Cases by Issue - Juveniles

Washington Dept. of Social & Health Services v. Guardianship of Keffeler - Oral Argument

Fri, 09 Jan 2009 14:50:38 +0000

Case:

Washington Dept. of Social & Health Services v. Guardianship of Keffeler

Media File:

01-1420_20021203-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Christine O. Gregoire

Justice Stevens: We will hear argument in No. 01-1420, Washington State Department of Social Services against the Guardianship Estate of Daniel Keffeler.

Justice Kennedy: General... is it Gregoire or Gregory?

Mr. Gregoire: Gregoire.

Justice Kennedy: Gregoire.

Thank you.

Mr. Gregoire: Justice Stevens, and may it please the Court:

The question presented in this case is whether a representative payee, appointed by the commissioner of Social Security, violates the anti-alienation provision of 42 U.S.C., section 407(a), when it uses Social Security benefits to pay for the beneficiary's current maintenance.

The plain text of section 407(a) answers this question, and the answer is no.

Section 407(a) provides that benefits are not subject to execution, levy, attachment, garnishment, or other legal process.

The department here does not use compulsory legal process to obtain benefits.

Instead, the department is appointed representative payee by the commissioner, pursuant to 42 U.S.C., section 405(j), and as payee, the department is under the supervision of the commissioner and uses the benefits to pay for the current maintenance of the beneficiary in accordance with the Social Security regulations.

In short, when looking at the statutes as a whole, 407(a) does not prohibit that which is expressly authorized by 405(j).

The purpose of 407(a) is to ensure that Social Security benefits are available to pay the beneficiary's current maintenance by preventing creditors from taking those benefits.

Legal process, as referenced in 407(a), is the means by which a court, agency, or official authorized by... by law compels compliance with its demands.

It is compulsory legal process.

Here there is no legal process.

The representative payee here stands in the shoes of the beneficiary, sharing in the cost of care, consistent with the Social Security regulations.

Justice Kennedy: Can a set-off ever be legal process?

Suppose there were a tax indebtedness by the beneficiary.

Could the State just under... assuming that its set-off principles allowed it, could the State simply take some of the beneficiary's money from the Social Security and set it off against the tax debt?

Mr. Gregoire: If... the violation of 407(a) comes in... comes into play when there's a legal process that actually attaches to those Social Security benefits.

Justice Kennedy: So you would say there's no 407 violation in that event.

Mr. Gregoire: Correct.

Justice Scalia: Although I presume there would be a cause of action against the State for... for not behaving properly as the... what... what is the... the--

Mr. Gregoire: Representative payee?

Justice Scalia: --As the representative payee within that--

Mr. Gregoire: I believe that's true, Justice Scalia.

The questions that have been presented here by... by the respondents are 405(j) questions as to whether the representative payee acted accordingly within their purview.

Here there is full compliance with the Social Security regulations.

In this particular instance, the department is duly recognized as a representative payee subject to supervision, having to submit constant reports and annual reports and accounting system, and there are audits that have been performed on the department.

It is acting in accordance with 405(j) as rep payee.

Justice Scalia: --And why... why is 405(j) not at issue here?

Mr. Gregoire: Well--

Justice Scalia: Because those points are raised, of course, in the... in your opponent's brief.

Mr. Gregoire: --Yes, Your Honor, but if you... if you look at the complaint in this particular case by... by the respondent, if you look at the certification of the class that's present here, if you look at the holding below, in every instance the question presented is whether a representative payee duly appointed can use the benefits for the cost of care of the beneficiary.

We think the plain text of 407(a) says the answer is there is no violation whatsoever.

Justice Ginsburg: General Gregoire, I'd like to just find out if... let's say we accept your argument this is not a 407 case, and then the question is put, but there are alleged misappropriations here.

For example, there's some suggestion of double dipping and there's some other things which may or may not be right.

I don't know that there is such a thing as a right of any individual to go after the representative payee.

I thought that was something within the Social Security regs.

I thought I heard you say, oh, yes, but that's not a 407 claim.

That would be a 405 claim.

And I was not aware that there is such a thing apart from the administrative process.

Is there some right to sue eventually in court under 405?

Mr. Gregoire: What the Social Security Act provides is one of two things.

It can be done by the commissioner by the removal of the representative payee if they have violated.

It can be done by a court.

But the remedy, if... even if done by a court, is back to the commissioner to remove the representative payee and appoint one that would act in... in accordance with the regulations.

Here, while there are allegations--

Justice Scalia: And who... who can invoke the court's assistance?

The--

Mr. Gregoire: --An individual, the... the beneficiary could.

Justice Scalia: --The beneficiary can?

Mr. Gregoire: Yes.

But here, all of those allegations, one, are not contained within the holding below, but most importantly, there is no record to find any violation of 405(j) in this case whatsoever.

To the contrary.

The department here has acted absolutely consistent with the Social--

Justice Stevens: May I ask you this question related to that?

Do you agree with the position asserted in the dissent, with the State court?

Mr. Gregoire: --We... we do not, Your Honor.

We believe the... the dissent is wrong on... on two bases.

One, the... the court below suggested that there was some use of... of benefits for past debt--

Justice Stevens: Right.

Mr. Gregoire: --when in fact there... that is not the case here and there is no finding to that effect by the lower court.

Justice Stevens: No finding.

Were there allegations to that effect?

Mr. Gregoire: Only after the... the remand and... and the supplemental brief that was submitted in the State supreme court.

But there... in this particular case, what happens, by way of clarification, is when the State of Washington gets a lump sum check for an individual whose SSI, Social Security Title XVI application has been pending, they will then use that check to pay current maintenance for those months for which the child was deemed eligible for SSI and was receiving foster care up to a maximum of 6 months.

That is considered current maintenance, not past maintenance.

We think the... the concurring opinion was confused by that.

Secondly, the concurring opinion says, you--

Justice Scalia: Excuse me.

Why... why do you say it is considered current and not past?

You... you just decide 6 months is a reasonable currency criterion?

Mr. Gregoire: --No.

Justice Scalia: Or is it a regulation or what?

Mr. Gregoire: It is.

It is, Your Honor.

Justice Scalia, what the Social Security regulations put in place with respect to Title XVI benefits, SSI, that anything beyond 6 months by Social Security itself is put into an account and allowed to accumulate interest.

It cannot be used for the current maintenance of the child.

And the second basis... Justice Stevens, the second basis that we think was wrong in... in the concurring opinion is where she finds that you have to look at the extras for the child first, over and above current maintenance, and that we submit to you is in... contrary to the Federal regulations themselves, 20 C.F.R. 404.2040, which expressly provides that you look first to the current maintenance.

That's the very purpose behind both Title II and Title XVI, first to the current maintenance, and then you guess... within the broad discretion accorded a representative payee, you may look to see if there are extras to which those monies could be spent.

Here, the Department of Social and Health Services uses the benefits for both, and the record verifies that.

But let me bring to the Court's attention what we're talking about here.

We're talking about children who arrive in the State's custody through a juvenile court proceeding, having been abandoned, abused, or neglected.

They are subject to the jurisdiction of the juvenile court, and then those children are assessed by an individual service plan as to what their needs are.

And what happens when that assessment takes place is their needs are being met by the department.

In fact, the average payment for foster care for a SSI child is $1,776.

The average amount that an SSI benefit would be is something short of $500.

And the base foster care amount is something short of $500.

The fact is the special needs of these children are being met so their lives can be turned around, they can go back out and be productive members of society--

Justice Kennedy: Well, I... I think we're all interested in the needs of the children.

In some cases, though, I take it that the... that the Social Security payments are being applied to reimburse the State for something the child would get for free anyway.

Mr. Gregoire: --We don't submit, Your Honor... we think that's wrong.

The fact that these children are... are getting foster care doesn't mean it's free.

In fact, the expectation of both Social Security--

Justice Kennedy: Well, I mean free in the sense that the State would pay for it anyway.

Mr. Gregoire: --Your Honor, there is an expectation in State law and an expectation in the Social Security Act that... that what this money is to be used for is the current maintenance of the child.

What would be the difference if we were to submit that it's free in the home of a parent?

A parent surely... and under Washington State law... absolutely is obligated to pay for the child's care and maintenance.

Are we then to suggest that anytime a child in the home of a parent gets SSA or SSI, it can't be used for current maintenance because the parent has to use their own funds for that purpose?

Justice Kennedy: Well, but we're talking about the... the State has a certain... has assumed a certain obligation and made certain payments.

And in the event the representative payee is someone other than the State, the State is going to pay... pay those benefits and... and the SSI will be available for other purposes.

So it's... it's not necessarily always in the best interest for the child.

Mr. Gregoire: But, Justice Kennedy, that would be... that would be the case with a parent.

A parent is obligated to pay for the current maintenance of the child.

Does that mean they can never use their SSA or SSI benefit for the child for the current maintenance of the child?

We think not.

Consistent with the very purpose of the Social Security Act, is... these monies are to ensure that that child gets a minimum income to pay for their current maintenance.

The State shouldn't be treated any different here than a parent would be treated.

Justice Ginsburg: General Gregoire, can I ask you about the person who started all this?

As I understand it, the... the grandmother that the State was trying to displace as representative payee refused to pay anything for the child's current maintenance.

She was putting it away in a kitty for the child's college education.

And I suppose her theory was the State is going to pick up the tab anyway, so I think the best use for these Social Security benefits is to put them in a bank account so one day he can go to college.

Is... and I understand there were two attempts to replace her because she was not spending the money on current maintenance.

When the... when the social service agency is not the representative payee but a relative who doesn't have custody is, is there any means of getting those Social Security benefits used for the current maintenance?

Mr. Gregoire: Not by legal process, Justice Ginsburg, which was a lesson learned by the grandmother, Wanda Pierce, in this case.

The department wrongfully attempted to get at the Social Security benefits by legal process.

That's why there is no appeal of the specific Danny Keffeler case.

Justice Breyer: Why is it wrong?

I mean, this money is there to pay for the child's care and maintenance.

If the grandmother won't pay it, why couldn't the State go to HHS and say, appoint us?

Mr. Gregoire: Well, you--

Justice Breyer: Why wouldn't they do it?

Mr. Gregoire: --You could.

The issue is a 405(j) issue.

The issue is whether that person should be paying for the current maintenance of the child.

Justice Breyer: Why shouldn't they?

Mr. Gregoire: They should.

But what happened in this particular case is Washington State has a specific statutory provision that says if the child has a guardian, the State cannot go in there and then ask to be representative payee.

So there's a violation of State law.

Justice Breyer: Oh, I see.

So there's a particular... a particular State law--

Mr. Gregoire: Correct.

Justice Breyer: --that stopped that.

Mr. Gregoire: Correct.

Justice Breyer: Okay.

So--

Justice Ginsburg: --Is that the basis on which the ALJ ruled?

I thought that was within the Social Security structure.

Mr. Gregoire: The ALJ in the case of Danny Keffeler said that there was no finding that she had wrongfully used the benefits, but went on to suggest at the end that the State hadn't done anything like submit a bill to her showing an expectation that she was responsible to provide for the benefit and care of this child.

Justice Ginsburg: But that wasn't under State law, was it?

That was... that was a Federal--

Mr. Gregoire: That's correct, Justice Ginsburg.

The point being--

Justice Breyer: --Then that's what creates the problem because if you have a State law and the grandmother just says, no, I'm not going to pay this money, which I would have thought was earmarked for that purpose, pretty much, and they won't do it, and then you say, okay, appoint us, and the State says, no, we... we cannot appoint ourselves, and then you say to the grandmother, well, pay us, well, then you really are a creditor in respect to that.

Mr. Gregoire: --Well... and specifically what happened in the case of Danny Keffeler, when the State attempted legal process against Wanda Pierce, that was wrong.

That was a violation of 407(a)--

Justice Breyer: And you're in an anomalous situation, aren't you?

I mean, here... here you have... if you... if you... you're a creditor in respect to the grandmother who won't pay.

I... I don't quite see how to work it out.

There's going to be an anomaly no matter what you do.

You're a creditor in respect to the grandmother, so you can't force the parents to pay.

