant deterioration in Betty Bybel.

There is nothing about dangerousness, but the hospital is going wacky, and going... the hospital is going up at that time, because of the effect in the milieu, which is not discussed in either of the opinions.

You have an example of another patient, James Colleran.

He would sadistically taunt female patients sexually.

All right.

For the female patients, you might have the question of dangerousness, but what happens is that he set up some of the male patients who had their own sexual hang-ups and couldn't stand James Colleran taunting the female patients, and the male patients' illnesses deteriorated, and there are just example upon example of example of these kinds of situations, and you must recognize that we are talking about a milieu here, we are talking about the state's ability to perform its legitimate objective of maintaining order in these hospitals, and neither opinion deals with this very fundamental reason that there should not be a right to refuse treatment.

Mr. Schultz, you say that treatment with antipsychotic drugs is the standard fare with maybe 90 percent/or at least the great majority of your patients.

There is a group of patients that you don't use drugs on.

Mr. Schultz: --That's correct.

Unidentified Justice: So you must have some criteria, some criterion for separating out those you use them on and the ones you don't.

Mr. Schultz: Medical judgment.

Unidentified Justice: Medical judgment.

Well, if the courts had said to you, well, you have two groups, the ones you use them on and the ones you don't, if you decide that a certain person belongs in the group that you are going to give drugs to, you should go through a procedure to decide that.

Now, do you say that those... nothing about the commitment helps you decide which group you give the drugs to and which you don't.

They have all gone through this process of being involuntarily committed.

Mr. Schultz: What they were all involuntarily committed for was appropriate treatment, we would suggest.

We would suggest--

Unidentified Justice: I know, but there had to be some findings before there was an involuntary commitment, either danger to themselves, to others, or they couldn't take care of themselves.

The reason you have committed them is for treatment maybe, but nevertheless you had to make those findings.

Mr. Schultz: --Well, let me answer that in two ways, if I can, and I think I can deal with the questions raising.

This case is not a procedural case, is my first answer.

This is not a case where you are simply talking about the First Circuit setting up additional procedural safeguards.

The First Circuit is talking about changing the substance of law, of setting up a different class of patients within the hospital, a group which, procedures aside, is going to be called your mentally ill competent patient, who is allowed to stay in the hospital, as the defense puts it, demand hotel service instead of treatment, and refuse their medication.

They are talking about another group of patients that is going to be set up that just didn't exist before, which is a group called incompetent patients but for whom there is going to be a substituted judgment that if they were competent they should be allowed to refuse, and those patients are going... somebody else is going to be allowed to say, they should be allowed to refuse their medication.

It has nothing to do with setting up... this is not the procedural question.

The First Circuit opinion doesn't even mention procedural due process.

This isn't an opinion which talks about the state's rights and the individual rights and the need to have some type of mechanism which will lead to an accurate assessment, which we would suggest in our brief the hospitals do have, which is the second half.

We believe the type of review that takes place at these hospitals is constitutionally adequate, but what I want--

Unidentified Justice: Could you be specific on what type of review the hospitals do employ?

Could you describe--

Mr. Schultz: --At these hospitals, there are rounds every day in which medications are discussed, at which a doctor must be present.

Unidentified Justice: --Is it discussed with the patient?

Mr. Schultz: At team meetings twice a week, it is discussed with the patient.

At one of the units at the team meetings, the medical supervisor attended the team meetings.

Unidentified Justice: Are the patients' desires concerning medication considered then?

Mr. Schultz: The record shows that they are.

That that was always a factor.

That they would listen to the reasons that the patients gave as one factor they would take into account.

Unidentified Justice: And do the physicians consider the dangerousness of the patient or the propensity for violence?

Mr. Schultz: Before, not... not really.

I mean, dangerousness is part and parcel of the mental illness.

Yes, they considered it to the extent that because these people are mentally ill, because some of them certainly have a history of dangerousness, that these patients need treatment, but I cannot honestly say that dangerousness was one of the factors that they took into account.

What they took into account was whether or not these particular patients needed the antipsychotic medication.

Unidentified Justice: And they consider the alternative forms of treatment for medication?

Mr. Schultz: There is not an alternative form of treatment for most of these patients.

I mean, I cannot honestly tell you that they went through... we have proposed remedies in this case, where the other side suggests under the doctrine of least restrictive alternative there are 12 other alternatives that must always be considered, one of them being seclusion, which they suggest is less restrictive than forcible medication.

The doctors did not do that.

Would the doctors prescribe antipsychotic medication if they didn't believe that was the best treatment?

No.

And to that extent, it is a consideration of the alternatives, but it was not a matter that they said to themselves, which is the least restrictive form of treatment that could be given.

Instead, what they would say to themselves is, what is the best form of treatment that they could be given.

Let me go back on--

Unidentified Justice: When you say they consider in these rounds or in these meetings whether the patient needed the medication, what do you mean by need?

Mr. Schultz: --Well, it would be a consideration of, one, what are the side effects this patient is having, are the side effects so serious that we should... first of all, one of the units had specific meetings simply where the patients could raise complaints about the medication.

Now it is the full purpose of the meeting every week.

So obviously in that situation they consider what the patient complained about.

Unidentified Justice: What do you mean, that they need the medication?

Need it for what?

Need it for treatment?

Mr. Schultz: Need it for treatment, and does the need outweigh whatever side effects this particular patient might be experiencing at this time.

Is the patient's health changed sufficiently?

It may be one can start other therapies in addition to medication.

These were teaching hospitals, both of these hospitals that we have here.

So there were residency programs.

The residents, as in any teaching facility, would regularly be meeting with their supervisors.

They would be regularly meeting with the patients.

And these are hospitals that had a lot of feedback, that had a lot of periodic review of the various medications.

One other point that I want to emphasize that I think both courts below simply have misinterpreted what parens patriae power and what police powers are all about.

Police power is talked about in terms of a policeman's ability to prevent dangerousness, and the defendant suggests that simply is not what the police power is.

The police power, according to past cases in this Court, is the ability to protect the general welfare, including to protect the public health of its citizens.

The Commonwealth would suggest that this ability to protect the public health is clearly implicated when you are talking about the need to treat patients against their will who have already been committed against their will for treatment purposes.

As to the parens patriae power, I simply want to say that this notion of competency seems to have been invented by the First Circuit to justify its opinion.

You will find nothing in the opinions of this Court that ties this variable competency that can change in one day, where one day you are competent and one day you are not competent, to the parens patriae power.

The state is the sovereign, as a sovereign is the guardian over all idiots and lunatic, according to the opinions of this Court.

This Court has never mentioned incompetency.

This notion of incompetency, the Commonwealth would suggest, is one that has been brought in from the rear to justify the opinion.

It simply is not necessary.

The parens patriae powers and the police powers are more than adequate to justify the actions taken by the doctors in this case.

Thank you very much.

Unidentified Justice: Mr. Schultz, does the record show anything about the adequacy of staffing in these hospitals?

We hear a lot of complaints over the country about understaffing, insufficient number of psychiatrists and other attendants.

Does the record show anything here?

Mr. Schultz: It shows that they were half of what you might find in a private hospital, where they were compared to McLean Hospital in Boston for the comparison in staffing.

They were far above the minimum standards that were set out in such cases as Wyatt.

Unidentified Justice: I gather from your remarks, these frequent sessions and the like, that there was no problem with staffing.

Mr. Schultz: The staffing could have been better, but it is not a question of there were not doctors, there were not good registered nurses, there were not residents.

I mean, that kind of staffing was there.

Unidentified Justice: Before you sit down, let me put one at you that we have got you stopped.

I get a feeling reading this record, the massive record, this case went on how many weeks?

Mr. Schultz: It was a year and a half of trial and 74... I guess 72 trial days and two days of closing argument.

Unidentified Justice: I get a feeling, and I wonder what your reaction is, whether I am being led astray, that the judges, as we judges tend to do, were reading this testimony in this record as though mental illness, psychiatric problems, are like physical illness, that you can take someone's temperature or pulse or blood test and then you know something about what is going on inside that person.

Is that a strange reaction that I get, or would you--

Mr. Schultz: No, I think that is certainly there, and I think that goes to this problem of the inability to predict the violence of some patients, the unawareness that people who do not think rationally are going to act impulsively on those irrational thoughts.

There is simply no recognition by either judge of those particular problems.

Unidentified Justice: --A diabetic patient, for example, if he is getting near diabetic coma, they can find that out by a blood test, can't they?

But you are saying that you can't do that with the psychotic or the schizophrenic.

Mr. Schultz: I don't want to overstate it.

There are certainly many patients you cannot do that for.

There are some patients that might have a clear history that if they do something, they do something first.

Then you know that something else almost always follows.

Then you have a history showing you for those psychotic patients that when they start winding up you have got to look out, the next thing they are going to do is punch somebody.

But if you don't have that kind of history, certainly you have that problem.

Unidentified Justice: Mr. Schultz, I take it there is a regular procedure at these hospitals for periodically determining if the grounds for commitment still exist.

Mr. Schultz: That is correct.

Unidentified Justice: So that presumably in between... just take a particular patient, Mr. A.

In between the times that his case is reviewed for that purpose and the next time it is reviewed for that purpose, presumably he still fits the definition of a proper committee, that he is either dangerous to himself or to others or can't take care of himself.

Mr. Schultz: That's correct.

There is an affirmative obligation on the superintendent to release a patient who is no longer mentally ill or felt no longer mentally ill and dangerous.

In addition to that, there is a six-month periodic review and then another six-month periodic review at the beginning, then they are yearly after the first six months, and in addition, there is what is known as a Section 9 petition, where any time the patient himself wants to petition the court, he can do so.

Unidentified Justice: So we are talking about... the court of appeals is talking about saying you must determine... you must get the consent of someone who right now is dangerous to himself or to others or can't take care of himself.

Mr. Schultz: That is correct.

I mean, what they say, without, we suggest, any real support, is that once you are in the institution, they say the finding is dangerousness on the outside, not necessarily what is on the inside.

We say the finding is dangerous because of mental illness, and that they are just missing the point of what the mental illness does to the individual.

Unidentified Justice: Well, if they don't qualify any longer for commitment, they should be turned loose.

Mr. Schultz: That's correct.

Unidentified Justice: Mr. Schultz, the opinion in this case is based, of course, in part on the fact that in Massachusetts someone can be an involuntarily committed patient and under Massachusetts law is still competent legally to make a variety of decisions.

Is that not true?

Mr. Schultz: All Massachusetts law says is that you are competent to do some very specific things, write a will, manage your affairs.

Unidentified Justice: Dispose of property.

Mr. Schultz: That's right.

It says nothing about that you are competent to make treatment decisions.

That is gloss that the First Circuit and the district court opinion have put on the Massachusetts law.

Unidentified Justice: Can they vote in Massachusetts?

Mr. Schultz: Yes, they can.

But again, this goes to... we accept that somebody may be delusional in some areas and not delusional in other areas.

Unidentified Justice: Well, part of the decision here may be affected, may it not, by this provision of Massachusetts law providing that they continue to be legally competent, right?

Mr. Schultz: I don't think it should be.

I don't think... one, competency is relevant, as I have discussed, competency is a variable thing, so that you can be more competent one day than the next day, and really what is relevant is why you are committed.

Beyond that, Massachusetts law, I think, is clear.

It does not recognize a right to refuse treatment.

It sets out in the law specifically that there is a right to refuse electric shock and lobotomy, and does not mention antipsychotic medication.

I think under normal rules of statutory interpretation the right interpretation of Massachusetts law is that it does not recognize the right to refuse treatment with antipsychotic medication.

Unidentified Justice: Mr. Schultz, may I ask you one other question?

Apart from procedures that have been adopted in response to this litigation... just assume we didn't have the case... does the record tell us whether the hospital draws any distinction in its day to day administration between voluntarily and involuntarily committed patients?

Mr. Schultz: They did not before this suit except to the extent that for the voluntary patient they would say, you can leave, but if they didn't, then they treated them like involuntary patients, without bothering to commit.

Unidentified Justice: The voluntary patient always had the right to leave.

Is that right?

Mr. Schultz: Yes, Your Honor.

Unidentified Justice: I see.

But other than that, in terms of medical decisions and the like, they are treated alike?

Mr. Schultz: That's correct.

Unidentified Justice: Mr. Schultz, we have been taking your time that you wanted to reserve to reply, and perhaps the Court will give you additional time.

You have not responded to the motion of the other side that we dismiss this case in light of the court's decision in your state in Roe.

Mr. Schultz: Well, I have certainly responded by brief.

Unidentified Justice: You did briefly, but that is a rather important issue, at least for me.

Mr. Schultz: Well, I can do no more than really repeat what I think are the basic points in our brief, so I will do that very briefly, if you would like.

I think the Roe decision, first of all, they went out of their way to say that they weren't deciding this case.

On four different occasions they said, we are not--

Unidentified Justice: Without going into that detail, let me ask you this.

Mr. Schultz: --Okay.

Unidentified Justice: Do you think the Roe decision changed the law of Massachusetts in any way?

Mr. Schultz: It is hard to say, because the Roe decision deals with a moot situation which is never going to come up again, and I really don't think the Roe decision is going to have any impact whatsoever in Massachusetts.

Unidentified Justice: You think it is totally irrelevant to this case?

Mr. Schultz: Absolutely.

Thank you.

Chief Justice Burger: Your time for rebuttal will be reserved as you undertook to reserve it, which is five minutes.

Mr. Cole, you may proceed when you are ready.

ORAL ARGUMENT OF RICHARD WAYNE COLE, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Cole: Thank you.

Mr. Chief Justice, and may it please the Court, I would like to try to clear up two comments that were made at the end of the argument in terms of commitment.

The Roe case specifically dealt with whether or not merely because someone is being committed for dangerous in the community, dangerousness in the community, whether it means that a person would be necessarily dangerous in the hospital, the Supreme Judicial Court said specifically it does not mean, and I will give an example of that.

Someone may be dangerous to their family because hey are having problems with their family, and they are dangerous, and they are put in the hospital.

Now, they cannot be discharged, because if they are again discharged into the community, they would be dangerous in the community, does not necessarily mean that they would be dangerous in the hospital.

In fact, the district court found as a matter of fact, based on the evidence presented by the defendants, that only 25 percent of the patients in the hospital are in fact potentially dangerous, and I will address that later.

Second of all, in terms of the practice dealing with voluntary patients, they were treated specifically like involuntary patients.

What happened was that patients weren't told that they had a right to leave.

They were told that if they refused their drugs, they would be forcibly medicated, and that if they tried to leave, they threatened them with commitment.

So there wasn't such a thing that... they are called conditional voluntary patients, where the patient has to give three day notice to the hospital, and during that period of time the hospital has the right to petition, and the record was consistent in the patients who testified and staff who testified that patients were threatened that if they did refuse and they tried to leave, that they would attempt to commit them.

I would like now to go to certain brief points concerning this case.

Unidentified Justice: Well, let me ask you one question about the record.

Does the record indicate what happened in the event that there were commitment proceedings?

Were the patients who refused treatment invariably committed?

Mr. Cole: There was nothing in the record concerning that.

Most patients, at least the testimony that we have from staff and patients was that the patient would not sign the voluntary... or withdraw the voluntary under the threat of commitment.

But there was no record concerning what was the rate of those individuals who refused and whether or not they would be committed.

First of all.

I would like to make the point that respondent in this case had never sought to restrict the use of antipsychotic drugs on individuals who were able to weigh the risks and benefits of these drugs and who voluntarily agreed to take them.

Unidentified Justice: You say they are able to weigh it.

Mr. Cole: That is correct.

Unidentified Justice: Who says they are able to weigh it?

Mr. Cole: The district court found, based on the evidence that was presented below, that most patients in the hospital as a matter of fact were able to weigh the risks and benefits of the drugs, specifically and particularly those patients who had experienced antipsychotic drugs before.

Now, 85 percent of the patient population were either patients who were chronic patients or patients who had been rehospitalized previously, and one can assume by both the evidence in the case and as petitioner says that almost all those patients had antipsychotic drug experience in the past.

Secondly, this is not a situation in which if patients are provided with the right to refuse antipsychotic drugs, that many patients will be without treatment.

Now, the petitioners have here asked for de novo review of a number of facts found by the district court after a 72-day trial, a voluminous record with testimony which... some of it was in dispute, but which the district court found... but the district court found, and based on... by statements made by the defendants themselves, that the vast majority of patients after the district court order accepted some form of antipsychotic drug, though not necessarily the drug or dosage the doctors originally prescribed, as long as the doctors tried to use discourse to discuss with the patient the risks and benefits rather than the previous practice of using force on the patients.

Now, this was a different practice, and the defendants admitted, there are admissions in the record that the defendants' practice in the past was for patients, some patients who were able to make rational decisions, that they would ignore or disregard patients' complaints about the adverse side effects, and medicate them anyway because the doctors believed that it was in their best medical interest.

Secondly, the district court found that a number of effective alternatives are available to the hospital for those competent patients who refuse antipsychotic drugs.

Unidentified Justice: What does the district court know about these things, any more than most judges know about the processes that go on in a medical hospital?

Mr. Cole: Well, Your Honor, there was substantial testimony from a number of national experts on both sides concerning alternatives--

Unidentified Justice: And this should be ultimately relegated to the decision of one district judge, or of a court of appeals, or, for that matter, this Court?

Mr. Cole: --Well, the fundamental question in this case is, we perceive as a fundamental historic right in our society that an individual, a competent adult individual has a right to refuse treatment recommended to them by a doctor, even if they--

Unidentified Justice: What percentage of these people are competent adult persons, of these inmates?

Mr. Cole: --Well, Your Honor, first of all, the Roe case, the Massachusetts Supreme Judicial Court, the highest state court, specifically said that patients are competent to make treatment decisions even though committed, so in their interpretation of state law--

Unidentified Justice: All of them?

All of them?

Mr. Cole: --No, Your Honor.

We don't believe that all of them are, but as the Roe case said, and as the district court and the court of appeals said, that for those patients who are unable to weigh the risks and benefits, there is a state procedure present, and in fact, the petitioners followed that same state procedure for medical treatment for those same patients, the surgical treatment for those same patients, and for psychosurgery and electroshock.

That means that if... that they either have to get the consent of those same patients who are in the hospital who they say they don't have to get for antipsychotic drug treatment, and if they believe they are incompetent, that they have to go to the probate court to get an adjudication of legal incompetency before they can be forcibly treated for medical treatment, surgical treatment, electroshock and psychosurgery, and this treatment could be ongoing also.

For example, medical treatment could for the same patient be ongoing and involves drugs also, the drug, for example, dilantin, phenobarbital, dealing with seizures.

They are ongoing.

And they need the consent of the patient in those circumstances.

Unidentified Justice: Mr. Cole, I understand your view that there is a great difference between being committed for statutory reasons and being mentally incompetent.

Is it your view that the test of incompetence for things such as making wills and voting and entering into contracts should be precisely the same as the test for competence to make this medical decision?

Mr. Cole: Your Honor, the answer is, each type of situation for competency to vote, for contracting, are all individual legal determinations that are made by courts of law in Massachusetts traditionally.

In fact, dealing with--

Unidentified Justice: But are there grades of incompetence in Massachusetts?

You could be incompetent to vote, but not to enter into a contract or not to make a will?

Mr. Cole: --There is a belief in... there is law that in Massachusetts someone can be specifically incompetent in one area and not legally incompetent in another area.

But in terms of medical treatment, procedure follows the state case that we cited in court dealing with Lane versus Candura, where a doctor believed that a patient who was going to... refused surgery, and the doctor believed the patient was incompetent, and they went to court, and the court says, even though the doctor believed that the decision by the patient was unwise and foolish, and maybe even incompetent, that in fact she was still legally competent under Massachusetts law.

And the Roe--

Unidentified Justice: Under Massachusetts law, is the test of competence merely one of the intellectual ability to know what is best for oneself, or does it also require something to do with the kind of self-discipline that might be necessary to make the decision?

Mr. Cole: --I think the Massachusetts law, though, it is not clear, is that if a person understands and is able to weigh the benefits and risks of the type of treatment, even though--

Unidentified Justice: Some people weigh the benefits and risks of stopping smoking, but then they go ahead and smoke.

Mr. Cole: --Our society believes that an individual has a fundamental liberty interest in making certain decisions except for in certain extraordinary situations.

Unidentified Justice: The test is really an intellectual test.

Mr. Cole: That is correct.

Unidentified Justice: Could I ask you, say here is a particular person who is involuntarily committed, and there has been the proper finding that he is either dangerous to himself or to others or he can't take care of himself by reason of mental illness, and so he is committed, and the judge has found that he is in that condition.

Mr. Cole: The finding is only that the person is mentally ill and dangerous if the person remains in the community, but there is not a finding that the person is mentally ill and dangerous in general.

That means it will follow the person.

Unidentified Justice: What if it is found that he cannot take care of himself by reason of some mental illness?

Mr. Cole: That is the third category.

Unidentified Justice: Yes.

Mr. Cole: That is the inability to care for themselves in terms of the basic necessities of life.

Unidentified Justice: That is the same, in or out.

Mr. Cole: Excuse me?

Unidentified Justice: That is the same, inside or outside.

Mr. Cole: That's correct.

That's correct.

Unidentified Justice: And if you are dangerous to yourself, I suppose it is the same inside or outside.

Mr. Cole: That is not necessarily so.

Unidentified Justice: Nevertheless, the day after he is committed, and he goes into the institution, the doctor says, I want to treat him, I want to give him an antipsychotic drug.

Now, you say at that point the doctor must go through some... he must decide whether the person is competent or not.

Mr. Cole: That is correct in terms of the use of drugs for treatment for parens patriae circumstances.

Unidentified Justice: Well, now, if the doctor decides in his own mind that... he says, this person right this very minute is either... is dangerous to himself or to others or he can't take care of himself by reason of mental illness.

Now, suppose he says, of those three, this person is dangerous to others, right now.

Now, does he... is that mutually exclusive to being competent to decide whether to take a drug?

Mr. Cole: No, it is not.

Unidentified Justice: That is what I have very great difficulty understanding.

He might be very competent, but can you be competent to refuse treatment that the doctor wants to administer to keep you from hurting others?

Mr. Cole: Okay.

In that situation, the court of appeals directly addresses that circumstance.

In a situation where a person... and the respondents have always conceded this... that even if a person is competent in a situation where there is a threat to the institution, that there are institutional needs that have to be taken into consideration, and in that circumstance the individual's fundamental liberty interest can be overridden.

Unidentified Justice: Well, any time then... the court of appeals judgment will be no barrier to any doctor who says, this person is dangerous to others, or this person is dangerous to himself, or he can't take care of himself by reason of mental illness right this very minute?

Then competency is beside the point?

Mr. Cole: Under the... what the court of appeals is saying is that because a patient is not necessarily dangerous in the institution, in fact, in terms of violence, there are only, according to the petitioner's testimony, approximately 25 percent had the potential for violence, that all the doctor has to do is, if the doctor makes an individualized assessment... that is all we are asking... that that particular patient creates a danger to self or others at that time, then the state has a legitimate interest in overriding the competent individual's right to refuse.

And so that is correct The fact is, if that was the issue, and all they had to do was that, the petitioner wouldn't be here today.

Unidentified Justice: You wouldn't either.

Mr. Cole: We wouldn't either, because that would end the--

Unidentified Justice: You wouldn't have brought the suit if that was all that was involved.

Mr. Cole: --That's right.

The fact is there are a large percentage of patients who do not fit into that category.