And you can't go and ask HHS to appoint you because of the State law.

And then there you are in those instances where you did manage to get yourself appointed, and you're now trying to reach a different result than would be there in the other cases.

Mr. Gregoire: --But Justice Breyer, the remedy is the State could go to the Social Security Administration and ask them to consider an alternative representative payee for the child in this case because Wanda Pierce was not providing for the current maintenance of the child as we believe she should.

We believe--

Justice Ginsburg: And she might have if she had to care for the child.

If she... if the representative payee... if the child is in the custody of the representative payee, then the representative payee has to pay for the child.

Mr. Gregoire: --Under State law, we believe the representative payee should pay for the current maintenance of the child whether in the custody of that individual or not.

The remedy, however, is not by legal process 407(a), but the remedy is 405(j) process by going to the Social Security Administration and asking--

Justice Ginsburg: Which gives it... there's no role for the State court in that.

Mr. Gregoire: --Correct.

Justice Ginsburg: In that 405(j) process.

It's all Federal.

Mr. Gregoire: That's correct.

And with that--

Justice Souter: And under 405(j), when you go to the Social Security Administration, its options are what?

Mr. Gregoire: --To remove that individual as a representative payee and appoint another.

Justice Souter: Put you in.

Mr. Gregoire: If... unless we have a State law, as I indicated in the specific case of Danny Keffeler, would not allow us because she was named guardian.

That's correct, Your Honor.

With that, I would like to reserve my remaining time for rebuttal.

Justice Stevens: Very well.

Thank you.

Ms. Millett.

Argument of Patricia A. Millett

Ms Millett: Justice Stevens, and may it please the Court:

There is no question that the use of Social Security benefits to pay for current maintenance needs by a beneficiary or by a parent as representative payee is permitted under the Social Security Act.

There is no reason that the identical use of funds would suddenly become a prohibited alienation of Social Security benefits just because it's done by a State as representative payee.

The anti-alienation provision of the Social Security Act prohibits the use of judicial processes or similar coercive processes to divert funds away from meeting the needs of a beneficiary.

But there's nothing in the text or the purpose of the anti-alienation provision that supports the Washington Supreme Court's conclusion that it prohibits particular types of payments and expenditures of funds that the representative payee provision of the statute specifically permits.

And that is because... it's very important to understand that when a State serves as a representative payee, it does not receive funds, and it does not spend funds as an interposing claimant or creditor.

Instead, under the Social Security program, it steps into the shoes of the beneficiary.

It cannot act unilaterally.

It has to be appointed by the commissioner and, once appointed, must act pursuant to the commissioner's direction, supervision, and control.

Justice O'Connor: Is... is the issue of whether there was compliance with section 405(j) properly before us, do you think?

Ms Millett: No, it is not, Justice O'Connor.

The question presented is limited to the violation of the anti-alienation provision 407(a).

The complaint in this case is limited to 407(a).

If you look at the joint appendix, page 118, specifically the... the claim for relief, the aforesaid actions violate 42 U.S.C. 407, no allegation of violating 405.

And there would be no basis, I don't think, for the class action.

The class action allegations were based on this general rule of the 407 violation.

If there's particular allegations of misuse in particular cases for particular children, that would be a misuse claim.

It should first be brought to the Social Security Administration.

Justice O'Connor: Do... do beneficiaries of SSI funds have a Federal right that they can enforce through a section 1983 action to have the representative payee act in their best interests?

Ms Millett: What they would do is bring... bring a complaint.

If you're... if you're a beneficiary and you're dissatisfied with the way your payee is spending your money--

Justice O'Connor: Right.

Ms Millett: --then you can bring a complaint with the Social Security--

Justice O'Connor: Would there be alternatively some lawsuit open--

Ms Millett: --They... I think--

Justice O'Connor: --under 1983?

Ms Millett: --I'm not sure whether under 1983, but you could bring certainly a State law conversion out... suit against someone if you thought that they were misapplying your funds.

And... and I assume you're talking about 1983 because we're talking about the State as--

Justice O'Connor: Right.

Ms Millett: --payee, but the vast majority of representative payees are private individuals.

Justice Kennedy: Does... does the State have any set-off rights that private entities don't?

Suppose a private person were the representative payee.

Do they have the same sort of set-off rights for other debts as the State does?

Ms Millett: Neither... make sure I understand what you're talking about by set-off.

But neither private nor State officials would have the right to set off money against... on... on their own unilaterally to--

Justice Kennedy: Well, I'm just talking about 407 now.

I'm just talking about 407.

Because the attorney general indicated that the State could, so far as 407 is concerned, set off a tax debt.

Ms Millett: --I didn't understand that to be her... her response.

But if... but, first of all, you have to ask how you come into possession.

To undertake an offset, you somehow have to be in possession of the Social Security check, and the State and private people would not come into possession of that check unless they're appointed as a representative payee.

Justice Kennedy: I'm assuming there... my... my question is whether... what I'm trying to explore is whether the State has some special advantages that other representative payees might not in the area of being... of being allowed to make certain set-offs to take certain funds.

Because if that's so, then it sounds more like legal process.

That was the--

Ms Millett: I'm sorry.

I misunderstood your question.

I didn't know that they had been appointed representative payee.

Once you are a representative payee, the State and a private payee are in the same position in that when it comes to reimbursing yourself for past debts, as opposed to meeting current maintenance needs, the... you... you are subject to the Social Security Administration's rules.

They have specific POMS and regulations on payment of past debts and--

Justice Kennedy: --In other words, the State of Washington is not relying here on any special statutory authority for set-offs that's applicable only to a State.

Ms Millett: --No, it is not.

What's important to understand here... and I think one of the premises for respondents' position is some confusion about the difference between current maintenance and past debts.

Past debts are defined both in a POMS, the... the interpretive manual done by the Social Security Administration, but also in the regulations on page 216 of the petition appendix, 402.2040(d), when it talks about claims of creditors to be paid by a representative payee.

It... the limitation is on claims that arise prior to the first month for which you become entitled to benefits.

That's what a past debt is.

It would be reimbursed by a payee.

Any debts that arise after you start receiving benefits are current maintenance costs.

So if I get a benefit check for January but for administrative reasons the State does not pay my bills for that month until March, that's not a reimbursement.

That is payment of current maintenance by the January check for January costs.

Justice Stevens: May I... may I ask you a question about mechanics here?

Just the facts are a little hard for me to understand at times.

As I understand it, many of these children are in foster homes and the foster parents are paid by the State.

Is the State agency that pays the foster parents the same agency that receives the Federal check?

Ms Millett: Yes, it is.

There are two different units within... it's the department... in Washington, it's the Department of Social and Human Services that--

Justice Stevens: And the second question I had... there's a lot of discussion in the briefs about something called sweeping, which I don't understand.

Would you tell me what it is?

Ms Millett: --Well, I'm afraid it may have different meanings depending on whom you ask the question to.

But as... as it's discussed by the Court here, the... our understanding is that it... it is this confusion about reimbursement and current maintenance.

What Washington was doing was it would get a check in May that would be a lump sum payment for February, March, April, and May.

And it would go back and apply February's... the... the percentage of that lump sum check that was for February to the February expenses, March to the March expenses.

That is the account sweeping that's talked about in the Court here and that's all that the record talks about.

That is not impermissible.

That is, under our view, the use of... use of this... proper use of these benefits for current maintenance.

The fact that for accounting reasons it happens 4 months later doesn't change anything.

Now--

Justice Scalia: What if it happens--

Justice Stevens: --What if it happens 7 months--

Justice Scalia: --even 6 months later?

Justice Stevens: --7 months--

Justice Scalia: --Yes.

Is there a 6-month cutoff on that?

Ms Millett: --With respect to the SSI, the Title XVI benefits, there is... there was after October 1996, and that's why there's some confusion because this case spanned that bridge.

But as of October--

Justice Scalia: It's a little complicated, doesn't it?

Ms Millett: --There's a lot of complicated things here.

But the... but... but for that reason, the fact the commissioner has been administering this program and the representative payee's program since it started in 1939 and it has recognized and endorsed the practice of all 50 States having foster care agencies doing this as not violating the anti-alienation provision is, I think, very important to keep in mind and that adopting the definition of anti-alienation provision, using that to police allegations of misuse under the representative payee system would be very confounding and confusing to the system.

Justice Stevens: May I ask you one question I asked the attorney general too?

Do you also disagree with the analysis in the dissenting opinion?

Ms Millett: Yes, for... for two reasons.

Justice Stevens: The same reasons she gave.

Ms Millett: Well, yes, I think it has again the confusion about past reimbursements which could still be for current maintenance and the payment of past debts.

But the other thing that the Washington Supreme Court's concurring dissenting opinion did was it said you could... you could pay for maintenance, but first you have to pay for special needs.

That gets it exactly upside down.

The... there's much concern here about the best interest... the best interest test here, but the best interest is a regulatory test designed to implement the purpose of these benefits.

And the purpose of these benefits in the case of Danny Keffeler, Title II benefits, is just to replace the income stream of the lost parent.

That parent is legally obliged to pay child support to the State of Washington.

All Washington is doing is what his mother would have been legally obligated to do under... under State law with that same income.

So it's consistent with the purpose of these benefits to use them for what they're doing.

The SSI benefits are minimum income, establish a minimum floor.

All that Washington has said is when the Federal Government--

Justice Stevens: But, of course, there's... there's a statutory restriction on what the... when the money comes from the Federal Government that does not apply when the money comes from the family.

Ms Millett: --On?

Justice Stevens: 407.

Ms Millett: That's right.

But it's important... it's important to understand the limited role of 407.

It said you can't come get these benefits, but it doesn't mean that... that debts and obligations to pay can't arise and that you can't enforce, against the parents who may have other income, child support through other mechanisms.

You just can't come after, through a legal process, the Social Security benefits.

Thank you, Justice Stevens.

Justice Stevens: Thank you very much.

Ms. Roseborough.

Argument of Teresa W. Roseborough

Mr. Roseborough: Justice Stevens, and may it please the Court:

I think the Court's questions have hit on the key issues here, and I'd like to point out what I believe to be the errors in the State of Washington and the United States' analysis in this case.

I agree with Ms. Millett that the Social Security benefits that the State receives as representative payee on behalf of these children indeed belong to the children.

And in its role as representative payee, the State essentially steps into their shoes to use the benefits to serve their best interests.

The regulation-mandated transfer from a State trust fund account, which is the account in which the State deposits the children's funds when they are received, to the State treasury occurs in the State of Washington because of the operation of the State statute and two regulations, one superseding the other, that mandate that the State shall use those benefits to reimburse its previously advanced costs of care.

There's a singular exception in the regulations that permits a State to advance costs of care to a Social Security disability recipient and then later seek reimbursement out of the paid disability benefits for that care, and that is found at 42 U.S.C., section 1383(g)(1).

That provision specifically provides an exception to the operation of section 407(a), and provides that where appropriate agreements are in place between the State and the commissioner of Social Security and between the State and the individual, that a State may advance costs of care in the period between the application for benefits and the date on which benefits are received and then seek reimbursement out of the Social Security funds for that period of interim assistance.

Apart from that exception, the use of Social Security benefits to reimburse previously avanced costs of care or public assistance is the payment of a debt within the meaning of the Social Security regulations.

Justice Ginsburg: Ms. Roseborough, I want to make sure that I understand what you're saying because it seems to me you're telling us the Social... the food and shelter and clothing must be provided to the child today and tomorrow and the next day.

So the State is paying for that immediately, directly.

The Social Security check for that month comes in a little later.

It comes in a month later.

If I understand what you're saying correctly, when the State takes the check which it gets in March for services rendered in January, it cannot use the... that check to pay itself back for services it rendered in... in January.

Is that what you're saying?

Mr. Roseborough: Yes, Your Honor.

It cannot use that check to pay itself back for services rendered in March or January without complying with the Social Security rules and regulations applicable to the authority to pay a debt.

Justice Scalia: Why isn't the same thing true of the guardian who's been appointed the... the designated beneficiary?

When a guardian gets money, the... the guardian reimburses himself for past expenses.

Is that also the payment of a past debt?

Mr. Roseborough: It absolutely would be the payment of a debt... past debt, and it would be subject to the same restrictions.

Justice Breyer: Why isn't the same thing when you have an EZ pass if you go through the tolls?

One of the kids buys an EZ pass and unfortunately it shows up on his credit card a month later.

Mr. Roseborough: Then the representative payee, having in its possession funds belonging to that child, makes a determination whether or not that is a debt that should be paid in the best interest of the child or not.

Justice Breyer: But if they had to put up a deposit, for example, the State couldn't pay for the EZ pass.

Mr. Roseborough: The State could pay for it if they had, in their possession, Social Security benefits that made that an appropriate expenditure of the funds.

Justice Ginsburg: In their possession.

And let's skip EZ pass and go back to a parent who has custody of her child.

Unknown Speaker: [Laughter]

Justice Ginsburg: A parent has custody of her child.

She pays for that child's food, clothing, and shelter in January.

She gets the check from Social Security in March.

So you're telling me that she cannot use that March check to reimburse herself for money that she spent in January.

Mr. Roseborough: Whether or not the parent could use this child's Social Security benefit check to pay herself for having advanced care to the child in January is wholly dependent on whether or not that reimbursement would be in the best interest of the child at the time the benefits are received.

Ms. Gregoire and the Government misunderstand the regulations.

They cite to 2040--

Justice Ginsburg: No. I just would like to know if... if... as I see it, the State agency is identically situated with the parent.

They're both providing food, clothing, and shelter now, and they will get the Federal check for that food, clothing, and shelter 2 months later, at least a month later.

And if you're saying that then it... they both... the parent, the social agency... they are debtors... creditors.

They're both creditors because they provided the service already?

Mr. Roseborough: --If they... if they are using the... the obligation under the Social Security laws is not to use the month's benefits--

Justice Ginsburg: So the mother gets the check.

Mr. Roseborough: --in the... for the month for which they are paid.

Justice Ginsburg: The mother gets the check in March.

Mr. Roseborough: Then she must--

Justice Ginsburg: And she cannot use that for services that she has or food, clothing and shelter she has bought for the child in January.

Mr. Roseborough: --She has to make a determination in March at the time she receives the benefits as to what expenditure of benefits is in the best interest of the child.

Let's say in the interim between the use of the funds in January to... to pay for whatever items were paid for in January, the child has suffered some event in February or March that requires the expenditure of those benefits or the child needs a communication device or a prothesis--

Justice Scalia: Or that... or that she wants the child to go to university.

Why... why would it not always be in the best of the interest of the child not to pay back his parents and put it into a... a trust account for future education?

It would always be in the... in the better interest of the child than paying off the past debt to the parent.

Mr. Roseborough: --And that's why the Social Security regulations impose stringent guidelines on representative payees that want to use benefits to pay back for things that happened in the past.

Justice Souter: No, but your theory, it seems to me, is there's a choice here, when you apply the best interest test, between a child with a full stomach and no trust fund and a child with a full stomach and a trust fund.

And you're saying the trust fund always wins.

The parent cannot pay back because it's always in the child's best interest to have the trust fund as well as the full stomach.

Isn't that what you're saying?

Mr. Roseborough: Not necessarily.

In fact, the Social Security regulations point out that in the case of a... of a family unit, that is dependent on the Social Security benefits of the children in that unit, that they... those benefits can be used to promote the stability of the family.

And it may be... well be--

Justice Souter: I don't know... I'm not quite sure how stability works into this, but let's... let's forget the exceptional case for the moment.

Save for that exceptional case, aren't you saying full stomach plus trust fund always wins under the best interest test?

Mr. Roseborough: --If the child has a full stomach and if the--

Justice Souter: Right.

That's the... that's the hypothesis: stomach is full, will be full, trust fund or not.

Best interest says, put the money in the trust fund.

Isn't that your position?

Mr. Roseborough: --Absolutely true.

Justice Breyer: Does it bother you that the Social--

--How would you square that--

Justice Souter: --Go ahead.

Justice Breyer: --know how you square that position with a statute that seems aimed at giving children this money so they can pay for room and board and meet their basic subsistence.

Mr. Roseborough: The question is when do you apply the test of current maintenance and using the benefits at the time they are received to provide directly for the care of the child which is the obligation under the Social Security regulations, and when are the regulations with respect to the payment of past debts invoked.

Now, Ms. Gregoire argues... excuse me... General Gregoire argues that it's not invoked for 6 months, and she is relying on the provisions of the code related to certain lump sum benefits that provide additional protection to those benefits.

Solicitor Millett says the same thing relying on section 24(d).

But they are mistaken that... one illustration of their mistake is found in the Social Security Administration's audit of Contra County, California, where the OIG found that that county was using Social Security benefits to reimburse itself for care provided before the benefits were actually received--

Justice Breyer: You've lost me a long time ago because I have a sort of basic question.

It seems to me if a mother or somebody in the family who is the recipient of this extra money coming in from the SSI can use it, has the right to use it to pay a bill that the child ran up for some food or from shelter or, for that matter, EZ pass or tuition... and I... I gather they have at least the right to do that if they want to pay those bills.

Mr. Roseborough: --Not if they want to.

They have the right--

Justice Breyer: They think it's the right thing to do, and so they... yes, they think it's--

Mr. Roseborough: --They think it's in the best interest of the child.

Justice Breyer: --Well, all right.

Let's... let's imagine that doing what you think is right for the child is in the child's best interest.

And therefore you do the right thing which is to pay the bills for food, shelter, tuition, and whatever that the child ran up.

Now, assuming that that's okay, why can't the State do exactly the same thing?

Mr. Roseborough: The State can do exactly the same thing as long as it applies the same test.

As long as it looks at whether or not the use of the benefits to reimburse the debt is the--

Justice Breyer: Okay.

Now I got your point.

--that is the best interest of the child.

Unknown Speaker: Your point is neither the one nor the other can pay... has the right under the statute or under the... to pay these past debts for food, for example.

Justice Breyer: And now my question would be they're the agency.

They know what Congress had in mind.

A naive reading would say Congress had in mind pay these bills for food and shelter, but they know it.

They're the experts.

They know their own regs, and they come in and tell you your reading of this is totally wrong.

Of course, Congress wanted guardians, whether they're States or not States, to pay bills for food and shelter for this child who has no parents.

All right.

Now, they say, of course, they wanted that.

There's nothing in the statute that says clearly to the contrary.

So they win.

Now, what's your response?

Mr. Roseborough: One, the Social Security Administration has consistently, prior to its pleadings in this case at least, made the exact same demarcation that we are arguing here.

The Social Security Administration has said that once a benefit payment is received, you look backwards at every debt that occurred prior to that date and judge whether or not that debt can be paid on the basis of whether or not the current and foreseeable needs of the beneficiary have been met and whether or not it's in the best interest of the beneficiary to pay that debt.

As to going forward--

Justice O'Connor: Well, doesn't... doesn't the statute basically leave it to the commissioner to... to evaluate whether a representative payee is acting in the best interest of the child?

Mr. Roseborough: --It does ask the--

Justice O'Connor: And we have a representative of that commissioner here before us today saying that under the statutory and regulatory scheme, that payments such as these for foster care are in the best interests of the child.

Why should we strain to find otherwise--

Mr. Roseborough: --Because the--

Justice O'Connor: --and... and upset what's going on all across the country?

I think your position is troubling for that reason.

Mr. Roseborough: --If I may first respond that factually it's not true that this is what's going on throughout the country.

The facts of the various cases that we know about, through cases that have occurred in the various States, illustrate that they take very different or use very different procedures with respect to the funds.

And we only know of Washington that has a process that compels the State administrator to ignore their obligation to evaluate the best interests of the child at the time the benefit is received and instead make a determination that all of the benefits should be used to pay past debts to reimburse public assistance that was expended without regard to the eligibility of the child for Social Security benefits.

Justice Souter: Well, the representative can be... the representative can be removed if the representative is misappropriating funds or misusing the representative's position at responsibility.

But that has nothing to do with... with the legal process provisions of 407.

Mr. Roseborough: It has to do with that in this sense.

The State argues that section 407(a) doesn't apply to it because it is acting properly as a representative payee.

We contend... and I think we demonstrate in our brief, and the State supreme court in fact held... that Washington was not acting as a properly regulated representative payee within the meaning of section 405(j).

Justice Ginsburg: But that we're... we're told by the Government is none of the State court's business.

I asked that question expressly to find out whether in the Government's view 405 is something that any State court could enforce, and the answer was no. 405 is for... if... if you think the representative payee is not acting properly, you go complain to the Social Security Administration, and it's entirely a Federal law, not any State court that interferes with the representative payee's control.

Mr. Roseborough: I... I believe that her response was that you could bring a State law action, for example, for conversion against the representative payee that failed to administer benefits in accordance with the Social Security Act.

Those Social Security regulations themselves provide that you cannot sue the administration for a representative payee's failure to use the benefits properly, but that you may be able to sue the representative payee themselves.

Justice Kennedy: But... but your answer to my 407 question talked about 405.

I don't... I don't understand that.

Mr. Roseborough: 407(a) clearly prevents a State from using legal process like the administrative regulations here to collect for past expenditures.

Justice Kennedy: Okay.

Why... why is this... why is this legal process?

Mr. Roseborough: It's legal process--

Justice Kennedy: Why is it... why is it something that any representative payee, whether they're a State entity or not, could not do?

Mr. Roseborough: --Because Washington is not making an evaluation that the payment of the debt to itself is in the best interest of the child.

What it is doing is acting pursuant to the compulsion of a regulatory scheme that requires that the first use of the benefits be to reimburse itself.

The Social Security regulations do not state that the use of the benefits to pay current maintenance--

Justice Kennedy: But that's an odd term of the use legal process, unless you're saying any set-off is legal process.

Mr. Roseborough: --A set-off--

Justice Kennedy: Suppose a private entity just sets off an earlier debt against current funds.

That's... that's not legal process in the ordinary sense of the term.

It's a set-off.

Mr. Roseborough: --That would be depending on whether they were doing so by operational law or because of their own volition.

Here the State is clearly acting under what it contended below at least was the volition or the... the obligation of law.

It was saying that the law gave it the right to secure or require the use of these Social Security benefits to pay a specific obligation, that specific obligation being the debt to the State that arose when the State advanced funds for the child's care.

Justice Souter: Well, you're saying that anytime the law provides for action or provides that action will be lawful, that taking that action involves resort to legal process.

Is that your definition?

Mr. Roseborough: I'm saying that anytime the law allows or permits the securing of Social Security benefits to the payment of a specific obligation, that that is legal process or the application of legal process to those benefits in violation of section 407(a).

Justice Souter: But the reasonable word in there I think is securing.

All the State is doing is taking from this account and putting into that account.

And... and I think all the State is doing is saying, under the law, we're able to do that.

The law says we can do that, or at least it doesn't say we can't.

And I think you're saying that whenever the State claims legal authority, it is using legal process within this statute.

Is... is that... isn't that your position?

Mr. Roseborough: No.

My position is that--

Justice Souter: Then I still haven't gotten it.

Mr. Roseborough: --that when the State here acts to transfer the benefits from the trust fund to the State treasury coffers, it does so by presenting a bill, in essence, a statement of account or a statement of expenditures, to the trust fund unit reflecting the past expenditures of the State on behalf of that child.

Essentially it's saying, I have advanced monies for the care of this child and I now want to be paid back out of the child's trust fund unit.

Fair enough.

But the obligation of the State, wearing its hat as representative payee of the child, is to make a determination at that point whether that repayment would be in the best interest of the child.

Justice Kennedy: Yes, but you have to go... go on and say what that... why that's legal process.

If the grandmother does it, you would also have to say it is legal process under your view because it's authorized by the common law, I suppose, of the State or maybe by a statutory law.

Suppose you have a statute that says a creditor can set off against an earlier debt money that the creditor receives.

That's not legal process in any... in any usual sense of the term.

Mr. Roseborough: Absolutely it would be, the latter thing that you said, that if a State allowed... if a State statute allowed a set-off against a Social Security benefit to pay a past debt, that would be a violation of section 407(a).