Unidentified Justice: Who if they were out might be committable but if they are in, they are not necessarily dangerous to anybody or themselves.

Mr. Cole: That's correct.

An example, as I said, was an individual who may have shown violence to his family, and has a pathology with his family, but you separate them from the family, and they are in the environment of the hospital, they are not dangerous to anyone else, their danger was specific.

They were dangerous to the family themselves.

And they can't discharge them because that danger continues if they are released, and society has decided... I mean, the patient didn't ask to be there in the first place.

Society has decided that they have an interest, a police power interest in taking that individual off the street.

Unidentified Justice: Tell me what you object to in the medical decision.

I don't suppose the doctors involved are just interested in giving medication willy-nilly.

There is a range of reasons that they use, I suppose.

What reasons do you particularly object to?

Mr. Cole: Well, if I can first begin to answer by saying that the first thing we take is that these drugs are extremely dangerous drugs.

Unidentified Justice: I understand that.

Mr. Cole: These are not relatively risk-free drugs.

And what we are saying is, in an individual who is not dangerous, that means, the doctor does not believe there is a potential for harm in the institution, number one, and who is not causing the kind of security problems which belong to the police power--

Unidentified Justice: So why is he giving it?

Mr. Cole: --Then he is only giving it in order to what they believe to benefit the individual, to have them improve their health in the institution, and it is our view that the state--

Unidentified Justice: And you suggest that even if those are the reasons, and valid ones, nevertheless the patient should be, if he is competent, should be able to say, sorry, I don't care to take it?

Mr. Cole: --That's right.

That is particularly important in this case, because we are not talking about relatively risk-free drugs.

We are talking about a drug which the district court found that 30 to 50 percent of the patients are getting a syndrome called tardive dyskinesia, which is the deforming, often irreversible and untreatable symptom that causes patients to have facial contortions and grimaces, to have lip-smacking and tongue protrusions that can't be controlled by the patient, that when this syndrome gets fully manifested patients find that they cannot speak, that... and speech becomes incomprehensible, swallowing and breathing are impaired as well as all motor activity.

Now, if this was only 1 or 2 or 3 percent of the patient population involved--

Unidentified Justice: So the patient, if he is competent, should say, well, I would rather be the way I am than be that other way.

Mr. Cole: --That's correct, and we are saying that... we are not saying this for all treatment.

We are saying that there are particular types of treatment, such as psychosurgery, electroshock, that raise such fundamental interests in terms of what these drugs can do.

The petitioners say these drugs don't affect the mind.

Well, the district court found... there was substantial evidence in this case... that these drugs can blunt the consciousness, impair cognition, learning ability, problem-solving ability.

Mr. Cole, none of the plaintiffs in this case suffered any of these effects, did they?

That is not correct, Your Honor.

There were admissions given... the distinction that is being drawn is between the main plaintiffs and the class of patients, where there was substantial evidence dealing with both, and there was admissions concerning the effects of these drugs, and doctors admitted that some patients had from these drugs in the class, had clouded consciousness.

Unidentified Justice: Not 25 to 50 percent of the class.

You didn't mean to say that, did you?

Mr. Cole: No, in terms of tardive dyskinesia, which is the side effect, the only... they agree that many patients had tardive dyskinesia in admissions.

The only specific evidence they had--

Unidentified Justice: What do you mean by many?

Mr. Cole: --There was no... in the--

Unidentified Justice: Because I got the impression from the district court's finding that this is a very serious possible side effect, but the actual litigants, at least the named plaintiffs, you are right, had not suffered that.

Mr. Cole: --We only raised it for one named plaintiff, Your Honor.

Unidentified Justice: That it is a danger, but one that didn't materialize very often within this class.

Mr. Cole: On one ward, the testimony they had in specifics of one ward in the hospital during one period where a defense witness, a doctor who worked there, testified that 10 to 15 patients out of 70 to 75 patients on that ward had clear cases of tardive dyskinesia.

That is a 20 percent rate of patients who have tardive dyskinesia, clear cases.

We are not talking about subtle signs of tardive dyskinesia.

The testimony was clear cases of tardive dyskinesia.

So that there was evidence for the district court.

The district court also used the medical literature and the expert testimony, and there was a lot of national experts who testified about what is the general rate of patients who are getting this deforming, disabling syndrome, and--

Unidentified Justice: Would it not be correct that when a patient gets that... is in that unfortunate group, that somebody has made a medical misjudgment?

Mr. Cole: --No, Your Honor.

Any patient who gets antipsychotic drugs is at risk.

The problem with these... I mean, one of the problems is, not only do the drugs cause tardive dyskinesia, but they can also mask the development of the syndrome, that means, the manifestations of the syndrome, initially, so often by the time the doctor finds out, even using the best medical standards, by the time the doctor finds out that the patient has the syndrome, it is often irreversible, often untreatable.

Not always, but often.

So, we are not talking about if there is bad practices.

Unidentified Justice: The difficulty with your argument that I see, at least, is that the more difficult it is to accurately appraise the risk, it seems to me the less wisdom there is in saying that the layman should make the medical judgment.

Mr. Cole: What we are saying is, is that the patient is the one who has to assume the risk of this irreversible side effect, and a competent individual should, just like other competent adults in our society--

Unidentified Justice: But even a competent doctor apparently can't appraise it accurately.

Mr. Cole: --Well, the question is not whether... one can competently say that 20 to 50 percent of patients over the long term who are taking these drugs are getting tardive dyskinesia.

That is a risk that one can understand.

One can't selectively say that this particular patient is going to get it.

Just like when someone has an operation and the doctor says there is a one in 100 chance of death, they don't know if specifically that one person is going to be the person who is going to die.

Of course, that person wouldn't take the therapy.

Unidentified Justice: Well, and of course this doesn't show up until there has been medication over a prolonged period of time, as I recall.

Mr. Cole: Well, the record reflects that within three months of antipsychotic drug treatment, there have been reports that patients have had tardive dyskinesia.

Within a year of antipsychotic drug treatment, the patient is at high risk.

Now, you have to remember that a number of these patients have been on antipsychotics in the past.

We are not talking about one year straight.

We are talking about one year.

Eighty-five percent of the patient population are either chronic patients or patients who are being readmitted to the hospital who have had prior hospitalizations, and therefore have take antipsychotic drugs, so the risk is great for that 85 percent immediately if they have had any history of antipsychotic drugs.

Unidentified Justice: But you would apply the same procedures Justice White asked you about where the man is dangerous to himself and so forth, you would apply the same procedure whether the patient has ever had the drug before or whether he has been using it for ten years.

Mr. Cole: That's correct, because that is not the only side effect that a patient experiences.

Unidentified Justice: No, but this is the more serious one, as I understand.

Mr. Cole: Well, it is the one that in terms of permanent affect is there, but there are a number of other... a patient can experience a number of side effects that last the course of being on antipsychotic drug treatment, very painful syndromes, disabling, not only of the body but also of the mind.

And what we are saying is that the tradition in our society has been a competent individual has the right, even if we believe it is wrong, to refuse treatment as long as... and in this situation we are talking about extremely dangerous treatment, and we believe that there is a liberty interest involved, and the court of appeals attempted to weigh the strong patient's interest and the institutional interest, and we feel that the weighing was responsible, giving due deference to the state and the institutional needs, but at the same time recognizing dangers of these drugs and the important patient's interest in being able to refuse, especially considering that we are really talking about and focusing on patients who the Supreme Judicial Court of Massachusetts says are competent to make these rational treatment decisions.

Unidentified Justice: Well, Mr. Cole, suppose the doctor says, well, the reason I am interested in giving these drugs is, I think I can maybe restore you to the community, maybe even cure you, or at least get you stable enough that I can turn you loose, and the state has a major interest in doing that, no matter what you think.

Now, is that an improper consideration?

Mr. Cole: No.

We recognize that it is a legitimate state interest.

The question is whether or not that interest when it is the state that initially had decided on putting him into the hospital in the first place.

And that interest, for example, is under the police power to protect society in general.

And we are saying, does that interest standing alone for competent individuals dealing with these dangerous drugs outweigh the patient's interest.

Unidentified Justice: Well, at least it is a consideration that the state has a legitimate interest in trying to remove these people from the institution if they can by curing them.

Mr. Cole: Your Honor, the evidence demonstrated that the vast majority of patients did not refuse antipsychotic drugs over the long term when the doctors responded to the patients complaints about adverse side effects, maybe changed the drug or the dosage.

Unidentified Justice: Is anyone in this whole universe of patients ever released because they have gotten better or not?

Mr. Cole: I assume that there have been patients who have been released because they have gotten better.

Unidentified Justice: But not many?

Mr. Cole: No, I think there was... we don't dispute the fact that these drugs have some efficacy.

We challenge the--

Unidentified Justice: Enough that some people are released.

Mr. Cole: --Enough that some people are released.

That is correct.

But the question is, the state has decided to commit the individuals, and has the interest... and their interest has been satisfied by committing them.

In a committing hearing--

Unidentified Justice: Well, but their interest isn't satisfied.

Their interest is, they don't want to keep the people there.

That is a great expense to the taxpayer.

They want to get them out if they can.

What is wrong with that as an interest?

Mr. Cole: --As I said, we concede that that is a legitimate state interest, and the district court and the court of appeals reviewed that.

The evidence doesn't bear out that--

Unidentified Justice: You say the person should be able to say, sorry, no, I would rather stay here, and live on you for--

Mr. Cole: --Well, the thing is, the misperception about that is that the state has decided to put the person in the hospital, especially under the police power, that has nothing to do--

Unidentified Justice: --Well, they have decided to get him in to treat him, that he is dangerous, they want to treat him, and perhaps he will no longer be dangerous.

Mr. Cole: --There is no finding nor necessary finding in a commitment court to find whether or not a patient has... whether or not treatment is available, whether or not treatment will be effective.

If you take a look at--

Unidentified Justice: Well, I understand that.

Mr. Cole: --So patients who cannot be treated at all, the state still commits.

Unidentified Justice: Would you agree that the state, if it came... if push came to shove in a situation like this, would be free to release the person--

Mr. Cole: If the person--

Unidentified Justice: --if they felt the person were so disruptive and still refused to submit to what the doctors thought was proper medication?

Mr. Cole: --If the doctors in their medical judgment believed that that person is no longer dangerous in the community, they can--

Unidentified Justice: No.

If he is just such a disruptive force in the hospital that although all the reasons for commitment were still there, his right to refuse treatment is producing such a disruptive effect that the state says, we would rather have one guy like this on the outside rather than have him on the inside, so to speak.

Mr. Cole: --The response is, they can't release them, but on the other hand, the police--

Unidentified Justice: Why can't they?

Why can't they?

Mr. Cole: --Well, they would probably have to go to the committing court to ask for permission, but let me--

Unidentified Justice: Well, what if the committing court gave them permission?

Is there any constitutional argument against their doing it?

Mr. Cole: --No, absolutely not.

Let me just mention that the individual who is wreaking havoc on the institution, the police power standing of the First Circuit takes care of that individual.

If the risk of institutional security, if the doctor believes that it is affecting other patients, significantly deteriorating other patients, then the hospital can do that if there are no other alternatives.

They can--

Unidentified Justice: And restrain him--

Mr. Cole: --Well, they can use medication to deal with that situation.

That is correct, Your Honor.

Unidentified Justice: --Doesn't the doctor run some risk of being second-guessed in a 1983 action?

Mr. Cole: If the doctor in good faith and honestly complies with the standard, they can make a mistake and still not be held liable.

In the situation of this case--

Unidentified Justice: They are still subject to a jury trial.

They may have to litigate forever.

Mr. Cole: --Well, Your Honor, that is a risk.

However, an example of this situation was in our case, where the court, district court found the defendants violated the state seclusion statute, and knew or should have known that they violated it, but they were not held liable because the court said they couldn't have anticipated that they violated the statute, and even though they made a mistake, the court found that they were not liable.

So, we are not talking about a situation... whatever standard we are going to use, whether or not... if we are going to use a standard of that doctors can only treat when they think it is necessary, the doctors can be sued by patients if the patient believes it is not necessary.

That is always the risk.

Whatever the standard, as long as they act in good faith, even if they are mistaken, they can't be held liable.

Now, Massachusetts, dealing with malpractice, has a malpractice tribunal to deal with frivolous complaints and to screen them out, but--

Unidentified Justice: Mr. Cole, can I ask you a question about the... of course, this is a constitutional case.

We are trying to decide what the Constitution requires Massachusetts to do, and if I understand you correctly, if Massachusetts passed a statute and said that a commitment this kind, even if accompanied by a finding that this kind of treatment may be in the best interest of the patient, and the finding specifically authorized the doctor to administer this treatment whenever it was found to be, after a full hearing and all the rest, in the best interest of the patient, he still couldn't... that would be unconstitutional.

Mr. Cole: --Our belief is that that would be unconstitutional.

Unidentified Justice: Because your standard is that as long as the individual is mentally competent to make the decision, he has a constitutional right to refuse, notwithstanding medical judgment that it would be in his best interest otherwise.

Mr. Cole: Except in circumstances where the institutional security or--

Unidentified Justice: I understand that.

I am talking about the non-violent, the non-violent person but does have an illness of some kind that there is a reasonable difference of opinion on whether he could be cured, and a medical judgment, the state could not provide that the medical judgment would ever prevail over his will if he is intelligent enough to weigh the--

Mr. Cole: --That's correct.

In fact, that is the procedure that the defendants... the petitioners use in a situation--

Unidentified Justice: --I just wanted to make it clear.

Mr. Cole: --in situations of electroshock and psychosurgery.

Unidentified Justice: Mr. Cole, you have been talking about the right of patients in Massachusetts to refuse treatment.

Does that right extend in your state to the right to die?

Mr. Cole: You are asking whether or not the patients in the hospital--

Unidentified Justice: Suppose a patient is in a condition that is terminal.

The doctor so advises him, and says, we can keep you alive for another year or two or three by these treatments, and the patient says no, the illness is terminal, I have a right under Massachusetts law to refuse treatment.

Is that the law of Massachusetts?

Mr. Cole: --Yes, that is the law of Massachusetts.

The Secowitz case, which dealt with an institutionalized mentally retarded individual, was specifically that case.

Unidentified Justice: The right to refuse treatment in Massachusetts includes the right to die?

Mr. Cole: Well, it includes that the state does not have to use extraordinary... in that case, it was a situation where whether or not the patient could refuse treatment that may extend their life a year, maybe two years, that they had a right to refuse that kind of treatment.

Unidentified Justice: Mr. Cole, would you clarify for me your position as to the constitutional right that may exist for the patient who is committed and who is incompetent by court finding?

Mr. Cole: Our view is that this Court need not reach the constitutional issue because there is a state procedure that is available and the Supreme Judicial Court of Massachusetts in Roe says that that is the procedure to follow in that situation.

Our view is that this Court should apply the state procedure dealing with that.

In terms of what we believe is constitutionally due, our view is that competency is a legal determination.

It has been in every context in our society, including medical care.

It has been in Massachusetts, certainly, both in the Secowitz case, Lane versus Candura, and the other cases we have cited, has always been a legal determination.

Number one, we believe that even if state law didn't apply and require a competency proceeding, that constitutionally an individual would be required to have it, and once again, it emphasized the defendants follow that procedure for medical, surgical treatment, electroshock, and psychosurgery.

Unidentified Justice: Do you know how many states have commitment laws that incorporate a finding of incompetence?

Mr. Cole: I don't believe--

Unidentified Justice: Or have the effect of incompetence by virtue of the commitment?

Mr. Cole: --I believe the American Psychiatric Association tries to indicate... indicates in its brief that there are certain states... I don't think there are a lot of states that have that finding, and they recognize that Massachusetts is not one of those states that actually have that finding in their brief.

Unidentified Justice: What happens, laying aside for a moment the mental illness problem, what happens if a patient develops an attack which the hospital physician diagnoses as possible ruptured appendix that should be operated on immediately.

Do they have to get the consent of the patient?

Mr. Cole: No, Your Honor.

That is an emergency situation, and the Attorney General of Massachusetts wrote an advisory opinion to the Department of Mental Health and said that surgery of individuals who are committed, that except for cases of an emergency, that you must get the consent of the individual in order to treat, so that would be just like we are saying, that there are emergency exceptions to the rule, but that the general rule is that when there is not that kind of an emergency, that the competent individual--

Unidentified Justice: Well, competent.

You have used that phrase so much, but how many of the people in this 10 percent are competent in the sense that they are capable of making the day to day decisions of life that presumably the rest of us outside are capable of making?

Mr. Cole: --The district court didn't give a number.

What the district court said was that most patients who are involuntarily committed are competent to make that... to weigh the risks and benefits.

Unidentified Justice: Was there any expert testimony as to the percentage of serious schizophrenic patients who ever get well?

Mr. Cole: I don't believe there was... there was medical articles dealing with comparing patients who were on antipsychotic drugs versus not using antipsychotic drugs.

But there wasn't any percentage of the number of patients--

Unidentified Justice: Wouldn't it be very important for any... if judges are going to get into this business, wouldn't it be important to know whether certain categories of mental illness are treatable and have any possibility of recovery and some are not?

That is certainly known, isn't it?

Mr. Cole: --That's correct.

There was testimony concerning the rate of improvement with antipsychotic drugs and without, dealing generally, not dealing with the particular wards here, in general, and it was... for example, the chief of pharmacology of the Department of Mental Health testified that at most, 50 percent of schizophrenic patients benefit from antipsychotic drugs, benefit, improve at all.

Unidentified Justice: That is different from being cured.

Mr. Cole: Improve at all.

And in our brief we indicate what the different kinds of... what improvement means, and that improving could be limited to the extent that someone may at that point be able to cloth himself.

That is considered improvement, but as this doctor said, who was the chief psychopharmacologist, that approximately 50 percent of patients with schizophrenia improve at all on antipsychotic drugs.

Unidentified Justice: Was there any expert testimony that pointed out that a great many patients who show improvement, not a cure, but an improvement in the protected environment of a hospital nevertheless are not subject to release because if they are out of that protected environment, with all the stresses of outside life, they would regress?

Was there any testimony along that line?

Mr. Cole: There was testimony concerning that, Your Honor, that even though someone may improve, it doesn't mean that they would be released necessarily.

Improve in the limited sense that they would be released.

Approximately 50 percent of the patients in this hospital were long-term patients, were long-term chronic patients.

That was testified by one of the... Dr. Gill, I believe, that approximately 50 percent were long-term patients.

Unidentified Justice: Mr. Cole, may I ask just one other question about your constitutional theory?

I take it your claim of a constitutional liberty interest here is limited to the case in which there is this kind of very serious permanent damage?

But you make the same claims, to the patient, assuming a competent and non-dangerous person, to refuse less severe treatment, such as flu shots or an exercise program or something he just didn't want to do.

You wouldn't contend he had a--

Mr. Cole: No.

I think there is a distinction.

Unidentified Justice: --But a non-committed person would have a right to refuse those things, I suppose.

Mr. Cole: Well, I think we are talking about a balancing test that this Court has used with institutions, and what we are saying is that situations which deal with conditions of confinement, that there is a different test than dealing with fundamental intrusions.

Unidentified Justice: Used as non-punishment.

Mr. Cole: Used as non-punishment, but that involve fundamental liberty interests.

What we are saying is that it is--

Unidentified Justice: For it to be a constitutional violation, are you taking the view that it has to be viewed as a form of punishment?

Mr. Cole: --No.

Absolutely not, Your Honor.

Unidentified Justice: What is the difference between what you object to and a man refusing flu shots?

Mr. Cole: It is the significance of the intrusion.

I am not saying that with a flu shot... the fact is, the petitioners say that someone with a flu shot has the right to refuse in the hospital, so they do have.

Unidentified Justice: Well, I am asking, is that what you are asking us to hold.

Say he doesn't want to go on an exercise program, he is overweight or something.

Mr. Cole: I think that would be termed a condition of confinement, where as long as there was a rational reason for the state to do that, that... what I am trying to distinguish between those... there is a balancing test in an institutional setting, and that when a treatment crosses the line, electroshock, psychosurgery, maybe antipsychotic drugs, cross that line--

Unidentified Justice: Crosses what line?

Mr. Cole: --Crosses a line in terms of raising a fundamental liberty, a fundamental liberty interest.

And our view is that wherever the line is going to be drawn in the future--

Unidentified Justice: Well, I think it is a fundamental liberty interest if I don't want flu shots.

Mr. Cole: --The question is, it is a fundamental liberty.

The question is, does the state have the ability to override that in an institutional setting.

That... the analysis is, our view is that in a situation where it is so intrusive that the state in many situations doesn't have the legitimate interest to overcome that general right, we are saying there are certain other situations where the state may have that interest, but that is not as significant an intrusion as we have with antipsychotic drugs.

Unidentified Justice: Mr. Cole, just give me in a word what you think the decision... what is the name of the decision?

Mr. Cole: In the matter of Guardianship of Richard Roe III.

Unidentified Justice: In a word, what is the impact, if any, of that case on this one?

Mr. Cole: Our view is that it disposes of this case under state law.

Unidentified Justice: Because?

Mr. Cole: Because the court attempted to analyze... it is hard to say briefly.

Under parens patriae the court said that the state does not have a parens patriae justification for forcibly drugging--

Unidentified Justice: Just competent persons?

Mr. Cole: --That is correct.

Unidentified Justice: It is a competent person, so that if a person is competent, the state foreswears any parens patriae interest in treating him?

Mr. Cole: That is correct.

Unidentified Justice: Over his objection.

Mr. Cole: Without an incompetency determination.

Second of all, dealing with--

Unidentified Justice: So that means that under state law necessarily you are going to have to sort out the competent from the incompetent.

Mr. Cole: --That's correct.

Unidentified Justice: And that is exactly what you want done.

Mr. Cole: That's correct.

Unidentified Justice: And also if he is competent, that case provides exactly what you want done.

Mr. Cole: That is correct.

And secondly, in terms of the police power, what the Supreme Judicial Court said is, when drugs are used to protect safety, they are being used as a chemical restraint.

The Massachusetts legislature and the Department of Mental Health have their regulations dealing with drugs when they are using restraints, when they are used for restraints.

Unidentified Justice: Well, do you think we should... did you move--

Mr. Cole: Yes, we did.

We filed a motion to--

Unidentified Justice: --To what, remand?

Mr. Cole: --To either--

Unidentified Justice: Dismiss as moot?

Mr. Cole: --To either dismiss it or certify the questions to the Supreme Judicial Court--

Unidentified Justice: What about... perhaps the court of appeals ought to decide whether this case is mooted out by the decision of the Massachusetts court.

If you are right, we should vacate the Judgment of the district court.

You don't need it.

Mr. Cole: --Exactly.

Unidentified Justice: Your judgment should be vacated.

Mr. Cole: Well, before we do that--

0 [Generallaughter.]

Before we do that, I would say that I think it is important that patients--

Unidentified Justice: Well, if you mean what you say, that is exactly what we should do.

That would be our normal practice, is to vacate the judgment and order the dismissal of the case.

Mr. Cole: --Well, I think that there is sufficient uncertainty about the police power situation, and the problem is, the case said, it was talking about institutionalized.

It talked specifically about the Rogers case for institutionalized.

Unidentified Justice: Well, perhaps we should vacate the judgment in the court of appeals and send it back to the court of appeals to decide whether there is anything left of the case or not.

Mr. Cole: Our view is that it would be appropriate to certify certain questions to the Supreme Judicial Court.