In fact, Federal law provides that even if the United States itself seeks to set off a debt like past due taxes against Social Security benefits, that it has to have a specifically set out in the statutes exception to section 407(a), and that in fact is what exists.

There's a statute that says by express reference to section 407(a) as required by section 407(b) that the United States may set off past due taxes against Social Security benefits.

Absent that statutory authorization or exception to section 407(a), a set-off compelled by law or authorized by law would be within the ambit of legal process or an application of legal process to benefits prohibited by section 407(a).

Justice Souter: Would... would you say the same thing if the State were simply funding the... the cost of food and clothing for the current month and on... on Wednesday it... it paid a bill for groceries and on Thursday it presented this document that allowed the transfer from the trust fund to the... to the State's account?

That too would be legal process?

Mr. Roseborough: That... if it was doing so--

Justice Souter: So the only way the State could do it then, I take it on your theory, is to use the money to pay in advance of its own expenditure a... a fund from which it then could draw under its separate hat to pay the groceries.

Mr. Roseborough: --The presentation of the grocery bill to the representative payee for payment may... and... and the payment that comes as a result of that, may not... may or may not be legal process depending on what it is that authorizes that transaction and whether or not--

Justice Souter: Well, it... it paid the grocery bill on Wednesday, and Thursday it says, we're going to transfer the money to pay the grocery bill.

That's process on... on your theory, isn't it?

Mr. Roseborough: --No, not necessarily.

Justice Kennedy: What's the difference between Wednesday and Thursday and February and March?

Mr. Roseborough: Under my theory, it's clearly a reimbursement.

And as a reimbursement, it then falls under the regulations with respect to reimbursements.

Justice Kennedy: Why isn't it a reimbursement between February and March?

Mr. Roseborough: It is absolutely a reimbursement.

That's exactly what we claim.

Justice Kennedy: Then... then if... if there's legal process for the February/March transfer, there's legal process for the Wednesday/Thursday transfer.

Mr. Roseborough: It's the Wednesday/Thursday process in the hands of a private representative payee not acting under compulsion of law.

Justice Kennedy: I'm... I'm talking about the State.

Mr. Roseborough: There's two--

Justice Kennedy: I'm talking about what we've got here.

Mr. Roseborough: --Acting--

Justice Kennedy: It's legal process when... when we... when we buy the groceries Wednesday and we make the transfer Thursday.

Right?

Mr. Roseborough: --Then... but the State of Washington is doing that because it is compelled by statutes and regulations that mandate that it shall use those benefits to reimburse the foster care costs.

If it was not operating... if it was making a choice--

Justice Kennedy: That's true--

Mr. Roseborough: --on Thursday--

Justice Kennedy: --That's true in either instance, isn't it?

Mr. Roseborough: --Not--

Justice Kennedy: I mean, that's... that's a wash, as between February and March and Wednesday and Thursday.

Mr. Roseborough: --That is a wash.

Justice Kennedy: Okay.

Mr. Roseborough: So the question is in both instances on Thursday or a month later, is the use of these benefits to pay for that which has been provided in the past in the best interest of the child.

Justice Kennedy: Okay.

Then it's--

Mr. Roseborough: That--

Justice Kennedy: --then it's... that's why I... I tried to lead to the conclusion... let me try it again... that the only way on your analysis to avoid the implication of legal process would be to set aside funds received from the Social Security Administration in advance for payment for future groceries.

Is that correct?

Mr. Roseborough: --That would be the only way to avoid a reimbursement scenario, would be to use the Social Security benefits first to pay for those things that the child needs.

That would... that would avoid the regulations respecting past debts and reimbursement.

Justice Ginsburg: So you would have no case if you take the Social Security check that you receive in February for January to cover the January period instead of reimbursing the State for what it supplied in January.

It takes that check and puts in the account and says, now, this will cover the March food, clothing, and shelter.

That would be all right, and you wouldn't have any 407--

Mr. Roseborough: And that appears to be what many States do.

For example, it appears from the brief--

Justice Ginsburg: --Even though the check was supposed to be for January and not for April.

Mr. Roseborough: --The check is... the eligibility of the check, if it's an SSA check, is determined by the child survivorship through January.

So that's why it's paid at the end of January.

A disability check, however, is paid at the beginning of the month for which it is intended to be used.

Justice Scalia: So what all this... so what all this litigation will have achieved is just to compel the States to use the current checks that they get for next month instead of for last month.

You... you get maybe a 3-month ride.

I mean, I guess they... they lose 3 months' worth.

But so long as they re-gear up their system so they're paying for next month, all of this will go away.

Mr. Roseborough: They will avoid violation... avoid encroaching or violating section 407(a)--

Justice Scalia: Does that make a lot of sense?

Mr. Roseborough: --It does make a lot of sense because the problems in Washington's administration with accounts, we think, with double dipping, with use of the benefits to pay administrative and programmatic costs instead of to pay for items, food, clothing, shelter, and special needs of the child, could not occur in a system where the Federal benefits were used in the first instance to pay for those things.

Moreover, in Washington--

Unknown Speaker: But why... why--

Mr. Roseborough: --the average payment to a disabled child is less than the guaranteed minimum under Federal law so that this child would at least be assured of the use of the full amount of the Federal benefit to which they are entitled without set-off by the State.

The State could add to it but it cannot, as Washington does, subtract from it.

Justice Souter: --Instead of--

Justice Ginsburg: --Is it not true that... that in the overwhelming number of cases, the Federal benefit is not nearly enough to cover the care of the child, that the... the average SSI payment doesn't make it to cover the monthly needs?

Mr. Roseborough: Nor does the payment that the State makes under its foster care program.

In the... in the case... in the specific case of the State of Washington, the guaranteed minimum payment under Federal Social Security law to an SSI-eligible child averages $715 a month.

The State of Washington pays the... a stipend to the household of that child of some $300 to $400 a month depending on the age of the child.

That means--

Justice Ginsburg: But now if we... if we had the new system now where you take the January check and you pay for March or April with it, then the other things that you're complaining about, the double dipping, what you allege... and they may say, no, it's not happening... the proper forum to determine that would be the Social Security Administration.

Wouldn't it be?

Mr. Roseborough: --In this case, the claim was brought under State law against the State of Washington for using the benefits in a way that was inconsistent with Social Security law.

The State of Washington offered as... by way of defense, that it was complying with section 405(j) and that section 407(a) did not apply to it.

But the State law claims for conversion and misuse of the benefits remain and are not dependent on... they're dependent on establishing, as we have, that the State was misusing the benefits, but they're not dependent on the availability of a direct remedy under the Social Security rules.

Moreover, section--

Justice Ginsburg: There's one... one question that I'd like you to ask because it's really troubling me more than anything else here.

We have a brief from the Children's Defense Fund that says most of these children don't have a Wanda Pierce.

They have no one but the State.

They have no one to make out an application to Social Security Administration.

Were not the State agency operating the way it is operating, there simply would be no benefits, no Social Security, no... no SSI.

There would be that much less available for the care of all these children in the system.

Mr. Roseborough: --This is exactly true that what the State of Washington is doing is using the Federal funds that are intended for the individual benefit of disabled children and children who are SSA recipients to fund the general foster care system.

Justice Ginsburg: I asked you to answer that question.

Is... what the Children's Defense Fund is saying is that because Washington is doing what it is doing... and it is doing it because it's going to get... it's going to get the Federal Government to pay, as these benefits were designed to pay, for the food, clothing, and shelter of the child... that there would be no one to do this and there would be less money in the entire system.

And that's the question I asked you to answer, not another question.

Mr. Roseborough: We believe that States will continue to serve as representative payees even if they're compelled to administer the benefits in a way that is consistent with the Social Security rules.

Justice Ginsburg: What's the basis for that belief?

Mr. Roseborough: The basis for that belief is that the State receives enormous benefit from having available to itself the Federal benefits and being able to expend those benefits in the best interest of the child and to pay for those things that come within the defined needs of the disabled children.

It has no reason to give up that money.

And we don't ask it to.

What we do ask it to do is to administer those funds properly under the Social Security Act and to make a determination, before it uses those funds to fill the State treasury, whether or not or what use of the funds would be in the best interest of the child.

That's exactly what the Social Security Administration has consistently required of representative payees.

In this case where a State had... where a child has already received public assistance, which is in part State and in part federally funded, for a State to use another Federal benefit that the child receives to reimburse the expenditures not only of the State dollars but also of the Federal dollars that were provided to the State under that program for the use of the child is an abuse of the representative payee system.

It is a... and is a disservice to the disabled child.

Social Security disability benefits were intended to provide for the special needs of the disabled child, to assist them in the transition to adulthood, and to provide them some relief from the burdens of their disability.

In the State's concept, as it would use those funds, without any heed to the best interests of the child, no dollar of Social Security benefits received by a disabled child before they reach their 18th birthday would be available to meet those special needs because the State of Washington refuses to acknowledge an obligation under the Social Security laws to determine what expenditure is or is not in the best interest of the child.

2040(d) does not provide that a... any payment of a benefit is current maintenance if... as long as it was for food, clothing, or shelter.

It makes a clear demarcation between... and the example in the regulation makes clear... between benefits that are used at the time they are received to provide for care and benefits that are sought to be used for care that was provided before that.

We simply ask that the Court apply the generally applicable Social Security benefit regulations to the State of Washington's use of the funds for reimbursement.

If there are no further questions.

Justice Stevens: Thank you, Ms. Roseborough.

General Gregoire, you have 4 minutes.

Rebuttal of Christine O. Gregoire

Mr. Gregoire: Where is the legal process in this case?

There is in fact none.

The only thing that's being suggested is reimbursement is the legal process.

In the case of Title II benefits, an individual is eligible in January.

Social Security doesn't pay until February.

That has to be construed as reimbursement.

Counsel's interpretation would then turn the entire program on its ear.

The fact of the matter is that is not legal process.

It's what--

Unknown Speaker: Your definition of legal process is a process that requires judicial involvement?

Mr. Gregoire: --Judicial, quasi-judicial.

If an individual has the authority by law and... who goes out and... and actually implements something that takes the benefits, but it's more than reimbursement as we have--

Justice Kennedy: Well, that's what your adversary has... has stated, that this is pursuant to authority of the law.

That's why it's legal process.

Mr. Gregoire: --We would submit, Justice Kennedy, if you look at Bennett and Philpott, what this Court found in both those cases was legal process was actual in the one case in implementation of a lawsuit; in the other case, the actual attachment.

We have nothing of that nature here.

We have a simple... in answer to your question about is the State asking for special rights, to the contrary.

The State is simply asking not to be disadvantaged, to be treated no different than any other representative payee which was your holding in Philpott.

So the fact of the matter is here we're simply asking to do that which any parent would do in fulfilling his or her responsibilities in caring for a child.

Let me also, if I can, turn to the... the Social Security reimbursement idea of... of using it in the best interests of the child.

What counsel has suggested is the only thing that's in the best interests of the child is extras.

The State of Washington pays thousands of dollars for these children because they come with psychiatric kinds of needs.

We are not paying the minimum.

We are, in fact, paying significant amounts of money.

In the case of one of our randomly selected children, Nacole Blimka, in one month, over $2,000.

In the case of another randomly selected child, Denita Smith, in one month, over $3,000.

And yes, we held the benefits, got no reimbursement whatsoever, to help Denita Smith be reunited with her parent so that her parent could set up a home, pay for the food and the clothing and shelter that was necessary for that child.

The fact of the matter is the State of Washington does exercise discretion which is accorded it, broad discretion in the best interests of the child.

She would simply ask you only extras are in the best interest.

We would submit supplying food, clothing, shelter is always in the best interests of the child and that is what Social Security suggests.

She indicates that her complaint suggests that there is some State law claims.

To the contrary.

The complaint all the way along has suggested a 407 violation.

She further suggests that R.C.W. 74.13.060, the statute in question here, is mandatory.

To the contrary, it is not.

It allows the State discretion to use Social Security benefits for the special needs of a child and to reimburse the State which is precisely what occurs in this particular instance.

I ask you to return to the question presented.

Is there a violation of 407(a) in this case because a duly designated representative payee, supervised by the Social Security Administration, is using the monies for the current maintenance of the child.

The plain reading of 407(a) to that question is no.

With that, we would ask you, respectfully, to reverse the decision of the Washington State Supreme Court.

Thank you.

Justice Stevens: Thank you, General Gregoire.

The case is submitted.

Attribution:

The Oyez Project

Featured:

M.L.B V. S.L.J. - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

M.L.B V. S.L.J.

Media File:

95-853_19961007-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Robert B. McDuff

Chief Justice Rehnquist: We'll hear argument now in Number 95-853, M.L.B. v. S.L.J.--

Mr. McDuff.

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

As a result of an order of the Chancery Court of Benton County, Mississippi, my client is no longer the mother to her children in the eyes of the law.

The only way she can become their mother again under the law is through the appeal that is available as a matter of right under Mississippi law.

The question in this case is whether the supreme court of Mississippi can, consistent with the Fourteenth Amendment, prevent her from taking that appeal in a case of this magnitude without even considering her claim that she is too poor to pay the $2,300 fee that the State has imposed.

Unknown Speaker: When you say, Mr. McDuff, considering her claim, what do you suggest would be the factors that the supreme court of Mississippi would take into consideration if it were to "consider it", as you say?

Mr. McDuff: Well, I just mean that they have not even considered her claim that she is too poor, which would involve a consideration of her income.

Unknown Speaker: But if they were to conclude that her income were too poor, were below whatever standard--

Mr. McDuff: Yes.

Unknown Speaker: --then they would have to allow the... require this money be paid to the court reporter?

Mr. McDuff: Or they... well, they could do a number of things that would allow her to appeal.

I mean, one is they could excuse her as in a normal in forma pauperis case, and allow her to proceed without a payment to the court reporter.

Another is, they could set up a schedule of payments.

Another is, they could have her sign a note.

Unknown Speaker: The court reporter is going to have to be paid in any event, I take it.

If your client doesn't pay him the State is going to have to... it's not the sort of a fee that the State could simply waive.

Mr. McDuff: Under State law as it is written now, that is correct, but as we pointed out in our reply brief in response to the claim of the State that if we win this case this will involve an incredible outlay from the State Treasury, if Mississippi chooses it can change State law so that in certain cases the court reporter is not paid $2 a page.

The court reporter here is an employee of the State, makes $33,000 a year in salary.

Unknown Speaker: But the reason he takes the job is because of his access to these out... these transcripts, is it not?

At least, that was my experience with court reporters.

You wouldn't hire... they wouldn't come to work just for the fees they get for sitting in court.

It's the transcripts on which they make their money.

Mr. McDuff: Well, I don't know the answer to that.

I assume that's true certainly for many, if not all.

But Mississippi could do, for instance, as Texas has done, or has West Virginia has done.

Unknown Speaker: Or it could abolish appeals, alternatively, couldn't it?

Mr. McDuff: Certainly, yes, and I mean our point here--

Unknown Speaker: Which suggests, you know, if the greater includes the lesser we can abolish the appeal entirely, why can't it simply provide, we'll give appeals, but not if the State has to put in any money, and we're not going to give it to impecunious litigants?

Mr. McDuff: --Well, for the same reason expressed in the majority opinions in Griffin and the long line of cases that have followed Griffin.

Unknown Speaker: Those were criminal cases.

Mr. McDuff: That's true, Your Honor, but in, for example, Lindsey v. Normet, which is a civil case, this Court expressed the same principle that, if... once the right of appeal is provided by a State as a means of promoting accuracy and as a means of correcting errors and correcting injustices, it cannot be taken away in an arbitrary fashion, and that's our argument here, is that the interest in this case is so important that the same principle should apply here that applies in Griffin and--

Unknown Speaker: Payment is an arbitrary fashion?

I mean, gee, so much of what happens in the world is determined upon whether you can pay for it or not.

Why is that an arbitrary fashion?

Mr. McDuff: --Certainly, but this is different than someone who comes along and says well, I want the Government to pay for something I can... I want to purchase on the free market, whether it's a car, or whatever.

This is where a citizen has been brought into the court system for the sole purpose of attempting to terminate her relationship with her children, and she is thereby subject to all of the power of the State.

Now... and subject to the court system that has the unique ability to terminate forever her relationship with her children.

Now, in Mississippi, as in most States, the State has chosen to provide a level of accuracy and a level of corrective review for errors and injustices through its appellate courts, but my client is being told, because she's poor, she can't take advantage of that, while those who have money can.

Unknown Speaker: How about a custody proceeding, a child custody proceeding?

Would you be here making the same argument if she had lost in a custody battle?

Mr. McDuff: I don't think... I don't think that argument would have the same weight we have here because of the difference.

I mean, when a person loses custody, even though the child may leave the home, the parent can still visit with the child.

Unknown Speaker: Well, maybe the custody order doesn't provide for visitation.

Mr. McDuff: Or... and even if it doesn't--

Unknown Speaker: Is it going to turn on that?

Mr. McDuff: --Even... it doesn't in most custody orders, no.

There is an element of an ability to communicate, to play a role in the child's life, and in the future, if conditions change, the parent can petition for visitation or petition for custody.

By contrast, with a termination--

Unknown Speaker: So you think a principle line can be drawn--

Mr. McDuff: --Yes.

Unknown Speaker: --between the--

Mr. McDuff: Yes, I--

Unknown Speaker: --this case and a custody case?

Mr. McDuff: --Yes, I do, Your Honor, and one example is Santosky v. Kramer, where this Court held that in parental termination cases, because of the severity, because of the finality and the irrevocability, a clear and convincing evidence standard was necessary before terminating parental rights.

In Mississippi, the Mississippi legislature adopted that after this Court's decision in Santosky, but Mississippi has not adopted, and other States have not, for that reason adopted a clear and convincing standard when the State seeks to take custody from parents without terminating their rights.

Unknown Speaker: How do you distinguish Harris v. McRae, where the Court was dealing with a medically necessary abortion for an indigent woman?

Mr. McDuff: The distinction I think there, Justice O'Connor, is that in Harris the citizen wanted an abortion paid by the Government that she would be receiving on the free market of something she chose to obtain.

Here--

Unknown Speaker: There was considered, I thought the circumstances were that it was medically necessary.

Mr. McDuff: --Yes, but it was done through the governmental program of medicaid, is what the citizen was seeking.

Here, by contrast, where the... the petitioner has been brought into the court system, where the State has set up the exclusive mechanism for terminating her parental rights, and all she is asking is that she receive the same protections that have been set up by that system--

Unknown Speaker: Well, how much--

Mr. McDuff: --that a wealthier person would receive.

Unknown Speaker: --How much weight do we give to this exclusive method for termination?

In many States the only way to foreclose on one's home is by a court proceeding, a foreclosure of a mortgage.

Now, would you distinguish that--

Mr. McDuff: Yes.

Unknown Speaker: --The person says, this home is absolutely essential to me.

I'm raising my kids in it, and if I lose it, it means my whole family life goes.

Mr. McDuff: Yes, and we're not basing our claim solely on the fact that the State has this exclusive power, but we are basing it in part.

The difference between our case and the case you cite, I think, is the fact that housing and ownership of land does not have the same constitutional status as the relationship with one's children, and this Court said that in Lindsey v. Normet, I think, when talking about how housing does not have the sort of constitutional magnitude that exists in other cases like this.

Unknown Speaker: You think that's right?

And why is that?

Yes, I was about to ask, why--

--Why is that?

Why doesn't it have the same constitutional magnitude?

It sounds important to me.

Mr. McDuff: Oh, certainly it's important, but I think that... I think this Court's long line of decisions have noted that family relationships between children and parents are of a much greater constitutional magnitude, and the notion of liberty--

Unknown Speaker: You mean to tell me that if I am... let's say I am dismissed by an employer allegedly for sexual abuse of a child committed to my care as an employee, my reputation is ruined, I pay millions of dollars in damages in a civil suit, I am unemployable in the future, in that kind of a situation the State would not have to pay for an appeal?

Mr. McDuff: --There would be less of a case in that situation--

Unknown Speaker: Less of a--

Mr. McDuff: --than we have here.

Unknown Speaker: --Less of a case than--

Mr. McDuff: Yes, less of an argument.

Unknown Speaker: --here?

Mr. McDuff: Oh, yes.

I think less of an argument, because the right here... for example, in the case you just posit, Justice Scalia, if someone goes into court and tries to take away some privilege of a person because of these types of accusations, as long as they're not criminal--

Unknown Speaker: Is that right?

Mr. McDuff: --there's no clear and convincing evidence standard.

Here, the Court has held in Santosky, in Lassiter where the court discussed the right to counsel, has held the determination of parental rights works a grievous harm that is unlike no other save, perhaps, involuntary incarceration.

Unknown Speaker: I'm just asking whether it's true, is what I'm asking.

Mr. McDuff: Oh, yes.

Yes.

Unknown Speaker: It's true?

Not just that we said it, but that it's true?

Mr. McDuff: Oh.

[Laughter]

Unknown Speaker: You distinguish in response to Justice O'Connor the custody case from the deprivation permanently of parental status on the basis of the permanence of the latter.

Well, what about establishing parental relationship?

What about paternity proceedings?

Suppose there's a finding of paternity in a district, in a lower court, is the defendant in that case, by your reasoning, because of the permanence of that determination, entitled to a free transcript?

Mr. McDuff: I think paternity is much closer to what we have here.

Now, there's one difference, and I'm not... I don't know this in detail, but my understanding is that now, with the new DNA technology, that paternity can be established or disestablished with something close to certainty, so that the... I think the court can take into account--

Unknown Speaker: Well, let's--

Mr. McDuff: --the appropriateness of the--

Unknown Speaker: --Before that, let's say--

Mr. McDuff: --Yes.

Unknown Speaker: --it was just that it was shown by a preponderance of the evidence, not clear and convincing, because as far as I know, clear and convincing--

Mr. McDuff: Right.

Unknown Speaker: --is not required to establish paternity, and then the defendant says, for the rest of my life I will have to support this child, whatever rights a child has under the law, those rights I will have to satisfy, and I don't want that for the rest of my life, so give me a free transcript.

Mr. McDuff: I think paternity is very close to the case we have here, yes.

Unknown Speaker: Is it... would you make any distinction between the two?

Mr. McDuff: I--

Unknown Speaker: So that if we hold for you, then when the next case is paternity, we have to hold that too?

Mr. McDuff: --I think... I think one distinction would be that in a parental termination case you do have a constitutionally imposed standard of clear and convincing evidence in which appellate review... in which there is a role for appellate review in assuring that is carried out, as opposed to the parental termination, where you do not have a... I mean, as opposed to the paternity, where you do not have a constitutionally imposed standard, and I note in this connection a number of times this Court has said that, for example, in the punitive damages cases, that where a State establishes appellate review, it can play a role in protecting constitutional rights, and so I think that argument exists here that wouldn't exist in the paternity case with respect to the level of evidence that's required.

Unknown Speaker: Well, do you want to take that as a general rule, that whenever the constitution is said to impose a higher burden of proof, that the right to sort of economic equality in the vindication of one's position is going to follow?

Mr. McDuff: I think that is certainly a way the Court could draw the line in future cases.

Now, again though, we are not asking for economic equality in presenting the case.

I mean, this Court's decision in Ross--

Unknown Speaker: Well, so far as the issue before us--

Mr. McDuff: --Yes.

Unknown Speaker: --is concerned you are.

Mr. McDuff: Yes.

Yes.

Unknown Speaker: Yes.

Mr. McDuff: Yes, and I'm referring specifically, though, to--

Unknown Speaker: Why not counsel?

Why shouldn't she be entitled, if this is that significant, to have counsel on the appeal?

Mr. McDuff: --Well, I think because of the reasoning this Court expressed in the majority opinion in Ross v. Moffitt.

I mean, the Equal Protection Clause.