Unidentified Justice: Should we do that or should the court of appeals do that?

Mr. Cole: Well, we feel as a matter of judicial economy, this case has been going on for seven years.

Unidentified Justice: I mean certification.

We may, of course, under Blotty, we may certify.

Mr. Cole: That's right.

The Court has in the past.

We--

Unidentified Justice: Why should we?

Why shouldn't we leave that to the court of appeals?

You say there is some uncertainty about the police power aspect.

Mr. Cole: --That's correct.

Because we believe that as a matter of judicial economy, it would be faster, so we don't have to come back up if in fact there is any issue left open.

Unidentified Justice: Well, except that perhaps the court of appeals could do a better job of it than we can.

Mr. Cole: And you won't have to travel this far.

0 [Generallaughter.]

Unidentified Justice: Certainly the Roe case is factually distinguishable from this in the sense that it involved non-institutionalized patients.

Am I not correct?

Mr. Cole: That's correct, though it did discuss the rights of institutionalized in the context of that decision, and that is the confusion that is part of the case, and while... we felt that it could be certified questions to the Judicial Supreme Court and get clarity about which way... whether or not those... the state law applies.

Unidentified Justice: Do I correctly get from your position that if judges are going to be running your institution, you would rather have Massachusetts judges doing it?

Is that right?

0 [Generallaughter.]

Mr. Cole: We believe that Massachusetts has a system to deal with this situation after Roe.

Now, prior to Roe there wasn't any clarity about what the rights were, and the fact is that both parties here intervened in Roe and were a party in Roe.

Unidentified Justice: What was your motion filed here?

Mr. Cole: A motion to either dismiss or to certify questions to the Supreme Judicial Court to clarify these issues.

Unidentified Justice: So if we granted your motion to dismiss, it would be on the grounds of mootness, wouldn't it?

Mr. Cole: That's correct.

Unidentified Justice: So you don't want us to grant your motion.

Mr. Cole: No, we believe that you could... we still hold to that.

My understanding is that it has been denied.

Unidentified Justice: That it is moot?

Do you think the case is moot?

Mr. Cole: Well, as I said, I--

Unidentified Justice: Because then that is the end of the lawsuit.

That satisfies everything.

Mr. Cole: --We would... what we would ask for is this Court to certify--

Unidentified Justice: Do you think the case is moot?

Mr. Cole: --I--

Unidentified Justice: Your motion was to dismiss as moot.

Mr. Cole: --I suppose... That is correct, Your Honor, but I would say that what we are interested in is more certification.

Unidentified Justice: Do you think it is moot?

Mr. Cole: I would say that it is too confusing to know whether or not it is moot at this time.

Seriously, it is based on the Supreme Judicial Court opinion.

What we would have to do then--

Unidentified Justice: You don't know whether it is moot.

Mr. Cole: --We don't know.

That is correct.

Unidentified Justice: So you withdraw your motion?

Mr. Cole: We withdraw that part of the motion, Your Honor, I suppose, and ask that the questions be certified.

Thank you.

Chief Justice Burger: Mr. Schultz, you have five minutes remaining.

ORAL ARGUMENT OF STEPHEN SCHULTZ, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Schultz: I would like to briefly discuss the significance of the Roe case, because there simply is none, and I just want to make it clear that this case should not be vacated and should not be certified.

In Roe, the court--

Unidentified Justice: Should it be affirmed?

Mr. Schultz: --Excuse me?

No, it should not be affirmed either, in our view.

0 [Generallaughter.]

I started today by saying there were two fundamental issues in this case.

The first issue is, what does it mean when you are committed for treatment.

Does that necessarily act as a sufficient predicate for the later treatment against a person's will.

I said the second fundamental issue in this case is, what is the effect on the hospital of allowing some patients to remain in the hospital refusing treatment?

Well, Roe simply didn't say, we are not discussing institutionalized patients.

They specifically said one thing we are not going to discuss is what is the effect and what does it mean that you have already had a commitment hearing, and what does that allow the state to do?

That was my first fundamental issue that they say in a footnote, we are not discussing.

The second fundamental issue is, they say the one thing we are not going to discuss is, what is the effect on the institution if you allow people to refuse treatment?

Certification makes absolutely no sense for answering these kinds of questions.

There is no way--

Unidentified Justice: Well, is it possible... I am sorry.

Is it possible that although they haven't squarely decided it, that Massachusetts law might require the very procedures that the court of appeals has ordered?

Do we know that Massachusetts law does not require these procedures?

Mr. Schultz: --Massachusetts law is constitutional law, is all I can tell you.

The Roe decision--

Unidentified Justice: Did Roe rest on the United States Constitution at all?

Mr. Schultz: --Excuse me?

Unidentified Justice: Did the Roe decision rest on--

Mr. Schultz: Roe turns on the United States Constitution.

Unidentified Justice: --Did it rest on it?

Mr. Schultz: Excuse me?

Unidentified Justice: Did the Supreme Judicial Court rest the decision on it?

Mr. Schultz: In our opinion, yes.

They say--

Unidentified Justice: On what provision of the federal Constitution?

Mr. Schultz: --On the... I believe they hit the right to privacy, and I don't know if they tied it to the Ninth or the Fourteenth Amendment.

In Roe, they said there are three factors that they are deciding that case on.

They said, on the Constitution, on the power over guardians.

Now, certainly that is not relevant in this case, because we are discussing whether or not a guardian has to be appointed in the first place.

And then they said, on the common law, and quoted one New York case for the common law talking about what are basic liberty interests, which is the exact same question you would ask as to what constitutionally under the Fourteenth Amendment is a basic liberty interest.

Roe is a constitutional case.

Roe doesn't decide on any statutes or on any Massachusetts regulations.

It is a constitutional case which is reviewable by this Court, which didn't have the record that this Court has to decide what is the effect on an institution of allowing patients to refuse treatment.

If one were to certify, one would have to send down the entire 74-day record, and have the SJC look at that record to decide what the effect on institutions would be.

Unidentified Justice: Didn't Roe expressly disavow any intent to decide an involuntarily committed patient's right to refuse medication?

Mr. Schultz: Absolutely.

They say it four times, and why... the other side is saying it is definitive, but if a court ever went... they are right, we intervened in Roe, and what did the Commonwealth do when they intervened in Roe?

We said, don't interfere with this case.

This case... Roe does not involve institutionalized patients, and I wrote half of my brief saying don't interfere with this case.

And they bought it.

Four times in their opinions, they say, we are not interfering with the Rogers case.

And I just don't know how it could be any clearer under the circumstances.

I briefly want to mention just, I think, a very basic issue that Justice O'Connor raised, and that is, how many states determine incompetency at the time of commitment?

According to the psychiatric brief, they state one, and I will take it as true.

Utah.

And what the Commonwealth asks is, if you have to determine competency to treat a person against his will, why can you commit that person against his will for treatment without that same determination of incompetency?

And what is really being challenged in this case is the commitments in those 49 states, because those people were not committed for dangerousness.

You can't commit anybody because he is dangerous.

That is preventive detention.

They were committed because they were dangerous by reason of mental illness, which the mental illness means they are either subject to care or treatment.

We don't necessarily say everybody is treatable, but we are saying that to the extent that they are treatable, that that is why they were committed.

Dangerous by reason of mental illness.

Not dangerousness.

It doesn't make sense to talk about police power commitments, to say that the state's interest is satisfied when they are taken off the street.

The state's interest is not taking people off the street.

The state cannot go around saying, you are dangerous, you are dangerous, you are dangerous, you should go off the street.

They have to show beyond a reasonable doubt in Massachusetts that they are dangerous by reason of mental illness, or that they are incapable of taking care of themselves by reason of mental illness.

The state can't send somebody to a mental hospital simply because they are incapable of taking care of themselves.

I think the parens patriae power might let them send them some place else, but why are they sent to a mental hospital?

Because they are mentally ill, and we suggest that this is a fundamental question which has been overlooked by both lower courts.

Thank you very much.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Doe v. Delaware - Oral Argument

Wed, 18 Feb 2009 06:13:11 +0000

Case:

Doe v. Delaware

Media File:

79-5932_19810112-argument.mp3

Related Transcript:

79-5932_19810112-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF GARY A. MYERS, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Doe vs. Delaware, No. 79-5932.

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

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

This is an appeal by two parents, John Doe and Jane Roe, from a final decision of the Delaware Supreme Court.

By this appeal they seek to overturn lower court orders which permanently and irrevocably terminated all of their relationships with their five children.

Unidentified Justice: Do they want the children back, Mr. Myers?

Mr. Myers: The parents... if this order was vacated at this time, custody would still remain within the State.

Hopefully we could meet with representatives of the State, establish visitation with these children, with the eventual goal of the mother regaining them in her custody.

Unidentified Justice: Say that again.

With the essential goal of what?

Mr. Myers: The mother regaining them in her custody.

Unidentified Justice: In her custody.

Mr. Myers: Yes.

Unidentified Justice: So he doesn't want them back?

Mr. Myers: Well, he is more than willing to allow the mother to have custody and allow him to have reasonable visitation rights so he can maintain his fatherly role with the children.

Unidentified Justice: Well, am I correct that neither mother nor father has seen these children in several years?

Mr. Myers: State has resisted efforts for the--

Unidentified Justice: No, no; but they have not seen the children in several years, have they?

Mr. Myers: --Since 1975.

Unidentified Justice: They are now separated, are they not?

Mr. Myers: The father lives and works in Atlanta and the mother lives with her stepson and her husband, and remains in Delaware.

Unidentified Justice: She is now married?

Mr. Myers: Yes.

Unidentified Justice: But all they want, really, is access to these children, just want to know where they are, is that it?

Mr. Myers: No, I think they want to regain their children back into their own family, into their own family.

Unidentified Justice: They... when you speak, "they", they are not--

Mr. Myers: The mother wants to--

Unidentified Justice: --They are not a family unit anymore, are they?

Mr. Myers: --Well, I think the mother had a family relationship with her children before the State intervened in this family and she is more than willing to again create those day to day attachments.

Unidentified Justice: There are five children?

Mr. Myers: That's correct.

Unidentified Justice: And she wants all five?

And how old are the children now?

Mr. Myers: They range in ages from six through nine.

Unidentified Justice: Six through nine?

Five of them?

Mr. Myers: Yes.

There is a... their ages are... the oldest one is nine, and the two youngest ones who are twins are six now.

Unidentified Justice: I see.

Mr. Myers: The nature of the proceeding below was a termination of parental rights proceeding, or a TPR.

That proceeding is unique in Delaware.

It seeks not only just to remove children from the custody of their parents; rather it seeks to forever break the parent child relationship.

It is not a temporary removal of a child.

In the words of the Delaware statute, its sole purpose is

"to make parents and the children as if they were and have always been strangers. "

It's in effect a death penalty for the family.

This appeal raises three questions against the TPR outlined above.

Unidentified Justice: When it ends the relationship with the parents I gather it has the same effect as an adoption, doesn't it?

Mr. Myers: Well, a TPR does not necessarily lead to an adoption.

Unidentified Justice: No, but in terms of termination of any relationship of parent and child, doesn't it have the same effect as an adoption?

Mr. Myers: As to the parent, it makes him a stranger.

It doesn't necessarily guarantee to the child that there's going to be a replacement.

As I said, this appeal raises three questions against the termination order below.

The first question is whether the statutory standards used to break up this family were unconstitutionally vague.

The second standard is whether the State could proceed to break up this family in a judicial proceeding using a mere preponderance of the evidence standard.

The third standard is whether the State could break up this family without demonstrating that any of the conduct alleged against these parents had caused any actual, substantial harm to the children.

Briefly stated, the facts of the case were these.

John Doe and Jane Roe were half brother and sister, and beginning in the 1970s they lived together and had five children.

The Delaware State Welfare Agency, the Division of Social Services, knew about Mr. and Mrs. Doe's relationship since 1972, and had previously indicated to them that that relationship would not be a factor that the Division would consider about them raising their children.

However, in early 1975 workers from the Division went to the local Attorney General, the attorney that advised them.

He told them at that meeting that so long as there were children in the Doe home, they would not be able to prove the Does were unfit parents and would not be able to get a termination of parental rights.

At that meeting, then, it was decided that in order to remove the children from the home the parents would be charged with the criminal charge of incest.

Once they were charged with that, the Division would then proceed to obtain custody of the children and then file a termination of parental rights as to all of their children.

That plan of action by the Division was followed through.

Within a week after the meeting the Attorney General brought a criminal charge of incest against the parents.

The parents were incarcerated in default of a $1,000 bond for 19 days.

Given their absence, the Division of Social Service was in effect given temporary custody of the children.

Subsequently, the parents were convicted of the criminal charge of incest, a misdemeanor in Delaware, and permanent custody of the children was given to the Division.

What's important to note about the incest conviction is that, as the parents testified, after the conviction of the misdemeanor they were told by the presiding judge that presided at that trial that if they underwent sterilization that would be a substantial factor in them regaining their children.

Unidentified Justice: And did they?

Mr. Myers: Yes, they did.

Anxious to get their children back, and relying on that advice, they underwent sterilization.

Within a week after undergoing that sterilization the Division told them that they were going to terminate all their parental rights.

The Division--

Unidentified Justice: It's totally irrelevant.

Did the judge pay for the sterilization procedures?

Mr. Myers: --Yes, he did.

Unidentified Justice: Has he ever been reimbursed?

Mr. Myers: I don't believe so.

The record doesn't reflect that, but to my knowledge he wasn't.

The Division then filed the termination of parental rights proceeding.

The statute under which they based that provision was a former Delaware provision which allowed the termination if the parents were not fitted to continue to exercise parental rights.

That short phrase was the sum extent of the statutory definition of when a termination could go forward.

In its original petition the Division alleged that the not fitted conduct sufficient to trigger the statute was their half brother and half sister relationship.

It's this conduct that the Division had known about for almost three years and had in fact told them in the past that it wasn't going to be used against them.

Unidentified Justice: Well, Mr. Myers, in reading the opinion of the Delaware Supreme Court at page 199 of Atlantic, 2d, the Court says that

"under our statute there must also be a finding that the termination of parental rights is in the best interest of the child. "

indicating that parental unfitness is not by itself sufficient.

Mr. Myers: Well, we contend also that "best interest" is just as vague as "not fitted" language.

The triggering criteria to get to "best interest" is in effect the "not fitted" standard.

Unless you can go forward on "not fitted", I don't think that "best interest" as a matter of State law comes into play.

And both the Superior Court and the Supreme Court emphatically stated that the half brother... half sister relationship was the disqualifying, triggering criterion of "not fitted".

Unidentified Justice: Well, but, it wouldn't have been sufficient, as I read the Delaware Supreme Court opinion.

Mr. Myers: It's a precondition.

If in effect the precondition has been met, then it would have to go into "best interest".

I think this opinion points out exactly the limited scope the Delaware Supreme Court has read into the term "best interest".

I think that the phrase itself is a comparative phrase and it requires looking at all the elements concerning the child.

How the trial court and... both... the Supreme Court construed it was that they were again merely looking not to any harm to the children that had occurred but rather to some sort of conduct of the parents in the abstract.

Unidentified Justice: Mr. Myers, do you agree or what is your view on whether the issues are the same for the mother and the father?

Now, the reason I ask that, there's the evidence of the offensive touching as to the father and the alcoholism... at least at some time in the past... as to the father, and one thing and another.

But now the parents are in different places and presumably it would make a difference as to which parent had the contact with the child.

Do you concede that if the order is proper as to one parent, it's proper as to both?

Mr. Myers: I don't think the order is proper as to either parent.

Unidentified Justice: I understand that, but is it the same issue as to both?

Mr. Myers: Yes, I think... again, there's no conduct on behalf of either parent, particularly the mother, but even to the father's conduct, there's no conduct on his part which was shown that any of that conduct caused harm to his children.

Unidentified Justice: I understand on your harm argument, but on the best interests of the child argument, perhaps now that they're separated there's at least an arguable basis for drawing a distinction between the two?

Mr. Myers: Well, I think the best interests--

Unidentified Justice: In fact, are their interests entirely parallel?

Are they the same?

I know you represent them both, but it seems to me if one were representing the mother separately perhaps the mother could make some arguments the father can't make.

Mr. Myers: --Well, I think once the order terminating both of their parental rights, in effect giving their children to strangers, is vacated, then in effect those interests, the State courts may have to adjudicate those interests if they decide they conflict.

My discussions with the parents at this point is that they don't seem to conflict.

She is more than willing to have custody and he is willing to have that.

She is more than willing to allow him to have visitation, given the distance he is away, and she's more than willing to allow that.

That's the discussions we've had.

Unidentified Justice: Well, when did the change of circumstance take place in these proceedings?

Mr. Myers: When did they separate?

Unidentified Justice: Yes, when did they separate?

Mr. Myers: The record below does not reflect that.

She was married in July of 1977.

Unidentified Justice: Well, was it before or after the case went through the Delaware courts?

Mr. Myers: They had separated prior to the final opinion of the Delaware Supreme Court.

Unidentified Justice: Did the Delaware Supreme Court know these facts?

Mr. Myers: They knew they were separated.

In the Delaware Supreme Court opinion... appendix.

Unidentified Justice: Well, do you suppose the same thing would have happened... do you think the same termination of parental rights would have occurred if the facts that now exist had existed at the time of the petition to terminate parental rights?

Mr. Myers: You mean the parties' separation?

Unidentified Justice: Yes.

And the marriage of the mother?

Mr. Myers: I can only speculate that that information was given to the Delaware Supreme Court and was--

Unidentified Justice: It was never given to the trial court, though?

Mr. Myers: --No.

But it was given to the Delaware Supreme Court and they didn't think a remand with those new facts was appropriate.

Unidentified Justice: Did you ask them to?

Mr. Myers: No, because we believe that even though those facts existed in '75--

Unidentified Justice: Well, I know, that's why I'm asking you, you never--

Mr. Myers: --There was no specific request of the Delaware Supreme Court to remand with those factual situations changed.

Unidentified Justice: --Well, I would have supposed you might have had an easier time in the trial court on these facts, wouldn't you?

Just on parental termination, because you're not asking, you're not objecting right now to the change of custody.

Mr. Myers: The parents aren't seeking if this order would be overturned to get their children back, given the passage of time, the next day.

Unidentified Justice: No.

Mr. Myers: They want to regain contact with the children and work towards eventually having them reintegrated into their home.

Unidentified Justice: You're interested in having the termination of parental rights overturned?

Mr. Myers: That's correct; as a starting point.

Unidentified Justice: But you've never asked anybody... this judgment isn't final yet, is it?

Mr. Myers: Yes, I believe it is, if it... well--

Unidentified Justice: No, it isn't--

Mr. Myers: --Not by direct appeal, it's not.

Unidentified Justice: --If isn't final.

Mr. Myers: Until you rule it's not final.

Unidentified Justice: But you've never asked a Delaware court to reconsider in the light of new facts, have you?

Mr. Myers: No.

Those facts have been told to the Delaware Supreme Court.

As I indicated, originally, the trial court agreed with the Division that the half brother... half sister relationship of the parents wasn't sufficient to be the "not fitted" conduct.

An appeal was then taken to the Delaware Supreme Court.

The Delaware Supreme Court did not reach any of the legal issues but remanded it back to the trial court to have a separate findings made on the second statutory standard of "best interests".

A five day trial was held in the trial court and as I indicated, although the term "best interest" seems to mandate some sort of comparative analysis, the trial court and the State resisted any efforts by the parents to show what type of care the children were receiving while they were in the State's custody.

What information did leak through is that the oldest child had been, during her period, while she was in the State's custody, had been shuffled back and forth between nine different foster care placements.

At the end of that the trial court entered a final judgment indicating that it found it was in the best interests of the children to terminate their parental rights, based on several factors.

One was frequent moves of the parents, as Mr. Doe frequently changed jobs.

The second was the half brother and half sister relationship of the parents.

And the third was the prior conviction Mr. Doe had suffered for a misdemeanor of offensive touching.

That last factor was a hotly contested issue.

It arose in 1973 when the Division charged Mr. Doe with sexually assaulting one of his daughters.

After a trial on that matter he was acquitted of any sexual offense.

He did suffer an offensive touching conviction and was placed on probation.

He described the conduct which formed the basis of the conviction.

It was playfully placing his tongue on his 2-1/2-year-old daughter's nose and mouth.

Again, the case was returned to the Delaware Supreme Court.

They rejected the parents' vagueness challenge to the statutory standards, they upheld the trial court's use of the preponderance of the evidence, and they found specifically that the half brother... half sister relationship was the triggering criterion, not fitted criterion.

Unidentified Justice: Mr. Myers, is it part of your position that a state may not ever terminate parental rights?

Mr. Myers: We think that the only interest that the State can assert in a termination of parental rights that's so compelling is prevention of actual substantial or imminent harm to the children.

Any less intrusion without proving that is not permissible.

Unidentified Justice: Physical or mental harm?

Mr. Myers: Pardon me, Justice Marshall?

Unidentified Justice: Physical or mental harm?

Mr. Myers: Physical harm, surely, and mental harm when it's characterized by some overt symptoms, not merely speculation, but symptoms such as aggressiveness withdrawal and so forth.

Unidentified Justice: I just wanted to know, do I have to get degree in psychiatry to decide the case?

Mr. Myers: Well, I think the trial courts decide these types of issues every day and it's not difficult to show those types of actual harm.

Unidentified Justice: Then you think also that the criteria for termination have to be spelled out in some detail, I take it?

Mr. Myers: I think that the appropriate way for state legislatures to go in this field is, in effect, to spell out the criteria of harm.

Unidentified Justice: Well, appropriate isn't really what I had in mind, because we are dealing with a constitutional question.

You think the states are required to list factors?

Mr. Myers: I think that's required so that individual social workers or judges don't in effect define within vague statutes what their own ideas of good parenting or bad parenting are.

It's a legislative choice and the legislature should set those criteria.

Unidentified Justice: Well, is the issue the welfare of the children, the interests of the children, not good parenting or bad parenting?

Mr. Myers: I think that's why the legislature should look to harm to the children rather than trying to detail any right or wrong parent.

If there's any harm to children they're in effect looking to the welfare of the children.

Unidentified Justice: So you don't really... you don't really say that the welfare of the children is necessarily an insufficient standard.

If a state happened to construe that standard as requiring some showing of injury to the children, you wouldn't have any objection to it.

Mr. Myers: If the legislature defined the welfare--

Unidentified Justice: No, I'm not saying legislature.

I said the state court construed it that way.

Mr. Myers: --A construction that would limit welfare to harm, I think, would be constitutional.

Unidentified Justice: Or in any specific case, if in applying the welfare of the children standard as a matter of fact they found that there was harm to the children?

I don't know how you'd--

Mr. Myers: If the harm was in effect actual harm or imminent threat of actual harm, whether that be psychological or physical.

The problem with dealing with it on a case to case basis without any criteria of what the legislature has denominated as harmful is that that's an easy way for judges in effect to impose their own values.

Unidentified Justice: --You wouldn't require the same standard for termination of custody, would you?

Mr. Myers: Well, that case is not before you today.

I think the State can by imposing--

Unidentified Justice: It is in a sense because I take it that you would say, if the State had custody of the children, and validly so, that there could never be an adoption, unless your standard is satisfied?

Mr. Myers: --Unless returning these children to their parents would cause them actual harm.

Unidentified Justice: So unless the State could prove that, the State would always just have to retain custody?

Mr. Myers: When the State is trying to take children from both of their parents and give them to someone--

Unidentified Justice: And you would be required not to put these children in any kind of a permanent family?

Mr. Myers: --Well, I think they can return to their natural family, if the State in effect can't show that it's going to cause harm that the--

Unidentified Justice: So are you saying custody then rests on the same standard or not?

Mr. Myers: --Well, I think that any time the State seeks to intrude in a family, that in effect the State surely has to show some possibility of harm at the custody stage and much more at the termination state where in effect it's permanent.

Unidentified Justice: In taking this record as a whole, are you telling us that this record would not support a conclusion, a finding and conclusion that there was emotional harm to these children?

Mr. Myers: Well, there's been no finding below and I think that that's the responsibility of the state court.

Unidentified Justice: I've asked you a hypothetical question: that it would not support?

Are you saying that it would not support such a finding?

Mr. Myers: Well, I think that any of the criteria that the trial court lists, frequent moves of the family, the half brother and half sister relationship, would not support a finding of sufficient harm for them to in effect permanently break up this family.

The moving of a family as the father changed jobs is something that occurs to millions of American families, I believe.

There's not a scintilla of evidence in this record concerning the half brother... half sister relationship which showed that that caused any harm to these children who were already in existence.

The experts brought forth by the State who generally had never seen the parents nor the children even in that situation disclaimed any reliance upon the half brother... half sister relationship as causing any harm to the children.

Unidentified Justice: The problem I have is that you admit that they're living in incest; they were.

Mr. Myers: They were half brother and half sister and had five children and they were convicted of the crime.

Yes, sir.

Unidentified Justice: And you don't think that a child brought up in the home of two criminals continuing to practice their criminality is not a good home?

Mr. Myers: Well, that's a decision that the Delaware Legislature has not made and that's a problem with the "not fitted" conduct.

There's no explicit grounds in Delaware that says conviction of a misdemeanor means the forfeiture of your children.

Unidentified Justice: That wasn't my question.

My question was what you think about it.

Mr. Myers: My personal opinion?

Unidentified Justice: Yes.

Mr. Myers: In the absence of showing any of the types of harm I've outlined before, I'm not sure that the State had any reason to take children from both of these parents.

Unidentified Justice: Well, suppose a state has murder as a misdemeanor, would a home of husband, mother and father convicted murderers, making murder their pastime, be a decent home, in your opinion?

Mr. Myers: Absent the showing that the conviction and the conduct that caused the conviction harmed the child, there should be no reason for the state to intervene.

Unidentified Justice: So it's perfectly all right to live in the home of murderers?

What's your position?

Mr. Myers: I think, in the absence of harm, I think it has--

Unidentified Justice: I'm just trying to get your position.

Well, haven't courts run into problems before when they have attempted to lay down very definite criteria such as Justice Holmes in the earlier days of railroads, when he said, we declare it to be negligent as a matter of law when you come to a railway crossing and fail to obey the

"stop, look, and listen. "

sign, or when in the McGautha opinion Justice Harlan referred to the Royal Commission Report saying that it had just proved impossible, virtually, to define the standards that made one subject to capital punishment, that there's necessarily an element of vagueness there.

Negligence embraces so many situations in the tort field that I don't think any court today says that it's vague because all we require is negligence and the jury deliberates as to what is negligent and what is not.

Mr. Myers: --Well, I think my response would be twofold.

Initially, in effect stating standards of conduct as to how you drive an automobile, how you run a commercial business, where there may be accepted standards outside the law, is a lot different than when a state tries to interfere in a family, something this Court has recognized as a fundamental interest to both the parents and the children.

Secondly, I would point out that while we're not asking for absolute certainty, the Delaware statute used against these parents without any statutory definition, without any narrow construction, is surely vague.

It doesn't give any guidance to anyone either under the "not fitted" standard or the "best interest" standard.

Unidentified Justice: Well, how about capital punishment in the McGautha case?

Mr. Myers: Well, I think this Court has now in effect required the states to in effect take into those... to legislate and make law the types of factors the jury would consider.

That's what basically, as we've pointed out the examples in the appendix to our brief, and some of the amici point out, that that would be the proper way for the courts to go about this procedure, not try to detail and outline every type of conduct a parent can or cannot do, but in effect delineate the types of harm that will be sufficient and will allow judges to decide whether in effect parental rights should be forever forfeit.

Unidentified Justice: Well, if the Delaware Legislature should say that a mother and father who were living in an incestuous relationship are unfitted as parents and that that alone is ground for termination of the parental rights, that would certainly eliminate the vagueness problem.

Mr. Myers: That's correct.

Unidentified Justice: But as I understand your answers to questions propounded to you by my colleagues, that would not eliminate either of the other two problems in this case.

Mr. Myers: Well, I think--

Unidentified Justice: Is that correct?

Mr. Myers: --That's a difficult issue.

Unidentified Justice: And is my understanding correct?

Mr. Myers: And it should be decided on that case if the legislature makes that choice.

The Delaware Legislature has not made that choice.

Unidentified Justice: But the court has.

The court has construed this statute to mean that.

Mr. Myers: To say that conviction of a misdemeanor of incest was the triggering criterion.

Unidentified Justice: Right.

Correct.

Mr. Myers: As I responded to Mr. Justice Marshall, my feeling is, in the absence of a final determination that that conduct caused harm to the children--

Unidentified Justice: So, in other words, it would not eliminate your other two challenges to the legislation?

Is that correct?

Mr. Myers: --No, no.

Unidentified Justice: Is my understanding correct?

That's my only question.

Mr. Myers: As to my personal belief whether that would be--

Unidentified Justice: Well, not your personal belief.

Your belief as an advocate here, before this Court.

Mr. Myers: --No.

Unidentified Justice: It would not.

It would eliminate the vagueness problem, clearly.

Mr. Myers: Surely it would eliminate the vagueness problem, but not the substantive due process problem.

Unidentified Justice: Right.

Mr. Myers: I'll just briefly point out that the third issue presented to this Court is the proper standards of proof.

Recently in Addington v. Texas this Court has outlined those factors where the Constitution compels states to require in its judicial proceeding something beyond a mere preponderance of evidence, and to apply the Addington criteria of loss of liberty, stigmatization, and the possibility of decisions based on unauthorized conduct.

Those factors clearly are present in a TPR.

There is an additional criterion, as I pointed out, in a TPR that wasn't present in Addington.

In Addington an original commitment could in effect be changed, an erroneous original commitment could be changed.

In a TPR an original erroneous termination is forever.

It cannot be changed.

And despite the State's protest I don't think a higher standard of proof as we asked for causes any problems.

As we point out in the brief, numerous states have adopted the clear and convincing evidence, and when Congress has spoken on the issue it has required a showing of harm, and has required a showing of harm beyond a reasonable doubt.

It did so analogizing that TPR was in effect a greater punishment than a criminal conviction.

In sum, unless the lower courts are reversed, the State of Delaware will have taken these children from their parents under an ill defined standard by proving its case by a mere preponderance of evidence, and without any demonstration that any of the children had been harmed by the parents' conduct.

In so doing, because of the sterilization, the State will have taken the only children these parents will ever have.

Chief Justice Burger: Mrs. Small.

ORAL ARGUMENT OF MRS. REGINA M. SMALL, ESQ., ON BEHALF OF THE APPELLEE

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

This case involves abstruse academic and abstract principles of constitutional law but as the Justice' questions have demonstrated, cases that come to this Court are neither abstruse, abstract, or academic.

This case involves five children and their biologic parents, and the right of those parents now separated, and the mother remarried and raising the child of her present husband, to regain parental rights... if this order is final except in the sense that it's not finally final because it's before the Court... to regain the right to some form of contact with these children and perhaps some custody at some future time after planning, according to counsel.

Ms. Roe testified at the TPR hearing that what she wanted was to keep a good home for them, the children, to keep them clothed and fed good.

That was her concept of parenting duties.

The testimony in the record... and there is the transcript of a five day trial on remand to the Delaware Superior Court which conducted the termination hearing, the record before that court indicates that in visitation and the time between the removal on custody grounds of these children and the termination hearing, Ms. Roe was not particularly interested in the children, unable to relate to them.

The social worker who participated in the visitations testified at one point that the young child, a baby at that time, Charles, was brought in, cried.

The mother was unable to comfort him, unable to bring any emotional succor to him, and the foster mother who was in the building at the time of this visitation had to be brought in to calm the child down so that the visitation could continue for but a short time.

The mother made no emotional responses when the children left, no--

Unidentified Justice: How old was the child then?

Mr. Small: --My recollection is that he was an infant, Justice Stevens.

He would have been--

Unidentified Justice: There are all sorts of reasons why a child may continue to cry.

Mr. Small: --But the foster mother was able to calm him very quickly.

Unidentified Justice: I suspect something like that happens to every parent, though, doesn't it, Mrs. Small?

Mr. Small: I have no doubt that it does, and more often than once, but this is the reaction that happened in a specific visitation session.

And the testimony was that beyond this particular visitation session... in fact, when the children were in voluntary custody of the Division, the eldest two, Amy and Bill, Ms. Roe indicated no particular interest in where the children were or how--

Unidentified Justice: Mrs. Small, why do you suppose they're still litigating this case?

Mr. Small: --That's a question I ask myself without a good answer, Justice Stevens.

The children in this case have not seen their parents since--

Unidentified Justice: But is it not true that they did make efforts to and they were denied access to the children?

Mr. Small: --They made some efforts through the Division and through counsel to--

Unidentified Justice: And they were denied.

Mr. Small: --And they were denied.

They also--

Unidentified Justice: Well, what were they supposed to do after that?

Other than fight this lawsuit?

Mr. Small: --They made an attempt in 1977, December of 1977, more than a year and four months after the first termination hearing, to obtain a stay of the termination hearing for the purposes of obtaining visitation rights.

That application was made to the trial court as Delaware procedure requires.

It was denied, the application was not renewed in the Delaware Supreme Court.

And so a full year and eight months after the last of the children were removed from their custody, much less their parental control, was the first time they made an application to the court to stay the order so that they could--

Unidentified Justice: Had they made informal requests to the agency?

Mr. Small: --Yes, they had, and they continued--

Unidentified Justice: Made and denied.

Had they regularly been denied?

Mr. Small: --That's correct.

Unidentified Justice: Maybe they got a little discouraged.

And then they tried in court, and they were denied in court.

Mr. Small: And they had the opportunity to make the application to the Delaware Supreme Court and did not do so.

Unidentified Justice: Well, Mrs Small, has there ever been a request to reconsider this case in light of the current facts?

Mr. Small: No, Justice Stevens, there has not been and in fact, at the time of oral argument before the Delaware Supreme Court, as the full opinion of the Delaware Supreme Court which appears in the appendix to the jurisdictional statement discloses, the Delaware Supreme Court was aware of the fact that Mr. Doe was living in Georgia.

Unidentified Justice: Do you think this represents a judgment by the Delaware Supreme Court that these changed circumstances wouldn't make any difference in the?

Mr. Small: I think it undoubtedly does because not only was Mr. Doe's parental rights terminated but Ms. Roe's parental rights were terminated also.

And there was evidence with respect to each of the parents put forward in the termination trial.

And on the basis that--

Unidentified Justice: Yes, but some of the problems that existed at the time of the proceeding in the trial court didn't exist anymore, did they?

They weren't living together incestuously, the lady was married.

Now--

Mr. Small: --That's correct.

However, no application was made to the Delaware Supreme Court, although it was upon question--

Unidentified Justice: --So you really can't say that the Delaware Supreme Court has acted on a request to remand for further proceedings in light of the changed circumstances?

Mr. Small: --Undoubtedly they have not acted because they have not been requested to act, although it was a question of the Chief Justice of the Delaware Supreme Court which elicited the information on the present condition, then present condition, 1978, of the parents of these children.

So that fact was clearly before them, that Ms. Roe was married to another man and raising his child--

Unidentified Justice: In Delaware, does this same statute govern removing children from the custody of the parents?

Mr. Small: --No, it does not, Justice White.

The first point I should make is that this statute is now repealed and we're only talking about nine children who would be affected by the decision of this Court, the five children here and the four children in Able v. Delaware case where the appeal has not--

Unidentified Justice: Well, what if this case were pending now in the Delaware Supreme Court?

Suppose it had just been filed.

Suppose it was filed in the Delaware Supreme Court the day after the new statute was passed.

Under what law would the Delaware court review the case?

Mr. Small: --If the appeal were pending on... if the appeals were filed the day after the new statute was enacted, as I understand your question--

Unidentified Justice: Yes?

Mr. Small: --the Delaware Supreme Court would review the case under the statute existing at the time of the termination of parental rights.

Unidentified Justice: It wouldn't review it in the light of the new statute?

Mr. Small: With the--

Unidentified Justice: That's a little odd, isn't it?

Mr. Small: --With the attack made on appeal, I can't see how the court could review it in light of the new statute except to say--

Unidentified Justice: Well, it could remand to see if the trial court... for reconsideration in light of the new statute.

Wouldn't that be the thing to do?

Mr. Small: --You anticipated my exception: except to say that it could take cognizance of the record and make a determination on its own from the record, or more likely, to remand to the trial court.

But at the time of the termination the now repealed statute was the one that governed.

Unidentified Justice: But our rule here normally is in civil cases to adjudge a case in the light of the current law, the current statute.

Why shouldn't we remand for reconsideration to see if the new statute makes any difference to the Delaware courts?

Mr. Small: I can only give a practical answer to that question, Justice White.

That is--

Unidentified Justice: Well, I'm really wanting a legal answer.

Mr. Small: --Then I shall attempt to give a legal answer.

Unidentified Justice: Which will probably be the same thing, so go ahead.

Mr. Small: A remand of this case for application of the present Delaware statute by the Delaware courts would be no more and no less than a tacit recognition that the former statute was vague and likely--

Unidentified Justice: Why is that?

Delaware has replaced its statute.

Mr. Small: --As part of a more comprehensive statutory--

Unidentified Justice: Well, but it's nevertheless replaced the statute.

It isn't the same standard, is it?

Mr. Small: --No, it's... the language of the statute is different, although in the generic terms both unfitness and best interests are still required.

In fact, the new statute is remarkably similar in its language to the statutes to which the appellants point the Court in the appendices to their brief as being models of the kind of flexibility that is required.

Unidentified Justice: Well, then, why shouldn't... in a case that's not final, why shouldn't these parents now have their case judged in the light of the current State standards?

And why should we pass on the constitutionality of a statute that's been replaced?

Mr. Small: That leads me only to my practical answer that it will be several more years before there can be permanent placement for these children.

The State thinks that that would be travesty.

Delaware's termination of parental rights statute, the TPR statute, is not, as counsel suggests, unique.

We know of no state which doesn't have a similar statutory provision.

In fact, in appellants' brief at page 32, notes 52 and 53, in making their standard of proof argument, the appellants list a number of states that use the clear and convincing evidence standard of proof in termination of parental rights standards, parental rights acts.

So I would assume that they will concede that there are other TPR statutes.

In fact, Delaware was in the forefront of having statutes which require both the best interest and the fitness of the parents to be considered with the Cline case in 1967, the very standards which this Court has alluded to in both Offer and in Kilwarren.

Counsel in his brief recitation of the facts seems to pass over the years intervening between the first contact between Doe and Roe and the Division of Social Services, and the time at which the termination of parental rights action was filed.

In those three years there was continued contact between the agency and the family.

The children were first placed voluntarily, because Mr. Doe came to the agency and said that he was not able at that time to provide support for his family.

After helping him obtain employment and helping the family find a nice home, the younger of the two children at that time, Bill, was replaced in the home.

The Division observed the family life, was satisfied that at that point in 1973 the family was coping, providing stability for the one child replaced, the elder child, Amy, shortly thereafter.

The reaction to that was that Mr. Doe quit his job very promptly; he went out and found another, was fired.

The family moved in the middle of the night, the night before a worker was to make a regular visit, leaving no forwarding address.

From that time on the relationships between the Division and the family continued to increase.

The Division's policy is to maintain the family unit whenever possible, and when it becomes impossible by reason of incapability or failure of the parents to be able to provide the nurturing stable environment that the child has a right to, and family integrity, then the Division believes that a permanent placement alternative as close to the family situation that is a new adoptive family is the preferable one.

And in fact the record discloses that it was not until the Division made the determination that these children should be put in adoptive care where they could be received into a new family, albeit not a biologic one, but a new family, that the TPR was filed.

Unidentified Justice: Ms. Small, does the record tell us whether all the children are in the same family.

Are they perhaps in five separate families?

Mr. Small: The record does not disclose that.

They are in four families.

The twins are in the same placement, the youngsters.

Unidentified Justice: The record does show that one was in nine families in one year.

Mr. Small: The record does not disclose that, Justice Marshall.

A reference to Miss Kinkaid's testimony at the trial, termination trial, is where that information comes from.

Miss Kinkaid, who was a psychologist employed by the Division to test and observe these children, testified... and her testimony can be found at page 241 of the record... that she thought from some information she saw that was provided by either the Division or Children's Bureau, that Amy had been in nine placements.

On our cross examination she was asked, "Nine placements, foster placements"?

And she said,

"No, I think it's nine. "

"Well. "

--and I'm paraphrasing... I'd have to go back and check I'm not sure.

The next piece of evidence that was put before her was the records of the State Hospital, the Child Psychiatric Center where Amy was tested several years before.

And at that point there was a showing that she had been in three foster placements.

Her placement worker testified--

Unidentified Justice: But didn't you have a record of your own where the child was?

Mr. Small: --Yes.

And--

Unidentified Justice: Didn't the agency have a record?

Mr. Small: --Yes, the agency--

Unidentified Justice: Well, didn't the agency put the record in to contradict that?

Mr. Small: --There was no affirmative showing to contradict that rather questionable recollection on Miss Kinkaid's part.

Unidentified Justice: But you could have done it, couldn't you?

Mr. Small: It could have been done.

I can represent to the Court that the child has been in a total of six placements, including with her own family, in her entire life till today.

But that's not on the record.

The evidence, though, that is on the record that is alluded to to support nine placements does not support nine placements.

Unidentified Justice: Is there anything in the record that shows that the present husband will take the five children?

Mr. Small: There is nothing in the record, to my knowledge.

Unidentified Justice: I'm getting back to what Justice White was talking about, I don't know what we've got here.

The one side--

Mr. Small: Neither do I, Justice Marshall.

Unidentified Justice: --One side argues that this lady is dying to get these children back, and the record shows she is married to another man whom nobody vouches for.

Now, what conclusion can I draw?

Mr. Small: I think you can draw no conclusion from that, Justice Marshall.

I think that you have to look back to the time of the termination proceeding and Ms. Roe's interest in regaining custody of her children I think is belied by the facts of the case.

For example, when the sexual misconduct charge was filed against Mr. Doe, custody of their then three children was in the State, actual physical custody, as well as legal custody; and then when Roe disappeared for a period of four months after the charge was filed, leaving the State, making no attempts to have any contact with her children at that point.

The record does disclose history of instability in the family that relates both to Mr. Doe and Ms. Roe, and a lack on her part of any strong emotional attachment to any of the children.

The youngest have been out of the home since under the age of six months.

Unidentified Justice: Well, do you deny that she wants these children?

Mr. Small: The only thing in the record that I can point to as her positive assertions are the testimony which I quoted--

Unidentified Justice: Well, isn't this suit one example of positive assertion?

Mr. Small: --She now seeks, as I understand it from her affidavit in forma pauperis contact, I understand from counsel's argument this morning, that they would seek to reunite the family.

I understand from a quotation in the local newspaper yesterday that he didn't know what they wanted to do with the children.

This is a perplexing point for the Division as well as it clearly is for the Court.

Unidentified Justice: Well, do you have any evidence that she does not want them, and if so why haven't they given it to her?

Mr. Small: There is no direct evidence that she has abandoned the children, which is a separate basis for termination.

Her parental rights were terminated on the basis of her individual unfitness without regard to Mr. Doe, except that one of the reasons was they lived in an incestuous relationship.

Unidentified Justice: Well, my question is, fit or unfit, it is true that she wants the children?

Mr. Small: I have only counsel's representation to rely upon and--

Unidentified Justice: Well, do you have anything to the contrary?

Mr. Small: --The record's been closed in this case since December, 1976, Justice Marshall.

Unidentified Justice: Do you have anything to the contrary?

The answer is, no.

Right?

So, we'll just take that point.

I'm not saying how important it is.

Doe and Roe are no longer living together?

Mr. Small: That's correct.

Unidentified Justice: And so they obviously, if they... they couldn't both want the children as parents of the children and as co homemakers for the children because they're not co homemakers anymore for even themselves, are they?

Mr. Small: No, and that's what counsel admitted in his opening statement, that--

Unidentified Justice: He also said that she wanted them.

He said positively that she wanted the children.

What becomes of John Doe then?

But the question is, did he say that or not?

Mr. Small: --He did say that, Your Honor.

Unidentified Justice: Well, thank you.

Now, do you have anything to contradict that, any fact?

Mr. Small: No, Your Honor, we have not conducted discovery in this case while it was before the Court, didn't think it appropriate.

Unidentified Justice: Ms. Small, I'd be interested in your discussion of the constitutional issues that I thought we took this case to consider.

Mr. Small: There is, we believe, before the Court one properly raised constitutional issue and that's the attack on the former Delaware statute for vagueness.

The standard and the rationale for a vagueness standard is that the State in enacting legislation which affects individuals should put the reasonable man on notice as to what conduct is prohibited so that he may act accordingly and so that in applying such standards the courts may determine without a discriminatory or standardless application whether the statute is in force.

We think that the former Delaware statute survives an attack as void for vague.

It is not a question of what's preferable draftsmanship.

The question is whether it meets the threshold requirements, either on its face or assuming, not on its face, through narrowing interpretations of the Delaware courts.

The statute says that parental rights may be terminated when one is considered not fitted to exercise parental duties.

That seems to me to be... and to the Delaware courts... to be a standard that is comprehensible by the ordinary person: care, feeding, clothing, providing for the emotional needs, and the need to stay in out of the rain, Plaintiffs submit that there are no slide rule calculations for determining what's a statute which would survive the void for vagueness attack, and as the amici agree, there should be in the case of child custody some flexibility for determining the statutes.

As I say, I think the Delaware Supreme Court in referring to the dictionary definition has suggested that the statute is on its face sufficient to give standards.

Even if it's not the Delaware courts have over the years interpreted the statute so that any reasonable person ought to know what conduct is proscribed.

Unidentified Justice: Now, Mrs. Small, you said that you thought that only one constitutional issue is properly here.

Counsel for the appellants says that three constitutional issues are properly here.

Why do you think the others are not properly here?

Mr. Small: The question--

Unidentified Justice: I.e., the burden of proof, and the substantive due process standard, as he calls it, that any state need establish that there be harm to the children before it can terminate the parents' relationship.

Mr. Small: --As to the latter, Justice Stewart, it was not raised in the Delaware Supreme Court until--

Unidentified Justice: How about the second one?

Mr. Small: --until motion for reargument.

As to the former, the argument in the Delaware Supreme Court was that the standard of proof was to be beyond a reasonable doubt.

Appellants correctly point out in their reply brief that they make reference to the Addington case in their reply brief in the Delaware Supreme Court and in their motion for reargument.

But they do not discuss the context in which that reference was made.

With respect to the burden of proof issue, Addington is cited in their reply brief in the Delaware Supreme Court directly after the positive statement that the standard of proof in this case must be beyond a reasonable doubt.