Although that wasn't the context of the criminal case, I think the reasoning is applicable here, that the Equal Protection Clause does not give a person the right to duplicate the legal arsenal of a wealthier person in presenting the case, but it does, the Fourteenth Amendment does give a right to present the case in the first place where the interest is important and where the State has set up these mechanisms for promoting accuracy and for correcting injustices.

The--

Unknown Speaker: If we find that the Equal Protection argument you make is unavailing, that is to say that it is not unreasonable to make this distinction, does that not necessarily determine also the invalidity of your due process argument?

I mean, I take it you're making a due process argument as well as an equal protection argument.

Mr. McDuff: --Yes.

Yes.

Unknown Speaker: And I'm basically asking, is there a difference between the two?

Once we have said that it's not... I'm assuming we said that it's not unreasonable to make that distinction.

Wouldn't the due process argument fail as well, or would it?

Mr. McDuff: I don't think so, and of course the... I mean, the Griffin line of cases has employed both the Due Process and Equal Protection Clauses, and I think the difference, I guess, is... was expressed by this Court's majority opinion in Evitts v. Lucey, describing the Griffin line, where it said the due process claim is based on the fact that the State has set up these appellate procedures to promote accuracy and so forth, and therefore the State acts arbitrarily towards a citizen when it takes them away, in effect, and when it does not give the citizen the full benefit of that panoply of protection.

Unknown Speaker: Even though we've said it's reasonable for equal protection purposes, that's--

Mr. McDuff: I mean, you do have a point in the sense that in the Griffin line the two have gone together, but I do think it's a separate analysis.

I mean, if the State has set this up, and if the State is telling a person that it should... that it has made these... this level of review available and then... I do think it's an arbitrary action, even though you might consider it's, quote, rational for equal protection purposes.

Unknown Speaker: --Is the real problem with this case that the judge didn't give reasons, the trial judge, and did you preserve that as an independent ground for alleging a constitutional violation at any point?

Mr. McDuff: There is--

Unknown Speaker: The judge just doesn't give a reason.

Mr. McDuff: --The judge's... the judge's written order came after the trial was over, and so it can be raised on appeal, and will be if an appeal is permitted.

Unknown Speaker: But you're not making that argument here.

That's a separate, independent constitutional violation, a failure to give reasons.

Mr. McDuff: We're not making any merits arguments--

Unknown Speaker: Well, you could make that argument without a transcript.

Mr. McDuff: --Yes.

Yes.

Unknown Speaker: Can I go back--

--Can I ask you--

--Please.

--just a sort of variation of Justice Kennedy's question.

In the Lassiter case, the Court refused to hold that a person like your client is entitled in all cases to counsel, but did indicate on a case-by-case basis counsel might be required in some situations.

Supposing in this case, instead of a one-line order rejecting your claim, the trial judge had made detailed findings of fact saying that he relied on the testimony of so-and-so to the effect of blah, blah, blah, and he gave a very careful opinion and analysis of the reasons, and you could tell what the basis of the decision was and what the evidentiary support for it was.

Would you still say you were entitled to counsel in that situation... I mean, entitled to a transcript in that situation?

Mr. McDuff: I think we could.

I don't think it would be as strong an argument, but yes, I think as long as Mississippi supreme court requires a transcript to review contentions that the trial judge's findings and conclusions were unsupported by the evidence or contrary to the evidence, and assuming that argument could still be made after this opinion, yes, we would still have the same contention.

Unknown Speaker: The other is the question whether you really come within the rule of the due process cases, because I thought the rule in the due process cases was that the State could not on one side of it's... from one side of it's mouth say, you have a right to an appeal here, you're entitled to be in court, and on the other hand say, but aha, there is some barrier which we are erecting which precludes you from taking advantage of this appeal right.

Here, what the State is saying is, nobody without the cost of a transcript, or nobody without a transcript in his hand, has a right to appeal.

It's a condition precedent for the appellate right in the first place.

So that it seems to me you're not within the due process cases reasoning, and it seems to me you've got to stand or fall on equal protection.

Mr. McDuff: I don't think so, I mean, because the fact that the State says yes, you have to have a transcript in the beginning to take the appeal is simply a procedural rule that it imposes, and because it conditions it on this $2 payment per page to a court reporter, I think it is the same sort of barrier that you would have, and that's why I think Griffin and its... that line of cases went off not only on equal protection but on due process.

Unknown Speaker: Mr. McDuff, as a practical matter, what is the difference between a decree of nonparenthood, as in this case, and a decree as sometimes occurs in cases of no visitation rights, no custody and no visitation rights?

What does this individual lose that a parent who is denied custody and visitation rights doesn't lose?

Mr. McDuff: The parent who is denied custody and visitation rights can later petition to regain them if conditions change, and depending on the order may still be able to have some contact with the child over the telephone, or letters, or still participate in decisions.

Unknown Speaker: Well, that would happen here.

Just because the State declares you're a nonparent doesn't mean you vanish.

I assume you could still--

Mr. McDuff: It does mean that you are erased from the child's life as their parent save for any grace given by the ex-husband and the new mother, who I guess could allow the children to visit with you, but otherwise--

Unknown Speaker: --That's the same as no custody and no visitation rights.

Mr. McDuff: --But with no custody and no visitation you can petition when conditions change.

With the termination of parental rights, as this Court said in Santosky is, one of the reasons it imposes the clear and convincing evidence rule, it is final and irrevocable.

The chancery court's order here illustrates it.

I mean, it ordered that the name of my client be taken off the children's birth certificate as their mother and replaced by the name of the new mother.

Now, that's symbolic, but I think it symbolizes the dramatic difference here, and that's why I think this Court ordered clear and convincing evidence as the appropriate standard in these cases, but it has not been ordered in custody cases of the type you're talking about.

The--

Unknown Speaker: You made an analogy to the criminal proceeding in terms of the impact on the person, so you said what... you're really asking for an extension of the Griffin line.

I think that's what you said.

Mr. McDuff: --We think--

Unknown Speaker: That deprivation of parental status is as severe as a $250 fine.

Mr. McDuff: --Yes.

Unknown Speaker: But you don't go all the way, because Griffin and Douglas came together, and I think you are recognizing that right to counsel is not something that would be automatic.

Mr. McDuff: Oh, that's correct, but I think that's also... that's true in the Griffin line of cases.

For example, in Mayer v. City of Chicago the Court held that a transcript is necessary for a... an appeal of a convic... a misdemeanor conviction in which no jail time is imposed, but the Court said in Scott v. Illinois that counsel was not required, so I think that they are not coextensive in terms of the breadth of the constitutional principles.

The--

Unknown Speaker: You mentioned that you weren't sure about the paternity situation.

Is there... and you are attempting to distinguish all other civil proceedings.

Is there anything else that you would say is like this?

Mr. McDuff: --Involuntary civil commitment, I think, is of this magnitude.

Unknown Speaker: May I ask--

--Why is that the line?

What if I feel differently?

What if I feel it's really bad, and maybe even worse for some people to lose all their worldly possessions?

How do I decide which cases to... just my feeling about parenthood, or my feeling about worldly possessions?

Mr. McDuff: Justice Scalia, I think through the same process this Court has gone through in the cases, for example, involving the clear and convincing evidence standard, where it has imposed them as a constitutional matter, in involuntary civil--

Unknown Speaker: I wasn't here then, so I don't know what they did.

[Laughter]

I thought maybe you could help me out as to how we came to those conclusions.

Mr. McDuff: --I think it's the traditional sort of Fourteenth Amendment analysis where you--

Unknown Speaker: How I feel about it, essentially.

Read the opinions.

[Laughter]

Mr. McDuff, may I ask a question about Mississippi practice?

Who paid the guardian ad litem?

Mr. McDuff: --The guardian ad litem's payment was awarded as costs by the chancery court against the plaintiff, who's the ex-husband.

Unknown Speaker: So your client was charged $500 for the guardian ad litem?

Mr. McDuff: No, I'm sorry, it was awarded against the... the costs were awarded against the person who actually prevailed in the case--

Unknown Speaker: I see.

Mr. McDuff: --in this instance, who is the father.

Unknown Speaker: And so the guardian was paid by the successful party.

Mr. McDuff: Yes.

Unknown Speaker: If you... go ahead.

Could the guardian have appealed?

Mr. McDuff: Yes.

Unknown Speaker: And who would have paid for the cost of the transcript if the guardian had appealed?

Mr. McDuff: I... there were several possibilities there.

I guess the court, either the chancery court or the supreme court could have ordered one of the parties to pay it, or I think the guardian might have.

If the guardian could not afford it, and if the guardian--

Unknown Speaker: Well, the guardian certainly doesn't have any interest in paying it.

Mr. McDuff: --Right.

The... I think the same principle that we are invoking here might be available if the guardian is able to claim, as the guardian could do in claiming the rights of the child.

Unknown Speaker: This is an... I'm sorry, just one more.

This is an infant, two or three... how old was the child here?

Mr. McDuff: Five and seven, I believe--

Unknown Speaker: I see.

Mr. McDuff: --at the time of the termination.

Unknown Speaker: If your client had succeeded in raising the money to pay the... for the transcript, could she have... and was successful on appeal, could she have recovered that as part of her costs?

Mr. McDuff: Yes.

Yes, and we cite in our reply brief the provision of the Mississippi rules to that effect.

Unknown Speaker: What are the instances, or are there instances in which the State does pay for the cost of the transcript?

Mr. McDuff: In Mississippi, it is in criminal cases.

Unknown Speaker: Pardon me, in a civil case.

Mr. McDuff: There's a Mississippi statute that provides that it will be paid for in involuntary civil commitments.

Now, the Mississippi supreme court has a stated principle that it stated in this case that in forma pauperis appeals are not allowed in any civil case, but in fact there is this statute that apparently the court was not considering when it made that statement both in this case and in several prior cases.

The... Justice Kennedy, you earlier were talking about the Equal Protection Clause and whether... and what would happen if the Court found that the Mississippi scheme here was rational.

We actually do think that, because of the interest involved here, that there is something greater than rational relationship test, and something greater than minimal scrutiny, and that at the very least intermediate scrutiny would be appropriate give, number 1, the fundamental interest in the parental right, and the fundamental interest in what this Court has called an accurate determination regarding that right.

And specifically I'm referring to the Lassiter case, so for that reason we think that the justification offered by the State, particularly this $2 per page thing, which is not required at all for the State to continue... for it to keep its court system going and does not promote the State's interest in accuracy which it has expressed by providing these appellate courts, that the State has not put forward a persuasive or substantial--

Unknown Speaker: Well, are you suggesting that the court... that courts could employ reporters at the same salaries if they weren't allowed to charge for transcripts?

Mr. McDuff: --I don't know the answer to that, Mr. Chief Justice.

I think they could, but I think they certainly would be able to keep them if, for example, they continued paying them the $33,000 a year they receive, continue to allow them to receive $2 per page for the many paid transcripts they do during the year, but said that these in forma pauperis transcripts are going to be part of your duty as a salaried State employee.

I reserve the remainder of my time.

Unknown Speaker: Very well, Mr. McDuff.

Mr. Moore.

Argument of Rickey T. Moore

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

The issue in this case is whether or not the State is going to have to subsidize the cost of appeal of an indigent appealing termination of parental rights, and we contend that it does not either on due process or equal protection grounds.

From a due process point of view, previous longstanding decisions of this Court have held that appellate review is not necessary for due process purposes, and as to the equal protection claim, this doesn't fit within any of the recognized equal protection type claims.

First of all, there's no disparate treatment among litigants.

Everybody's treated the same.

Everybody's required to prepay the cost of the appeal.

Second, there's no suspect class involved, because previous opinions of this Court have held that the poor are not a suspect class for equal protection purposes even when fundamental rights are involved.

And third, there's no impingement of a fundamental right in this case because the only interference with the parent-child relationship is the statute that allows the State to terminate parental rights under certain circumstances.

The only issue in this case is what procedural due process must be provided prior to that termination, and that either goes back to a Mathews analysis of whether or not the proceedings that are provided are fundamentally fair, and then it would seem the question--

Unknown Speaker: May I ask just one question?

It is true, is it not, that the child has to be represented separately in the proceeding?

Mr. Moore: --Yes, Your Honor.