Unidentified Justice: Well, in any event, you concede that--

Mr. Small: The case was cited.

Unidentified Justice: --The argument was clearly made that a standard of proof by preponderance of the evidence was constitutionally impermissible and insufficient.

Mr. Small: That is correct.

The standard which was urged was not the standard which is now urged in this Court.

Unidentified Justice: Mrs. Small, may I ask you this?

This has reference to Delaware's new statute.

I've just looked at it and it certainly seems to me that the standard under the new statute, which is best interests of the children, is surely quite different from the standard under the old statute of not fitted.

And my question to you is this, in Bell and Maryland, where we vacated a state Court of Appeals of Maryland judgment and remanded for reconsideration in light of new law in the State of Maryland, we relied on Patterson and Alabama in 294 United States 600, where Mr. Chief Justice Hughes stated the following, and my question to you is, why isn't this statement applicable in this case?

Chief Justice Hughes said,

"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. "

"And in determining what justice does require, the Court is bound to consider any change either in fact or in law which has supervened since the judgment was entered. "

"We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. "

"We have said that to do this is not to review in any proper sense of the term the decision of the state court upon a non federal question but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case. "

Mr. Small: Well, my answer suggests two things, Justice Brennan.

First, the change in the statute enacted this summer does not add the best interests standard.

That has been a standard by statute or by court decisions since before 1967.

The change was in the phraseology respecting fitted or not fitted.

To answer, I think, the thrust of your real question now, I can only suggest that the new statute is presently under constitutional attack for the same reasons in the Delaware state courts and it's likely that--

Unidentified Justice: Yes, but neither you nor we, I gather, really know what the Delaware state courts would do if we sent this back for reconsideration in light of that statute.

Mr. Small: --In light of the new statute?

Unidentified Justice: How they would interpret it, how they would deal with any constitutional challenge to it, we don't know, do we?

Mr. Small: No, we do not know, although--

Unidentified Justice: But surely we ought not decide the constitutional questions tendered if the Delaware courts would on reconsideration apply that new statute, should we?

Mr. Small: --Well, I think it's fair to say that even the appellants would agree that the new statute, although they won't concede it's constitutionally acceptable, is better than the old statute and that the Delaware Supreme Court did not find the old statute vague, and for a determination of parental rights under that statute they would likely affirm that as precedent.

Unidentified Justice: Your practical, your so called practical answer to my brother White earlier, however, would still be applicable here, that any delay would delay the potential adoption of these children.

Mr. Small: That's correct.

Because in Delaware termination of parental rights is a prerequisite for the adoption--

Unidentified Justice: Of course it is.

It is anywhere.

Mr. Small: --In some states--

Unidentified Justice: A child can't have two mothers and two fathers.

Mr. Small: --That's correct.

Unidentified Justice: I suppose you would rather have a remand, though, than a declaration of unconstitutionality, wouldn't you?

Mr. Small: Certainly, Justice White.

Chief Justice Burger: Mr. Myers, you have two minutes remaining.

ORAL ARGUMENT OF GARY A. MYERS, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Myers: Well, at this point, concerning the remand question, I think the remand question and the questions we've been posed concerning the vagueness issues, regardless of the change in the statutory language of the new section, I think the other two constitutional issues which we raised are properly before the Court and would have to be decided regardless of any remand.

Unidentified Justice: Well, the whole point, I gather, of Chief Justice Hughes' statement in the Patterson case, and it's been followed in a great many others, including Bell and Maryland where it was quoted, is that this Court ought not determine constitutional questions if perhaps they will disappear on reconsideration under the new law.

Mr. Myers: Well, I think that the standard of proof argument is not going to disappear, and a remand may entail another evidentiary hearing and to allow it to go forward under what we contend is an impermissible standard of proof should not be--

Unidentified Justice: Well, that may be so, but you may win.

Mr. Myers: --Well, I think the lower courts need some instructions.

Unidentified Justice: You may win, and then we may never have to decide the question.

Mr. Myers: And again, I would point out as to the substantive due process, I think it's before this Court because I think the Delaware court in this case and other cases, what few there are, has indicated that it's not going to require harm and we think that's the constitutional requirement.

Unidentified Justice: Mr. Myers, under your view of the law, if there were a remand and a new hearing, what would the issue be at the hearing, whether the parents are presently unfit or whether they were unfit in 1976?

Mr. Myers: I think in fairness to the parents it would be whether they presently meet whatever statutory requirements the state courts would apply.

Unidentified Justice: And under the present law.

Under the present law.

The facts are quite different than they were five years ago.

Mr. Myers: I would respectfully beg off on that because I'm not sure whether Delaware would apply the present law.

Unidentified Justice: I know it.

I understand you would like to have a decision here; yes.

Mr. Myers: Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.

Attribution:

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Hill v. Printing Industries Of Gulf Coast - Oral Argument

Thu, 23 Aug 2012 18:29:19 +0000

Case:

Hill v. Printing Industries Of Gulf Coast

Media File:

74-456_19750415-argument.mp3

Related Transcript:

74-456_19750415-argument

Transcript:

Argument of John W. Odam

Chief Justice Warren E. Burger: We'll hear arguments next in 74-456, Hill against Printing Industries.

Mr. Odam?

Mr. John W. Odam: Mr. Chief Justice and may it please the Court.

I'm the Executive Assistant of the Attorney General of Texas and I'm here today representing appellants, Attorney General John Hill, Texas Secretary of State Mark White, and Mr. 0059 the District Attorney of Harris County Texas.

This appeal was taken from a judgment of three-judge United States District Court of the Southern District of Texas.

It was entered on August 20, 1974.

This was an action brought by several printers seeking to prevent disclosure of their names on certain political advertising that they were employed to prepare.

They challenge the constitutionality of a portion of Article 1410 (b) of the Texas Election Code which states, “All printed or published political advertising shall also have printed on it the name and address of the printer or publisher and the person paying for the advertising.”

Justice William H. Rehnquist: When was that law enacted in its present form?

Mr. John W. Odam: The law was enacted Your Honor in its present form on -- the amendment became effective on June 14, 1973.

Justice William H. Rehnquist: When was this lawsuit brought?

Mr. John W. Odam: The suit was filed on September 11th 1973 of which time local political races were being conducted in Houston, Texas.

Justice William H. Rehnquist: Had the secretary of state made any determination or have made any public announcement is to how he construed it or how he proposed to enforce it?

Mr. John W. Odam: No Your Honor, the Texas Secretary of State had not done so, nor had there been any prosecutions initiated or even attempted or even considered to that time as evidence and the record will demonstrate.

Justice Harry A. Blackmun: Haven't statutes of this kind been in effect in other states for many years?

Mr. John W. Odam: Yes Your Honor, there are approximately 33 to 36 states that have similar statutes to the one under consideration by the Court today.

The statute we have under consideration however is unique in that only a very small number of states, I believe three have statutes that require that the printer also be identified.

The statute is generally similar however to 18 U.S.C Section 612 as I will refer to later.

Justice Potter Stewart: As requiring a sponsor to be identified?

Mr. John W. Odam: That's correct Your Honor.

Justice Potter Stewart: But only three require the identification of the printer?

Mr. John W. Odam: Yes, Your Honor.

The three-judge court held --

Chief Justice Warren E. Burger: This side I suppose among other things enables the reader trace back the material to its source even if the names of the sponsors are either fictitious or meaningless for the readers that part of it?

Mr. John W. Odam: Yes Your Honor.

We would reach this point I believe in the compelling state interest, one of them being as Chief Justice points out.

The ability of the voter or the candidate or any interested citizen to be able to determine by looking at the piece of political advertising who printed it and then go to the printer whose address and name is indicated on the piece of political advertising and find out exactly who submitted it for printing and that is one of the very main reasons why the statute was enacted.

Chief Justice Warren E. Burger: Some of the statutes require the costs also to be indicated, do they not?

Mr. John W. Odam: Yes sir, yes.

If they do not in the Texas statute, but in other states, that's correct Your Honor.

Justice William J. Brennan: Some other -- I don't know what these statutes include them.

Are other types of statutes which require for example, an indication by an insignia whether or not the printing is done by a so called Union Printer if that's an organized printer?

Mr. John W. Odam: Yes Your Honor.

Justice William J. Brennan: Does Texas have such a statute?

Mr. John W. Odam: I don't believe so Your Honor.

Justice William J. Brennan: But then in any event, if there are, they're independent or separately from the --

Mr. John W. Odam: That's correct, that's correct.

The three-judge court held the foregoing language requiring the identification of the printer to be unconstitutional and that it infringed on appellees' First Amendment freedoms of speech, freedom of press and the right to assembly and said that there was no compelling state interest.

Also, the Court held that the statute was void in that the phrase person paying for the advertising is so vague that man of common intelligence would differ as to its meaning and application.

We present basically four fundamental court -- points to the Court today.

First, that the commercial printer's actions do not constitute speech that is protected by the First Amendment and even if it is protected, the First Amendment rights or freedom of speech and freedom to press do not guarantee to them the right to print political advertising anonymously.

Second, the portion of the statute in question does not substantially infringe upon the commercial printers and publisher's rights to association of privacy and to the extent that there maybe infringement which we denied that there is or were shown in the record in the court below, the state's interest in disclosure is sufficient to justify any infringement.

Third, assuming arguendo that the printers possess such rights and they are in fact infringed upon.

The purposes that are served by the reasonable disclosure requirements of Article 1410 (b), further the compelling state interest of protecting electoral process.

And fourth, the term person paying for the advertising is not unconstitutionally void because when you consider the statute in its entirety, any reasonable person exercising common sense can sufficiently understand and comply with the requirements.

Now, before expanding on these four basic points, I believe will benefit the Court if I very briefly comment more on the background of the statute being challenged.

From 1967 until 1973, a period of six years, Texas law required a political advertising as defined in Article 1410 (b), reflect the name and address of either the person paying for the advertising or the printer or publisher of the advertising.

I might note at this point for the benefit of Court that in the appendix which is supplied to the Court at page 65 is a full copy of the article as appears at the present time.

Significantly, not during the period of six years, not once during that time was challenge made to the term person paying for the advertising as being unconstitutionally vague.

In 1973, as a result of the experiences of the officers and the people of the State of Texas in which unethical and illegal conduct and political campaigns could not be effectively traced and thus not immediately prevented or prosecuted, the Texas Campaign Reporting and Disclosure Act was passed, designed to inform the public about the financing behind communications intended to influence their votes.

Among other reforms, the legislature changed the disclosure requirement from the disjunctive person paying or publisher or printer to the conjunctive, that being disclosure to the public of the name and address of the printer or publisher and the person paying for the advertising.

It's the change by our legislature of only just one word from “or to and” that brings as before you today.

As previously pointed out in response the question from Mr. Justice Rehnquist, the amendment as we see before us today was enacted on June 4, 1973 and a suit was filed on September 11, 1973.

There's no evidence presented to the court below that the candidates or political organizations had declined to use plaintiff appellees' commercial services nor that as a result with compliance with the statute that the printers had been harassed or had been intimated or had declined to undertake any commercial, political advertising for fear of reprisal or loss of other business.

No political candidates appeared before the court below as parties or as amici.

In fact, the only evidence before the Court was affidavits of individual printers swearing to their fears of a possibility of a reaction if they were to comply with the disclosure requirement.

No evidence was presented, the prosecutions have been initiated or even considered, nor evidence of how the act would be interpreted nor enforced by the appellant, Secretary of state, Mark White who is charged with the responsibility of enforcing the uniform application of the Texas election laws.

Parenthetically, a reading to the testimony of appellees' only to the live witnesses at the hearing of which a temporary restraining order was denied by Judge Singleton reveals that the testimony falls far short of establishing any likelihood of a chilling effect upon First Amendment rights.

To use Mr. Justice Marshall's phrase from this morning, the plaintiff's counsel supports their allegations out of the clear blue sky.

They are not supported by the evidences in the record in the case we have before us.

In sum, the plaintiffs have failed to meet their burden of proving to the court below or to this Court to declare the disclosure provision unconstitutional.

Our first point is that the Commercial Printer's actions do not constitute speech as protected by the First Amendment.

And even as such speech is protected, the First Amendment, freedoms of speech and freedom to press do not guarantee to them the right to print political advertising anonymously.

The First Amendment protects not the written or spoken word itself but the expression of ideas concerning social policy, political views and religious beliefs.

Speech or conduct however that expresses nothing of political or social importance is not subject to First Amendment protection.

As Judge Bue points out in his specially concurring opinion below.

these printers by their actions express nothing.

They do not argue that they are denied the right to print anonymously their own views in support of or in opposition to a particular candidate.

To the contrary, they seek the right to print anonymously that for which they have no feeling one way or the other.

Indeed, they seek to avoid expressing any type of conviction.

They seek constitutional protection to avoid expressing only their name.

Nor did the printer seek to distribute ideas.

They merely received orders from their clientèle and return the finished product to the person that has hired their services.

The appellees rely very heavily in the Tally versus California case to support their position.

We submit that the Tally decision does not in fact support them and is distinguishable from instant case in several very important aspects.

First, the Los Angeles ordinance requiring identification on all handbills were struck down because of over breadth as to time, as to place and as to circumstance and the lack of any relation to any ongoing governmental interest or responsibility.

The challenged language of Article 1410 applies only in very limited times, that being during a campaign and only to certain groups.

Those printing material for such campaign is for profit.

It clearly does not eliminate anonymous discussions of public matters of importance at all the times or even during an election campaign.

The purposes articulated by Mr. Justice Black from prohibiting an absolute ban on anonymous printing are far from applicable in the case at bar.

Now appellee printers have no such lofty purpose for seeking anonymity.

Rather, basic only to profit in private even if this were speech that were protected under the First Amendment, as Mr. Justice Clark pointed out in his dissenting opinion in Tally, the Constitution says nothing about freedom of anonymous speech nor there's freedom to press as illustrated in the Lewis Publishing Company case provide any such anonymity.

The Brandsberg decision also illustrates that freedom of press does not guarantee an absolute anonymity especially where substantial, compelling, public interests are shown and demonstrated.

As will be discussed in a later point here the state's interests are compelling and when weighed in the scales of justice against any possible infringement, may tilt in favor of the voting rights which our state so fervently attempts to protect.

The appellants contend that the case more properly fits within the rationale of the Insco case and the Scott case discussed in our brief dealing with the similar federal statute 18 U.S.C. Section 612 which requires identification a person responsible for distribution or publication of political advertising.

Our second point deals with the asserted right of associational privacy.

The portion of a statute in question does not substantially infringe upon the commercial printers and publishers’ rights to associational privacy.

The Printer's main reliance on this point is NAACP versus Alabama and the Bates versus City of Little Rock cases.

Now this relies as misplaced for at least two reasons.

First, the rationale in support to the right of associational privacy as they point out in their brief is to protect the right to associate, to advocate and promote political, social and economic actions.

The right to freely associate for the purpose of advancing ideas and erring grievances.

Ironically, the commercial printers do not seek to protect the rights to associate with the political candidate for any such reasons and has made the base of NAACP versus Alabama and Bates, but to the contrary they seek to conceal their identity for fear that someone might think that they do associate with their customers and thus damage their commercial enterprises.

Secondly and more importantly, the holding both the NAACP versus Alabama and in the Bates decision was that in each instance, the law in question imposing some burden on the First Amendment right was not shown to have a relevant or substantial correlation to the state interest sought to be furthered.

In the case at Bar, the substantial and compelling interests are shown by the state in a limited disclosure requirement of Article 1410.

The NAACP versus Alabama and the Tally case both recognized that disclosure maybe required when as here the state show good faith efforts to protect a fundamental interest.

Justice Thurgood Marshall: Why does the state need the name of the printer?

Mr. John W. Odam: Why does the state need to know the name of the printer?

We feel Your Honor that there are about five reasons why the state needs to know the name of the printer, all of which go to protect the voting rights of the public.

First of all, we'd say that they need to know the names of the printer in order to give a candidate or any other citizen a right to fairly reply to what the political advertising is, not as prohibited by the Miami Herald case, the access to the press.

Justice Thurgood Marshall: The man says “my name Joe Doe,” I put Joe Doe on the bottom, that doesn't mean I got a print of what you bring, what somebody else bring, does it?

Mr. John W. Odam: You mean when you --

Justice Thurgood Marshall: You put the name of the printer that's all I'm talking about, why do you need the name of the printer?

Mr. John W. Odam: Your Honor, if the candidate or any person has the name of the printer on the piece of political advertising, he can look to see who made such statement.

He can look at the piece of political advertising and say who made the statement, who calls this to be --

Justice Thurgood Marshall: You mean it's primitive make the statement?

Mr. John W. Odam: No, Your Honor, but the requirements of the statute are that the printer keep at his shop the name of a bent individual that came to him and submitted it for publication.

Justice Thurgood Marshall: Which his name is printed too?

Mr. John W. Odam: That's correct Your Honor but the name that is printed --

Justice Thurgood Marshall: So you get both, you come to them and say is this the name?

Mr. John W. Odam: No, Your Honor, the printer would publish; number one, the name of the person that's paying.

That name might not necessarily be the same name as the individual who submitted to him.

For example, the name that he might put on the piece of political advertising might be the citizens for the election of John Doe, the name submitted to him by the individual.

If you person out and the community wanted to see who submitted that on behalf of the citizen for John Doe, knowing who the printer is, you could go to the printer and he would have on the record who submitted it.

He would have the name of the individual.

Justice Thurgood Marshall: Be there as the name of the man who's name is on that.

That’s the only name he would have?

Mr. John W. Odam: No, Your Honor, under the statute, he's required to have the name of the individual which might not necessarily be the name of the person paying.

Justice Thurgood Marshall: Where is that in the statute?

Mr. John W. Odam: It's in the portion in Article 1410 (b) --

Justice Thurgood Marshall: What page?

Mr. John W. Odam: -- which is at page 66 of the appendix.

Justice Thurgood Marshall: Of the jurisdiction?

Mr. John W. Odam: Appendix to the jurisdictional statement at page 66.

Justice Thurgood Marshall: Is this it?

This is, now what page is?

Mr. John W. Odam: Page 66, Your Honor.

Justice Potter Stewart: First sentence of the --

Mr. John W. Odam: Yes Your Honor.

It would be starting about --

Justice Potter Stewart: And then the sign --

Mr. John W. Odam: Signed by the individual contract and therefore in showing his full address and if his agent name of the candidate political committee within this enterprise.

In other words, the name is printed on the piece of political advertising might be the political committee versus citizen for John Doe and if you want to find out who submitted it.

Justice Thurgood Marshall: But it then to prove to have objection of doing the Government's business for them.

What the statute said before you file a political advertising, you shall file with the secretary of state something.

That would be one thing but this is getting the printer to do it.

Mr. John W. Odam: Well, Your Honor, by having the printer do it, it allows the entire public during a political campaign to know who distributed it by knowing who submitted it to the printer.

Justice Thurgood Marshall: Did the printer require to show that anybody wants to see it?

Mr. John W. Odam: Yes, Your Honor.

Justice Thurgood Marshall: [Inaudible]

Justice Potter Stewart: You said there were five reasons and that's the first one, what are others?

Mr. John W. Odam: The second reason Your Honor is that it allows the voter to be better informed in casting his ballot.

Justice Potter Stewart: Now how in the world would the name of the printer do that anymore than the name of the secretary who typed the manuscript?

Mr. John W. Odam: Your Honor, if you know who the printer is, it allows by knowing who the printer is which ties very closely into the other point to know who submitted the material to be printed.

Justice Potter Stewart: Well that's the point.

Mr. John W. Odam: Well, the first point allows a candidate to reply to whatever it is.

My second point is to allow any individual voting in the campaign to know who submitted it.

In other words, under the first point, the candidate would know who submitted it and be able to reply more directly by knowing where the piece of political advertising came from.

The second point is that any candidate would be better informed by knowing exactly who submitted it to the printer.

They are more or less one the same but the first as protected candidate or any other citizen who might be discussed in the piece of political advertising.

The second is to allow the voter when looking at the piece of political advertising to be able to evaluate accordingly.

In other words --

Justice Potter Stewart: Not just by looking at, he has to go to the printer's office and get that?

Mr. John W. Odam: That's correct Your Honor, but absent that, he is not able to totally evaluate.

Justice Potter Stewart: Alright, so you say those are two points, but a little difficulty, what are the other three then?

Mr. John W. Odam: The third point Your Honor is that this disclosure will greatly deter one from attempting a falsely attributed smear as in the Dallas Grady case or in the Insco cases that are discussed in our brief.

The reason for this, I would submit is that if a candidate or political committee or business entity is required and knows there will state on a piece of political advertising who printed it, it would deter them from putting out a smear sheet in the first place because they know it can be tracked down or at least the first line of defense is allowed by going to the printer and finding out who put out.

Justice Thurgood Marshall: It would be track down if they don't put anything they want.

Justice Potter Stewart: Well it can't be, that's the point.

Mr. John W. Odam: That's correct and I'm saying that both names.

Justice Thurgood Marshall: This is automatic, you know.

Mr. John W. Odam: No, Your Honor but it allows at least to know who the printer is to go with to find in the first place, not necessarily where the --

Justice Thurgood Marshall: To know these printers and that will print anything for money.

Mr. John W. Odam: Well, the point Your Honor --

Justice Thurgood Marshall: Well the answer is you're not going after them, you'll go after them criminally, and that's your answer, isn't it?

Mr. John W. Odam: Well, other methods would be available.

We're not talking about going after the --

Justice Thurgood Marshall: [Inaudible]

Mr. John W. Odam: We're talking about going after the candidate or the political committee who intended to have it distributed in the first place.

Justice Thurgood Marshall: Alright.

Justice Potter Stewart: Alright.

Well, then your needs one, two, and three are that they allow anybody interested to go to the printer's office and find these names that are required to be kept there as matter of record by the printer.

Mr. John W. Odam: That's correct Your Honor.

Justice Potter Stewart: And whether it be a member of the public or a candidate or somebody who suspects dirty tricks, that’s really all are the same need in which I fully understand your point and then now what are your --

Mr. John W. Odam: The fourth point Your Honor is that it'll greatly assist the officials in checking the accuracy of expenditure required to be reported under other provisions of the Texas Campaign and Disclosure Act.

By these candidates in Texas must is in many states submit in Austin or at the District level of the county exactly what expenditures they made.

Well, there's no way to check that out.

They registered in Austin as to what they are and they say they made these expenditures or you have to take their word for it unless you have some other way of checking it out.

This is not only available to state official but to any public official whether it be a candidate or anyone else to determine exactly how much was expended and to verify whether or not that is correct.

And the fifth point Your Honor is that before the 1973 Amendment, the printer was required to retain the name of the contracting party.

That requirement was virtually meaningless because until this point you wouldn't know who the printer who is required to make the disclosure or retain the information in the first place.

Now, taking or assuming that that is a valid consideration, that is that the printer be required to keep the name of who submitted to him, it is meaningless unless you're able to find out who the printer is in the first place.

Justice Potter Stewart: So, that the name of the printer is important only because it is tied with the requirements of subsection (b) here on page 26 in that through the printer you can get the sponsors?

Mr. John W. Odam: That's correct Your Honor.

Justice Potter Stewart: And that if it's only important?

Justice William H. Rehnquist: I suppose to the -- under Texas libel and slander law, the printer might be liable in some circumstances for printing something that was grossly and maliciously false, might they not?

Mr. John W. Odam: That's correct Your Honor but our purpose in passing the statute is not to enhance necessarily our libel or slander laws.