Unknown Speaker: And that's a matter of due process, too, I would suppose, because the child's rights are as vitally affected as either set of parents.

Mr. Moore: The statute requires--

Unknown Speaker: At least the statute does require it, and what is the... and therefore there has to be a guardian ad litem appointed if the child is a minor, and what if the guardian... I know it's... it would be an unusual case, but what if the guardian took the position that the natural mother was a better parent and wanted to appeal an adverse decision, would the guardian have to advance the transcript cost?

Mr. Moore: --That is unclear.

The guardian is paid pursuant to the... a rule, I think it's Rule 17 of the Appellate Procedures, and there is some statements about the trial judge being able to enter any other orders, which might imply there might be a possibility, if the trial judge decided that that was in the best--

Unknown Speaker: If the interest of justice required, in this unusual case the judge might conceivably order the State to pay the... order a transcript if the guardian indicated a desire to appeal.

Mr. Moore: --Well, I think it simply... it's unclear.

It seems to me there might be an argument to that effect, but as to whether or not that would be accepted, I don't know.

Unknown Speaker: Would it be wrong for the court to say that a guardian is entitled to an attorney, the child is entitled to an attorney as an equal protection matter because a fundamental right is implicated here?

Mr. Moore: I'm sorry, I didn't... I didn't get the question.

Unknown Speaker: Suppose counsel were required in a termination proceeding such as this, and the court announced that the requirement was pursuant to the Equal Protection Clause in the case of an indigent party, would that be an incorrect statement of the law?

I mean, i.e., it would be an alternative, alternative ground for... to due process, to Mathews v. Eldridge.

Is it illogical to say that?

Mr. Moore: If you're asking, if the court had ordered an attorney be appointed for the mother, or the child, then--

Unknown Speaker: For the child.

You said it was required under Mathews v. Eldridge that there had to be an attorney.

My only question is, would it also be a requirement under the Equal Protection Clause in the case of an indigent person?

Mr. Moore: --No, what I was saying is, the attorney is... has to be appointed for the child based on the statute, the Mississippi statutes that deal with termination.

Unknown Speaker: It's not required by Mathews v. Eldridge--

Mr. Moore: No.

Unknown Speaker: --to have an attorney, in your view?

Mr. Moore: No.

Unknown Speaker: Or due process, no due process requirement.

Mr. Moore: No.

I think that's the Lassiter case, or... well, Lassiter leaves it open for a potential in certain circumstances based on the balancing test that an attorney might be required.

Unknown Speaker: Mathews really doesn't address the question of when you should have an attorney, does it?

It's more the type of hearing you should have.

Mr. Moore: Right.

Mathews is just whether or not fundamental fairness is met, and whether or not--

Unknown Speaker: Yes.

Mr. Moore: --additional safeguards have to be provided.

I also think that case assumes that fundamental fairness can be met at the trial court level, and that an appeal is not required, which is consistent with the older cases saying that appellate review is not required for due process purposes.

Unknown Speaker: Counsel, do you concede that a fundamental right is at issue here in the case when you deprive a parent by State action of parental rights?

Mr. Moore: We would concede that the parent-child relationship in the past has been held by this Court to be a fundamental interest.

However, in this case we question whether or not there is a fundamental right at this point in the proceedings, and that's because at this point in all of these proceedings there is a judgment by a State trial court terminating this person's parental rights, and based on the line of cases that deal with... Stanley v. Illinois, and the Quillion case, and Lehrer case dealing with biological parents, it seems to indicate that parental conduct determines parental interest, and it would seem at this point that her interest would be at least less than fundamental.

We don't know what they are, but it would be--

Unknown Speaker: Well, I don't know why the interest wouldn't remain the same throughout the proceeding.

It's either fundamental or it isn't, and maybe some heightened scrutiny is required of procedures that the State invokes.

Mr. Moore: --Well, the argument is based, again, on those... the biological father cases, and it seems like at this point--

Unknown Speaker: Hasn't the Court already decided in Santosky that there is something about depriving one of parental status that's not like anything else, and therefore, instead of the ordinary preponderance test, there is a clear and convincing evidence test?

Isn't... whether you agree with that or not, it is the precedent of this Court.

Mr. Moore: --Yes, I don't disagree with that, but Santosky is talking about in the trial itself.

It--

Unknown Speaker: Yes, but in order to... why did the Court say that a clear and convincing evidence standard is required, instead of the ordinary preponderance?

What was the basis for that?

Mr. Moore: --Well, it may be the greater interest, I'm not arguing with that, in the trial stage, but what I'm arguing--

Unknown Speaker: It may be... what did the Court... why did the Court say that as a matter of the Federal Constitution, in order to deprive a parent of parental status, the proof standard that the... that must be met is clear and convincing?

Mr. Moore: --I assume that the interest were considered somewhat more than the normal.

I don't remember specifically from the case whether or not it specifically deals with that.

Unknown Speaker: Well, if the Court said that because there is a fundamental interest at stake, that is, the parent-child relationship is a fundamental interest... let's assume that's what the Court said, as I think it did... then the parent's loss at the trial level doesn't mean the interest is changed, as Justice O'Connor suggested.

The interest remains the same.

Mr. Moore: Well, again, my argument is based on those line of cases that talk about the biological connection alone is not sufficient to raise any interest, and the parent's conduct determines that, so when you have a trial court determining that the conduct of the parent is such that the parental right should be terminated, then it would seem like at that point the presumption of a fundamental right might be lessened, at least.

Unknown Speaker: Well, wouldn't the same reasoning that supported the Court's statement that this higher standard... why do we have clear and convincing as opposed to preponderance for these cases?

What would be the reason for doing that?

It's an extra check, right, because something fundamental is involved.

Mr. Moore: Yes, I believe--

Unknown Speaker: So the appellate review is similarly an extra check.

Mr. Moore: --I believe the higher standard is... within the case was to lessen the risk of error.

Unknown Speaker: And isn't that what the argument is here?

You lessen the risk of error by allowing the appeal, and the argument was that there was insufficient evidence to meet this high standard of proof.

Mr. Moore: Theoretically, any appeal would be designed to lessen the risk of error, an appeal of any case.

Unknown Speaker: I suppose that would have been true in Ross v. Moffitt, too, where you petition for certiorari to the highest court of a State from the decision of an intermediate court of appeal.

Mr. Moore: Yes, that... yes, Your Honor.

Unknown Speaker: Let's assume that the decisions of this Court establish that the... that this is a fundamental right, fundamental relation.

Then the equal protection differential here between those who can get the transcript and those who cannot does in one sense impinge on the fundamental right, does it not?

Mr. Moore: I would disagree with that, because I think that it's not an impingement of the parent-child relationship, and it's certainly not a direct and substantial impingement, which the Zablocki case and others require for this kind of constitutional violation.

It's purely the procedural matter as to what procedures they're entitled to, and in the procedural analysis in the Mathews case, the interest of the parent is taken into consideration in the first part of that balancing test.

We've taken the position that in effect what petitioner is doing here is either attempting to extend Boddie v. Connecticut to the appellate level, or attempting to find an exception to the Ortwein case and, based on their arguments, they seem to be making a purely wealth disparity argument which would potentially bring in all cases of a civil nature, especially those involving rights that have been determined to be a--

Unknown Speaker: But that's not the argument that was made, and I may have misunderstood the petitioner's brief, but I thought they were saying, we're trying to bracket our case not with Boddie but with Griffin, that we think that the impact on our client, permanent deprivation of parental status, ought to be treated the same as a criminal conviction, that there's no other civil case like that that declares a woman a nonparent.

Mr. Moore: --Well, I think based on the use of the Griffin case and what they're arguing for the rights, it's very hard to distinguish between fundamental rights at that point, so you get into a situation of having to kind of do a hierarchy of fundamental rights and then decide where you cut off the appeals and where you don't.

Unknown Speaker: But we asked the petitioner that question, and the answer was, there's only one other thing that the petitioner would put in that same box, and that's civil commitment, involuntary civil commitment, so now you want them... you want to make their argument something that they are not attempting to do with it.

Mr. Moore: I'm saying that that argument would be very hard to implement.

I think it implicates other things.

It would be very hard as a practical matter to separate the one from the other interest.

The result of this would be, I think, that other courts would end up interpreting this to include other fundamental rights and other important rights, and in that regard, in the 1995 in the State of Mississippi there were almost 40,000 domestic relation cases filed in the lower courts, so if they were expanded--

Unknown Speaker: Yes, but how many of those involve termination of parental rights?

Mr. Moore: --There were 194 of these parental rights cases.

Unknown Speaker: Yes.

Mr. Moore: And there were a little over 6,000 paternity cases, and that's compared to a little over 15,000 criminal cases.

It's our contention that there--

Unknown Speaker: But as far as the paternity cases are concerned, there's no... at least the... in the trial court there's no analogy to the clear and convincing requirement of Santosky.

I think it's just... that has been rejected for paternity rights.

There is just a preponderance of the evidence.

Mr. Moore: --I don't recall on that, but the paternity cases are kind of mirror images of the termination cases.

Just like in Boddie, the fundamental right is a right to marry, but it involves a divorce, so it would be hard to separate the two.

I don't see how you could separate the two.

Unknown Speaker: But isn't it true that in the paternity cases the issue is pretty well determined by scientific evidence now, isn't it, rather... you have a rather narrow actual issue?

Mr. Moore: Yes.

Unknown Speaker: Whereas this case could be a law and record case, where you believe some witnesses and you don't believe others, and all that.

Mr. Moore: A lot of those, as I understand, probably go off on... on the test.

Unknown Speaker: Yes.

Mr. Moore: If the tests come back positive, then the potential father admits it and doesn't fight it, so--

Unknown Speaker: Mr. Moore, isn't the paternity case more like any civil case?

I mean, what paternity is about is money.

You have to pay to support the child.

You don't... they don't require you to love the child, to take the child to soccer games.

All you have to do is, if you're saddled with a paternity decree, is to pay money.

That's something of a different quality than to say, you have no parental relationship to this child.

You are a stranger to the child that you bore.

That isn't about money.

Mr. Moore: --Well, I think, though, from a paternity point of view it's just the opposite, I guess, the... in the sense that the person who is in the paternity case doesn't want to be determined to be the father.

Unknown Speaker: Well, people don't want to lose a damage suit, either, but all that's at stake is money.

Mr. Moore: Well, there's also the creation of a legal relationship against the will of the individual as well.

Unknown Speaker: Well, in a... I mean, it could certainly ruin the reputation of someone who is decreed to be the father of a child whose father he claims not to be.

Mr. Moore: Yes, Your Honor, there's other social stigmas, or whatever, that would be associated with it.

There's also, as far as the trial itself goes, we've said that this is a fundamentally fair proceeding that are had in these cases, and it's in a State trial court in front of the judge, who's trained in the law.

The parties are allowed to submit evidence, and witnesses, and documents, and allowed to cross-examine, and redirect, and direct examination of witnesses, and there's nothing been suggested by the petitioner in here that these are not fundamentally fair proceedings and meet the requirements--

Unknown Speaker: No, but your rule would apply even if that were the argument.

Even if the petitioner was arguing the judge wouldn't let us put on any witnesses.

She still couldn't appeal.

Mr. Moore: --No, she could, in that regard.

This case involves, as was mentioned earlier... the claim here on the appeal is, it's not based on substantial evidence.

Unknown Speaker: No, I understand in this case, but if it were a case in which the mother claimed that the judge wouldn't listen to me, he wouldn't let me put on any evidence, and he entered his order without any evidence at all, she still couldn't appeal, even if she made those arguments.

Mr. Moore: You don't need a transcript for that appeal.

Unknown Speaker: Well, how can she establish what happened at that trial if she doesn't have a transcript?

Mr. Moore: The rule that requires the transcript in this particular case only requires the whole transcript when the issue is raised here.

But other than that, all you need is sufficient information to raise the issue that you have, and you can either do that by, in this particular case by agreement of counsel as to what happened, or potentially it might take one page of the transcript, when the judge refused to let her cross-examine witnesses, or submit witnesses.

Unknown Speaker: I thought the State statute required the full transcript.