We're concerned by informing the public at the time that political election is going on not to --

Justice William J. Brennan: Nobody but others could turn to the publication of libel or slander --

Mr. John W. Odam: Well, I believed Mr. Justice that simply because that there is --

Justice William J. Brennan: Well, no but the idea would be would the printer want to be cautious about whether he agrees to print with his name on it.

Mr. John W. Odam: I don't believe that is correct Your Honor because we're not only concerned about items would fall as far as being libelous or slanderous but we're talking about in a campaign where a slight difference.

Justice William J. Brennan: And I think you don't argue that to deter the publication of libelous and slanderous, the requirement of printing the printer's name on the publication that may assist them, you don't argue with that?

Mr. John W. Odam: No Your Honor.

Justice Potter Stewart: Very wisely.

Mr. John W. Odam: Your Honor these we submit are the five reasons which all go to the compelling state interest which we feel is indicated here.

In other words, if you have the freedom of speech to say that it exists or this speech is protected, to say that it is been infringed upon for all of these reasons which we have just discussed.

We in Texas are attempting to protect the public’s voting rights, to have a fair and honest and open election.

We care nothing about trying to help someone later on have a civil libel suit against someone but to help with the election at the time that is going on.

The states of the union are vested with a primary responsibility for the regulation of election processes within our boundaries for both federal and state congressional elections.

The importance of the responsibilities underlying Article 1, Section 4 of the United States Constitution that the states have the compelling interest in preserving the integrity and the orderliness of election process cannot be a matter of dispute.

The interest has its foundation in the right of all citizens, voters and candidates to choose their Governmental representatives in an orderly, fair, and democratic process.

Justice William J. Brennan: Incidentally, the Texas have on the statutes required comfortable identification of television or commercials, political commercials or radio --

Mr. John W. Odam: Yes, Your Honor but I think that the point on that is that the -- by identifying on a piece of political advertising exactly who the printer is, they are put in actual practical parity with the television station.

This particular statute would require --

Justice William J. Brennan: How about newspapers advertisements?

Do they -- what has to appear on that?

Mr. John W. Odam: Your Honor, as I recall there is an exemption as put out and this one exception to what Mr. Justice Rehnquist asked me earlier about newspapers that they would not be required since it obviously speaks from slays who is putting it out.

With the newspapers you can look at the newspaper and go to the source, you can look to the television set and go to the source.

Justice William J. Brennan: Well, whether it simply says committee for John Jones, that's all what the newspapers varies and carries, that doesn't tell who paid for the advertisement, does it?

Mr. John W. Odam: No Your Honor but the newspaper.

Justice William J. Brennan: The newspaper have to keep comparable information?

Mr. John W. Odam: Yes Your Honor.

What I mean by an exception is they're not required at the bottom of political advertising.

Justice William J. Brennan: No, but they have to keep the same kinds of records the printer has.

Mr. John W. Odam: That's correct Your Honor.

Justice William J. Brennan: And I gather that's supposed to monitor as you suggested earlier with compliance with whatever the expenditure laws of the state maybe and also it's possible to find out who in fact is behind the advertising.

Mr. John W. Odam: That's correct Your Honor and they're covered in Article 1410 (b) under publishers or printers referred to there.

I don't have time to go into our last point that deals with the board for vagueness but I'm sure they will cover that and perhaps I have a little bit of time left to respond the questions.

Thank you Your Honor.

Chief Justice Warren E. Burger: Mr. Birnberg?

Argument of Gerald M. Birnberg

Mr. Gerald M. Birnberg: Mr. Chief Justice and may it please the Court.

To respond generally to the statements which have been made and some of the questions which would be asked, I'd like to start with the overall concept of what is the purpose of Article 1410 (b).

Why do you need the name of the printer?

You need the name of the printer so the state of Texas tells us printed on the surface of political advertising so that individuals receiving that political advertising can go to the printer's place and receive a copy, a signed copy of the statement required also by Article 1410 although not in this particular challenged provision.

I want the Court to understand very distinctly that the printers have not in any way challenged the record keeping provisions of the act.

All that the printers have challenged and attacked is that provision of the Texas Election Code which requires the printers to print their name and address for public dissemination, for public dissemination on the printed material.

Now, with regard to what information the public and then get once they get to the printers, they get the information on the form provided by Article 1410.

That information requires that the printer keep a signed copy of the ad signed by the person contracting therefore, the person contracting therefore.

Now in answer to the question posed by the plaintiffs below, what does the phrase, the person paying for the advertising mean?

The defendants, the Secretary of State and the Attorney General of Texas answered in their brief below at page four of the brief that it was very easy to tell who is the person paying for the advertising.

The person paying for the advertising is the individual contracting therefore and such individual's full name and address must appear in so forth and so on.

So, in other words, the only information that you can get by going to the printer is the information which the state maintains must be on the face of the political advertising itself apart from the printer's name, namely the name of the person paying for the advertising.

Justice Thurgood Marshall: Why does the printer object to free advertising?

Mr. Gerald M. Birnberg: The printers object because as you'll note on the record in this case, Mr. Justice Marshall, their experience has been that when individuals see their name and address associated with particular political positions, particular political advertising that that has dire reprisal affects to them, that they have been exposed to various forms of -- as we've got in the record, physical reprisal, property, damage, economic reprisals, and various forms of harassment and so forth, when people identify the printers with supporting by at a very lease not refusing to undertake political advertising.

Justice Thurgood Marshall: 9 out of 10 of these briefs here, the printer always puts his name down and he loves to advertise?

Mr. Gerald M. Birnberg: Absolutely, Mr. Justice Marshall.

However, the chances of the members of this Court or any other Court reacting in a manner as some Texas voters do [Laughter] is not really substantial and indeed that is in fact the problem.

The identification of the printer during the heat of a political campaign particularly is calculated to cause tempers to fly, hard feelings to be felt and those sorts of things to take place.

Now, there's no evidence --

Justice Thurgood Marshall: Did that happen to any newspapers in Texas?

Mr. Gerald M. Birnberg: I assume that yes Your Honor.

I don't know that we have any evidence of that in the record and I wouldn't suggest to the Court any particular factual case but indeed for example, the named plaintiff, Mary Ann Coleman experienced in becoming publicly affiliated, publicly associated, publicly known as a republican in the self Texas areas.

She was beaten up and had various other forms of reprisals directed against her.

As a result of all of that, she undertook to formulate -- once Article 1410 (b) was announced, she undertook to formulate for her company a policy; “Our company will not undertake political advertising so long as we must publicly identify ourselves and publicly disclose that we support particular political candidates because it's dangerous, it causes all sorts of problems and we're not going to do it anymore.”

Now, that meant that with the advent of Article 1410 (b) --

Justice Thurgood Marshall: Now, we've got to cutout special rules affecting?

Mr. Gerald M. Birnberg: I'm sorry, I don't understand your point Mr. Justice.

Justice Thurgood Marshall: [Inaudible]

Mr. Gerald M. Birnberg: Well, in addition of course to republicans Mr. Justice Marshall.

No, of course not, but if you consider in even the more disunite political situations, the individual who prints for the Socialist Workers Party or the American-Nazi Party or the Communist Party or the John Burkes Society or any of the more dissident political groups that the more dissident the political expression, the less likely the printer is going to be to undertake that advertising in the first instance if he must associate himself openly and publicly.

Now, all we've asked is through this suit, aren't their means less restrictive on the printer's rights to associational privacy, aren't there ways to accomplish each and everyone of these admittedly, legitimate state interests without imposing upon the printer's rights to political privacy, associational privacy, at least to as severe and extent as Article 1410 (b) does.

Thus --

Justice William J. Brennan: Meaning some code [Inaudible]

Mr. Gerald M. Birnberg: For precisely, for example that Mr. Justice Brennan, we suggested the coded --

Justice William J. Brennan: But what they have to do then, they'd be required to register or take it with some --

Mr. Gerald M. Birnberg: They could be required, they could choose to register and receive --

Justice William J. Brennan: Get number or a button or something?

Mr. Gerald M. Birnberg: Right and if they chose not to register, not to get that number, they could in that circumstance print the name and address.

Another thing on the political advertising, but that would be no more restrictive or no more of a licensing or a registration statute than requiring printers in the printing business to get employer identification numbers for internal revenue purposes.

So, just get a number and use a coded bug so that there is not this widespread public dissemination of the identity of the printer doing political work for particular individual.

Chief Justice Warren E. Burger: Does Texas have a Freedom of Information Act?

Mr. Gerald M. Birnberg: Texas does have a public record statute and --

Chief Justice Warren E. Burger: One might went off the street and say to the Secretary of the State, we want to know what printer has code number 2341?

Mr. Gerald M. Birnberg: Certainly, and there are two alternatives that I think --

Chief Justice Warren E. Burger: Why is that any less intrusive?

Mr. Gerald M. Birnberg: It's less intrusive for two reasons Mr. Chief Justice.

First of all, Texas in designing such a coded bug system could very well put in some sort of safeguards, I'm thinking in terms of the Bank Secrecy Act case for example where such information would not be available except on the showing of it being in furtherance of or necessary to achieve one of these legitimate state interests which has been expressed.

Second reason is, because in that situation you would have only the person who was legitimately interested in ascertaining that information for whatever purpose or reason to track down a scurrilous piece of campaign literature or what have you instead of every single person who receives any piece of political advertising.

Now, --

Chief Justice Warren E. Burger: Do you concede that it's a proper state interest to track down as you put it a piece of scurrilous campaign literature?

Mr. Gerald M. Birnberg: Oh, I certainly think that that's legitimate state interest.

Now, I think the state can pursue that with legitimate state interest only with imbalance which do not transgress First Amendment Rights of the printers or anyone else for that matter.

And --

Justice William J. Brennan: Your argument is fully on behalf of the printer --

Mr. Gerald M. Birnberg: Yes.

Justice William J. Brennan: Do you suggest if there's anything wrong about the Texas requirement that there appear on the advertisement on itself, the name of the person who paid for it?

Mr. Gerald M. Birnberg: Except for the vagueness argument Mr. Justice Brennan, we're only assorting the rights of the printers in this particular case.

Now, we are not suggesting necessarily that leaving the name of the person paying for the advertising is constitutional.

Justice William J. Brennan: Does anyone here representing originally party to this?

Mr. Gerald M. Birnberg: There is no such party in this particular lawsuit Mr. Justice Brennan.

This is the lawsuit that is used not before the Court in this particular case, but another less restrictive thing that Texas could do it seems to us would be to pass a law, making it the illegal, making it a crime to put out falsely attributed campaign literature or scurrilous campaign literature or libelous campaign literature or otherwise to prohibit that.

Justice Thurgood Marshall: Are there such laws?

Mr. Gerald M. Birnberg: No Mr. Justice Marshall, Texas does not, Texas did have a criminal libel law until January 1, 1974 at which time it was effectively repealed and at this time Texas has no law making it a crime to put out a piece of so called campaign dirty tricks in any form or fashion.

Justice William H. Rehnquist: How would one know where it came from, if you simply got it and it was falsely attributed unless there was some requirement like this?

Mr. Gerald M. Birnberg: Well, there are at least two things that I can think of Mr. Justice Rehnquist.

One of them is some form of a less restrictive printer identification requirement such as the coded bug systems, such as requiring that the printers and again I come back to the Bank Secrecy Act Case present copies of their political advertising to the Secretary of State who has a copy of each piece of political advertising there in his office, in the central repository sort of scheme.

Justice William J. Brennan: Whether if it showing who the printer was?

Mr. Gerald M. Birnberg: Certainly what the record showing who the printer was and --

Justice William J. Brennan: Without coded bug or anything else on the material itself?

Mr. Gerald M. Birnberg: Without any coded bug or anything else on the material itself.

Another thing is presumably if the piece of campaign material is false, libelous or otherwise a subject of controversy in the context of a political campaign and if the printer knows that he has been identified, appropriately the state officials then presumably that printer may well come forward and say this was done by me.

I was the person who printed it and I was paid for -- it was paid for by John Doe or whoever else happened to be the person paying for it.

But notice Mr. Justice Rehnquist --

Justice William H. Rehnquist: [Voice Overlap] subject to the same reprisals that you say your client would be?

Mr. Gerald M. Birnberg: I'm sorry I didn't understand.

Justice William H. Rehnquist: If he comes forward voluntarily under the pressure of this alternative system that you urge won't it be subject to the same sort of reprisals that you say your client is under the existing law?

Mr. Gerald M. Birnberg: Probably that one printer and that one case would be but all of the other printers who had undertaken to do political advertising for various individuals would not be exposed to the great extent, to the devastating extent that we have under the present law.

All the printers are desirous of doing is isolating the infringement on their constitutional rights if you will, is trying to tone down the devastating effect of this 1973 Amendment.

I might point out or through --

Justice Harry A. Blackmun: Well, I'm a little disturbed by your approach on less restrictiveness.

Is this all was a constitutional measure that something might have been done a little less restrictively?

Mr. Gerald M. Birnberg: Mr. Justice Blackmun, whenever the legislature has sought to achieve a legitimate state interest in a manner which infringes upon the exercise of First Amendment Rights then the legislature may do that only in the way which is the least restrictive on those rights only in a way which is absolutely necessary in the furtherance of the achievement of that legitimate state interest.

Justice Harry A. Blackmun: Of course any imaginative lawyer can always come up with something that's a little less restrictive, would he not?

Mr. Gerald M. Birnberg: I'm not sure that's necessarily the case because obviously Texas had a lot of imaginative lawyers working on this particular case and I do not suggest --

Justice Harry A. Blackmun: Isn't that the impossible to achieve standard when you take this position?

Mr. Gerald M. Birnberg: Is it possible to achieve what?

Justice Harry A. Blackmun: Impossible to achieve.

Mr. Gerald M. Birnberg: Oh I certainly don't think so Mr. Justice Blackmun.

It seems to me that if the present --

Chief Justice Warren E. Burger: There's never a better way to do it?

Mr. Gerald M. Birnberg: There may always be a better way to do it.

In each case the Court must consider and balance whether or not the rights which have been infringed upon have been so substantially infringed upon that some less restrictive means must be adopted to accomplish the legitimate state interest.

That's what we're urging so easily the State of Texas could have done and could do in this very case.

Justice Potter Stewart: The only thing I guess is that if there were no other possible way of furthering this state end you would have a much weaker case than you now have because there are many other possible ways?

Mr. Gerald M. Birnberg: Certainly, I would go further than that Mr. Justice Stewart and say if there were no other reasonable way to do it then certainly our position would not be as strong as it is.

But there are several other reasonable ways to accomplish each of these legitimate state interests without burdening the printer's rights to political element.

Justice Potter Stewart: Would you argue with the much less intrusive upon your --

Mr. Gerald M. Birnberg: Absolutely Mr. Justice Stewart.

Chief Justice Warren E. Burger: How would you like to address your friend's argument that the act of printing is if I understood it correctly, the act of printing these documents is conduct since it doesn’t express any ideas of any kind of printer?

Mr. Gerald M. Birnberg: Yes, well yes Mr. Chief Justice, there are two ways.

First of all, I will address the Court to the very lengthy and I think scholarly dissertation Judge Singleton on that precise issue with all of his citations in the opinion for the court below on which the three judges unanimously declared the law unconstitutional.

Secondly, --

Justice William J. Brennan: I gather a judge view didn't think with First Amendment Rights in printers as much as First Amendment Rights of those who were responsible for having the --

Mr. Gerald M. Birnberg: That's certainly true and the result of course Mr. Justice Brennan is still the same that in Mr. Justice Bue's opinion, this law is an unconstitutional infringement on --

Justice William J. Brennan: Yes, but he didn't think the one with First Amendment Rights of the printer?

Mr. Gerald M. Birnberg: Of the printers, he certainly did not.

We disagree with that view.

Understand also that there are two First Amendment Rights that we're talking about here.

One of them is the right to print anonymously and I think that is the issue to which my colleague is addressing himself and suggesting that the printers have no such right that they are merely commercial conduits and we point out that as a practical matter and as an historical matter, if the printer, if the person who operates the printing press does not have First Amendment protection co-existent with that enjoyed by the author that the whole purpose and scheme of the First Amendment is frustrated.

Secondly, however and the issue is --

Justice William H. Rehnquist: It really is nonetheless the right to print someone else's views anonymously that you're claiming?

Mr. Gerald M. Birnberg: We are claiming the -- yes Mr. Justice Rehnquist, the right to undertake to print what we choose to print and not to choose what we don’t want to print.

That is a statement of our name and address.

That is the printer's name and address.

That raises of course a Tornillo type issue where the state has told the printers you must print your name and address on political advertising.

I would point out to the Court by the way --

Justice William H. Rehnquist: Well what about the newspaper, what about the federal statute that requires a newspaper, every newspaper, they print the name of the publisher and so forth.

Mr. Gerald M. Birnberg: Mr. Justice Rehnquist, that's only to the extent that the newspaper desires and chooses to avail itself of second class mailing rights and --

Justice William H. Rehnquist: No, but Justice Holmes long ago said the government has the right to run a mail service but it doesn't have a right to run in violation of the First Amendment.

I wouldn't think that’s any distinction?

Mr. Gerald M. Birnberg: I believe the case that upheld that law is Lewis Publishing Company versus Morgan 1913 case and that's precisely the problem is that Mr. Justice Holme's position was not accepted in that case.

That the Court said in that case that Congress has under Article 1, Section 8, plenary power to control the postal service and therefore anyone choosing or desiring to avail himself of lower postal rights, lower postal rights maybe required to forgo some extent First Amendment Rights.

Now, I think --

Chief Justice Warren E. Burger: Doesn't that been as followed up by the obscenity cases on the mailing problem?

Mr. Gerald M. Birnberg: I certainly think it has Mr. Chief Justice --

Chief Justice Warren E. Burger: Then your point vanishes?

Mr. Gerald M. Birnberg: Well, whether the point vanishes, the point is that there's no constitutional, there is no judicial pronouncement of the efficacy of that law that exists and is viable today.

Lamont versus Postmaster also seems to suggested that that 1913 ruling is no longer viable law.

I would ask the Court, I would direct the Court's attention to the fact that political advertising in Texas is very broadly construed.

It’s saying anything that it's any form of expression, anything published in a newspaper magazine or journal or any pamphlet, handbill or other printed matter or anything broadcast over a radio or television station or displayed on a billboard in favor of or in opposition to any candidate for public office or office of a political party or in favor of or in opposition to the success of any public office holder or in favor of or in opposition to any proposition submitted to the vote of the people whether it's been previously submitted, whether it’s to be submitted sometime in the future, whether it's been propose to be submitted.

So, virtually any discussion about political matters which is reduced to printed or published form must carry a printer identification requirement.

I would suggest to the Court that Mr. Hamilton -- Alexander Hamilton would have to have had the name and address of his printer printed on the federalist papers.

I would suggest to the Court that John Jay would similarly have had to.

I would therefore urge the Court to affirm the ruling below of the three-judge-district court.

Chief Justice Warren E. Burger: Thank you Mr. Birnberg.

You have three minutes left Mr. Odam.

Rebuttal of John W. Odam

Mr. John W. Odam: Thank you Your Honor.

Mr. Chief Justice may it please the Court.

Justice William J. Brennan: What about the alternative methods.

Mr. John W. Odam: Your Honor as far as alternative methods are concerned, I believe that --

Justice William J. Brennan: Would the state's interest all piled over and be as well served by coded --

Mr. John W. Odam: Your Honor I would appear to hear what Mr. Birnberg's suggestion would be if the State of Texas will require printers to come and identify themselves before they undertake any type of registration.

I believe that you have more serious constitutional problems as far as prior registration if a coded bug system were to come into play.

Another alternative that they suggest is some type of central repository where every type of political advertising from the entire State of Texas a copy of such a sense somewhere that legislature certainly has a right in considering alternative methods if they want to have such central repository are allowed to have to the voter which we are most concerned with or compelling state interest to protect the voter's rights, let the voter know when he looks at a piece of political advertising who printed it.

Now, that's what we're concerned about.

The alternative means therefore to answer your question would not accompany this purpose.

Chief Justice Warren E. Burger: I suspect that they have this coding system that we'd be confronted with an argument that this was in affect a disguised licensing of printers?

Mr. John W. Odam: I'm sure that that would be the case Your Honor.

It would -- again the bug system, the coded system would not avail to the voters to know and as the Chief Justice points out would come into the licensing -- prior licensing before they could even go into effect.

There are only two closing points I would make Your Honor would be number one, that the evidence before this Court such as opposing counsel has referred to was not for the record that the three-judge-court, the references made to the problems that the lady have with regard to her feelings about supporting a republican candidate.

That was at the temporary restraining order but was not a part of the record that the TRO or excuse me at the three-judge-court hearing.

Again, this record is void of law to support the position as well as the facts as developed in this record when considering the record as a whole and therefore we're respectfully pray that this Court reverse the decision of the three-judge-court below.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Fusari v. Steinberg - Oral Argument

Thu, 23 Aug 2012 18:27:28 +0000

Case:

Fusari v. Steinberg

Related Transcript:

73-848_19741016-argument

Transcript:

Argument of Donald E. Wasik

Chief Justice Warren E. Burger: We will resume arguments in number 73-848 and you may proceed counsel.

Mr. Donald E. Wasik: Mr. Chief Justice and may it please the Court.

I must emphasize that the interviews in question here are not contests between the department employee and the claimant.

The employee is a neutral party.

He is just gathering the facts.

He has no interest, there's no money coming out of his own pocket here.

There are no charges or any defenses that the claimant has to meet or make.

All he has to do is tell it like it is or was the past two weeks.

The Steinberg situation shows that the seated interviews do not always result in a denial of benefits.

Indeed, he was advised and instructed on how he could improve his efforts to meet his obligations to be eligible and he was then paid.

The department system was certainly fair to him as it is to all claimants.

Claimants here would have us believe that simply by registering with the employment service and meeting the wage credit requirements that from then on they have a right to keep on collecting without saying or doing any more.

This ignores the explicit requirements of the statutes that the claimants who receive benefits must each week be able to work and make reasonable attempts to secure employment.

Chief Justice Warren E. Burger: Suppose at this early stage, the applicant is asked some questions which involved his efforts to get work and some challenge is made to that, is he permitted an opportunity to corroborate that?

Mr. Donald E. Wasik: Yes he is Your Honor, testimony of the office manager, one of the local offices, there is a deposition in the record, shows that he says he would like to have a witness or if he needs a doctor's certificate or something like that, he is given time to get this.

Chief Justice Warren E. Burger: Or I suppose a letter from some perspective employer --

Mr. Donald E. Wasik: Yes.

Chief Justice Warren E. Burger: Who says that he had no work that week but if he'd come back two weeks later, he might have something for him.

Mr. Donald E. Wasik: Yes Your Honor, he's given this opportunity.

Such a right we submit to benefits is at best a conditional right.

If I may analogize, this is comparable to a man being given a key to an apartment building.

He can get into the building but unless he has keys to the individual apartments, he cannot get into these apartments.

So, as a man registers for benefits, registers for work with the local office and meets the wage credit requirements, this is the key to the building.

But he can't get into each apartment unless as each week, he meets the requirements of showing that he has made reasonable attempts to secure employment and that he has not restricted his availability.

He is able to work.

Justice Byron R. White: Well you would have a different -- you perhaps wouldn't be here at all if the termination, if you want to call it that was for another reason, was for a continuing reason that was ascertainable at the outset.

Mr. Donald E. Wasik: Well, counsel may disagree with me but that I believe is correct Your Honor because all of the facts pertaining to the named claimants here, concern their efforts and their availability for work, information which they themselves supply.

Justice Byron R. White: But if it were a question of the wage credits.

Mr. Donald E. Wasik: Wage credits, now this has already been determined.

Justice Byron R. White: Well, it's already been determined, what if you suddenly redetermined it to cut him off.

Mr. Donald E. Wasik: No, if there is a question on his wage credits, if a question arises that maybe he doesn't have sufficient wage credits, as pointed out in the record, he is given a notice that there will be a hearing at such and such a time.

Justice Byron R. White: So the answer is, you think the rule would be different then?

Mr. Donald E. Wasik: Yes Your Honor.

Justice William H. Rehnquist: Mr. Wasik, Mr. Steinberg lost on his appeal to the board, didn't he?

Mr. Donald E. Wasik: To the commission, yes Your Honor.

Justice William H. Rehnquist: And to the commission and then he had a right to appeal that determination to the superior court.

Mr. Donald E. Wasik: That is correct.

Justice William H. Rehnquist: And would he have had a right to raise a constitutional challenge to the validity of the hearing in the superior court?

Mr. Donald E. Wasik: Yes he would Your Honor.

As this Court recently said in the Arnett v. Kennedy case, property interests are not created by the constitution, rather they are created in the dimensions defined by existing rules or understanding stemming from independent source such as state law.

This is exactly the situation here.

The Connecticut statutes which provide these benefits also require an affirmative showing by the claimants each and every week for which they seek these benefits.

That Connecticut's procedures do not result on wholesale denials of benefits, as our opponents would have us believe.

This is pointed out by the very financial condition that Connecticut finds itself in now.

Justice Thurgood Marshall: Mr. Wasik, would it be a good excuse for not attending one of these hearings if the man says I'm not getting a job?

Mr. Donald E. Wasik: Yes, Your Honor.

If he called and said I cannot make my appointment today, I'm going on a job interview, no problem.

They would ask him to call back to tell whether or not he did receive the job, if he was given a job and if not, to then come in and --

Justice Thurgood Marshall: I was just wondering you'd take one of five days part of his job seeking, to sit around and talk.

Mr. Donald E. Wasik: Well, the day that he comes, while some of them may spend a good part of the day there, the procedures are scheduled so that he does not spend the whole day there.

In fact, if the policy works correctly, they expect the individual to come dressed to seek work, if in fact they happen to have the referral the day he comes in for his interview.

So they do not --

Justice Thurgood Marshall: Well, it's different from any other place I hace ever seen in my life, and sit around all day usually waiting for your name to be called.

Mr. Donald E. Wasik: That may be Your Honor.

Justice Thurgood Marshall: Is that different in Connecticut?

Mr. Donald E. Wasik: Not exactly.

Justice Thurgood Marshall: You shouldn't think so.

Mr. Donald E. Wasik: On May 1st of 1969, Connecticut had in its unemployment compensation benefit fund, over $298 million.

This fund has been depleted to the point where we are now in debt to the US Government $62 million and this doesn't count the approximately $65 million at stake and in each year from the employers who are being taxed.

Further, there are estimates showing that we will have to borrow in 1975 and 1976 even though the maximum tax rate on the employers has gone from 2.9 last year to 5.0 this year and will go to 5.9 next year.

In conclusion, I will simply say that these claimants have all received benefits form the very system that they're challenging.

They are very happy with Connecticut's informal hearing when it expeditiously awards them benefits but they are unhappy when the same procedures result in a denial of benefits for one or two weeks.

Justice Byron R. White: Mr. Wasik there is something in the briefs about taking three months for an appeal to be resolved.

Is this the usual experience?

Mr. Donald E. Wasik: At the present time Your Honor, yes.

There is longer than we would like to have delay period but again I would point out this is due to the number of appeals and backlog of being redundant, backlog of cases.

But I would point out that this is a separate entities, unemployment commission adheres these cases.

They are not a defendant in this case.

Plus this is subsequent to a hearing which we believe meets due process requirements, therefore it's not relevant.

Justice Byron R. White: And a person cut off for not making efforts to find work and make efforts the next week and get reinstated I think.

Mr. Donald E. Wasik: Yes Your Honor, exactly.

Justice Byron R. White: And were some of these --

Mr. Donald E. Wasik: I believe Steinberg was cut off and he -- although he received 26 weeks, there were extended benefits at that time and he obtained a job for a short period of time and then went back, and I believe he started receiving benefits again after a short period of time.

Justice Potter Stewart: Is the condition of your fund and that the state of the appellate lies in the fields, so that many wives reflect unusually high unemployment rate in Connecticut?

Mr. Donald E. Wasik: Yes Your Honor, it does.

Justice Potter Stewart: What's it running to?

Mr. Donald E. Wasik: I couldn't answer the percentage rate.

Chief Justice Warren E. Burger: Higher than the national average?

Mr. Donald E. Wasik: I believe it is Your Honor, yes.

It's an industrialized state.

If there are no further questions I would like to save the remaining time I have for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Creane?

Argument of John M. Creane

Mr. John M. Creane: Mr. Chief Justice and may it please the Court.

I think there is some danger in this case of a danger that was noted by, I believe was Justice Rehnquist yesterday.

That the different cases being argued here that was decided by the District Court.

I think the only way to understand this case is to go through the record and check my statements and Mr. Wasik's against what the Court found below.

Before I get into my argument, I would like to respond to a question that Justice Stewart raised yesterday concerning the rule of thumb on the reasonable work effort.

You'll find that at page 20 (a) of the jurisdictional statement in the District Court opinion.

And I'd like to read that part of the footnote from the District Court opinion.

The District Court said, it might also be noted that the record discloses some uncertainty about the standard against which reasonableness is measured.

Theodore Hatcher, Unemployment Compensation Director for Connecticut testified that there is an informal -- I'll wait until you've found it, I'm sorry.

It's on the footnote 25 on page 20 (a).

Justice William H. Rehnquist: On page what Mr. Creane?

Mr. John M. Creane: 20 (a) of the jurisdictional statement.

Mr. Hatcher testified that there was a rule of thumb that the claimant must list at least three places at which he has sought employment a week on his UC 45 form.

In response to a question from this Court, Mr. Hatcher said the claimants were advised to this rule that their benefits, rights interviewed.

However, Eleanor Smarse, manager of the Bridgeport Unemployment Compensation Office responded to a question about where the claimants were told of the rule of thumb by stating it was not an official notification that they were to tell these people if that is what happened.

But that is, there is no official number or anything in reference to this.

Thus, serious questions arise about whether a claimant can ever meet a burden of proof based on a rule of thumb that he has never heard of.

Indeed, even Mr. Hatcher conceded that in crash periods, not everyone receives a benefit rights interview at which the information is supposedly imparted.

The actual testimony for those that want to compare the context of that from Mrs. Smarse is at page 87 through 90 of the single appendix and on Mr. Hatcher pages 193 through 194 (a) of the single appendix.

Justice William H. Rehnquist: Did the District Court consider this a conflict of fact and resolve it?

Mr. John M. Creane: Well, the conflict was between the director, Mr. Hatcher and the office manager, one of them was saying, well yes, of course everyone hears about it and the person who administers the program at the local office said “no, we don't tell them there's no magic number.”

Sometimes three is enough, maybe it isn't, depends on the circumstances of the case.

Justice William H. Rehnquist: You have two witnesses testifying the two different situations.

I would think if the District Court is conducting a factual hearing, it would resolve that and say we believe A or we believe B.

Mr. John M. Creane: Well I think they did.

Thus serious questions arise though whether a claimant can ever meet a burden of prove that he's never heard about.

I think that clearly resolves it, at least it does in my mind.

Now Mr. Wasik stated yesterday that he wasn't sure that the fact finders, all of the fact finders knew about it.

These are the people, they are administering the program and he wasn't sure if they had heard about the rule thumb but that he was pretty sure that the claimants knew about it.

Now, I'm not sure what that means that the people running the system may not know about it but the claimants apparently know about it.

There is just nothing in the record to support a finding that any claimant knew about this rule of thumb and in fact, to the contrary, I would refer the Court to the depositions of one of the original plaintiffs who Mr. Wasik did not mention during his argument.

That would be Mrs. Trianna.

I think she presents a fair representation of what can happen to a person going through the system.

Justice Potter Stewart: Mr. Creane what's the -- this was my question and --

Mr. John M. Creane: Yes.

Justice Potter Stewart: -- maybe I am a wrong person to ask this but what is the relevance of this to your argument or your position in this case?

Mr. John M. Creane: Well, I think Mr. -- counsel for the appellant has laid down what he feels is the basic issue before this Court, is it a fair system?

And that I intend to go into the defects found by the District Court in the seated interview procedure and demonstrate a hope that the District Court was correct.

Mr. Wasik is saying they were wrong and the rule of thumb is just one small dose of the type of fairness that many claimants encounter in the unemployment system in Connecticut, they're not told about it.

If you look at the --

Justice Potter Stewart: But it is this -- I suppose you agree with your brother that it is the best at most a rule of thumb as he pointed out yesterday if you are a waitress and looking for a job as a waitress, it's one thing if you're a university professor and looking for that kind of a job it's another thing.

Mr. John M. Creane: The question I think is, how can a claimant satisfy a standard which he doesn't know about?

Justice Potter Stewart: Well the standard is in the pamphlet that's given to them, isn't it?

Mr. John M. Creane: The standard I think --

Justice Potter Stewart: That is by reasonable of a person out of work would do to find a job.

Mr. John M. Creane: That's on page 258 of the appendix.

Hereafter, this is the only guidance that a claimant gets on the issue of reasonable effort.

Your efforts to get a job must be the efforts which a person out of work would make if he is sincerely looking for work.

I think that standard and maybe the best that could be managed but it's devoid of any kind of guidance I think largely for claimant and at least some (Inaudible), other fact finder applying whatever standard he happens to feel is reasonable for that claimant.

Now there are some office memos that are also set out in the appendix that spell out in more detail what reasonable effort it is and as Mrs. Smarse in her deposition stated, there is virtually an infinite number of factors that can be taken into account on determining reasonable effort.

The only one who has access to any of these memos, or has any idea of what standard he is being measured against is the fact finder.

The claimant simply goes into it blind.

Chief Justice Warren E. Burger: Would it be possible to have a man or a public announcement of all the factors that would relate to every type of confinement in every type of case?

Mr. John M. Creane: No I don't think that would be practical Mr. Justice.

What we're --

Chief Justice Warren E. Burger: Does not this manual section that Mr. Justice Stewart referred to communicate to an applicant that is supposed to do or she is supposed to do, whatever he or she would do to get a job if there were a no unemployment insurance.

Mr. John M. Creane: Well that may be what's intended but it still comes down with subjective --

Chief Justice Warren E. Burger: Doesn't it come through?

Mr. John M. Creane: Apparently not.

It comes down pretty much to a subjective determination.

Chief Justice Warren E. Burger: Well what else would it mean if it doesn't mean that?

Mr. John M. Creane: Well it depends for one thing the department has recognized that the unemployment rate in the area is one of the factors that a fact finder should take into consideration on what is reasonable.

Obviously if there are a lot of jobs available, you're expected to go out and find one of them as suppose to when there are fewer or none, the department is recognized that there is little point in making a person run around fruitlessly.

And yet, again in the deposition of Mrs. Smarse, she said that she has never -- as far as she knows, they're not -- the fact finders are not given that information and she's never seen it in a fact finding decision and yet that's supposed to be one of the factors on reasonable effort.

Chief Justice Warren E. Burger: Do you suggest that it is a policy decision that the harder a job is defined, the less you're supposed to do to find one?

Mr. John M. Creane: I think that is reflected in department memos that they will not require fruitless chasing around when there simply are no jobs available.

Chief Justice Warren E. Burger: Well, would that vary with the kind of work?

Mr. John M. Creane: Yes, certainly.

Chief Justice Warren E. Burger: In other words, if as the present economic condition is today, the building trades are having a very high rate of unemployment, it is reasonable to think that a man skilled in the building trades is going to have greater difficulty finding employment, isn't that true?

Mr. John M. Creane: Yes.

Chief Justice Warren E. Burger: But do you suggest that it is the policy of the United States Government of the State of Connecticut to say because it's harder to get a job, therefore you don't have to try as much?

Mr. John M. Creane: I can -- if you look at page 117 (a) of the single appendix Mr. Chief Justice.

Chief Justice Warren E. Burger: Of the appendix?

Justice Byron R. White: 117 (a)?

Mr. John M. Creane: Yes, yes Mr. Justice.

It's right about in the middle of paragraph two on what constitutes reasonable effort.

Beginning with if however, there is very little hiring taking place because of depressed economic activity and the employment service has most of the existing jobs listed in its files than a less complete round of visits to possible employers as indicated.

That's one of the factors that a fact finder is supposed to take into consideration.

Apparently they're not given the information on what the unemployment rate is, that was in the deposition of the office manager.

Chief Justice Warren E. Burger: Well, would the agents in necessarily know that?

Mr. John M. Creane: Oh yes, that's -- I mean those are Department of Labor statistics that are available by region.

Chief Justice Warren E. Burger: At that particular day or --

Mr. John M. Creane: No, it's I believe monthly information which is not passed on to the people who are supposed to be taking into consideration on making a determination.

Chief Justice Warren E. Burger: You say they might as different once a month so that at any given time, the information might be one month out of date.

Mr. John M. Creane: Well there is some time like to be sure but that's true of any of our governmental statistics, it's the most accurate information available.

Justice Byron R. White: I take it that that this system has the sit-down interviews, so called and followed by a full hearing if the person wants one at some time in the future.

What do you think the standard is that you're pushing for that should be followed before refusal or before suspension?

Do you think it's a probable cause basis or a final decision?

Mr. John M. Creane: What we are seeking in this case is exactly what the state of Connecticut is giving to other claimants in more or less the same circumstances.

In fact, where there is less compelling reasons for a hearing.

Justice Byron R. White: So what's the answer to my question, do you think that the hearing and the hearing that you're pushing forward should be designed not just to determine probable cause pending a full hearing but to finally conclude the matter.

Mr. John M. Creane: Something certainly more than a probable cause hearing in light of the --

Justice Byron R. White: Why if there's a later full hearing?

Mr. John M. Creane: Because we feel that there's very strong presence of two factors that I believe you pointed out in the Arnett versus Kennedy case.

There's a very strong individual interest in the deprivation of benefits in this case and I'd like to go into the need aspect of this program.

And secondly as the risk of error at the initial determination and it's a very substantial risk of error and thirdly, we're not talking about simple mathematical calculations that are easily solved by documentary proof.

We're talking about the application of broad fault standards, reasonable effort.

Justice Byron R. White: Wouldn't you think that if -- wouldn't you think that, or would you, that if the probable -- if all that was to be required prior determination, if that's what this is to be called is probable cause to believe that the person is un-qualified.

Would you think the sit down interview would be satisfactory?

Mr. John M. Creane: On a probable cause hearing?

No, even the present procedures would not constitute a probable cause hearing, in light of the defects that were noted by the District Court.

I think at a minimum, the claimant has to have advanced notice and an opportunity to bring witnesses with him.

Now, it's undisputed --

Justice Byron R. White: Well you don't even need that to arrest somebody.

Mr. John M. Creane: Pardon?

Justice Byron R. White: You don't even need that to arrest somebody.

Mr. John M. Creane: What, advanced notice?

Justice Byron R. White: Or a chance to litigate about probable cause before a magistrate.

Mr. John M. Creane: I think the criminal situation was not analogous to a man or may be his only source of income being taken away from him.

I think it's very close to the welfare situation, if not exactly on all force.

Although, I recognize that there is no need test in unemployment.

There's no requirement that you demonstrate need.

I think this Court has already recognized in Java that Congress intended this as a salary replacement during the worker's period of unemployment.

And I think it's also un-disputable that many unemployment claimants are living very close to the edge of subsistence and it isn't very difficult to see why.

In Connecticut, the average wage several years ago was $150.00 a week.

The average claimant received 40% of that average income which comes out to about $60.00 a week.

Before his benefits are even terminated, his back may already be to the wall.

He may already be in a position where he's just on a subsistence income there without talking about denying any additional benefits.

Now, there was one other point, Mr. Justice that you raised about a week to week, the man can go back out again and get his benefits.

I would call your attention to -- again in the appendix, to the affidavit of Mrs. Triana.

That would be at page 135 (a).

I'm not going to read the entire affidavit but the gist of it is, this is what happened to Mrs. Triana.

She had been collecting for two to four weeks.

She walked in to the unemployment office in Bridgeport and they said, you haven't filled out your card properly, now the woman doesn't speak English.

To my knowledge, this benefit rights booklet is not even reproduced in Spanish or at least it was not at that time.

They said no, you didn't use reasonable effort, fill out this form properly next time you come back in.

She came back in two weeks later and she had her six signatures on the card.

She hadn't write down there and they said “well, you did it all in one day,” that isn't reasonable effort and she explained to them that her son who acted as her interpreter, had to go around with her on the one day that he could, off again.

She was denied six consecutive weeks, finally got her hearing about three months later and the commissioner found, one of his finding is the fact is that she was desperate for work.

She sought work throughout the labor market.

He restored for those six weeks.

Mr. Miranda, another one of the plaintiffs in this case, denied eight consecutive weeks on the issue of reasonable effort.

No, the first two or four were unreasonable effort, the next four they denied simply because he had an appeal pending.

It's against department policy but it's in the stipulation of facts that it happens.

When he got his hearing, the commissioner restored all eight weeks and said that that fact finder was wrong eight times in a row on the issue of reasonable effort.

So I think that, while the department policy is that it's week by week, very often that is not the impact on the claimant.

Justice Thurgood Marshall: Mr. Creane, can I back up a bit, what type of notice do you want?

Mr. John M. Creane: What type of notice?

Well I think on the -- there's a good model for this Court, for the District Court to follow if it's affirmed and remanded in the proposed consent order that the state has filed in this case.

I think this is important for the court to take note of.

What the department has said is that on an initial -- on a redetermination of eligibility, on an initial disqualification, they now recognize that due process requires that they give advance notice, right to bring in counsel, right to present evidence.

That's what we're looking for and they're giving it in situations where a claimant, they feel -- they had made an error on this initial wage credits and they -- it's a simple mathematical calculation and yet they recognized they will now --

Justice Thurgood Marshall: Well, let me give you a hypothetical case.

The authorities know nothing of what happened last week with applicant A and he is coming in for a weekly seated conference.

What notice do you give him, do you want?

Mr. John M. Creane: Do we want.

Well we want if an issue arises as to possible disqualification, we want them to tell him --

Justice Thurgood Marshall: Is there any issue at that stage?

Mr. John M. Creane: When he walks in?

Justice Thurgood Marshall: Yes.

Mr. John M. Creane: Not unless the department raises one.

Justice Thurgood Marshall: Well does he need notice?

Mr. John M. Creane: No.

Justice Thurgood Marshall: Well do you want notice or not?

Mr. John M. Creane: We want notice from the point at which the department says it's a question, we've got a question about your eligibility then we want notice.

Justice Thurgood Marshall: Whatever will do?

Mr. John M. Creane: That's -- as long as it's effective notice but we would want --

Justice Thurgood Marshall: Well he comes in and he says “I have spent the last week on the beach.

Now, I haven't looked for a job.”

Now, does he need notice?

Mr. John M. Creane: Yes, he can waive it if he cares to and say I'd rather take -- I'll lose my week now rather than get it now and have it taken away from me later on when it's --

Justice Thurgood Marshall: Would the notice be that you didn't look for work last week.

Mr. John M. Creane: No, that's not notice, not when you walk in and you're told that moment, we've got a question and your -- you better be prepared to argue your case, that's not a notice.

Justice Thurgood Marshall: That's not the way it was argued yesterday.

I understood that you come in every week and you tell them what you have done to look for a job.

Mr. John M. Creane: No, that is not correct.

There are stipulations of fact that once your initial entitlement is settled, you come in and your benefits are routinely issued to you on the basis of handing in a signed form saying that you look for work, your two weeks are given to you, the seated interview is the exception.

It's not everyone who goes into that office gets a seated interview where you explain to the person what you did.

That's the exception I think Mr. Wasik noted that today that there are far fewer of them than claims for example.

So you don't have to go in every two weeks and prove that you were out -- well you do it away, you hand in a form but you don't sit down and explain everything you did.

So the notice you get, you're plucked from the claims line and sent over for a seated interview if there is any question about the way you filled out the form or the number of employers you listed or that it's not signed or whatever.

Justice Thurgood Marshall: Is that the way you want the notice?

Mr. John M. Creane: Where we want the notice?

No we don't object even to a seated interview.

I think in most cases, it will establish that the person is eligible.

Where we want the notice is that where to the point where the fact finder says “I've got a real question about your eligibility.”

Fine, he's now got a basis to say there's a serious question about eligibility, a hearing will be held a week from now.

It's up to the department, they can schedule it as quickly or as long as they want from that point but that's the point where we want notice.

Justice Potter Stewart: And what do you want about benefits, continue, I mean what?

Mr. John M. Creane: Yes, I think in light of the need of the claimancy as opposed to the -- there's no really countervailing interest to weigh against the claimant.

Justice Potter Stewart: Except that it's under cover.

Mr. John M. Creane: No and most -- there's again in the single appendix, over 50% of the over payments are recovered by the State of Connecticut.

This is not like welfare.

Justice Byron R. White: Don't say that there's no account of it because 50% they are.

Mr. John M. Creane: Well that's in one year.

Now that, the may -- the man make it --

Justice Byron R. White: There is a 50/50 chance so you don't get back.

Mr. John M. Creane: No, it's actually better than 50/50.

That's only for one year.

Justice Byron R. White: But any way don't say there isn't any account available.

Mr. John M. Creane: I didn't mean to imply there were none but in light of the impact on the claimant, Mr. Miranda's affidavit presents the kind of impact that can result.

The man was denied eight consecutive weeks, he had no money for rent, no money for food, depending on handouts from friends, you know call it brutal need, call it back to the wall, call it whatever you want but that's real recognizable deprivation.

Chief Justice Warren E. Burger: Is he ineligible for welfare?

Mr. John M. Creane: Well, there is no -- unlike New York, Connecticut has no aid to families with the dependent children unemployed parent program.

That was one of the factors that the District Court distinguished (Inaudible) on.

Justice William H. Rehnquist: Does Connecticut have any analogous program?

Mr. John M. Creane: No, not at the federal level.

It has a town assistance program.

Some of the claimants are clearly not eligible if they're denied for refusing a job offer, by statute they are ineligible for any town assistance.

It's kind of a -- there's no way of really telling whether someone could or could not get it.

Some absolutely can't by law, others may.

Justice William H. Rehnquist: How about the three named claimants here, is there any way of telling in there are three cases?

Mr. John M. Creane: Well, I don't think in the three, no.

Some of the proposed interveners that were not allowed --

Justice William H. Rehnquist: I mean the three named claimants, Steinberg, Miranda and --

Mr. John M. Creane: I don't think they got any involvement with the local welfare that I know of.

Justice William H. Rehnquist: Well is there any way of telling whether or not they would have been eligible for town assistance?

Mr. John M. Creane: Well, I don't believe there is any way of telling, no.

Obviously, that was not what Congress intended when it set up the Unemployment Compensation Act.

It was designed not to have the stigma of welfare attached to it.

It was a separate, partly contractual, partly social benefit program for workers and I think it frustrates the congressional intent to say well, even if they gave them the business over there, you can go and get welfare.

Justice William H. Rehnquist: Well Judge Hayes in his opinion, majority of the opinion on Torres which was affirmed by this Court relied on that fact in New York.

Mr. John M. Creane: He relied on it, right.

Justice William H. Rehnquist: Which is quite inconsistent I take it, what you say now?

Mr. John M. Creane: Well, he relied almost exclusively on brutal need.

I think this Court has gone beyond that in the weighing process on just in the Arnett and Mitchell versus W.T. Grant cases.

I don't think it's quite that simple to say there's no brutal need absolutely in every case and therefore it's distinguishable from Goldberg and maybe in the type of procedures that you require or that the District Court may require, they recognize that in their opinion.

Justice Byron R. White: What standard is governing, probable cause --

Mr. John M. Creane: Pardon?

Justice Byron R. White: What standards is governing, probable cause or (Inaudible).

On that recognized probable cause or as a pre-suspension standard?

Mr. John M. Creane: It did but there you had a governmental interest in maintaining efficiency and morale and proper operation of the department that virtually locked the scales.

The governmental interest was so strong, at least the majority of this Court apparently felt that way.

That there was nothing you could put in on the other side that could balance the scales at all.

Here we have very, very strong individual interest and minimal state interest.

Chief Justice Warren E. Burger: I understood Mr. Wasik in response to some questions earlier.

You say that if any problem arose at the initial discussion.

In other words, if the interviewer was not satisfied with the efforts to obtain employment and the applicant said, well I can -- if you can give me two or three days, I'll get you some letters.

He said that's routinely afforded now.

Is there some notice beyond that that you are urging?

Mr. John M. Creane: Yes the reasonable effort is not the only grounds for disqualification in Connecticut, it's about 60% to 70%.

But there are other efforts, I mean other reasons, refusal of a suitable job offer well you may have third party information which it's undisputed.

The fact finder is free to rely upon just on the basis of a phone call.

For example --

Chief Justice Warren E. Burger: But Mr. Wasik has indicated that if such a situation arises, he's given whatever reasonable time is required to demonstrate and record his view of the matter.

Mr. John M. Creane: Well I think on the -- if he wants to go out and bring back a witness the next day, I'm sure the department will not deny him that opportunity.

Chief Justice Warren E. Burger: Or give a letter.

Mr. John M. Creane: But we're talking about third party information which is a different situation where they're free to call up an employer and say, “was this man at your plant?”

If he says, no never heard of him.

He is free of stipulation of facts.

He is free to deny that claimant at that point on the basis of a phone conversation with an employer who is probably so busy that he doesn't have the fairness idea who was in his plant in the last week.

Chief Justice Warren E. Burger: Well you're generalizing, pretty sweeping way, aren't you?

Mr. John M. Creane: It's in the stipulation of facts, this was agreed by the parties and it was the finding of the Court.

I mean it happens.

We spent a lot of time.

Chief Justice Warren E. Burger: How do you make a finding on -- which supports the sweeping statement that you just made?

Mr. John M. Creane: I'm giving an illustration of what can happen under the seated interview.

Chief Justice Warren E. Burger: Well let's find Connecticut in stipulation, isn't it counsel?

Mr. John M. Creane: Well both parties have stipulated that this example can happen under the Connecticut seated interview system that the fact finder is free to do it.

I'd like to call the Court's attention to the proposed consent order which is on page 149 of the appendix.

The department has stated that whenever there is a monetary redetermination, in other words, a man comes in, applies for benefits, they find him eligible and then they find out they made an error later on and that he really didn't have sufficient wage credits.

They have now recognized in even in that situation which is a simple monetary calculation involved, did he have enough credits or didn't he?

The due process requires that they give him notice of the hearing, right to bring witnesses, counsel, everything and yet they stubbornly maintain that in situations where there are broad fault standards involving very subjective determinations by the fact finder, that they are not going to give that same type of hearing in that situation.

And we find that inconsistent for them to maintain that position.

Justice Byron R. White: What happens when a claimant first arrives at the office, he has never been asked for unemployment compensation report.

He has to show his qualification, I take it including the fact that he has been hunting for work?

Mr. John M. Creane: Not, -- I don't believe that's true on the initial determination, that's simply bring in your blue slip showing that you were laid off involuntarily that you have sufficient wage credits to entitlement and that you're registered for work with the employment service.

I think at the next point, the next visit --

Justice Byron R. White: When does your compensation start?

Mr. John M. Creane: Generally another appointment is set and you comment it's in the --

Justice Byron R. White: And then you show by then at that next meeting, you show what efforts you've been making to find that.

Mr. John M. Creane: That's one of the disqualifying reasons, yes that you didn't make sufficient effort.

Justice Byron R. White: Well that's one of the qualifying reasons.

Mr. John M. Creane: No, it's a disqualifying reason.

Justice Byron R. White: Alright, alright.

Do you think that if he first arrives, he shows out his papers and then he has this next meeting you speak up?

Mr. John M. Creane: Yes.

Justice Byron R. White: At that point, what happens at that point?

Mr. John M. Creane: Well --

Justice Byron R. White: Then does he explain what he's been doing or does he fill out another piece of paper?

Mr. John M. Creane: No he brings -- he hands in a slip attesting what he's made reasonable efforts and that he's been available for work.

Justice Byron R. White: So compensation doesn't start until at some point he's demonstrated that he's made some efforts.

Mr. John M. Creane: The actual first checks, no.

Justice Byron R. White: Yes and let's assume that he fills out his slip showing what efforts he has made and it isn't satisfactory.

Mr. John M. Creane: Well, then he would have the right to appeal on that two weeks but his entitlement has still been set under Connecticut law by the --

Justice Byron R. White: But you would say that your argument would apply to that situation too, to the start up.

Mr. John M. Creane: Yes, you're right.

If there are no further questions.

Chief Justice Warren E. Burger: Thank you Mr. Creane.

Mr. Wasik you have the about six minutes if you have anything further.

Rebuttal of Donald E. Wasik

Mr. Donald E. Wasik: Pardon Your Honor, six minutes do you say?

Mr. Chief Justice may it please the Court, just a few items in rebuttal.

First, counsel has brought up the affidavits of the Mrs. Triana and Mr. Miranda whereby Mrs. Triana indicates that she never had an interpreter and was never given any information as to her rights.

There was a counter affidavit and you can find this at page 145 (a) of the appendix of a Spanish speaking interpreter used in this office who testified that she gave two benefit rights interviews to this individual and did interpret for her.

And I would point out that the District Court did not have actual testimony before it from these individuals but just these affidavits.

So far as the statement about Mr. Miranda and his affidavit saying that he was denied benefits because he had an appeal pending, as counsel has pointed out.

This is against departmental policy.

Well, this does not make the system wrong, the system is alright, as he points out, this was against departmental policy.

All systems have people problems.

This is why we have so many memos.

You can see from many memos and department policy letters sent by the department that they are anxious to see that its employees do administer the system correctly.

Chief Justice Warren E. Burger: Does this record show how many employees the state of Connecticut has involved in the unemployment program?

Mr. Donald E. Wasik: I think there is evidence in the records, Your Honor.

Chief Justice Warren E. Burger: You don't recall what it is, do you, the numbers of people?

Mr. Donald E. Wasik: I believe in the Bridgeport office, at the time the deposition was taken, I think there were 40 employees in that office, that's one of the large offices.

Justice Potter Stewart: How many offices are there in the state?

How many --

Mr. Donald E. Wasik: They have offices in the major counties, there would be at least, I believe four major offices and in peak periods of unemployment they open subsidiary offices in the county where the people can file their claims.

Justice Potter Stewart: And what's the responsibility of a beneficiary of the program to seek a job geographically, how far does he have to roam?

Mr. Donald E. Wasik: The department has information as to what a labor market consists of geographically and a person would not be required to travel outside of that labor market to seek employment.

Justice Potter Stewart: Then if he lives in Bridgeport, does he have to look in Hartford?

Mr. Donald E. Wasik: No, he does not Your Honor.

It's reasonable, what could reasonably be expected of the individual.

Justice Potter Stewart: Within the area of his own.

Mr. Donald E. Wasik: Within his labor market, yes.

Certainly as he -- there is policy that as the man receives benefits, the longer he receives benefits, perhaps the wider he should make a search for work and reduce his level of what he's seeking.

In other words, we have case law that says he can look for a job as comparable as possible to his skills and income that he had before he was laid off.

But the more he goes on unemployed, then he may have to lower the extensions.

Justice Potter Stewart: Or widen his --

Mr. Donald E. Wasik: Or widen his scope of search area.

The question on third party information, counsel has overlooked the point that when third party information is used, the claimant is given the opportunity to reflect this information.

And if there is a contradictory statement, there is a statutory presumption in favor of the claimant.

And I would also add that the minimal aspect that importance that counsel will give on the governmental interest here is not just the money that's in the fund, although I would point out that this affects of course the employers who are taxed and indirectly it concerns the employees in the whole state.

But it also concerns the administrative efficiency of the local officers.

They schedule a certain number of claimants that they can handle each day and so they must expeditiously handle these claims if we had to have a so-called due process hearing where every time a question arose as to a man's efforts.

They could not handle the tremendous number of claimants who are coming in each week, there are some 40,000 claims a week during the period and issue that's in the record.

I would simply respectfully submit that this Court was correct in affirming the Torres Dinger decision and I have the opportunity now to distinguish unemployment compensation cases and welfare cases by finding that Connecticut's procedures do satisfy Due Process requirements.

Chief Justice Warren E. Burger: Thank you Mr. Wasik, thank you Mr. Creane.

The case is submitted.

Featured:

Fusari v. Steinberg - Oral Argument, Part 1

Fri, 17 Sep 2010 15:20:23 +0000

Case:

Fusari v. Steinberg

Media File:

73-848_19741015-argument-1.mp3

Related Transcript:

73-848_19741015-argument-1.xml

Transcript:

Argument of Donald E. Wasik

Chief Justice Warren E. Burger: We'll hear arguments next in 73-848, Fusari against Steinberg.

Mr. Wasik you may proceed whenever you're ready.

Mr. Donald E. Wasik: Mr. Chief Justice and may it please the Court.

This class action suit concerns the adequacy of Connecticut's administrative procedures which I used to determine weekly claims for unemployment compensation.

A three-judge District Court had before it two issues.

One, do the Connecticut procedures violate the so-called when due provisions of the Social Security Act and two, do they violate the due process requirements of the Fourteenth Amendment.

The lower court found that there was no statutory violation but did rule that there was a constitutional violation.

Since the District Court found no statutory violation and because no appeal was taken from that decision by the claimants, this issue is not before this Court.

Therefore the only statement on the merits of this issue which has been raised in my opponent's brief is that the lower court and the Court in the Torres, the decisions were correct in ruling that where a decision is made, that the claimant is not eligible for benefits, obviously then no benefits are due and therefore the when due provision cannot be violated.

The issues that are here are one, whether Connecticut's administrative hearing which employs a seated interview system meets due process requirements.

And two, whether the District Court in determining this first issue erred in receiving in considering evidence which relates to the appeal period subsequent to the hearing in question.

Facts generally here concern individuals who have filed an initial application for benefits.

They have satisfied the department that they have registered for work with the employment service and that they have met the wage credits requirement of the statute.

In other words they have enough earned wages from a former employer prior to their unemployment.

These people then go on a bi-weekly basis to the local office where they submit a form showing where they have gone to seek work during the past two weeks.

Now although they go every two weeks, statutes require a determination each week as to eligibility.

When they go to this interviewer, the interviewer usually will ask some questions such as “did you earn any wages during this two-week period?

Were you able to work during this period?”

He will look at the form.

If it seems as though he has made reasonable efforts during that week, he will receive his check.

If a question is raised by what the claimant says or what is in that form, the claimant is then referred to another interviewer behind the counter.

This is the fact-finding examiner who will then go into greater detail in discussing with the claimant what efforts he has made to seek work during those two weeks just ended.

Now, that basically is the situation that is before us.

And as you can see, this situation is far different from that in Goldberg against Kelly.

The claimant here actually presents his case to the decision maker.

This was the “fatal flaw” which was found in the Goldberg case.

He is heard.

In the welfare cases, generally the recipient only has to establish need at the initial proceedings when he first applies.

He then proceeds to be paid unless and until his status changes.

In unemployment compensation cases, not only is there no needs test but the statutes providing for these benefits also require an affirmative duty on the part of each claimant to each week qualify for benefits.

Now, would our Connecticut's procedures, which we submit meet due process requirements?

First, what do we mean by due process?

We submit the essence of due process is fairness, considering all the relevant factors, are Connecticut's procedures fair?

Let us see.

Justice William H. Rehnquist: A moment ago Mr. Wasik, you said under Connecticut law, the claimant must each week qualify for the benefits.

Do you mean by that that each week he has to show that he has made some effort to obtain employment?

Mr. Donald E. Wasik: Exactly that Your Honor.

In Connecticut the claimant has notice of the interview.

When he first applies, he is given a booklet that is entitled “your rights and responsibilities,” under the Connecticut Unemployment Compensation Law.

As the name implies, the claimant has responsibilities.

Not the first of which is to read this booklet which not only tells him what his obligations are but gives him helpful information as to how he can meet these obligations.

More importantly, these claimants are experienced.

All of the named claimants in this case receive benefits for varying periods of time.

Justice Thurgood Marshall: But this year, he is given no notice of what's to be discussed, right?

Mr. Donald E. Wasik: No Your Honor because the claimant -- except in the booklet itself, he knows that he has to show where and when he went to seek work.

Justice Thurgood Marshall: But no, they don't tell him that we know you didn't do it or --

Mr. Donald E. Wasik: No, we can't, we don't know ourselves until he appears.

Justice Thurgood Marshall: Oh I see.

Justice Harry A. Blackmun: But do you return, does the office each week give him referrals?

Mr. Donald E. Wasik: No, only we try to, that that's -- well I won't say it's rare.

This is why he registers with the employment service.

The employment service tries to establish referrals and when we learn that this man might be suited for this job and there is an opening, he is referred.

Justice Harry A. Blackmun: And of course if he doesn't take it, then he has to come back on and justify his refusal to take, doesn't he?

Mr. Donald E. Wasik: Yes Your Honor but --

Justice Harry A. Blackmun: In addition to that, are you telling us that he has to -- where he's not had referrals or even if he has, he's got to indicate whether he has tried and how he's tried to find a job in the previous week.

Mr. Donald E. Wasik: Yes.

Justice Thurgood Marshall: And he's not allowed to go outside the record at all.

Is he allowed to bring anybody in as a witness?

Mr. Donald E. Wasik: He can bring anybody he wants as a witness, Your Honor.

Justice Thurgood Marshall: How does he know whether he can bring the witness for?

Mr. Donald E. Wasik: Well Your Honor, if the claimant has been receiving benefits, he already by his experience, knows what he must do to collect those benefits, therefore, during that two-week period, if he knows that instead of going out looking for a job for three days, he was out fishing, he knows unless he gets off his button and looks those last two days, there’s going to be a question as to what efforts he made.

Justice Thurgood Marshall: There is, if he doesn't get a job, he knows he's going in there until somebody going to (Inaudible).

Mr. Donald E. Wasik: Not necessarily but certainly he's going to be questioned as to what efforts he's made.

Justice Thurgood Marshall: But he doesn't know what information is there.

Mr. Donald E. Wasik: No, but we have no information.

Justice Thurgood Marshall: And was he charged with anything?

Mr. Donald E. Wasik: There are no charges made.

Justice Thurgood Marshall: But why does he have to come in?

Mr. Donald E. Wasik: He has the burden of establishing that he did --

Justice Thurgood Marshall: That's right, he has the burden.

Mr. Donald E. Wasik: That he did search for work and that he was not restricting his availability to work.

Justice Thurgood Marshall: So he's guilty or not --

Mr. Donald E. Wasik: No.

Justice Thurgood Marshall: Just a moment.

Mr. Donald E. Wasik: Excuse me Your Honor, I'm sorry.

Justice Thurgood Marshall: He's guilty of not having found work.

Chief Justice Warren E. Burger: Perhaps maybe that it would be to say he is guilty if you can use that term of not establishing his eligibility.

Mr. Donald E. Wasik: Yes, the word guilty has a connotation which is not applicable in this case, I submit Your Honor.

Justice Thurgood Marshall: Well give me a better word.

Mr. Donald E. Wasik: He has failed to meet his responsibilities as outlined by the statutes and by the booklet he receives, Your Honor.

Justice Thurgood Marshall: And he failed to meet the eligibility requirements to obtain the relief?

Mr. Donald E. Wasik: That's right.

Justice Thurgood Marshall: He starts off with that.

Mr. Donald E. Wasik: No, he starts off by showing that he's registered for work.

Justice Thurgood Marshall: Why does he come in there, because he hadn't found work?

Mr. Donald E. Wasik: Yes but he also must show that he has looked for work.

Justice Thurgood Marshall: But he comes in there charged with not having found work.

Mr. Donald E. Wasik: No, excuse me Your Honor, he's not charged with not having found work.

He may be charged, if I may use that term and I don't like it.

Justice Thurgood Marshall: Well give me a better word than charge.

Mr. Donald E. Wasik: It is pointed out to him that the efforts that he made to seek work are not reasonable, there's quite a difference Your Honor.

Justice Thurgood Marshall: Where is that pointed out to?

Mr. Donald E. Wasik: The booklet itself.

He must make reasonable efforts to find work.

Justice Thurgood Marshall: And he as an ordinary layman knows what reasonable is?

Mr. Donald E. Wasik: Well it's defined in the booklet Your Honor, for his benefit.

Justice Thurgood Marshall: Do you have any trouble with the word reasonable?

Don't we have trouble with it about eight or 10 times a week?

Mr. Donald E. Wasik: But this is a standard that's applied throughout the law, Your Honor.

Justice Thurgood Marshall: Yes, I know but this man comes in, automatically, he has to explain why?

Mr. Donald E. Wasik: No he doesn't have to explain why, Your Honor.

If he has --

Justice Thurgood Marshall: He comes in, he says nothing, what happens?

Mr. Donald E. Wasik: He has a form which shows where he went to seek work.

Justice Thurgood Marshall: He comes in and says nothing, what happens?

Mr. Donald E. Wasik: They will ask him, where did you go to look for work?

Justice Thurgood Marshall: And he doesn't answer, what happens?

Mr. Donald E. Wasik: If he fails to answer, he will be denied benefits.

The statutes and the booklet tell him he must make efforts.

And if he doesn't communicate those efforts to us, how can we pay him benefits?

This is a trust fund that the administrator as a fiduciary must administer with reasonable diligence.

Chief Justice Warren E. Burger: If this is -- are you telling us that this is in effect to burden of proof which he must meet periodically just as he must meet it the first time that he comes in?

Mr. Donald E. Wasik: Yes, Your Honor, say burden of proof but certainly that's what it amounts to.

The burden is on him to show eligibility, the statutes require this.

Chief Justice Warren E. Burger: Well if he came on the first day and said I want some benefits, but refused to answer any questions, then he wouldn't get any benefits, as I take it.

Mr. Donald E. Wasik: No, he would not have satisfied the basic requirement of giving us information as to whether or not he is entitled to benefits.

Justice Harry A. Blackmun: Of course each and all of these people have qualified initially, haven't they?

Mr. Donald E. Wasik: Yes, in fact, the plaintiff Steinberg collected for 26 consecutive weeks and he was advised at this seated interview, more than one seated interview that he had better improved his efforts to find work.

Don't restrict yourself to making contacts with the local union hawk, but he did and finally he was denied benefits.

Sure because he didn't meet the -- he didn't heed the advice given to him that he has to make efforts, reasonable efforts.

Justice Potter Stewart: Just as somewhere in here in the brief, there is some time ago and then I think suggested and then denied that there’s some sort of a rule of thumb that if a person is made to --

Mr. Donald E. Wasik: Yes.

Justice Potter Stewart: Two or three or four?

Mr. Donald E. Wasik: There is a rule of thumb, it's not followed categorically.

Again, it prints, the lower court says, give them in advance a certain number of places to go.

Well this just wouldn't work out.

If you required somebody who is looking for a waiter's job to go to 10 places, this might be reasonable.

But a professor of some university was out of a job, there are just so many places he can go and you can't require him to go to 10 places.

What is reasonable for the individual?

Each case has to be determined on its own merits.

Justice Potter Stewart: But there is a rule of thumb --

Mr. Donald E. Wasik: Yes for the --

Justice Potter Stewart: For the ordinary case.

Mr. Donald E. Wasik: For the ordinary case.

Justice Potter Stewart: And what is that, how many?

Mr. Donald E. Wasik: If they -- during this period when they're using this form, the examiners at the counter, if they went through three places in one week, for a each week then they were given their check, there were no questions raised.

Justice Potter Stewart: And was that pretty well known?

Mr. Donald E. Wasik: I think it was, Your Honor, I can't say that everybody, that each examiner knew that.

Justice Potter Stewart: I mean among the beneficiaries, was it?

Mr. Donald E. Wasik: I can't speak for what's in the mind of the beneficiaries but I would --

Justice Potter Stewart: Well I just wonder if there was --

Mr. Donald E. Wasik: I think --

Justice Potter Stewart: Common knowledge.

Mr. Donald E. Wasik: I think it was common knowledge that if they -- the form had six places for the two week period and if they filled out.

Justice Potter Stewart: That's a pretty good indicator.

Mr. Donald E. Wasik: Yes, Your Honor.

We would like to see more lines actually.

Now the claimant does have notice of the issues.

The lower court either deliberately ignored or completely overlooked the fact that the issue is not known to the department employee until the claimant appears.

The claimant however knows what he's done regarding his own efforts, whether or not he has restricted himself, his rest to hours or conditions of employment.

Thus he alone knows before the hearing takes place what issues might be raised?

The claimant has an opportunity to present witnesses.

Now in the majority of the cases certainly there simply are no witnesses.

The decision is based on the facts given by the claimant himself.

There were not witnesses in the Steinberg case nor were there any witnesses in any of the cases of the named claimants in this action.

Justice William H. Rehnquist: When you say witnesses, you mean on the appeal hearing or at the seated interview?

Mr. Donald E. Wasik: At the seated interview, Your Honor.

If the claimant should need a witness, the record shows that he has given time to obtain one.

Justice Potter Stewart: In other words, if a person had been held for the two-week period, I assume that that under regulations and the statute would excuse him from actively seeking work, it's true wouldn’t it?

Mr. Donald E. Wasik: No Your Honor, no.

It might -- if he were ill for one or two days, then the latter part of that week, he made sufficient efforts, reasonable efforts, he will probably be paid.

But if the man is sick for let's say four days out of the week, the statute says that he must be physically and mentally able to work.

He would not meet that requirement.

Therefore he would not receive benefits for that week.

The philosophy behind this unemployment compensation --

Justice Potter Stewart: Is that you have to be ready when you go to work.

Mr. Donald E. Wasik: He has to -- right and to look for.

Justice Potter Stewart: I didn't note that kind of temporary illness.

Chief Justice Warren E. Burger: We will pick up at that point in the morning counsel.

Mr. Donald E. Wasik: Thank you.

Featured:

Fusari v. Steinberg - Oral Argument, Part 2

Fri, 17 Sep 2010 15:20:24 +0000

Case:

Fusari v. Steinberg

Media File:

73-848_19741016-argument-2.mp3

Related Transcript:

73-848_19741016-argument-2.xml