Mr. Moore: No, only when the appeal is based on lack of substantial evidence.

Unknown Speaker: Ah, I see.

Mr. Moore: Then the court has to have all of it to make the determination.

Unknown Speaker: I see, but if the challenge is that the trial or the judge was biased, or something like that... well, but even then, I suppose you might need the transcript to establish that.

But you're saying if the error is one that can be established without a transcript, she could appeal.

Mr. Moore: Yes.

If it could be established without the transcript she could certainly appeal, and in other cases, as I said, it might not take but two or three pages of the transcript.

Unknown Speaker: The transcript is only required... apart from the practicality of her being able to establish bias, for example, without the whole transcript, she could claim bias and get an appeal without the transcript.

The transcript is only required by statute when substantiality of the evidence is at issue, right, sufficiency of the evidence?

Mr. Moore: That's the only time the rule or the statute says that--

Unknown Speaker: Okay.

Mr. Moore: --you have to have a full transcript.

Unknown Speaker: So she can go up without one for everything else, even though for some of those she may not win without the transcript.

I mean, as a practical matter.

You don't have to concede that.

Why doesn't that cut in favor of the other side?

I mean, it won't cost the State much money then.

I mean, in most cases she'll be able to afford the $6, and if she really couldn't afford the $6, I mean, if that was true, she really couldn't afford it, it costs the State $6, not a big deal.

I mean, so it isn't much burden on the State, almost no burden.

It means a lot to her.

Have a certificate of probable cause, say, weed out the baddies, you know, no claim.

What's the major problem for the State?

Mr. Moore: I think as a practical matter almost all of these appeals will be where they require the entire transcript, because they're based on lack of substantial evidence.

It would be unusual for a claim that a State trial court doesn't provide a fundamentally fair proceeding, based on the procedures used.

Unknown Speaker: Is there any proceeding in Mississippi in connection with an appeal where there would be a certificate of probable cause, at least by that name?

Mr. Moore: Not that I'm aware of, no, Your Honor.

Unknown Speaker: Are there other States that do not provide a free transcript to a poor person for a deprivation of parental status case?

Mr. Moore: I don't know specifically on that.

I know there are some citations in petitioner's brief about States that do.

I don't think they cite all of the States as doing that, though.

Unknown Speaker: And there's nothing short of a full transcript that could be a transcript of part, but Mississippi doesn't tape the proceeding, does it, keep it on audio tape?

Mr. Moore: No.

The proceeding would be taken by a court reporter.

Unknown Speaker: Yes, but that wouldn't exclude also having an audio tape.

But you're telling me they don't.

Mr. Moore: It wouldn't exclude it, but I would doubt if there are any court reporters still using audio tapes.

I don't know that.

I mean, there could be an individual court reporter somewhere that did that, but I wouldn't think so now.

The State's interest in this include other things beside the cost--

Unknown Speaker: Just one other question of Mississippi proceedings.

Is what happened here the norm?

That is, all the evidence comes in, and then the judge makes a kind of a boilerplate judgment, repeating the words of the statute, and says, I have found by clear and convincing evidence that this parent is unfit?

Mr. Moore: --I think the order of the judge in any individual case will be dependent... depend on that judge.

There's not any--

Unknown Speaker: Well, from your experience in the State, what is the usual?

Is this typical, what we've seen here?

Mr. Moore: --I don't know.

I haven't tried any of these cases actually in--

Unknown Speaker: How many circuit judges are there in the State of Mississippi, do you know?

Mr. Moore: --No, I don't.

There are 82 counties, but as far as actual numbers of circuit judges, I don't know.

I would point out that in... when the State is involved in actually prosecuting a termination, there are additional safeguards that take place prior to the filing of the petition in the chancery court, and all of those occur in the youth court, and involve at least four hearings, three of which are judicial in nature, at which the parent is allowed to attend with the assistance of counsel and participate, and that the rights are not terminated of the parent until there have been all of these procedural safeguards taken, and usually it's at least a year after the child has been taken out of the custody of the parents.

Unknown Speaker: So are you saying that when the other parent petitions to have a parent declared unfit, there's less protection than when the State does it?

The... that the petitioner in this case did not get the protection that she would have gotten if the State itself, rather than her former husband, had initiated the proceedings?

Mr. Moore: Yes.

The proceedings are viewed... when the State itself prosecutes a termination, then it's viewed as a little different, because what you're doing there is coming in and eventually terminating the right of the parent so that the child can be adopted by what ends up being strangers, nonrelatives, and it arises here because it's absolutely necessary that the State, the Department of Human Services go in and remove the child from the home because of potential abuse or--

Unknown Speaker: But you can remove a child from a home without depriving a parent of parental status.

Mr. Moore: --Well, it's not always done when the State does it.

It's when it becomes necessary.

There are several things that the State goes through with the... an analysis of whether or not it should be brought, obviously children that are taken out, that it's unfeasible to put them back in the home, some of them may be 14 or 15 or 16--

Unknown Speaker: But you were explaining from the point of view of the right of the petitioner why she is entitled to less process when it's her ex-husband than when it's the State that is trying to deprive her of parental status.

Mr. Moore: --Well, the State is simply set up for the State because of the unique situation that the State is in, so in essence more process is provided because of that particular situation, that the State is coming in and taking the child.

Unknown Speaker: Do I... I want to be sure I didn't miss something.

In that situation, does the State provide the transcript, when the State initiates the termination proceeding?

Mr. Moore: No.

Unknown Speaker: No, it still doesn't.

So... I don't... what is the difference between that proceeding and this in terms of State procedural protections?

Mr. Moore: Just that this is done in youth court before a... an action would be filed in chancery court to actually terminate.

There's no termination that takes place in the youth court.

It's only judging the status of the child and being able to take the child out of a bad situation if necessary.

Unknown Speaker: Well, in this case the complainant, the petitioner was already a noncustodial parent, was she not?

Mr. Moore: Yes, Your Honor.

Unknown Speaker: I mean, it wasn't as if the custody was taken away from her.

It already had been.

Mr. Moore: She had lost her custody of the children at the time of the divorce, and this was sometime later when the proceedings to terminate her rights were brought.

Unknown Speaker: But your friend says that that can be changed, whereas this can't be changed.

Now, is that accurate?

Mr. Moore: Well, certainly a parent could go back in and attempt to petition to change custody, that's true.

Unknown Speaker: Or modify the decree to provide for visitation rights, which might not have been... custody decrees are modifiable, is that not right?

Mr. Moore: Yes, Your Honor.

Unknown Speaker: And a deprivation of parental status is final, not modifiable.

Mr. Moore: Yes, the termination would be... I guess like any other civil case, once the time runs for asking the court to reconsider something, that it would be final, just like any other case.

It would be res judicata, probably, from a--

Unknown Speaker: I suppose the risk of error present in a case like this is that the trial judge naturally would be influenced by the best interests of the child, and therefore would tend to give custody to the adopting parents, and not apt to make detailed findings about unfitness of the mother whose rights are being terminated.

The termination is a condition precedent to the adoption in all these cases, I guess.

Mr. Moore: --The termination is precedent to the adoption.

Unknown Speaker: Yes.

Mr. Moore: I would disagree with what the trial judge would do, because I think trial judges take these things very seriously, and I don't think that they would terminate the mother's rights, regardless of the situation, unless they felt it was absolutely justified based on the evidence that's presented.

In conclusion, what the petitioner is apparently attempting to do here is create a vast new constitutional right and further federalize domestic relations law, and we submit that that shouldn't be done in the absence of clear constitutional violation, and we further submit that there's been no showing or evidence that a clear constitutional violation exists in this case.

Thank you.

Unknown Speaker: Thank you, Mr. Moore.

Mr. McDuff, you have 4 minutes remaining.

Rebuttal of Robert B. McDuff

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

Justice O'Connor, I believe it was in response to questions from you that the Attorney General's Office gave figures about the number of filings of termination cases in the chancery court, and those figures are at page 28 of their brief, but those figures are not in the sources they cite on page 28, and we have not seen any such figures about the number of parental termination filings in chancery courts or in the appellate courts.

The Mississippi supreme court does keep figures, and we've cited them in our brief, as have our opponents, on the numbers of custody appeals, of which parental termination are a subset, and in 1995 there were 10 custody cases decided by the Mississippi supreme court and another six decided by the intermediate court of appeals.

Unknown Speaker: Mr. McDuff--

Mr. McDuff: Yes.

Unknown Speaker: --what about divorce?

That's final.

It deals with status.

Should we apply the same rule to a divorce decree that you're asserting here?

Mr. McDuff: No, sir, and a divorce also is something actually that can be remedied in the future if people want to remarry, plus they can continue to have contact or not contact.

There's a level of freedom in the relationship.

Unknown Speaker: No, but let's assume it's not a no-fault divorce kind of State.

Your reason has to be established.

The other person doesn't want to remedy the divorce.

The person who's want it fully wants it.

If a State... I gather most of the States, maybe all of them now, have effectively no-fault divorce, but let's assume a State changes that and does not have no-fault divorce.

I guess we would have to apply the same rule to divorce, wouldn't we?

If the party unwillingly divorced wants to appeal, we would have to allow that appeal IFP.

Mr. McDuff: No, I don't think so.

I mean, I don't think that involves nearly the kind of termination of an intimate relationship beyond the control of the parent that you have, or beyond the control of the party involved that you have when a child is taken away against your will by State action.

Unknown Speaker: Well, I thought that was the rationale of Boddie, that divorce did.

Mr. McDuff: The rationale of Boddie, as I understand it, is that divorce, because it involves a marriage relationship, is very important, and because the State has an exclusive monopoly on it, that filing fees that freeze people out are unconstitutional, so I think there is a high status and an important interest here, but I don't think it comes to the kind of grievous injury that's done here.

Unknown Speaker: So cutting off a parental relation is a "fundamental" interest, and a right to get a divorce is high, but not fundamental?

Mr. McDuff: No, I didn't... no, I'm sorry, I don't mean to sort of do a gradation there, but in Boddie the people were married and wanted access to the State-created apparatus for obtaining a divorce, and this Court said they can't be frozen out by a certain amount of money, and when you're talking about appeal, I do think that is different.

Unknown Speaker: Well, but you have to do a gradation, or then Boddie is going to come out the same way as your case, isn't it, and we'll have transcripts in all divorce cases.

Mr. McDuff: No--

Unknown Speaker: So that I take it was the thrust of the Chief Justice's question.

Mr. McDuff: --Yes, and I didn't mean to sort of--

Unknown Speaker: And so I think you have to have a hierarchy, or a gradation.

Mr. McDuff: --And I guess that's what we're saying, is that because of the nature of the harm here as compared to whatever happens in a divorce proceeding, that this is the kind of thing where a transcript will be required and it might not there.

Unknown Speaker: On the theory that children are more important than spouses to the individuals involved, is that the theory that causes you to put this on a lower level?

Mr. McDuff: No, on the theory that a divorce decree, or the resolution of a divorce case, involves all kinds of complicated mechanisms that the parties have a right to effect in terms of their interrelationship, but here, the person's child is being taken away against their will, and we think it's a qualitative--

Unknown Speaker: Are you saying that Boddie is... or Boddie, I don't know how to pronounce it--

--It's two D's.

--is a different... however that comes out, it's a different case because those are the people who say, State, we want you to pay for our divorce, we want something from you, where here the woman is saying, please don't take my child away.

She's not coming to the court asking for anything.

She just wants to be spared from the State taking away her child.

Mr. McDuff: --That's correct.

Unknown Speaker: So the two cases seem to me quite distinct.

However you would come out in Boddie or Boddie, it's not what we're dealing with here.

Mr. McDuff: Yes.

Chief Justice Rehnquist: Thank you, Mr. McDuff.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ankenbrandt, As Next Friend And Mother Of L. R. v. Richards - Oral Argument

Fri, 09 Jan 2009 14:49:36 +0000

Case:

Ankenbrandt, As Next Friend And Mother Of L. R. v. Richards

Media File:

91-367_19920331-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Richard Lynn Ducote

Chief Justice Rehnquist: We'll hear argument next in No. 91-367, Carol Ankenbrandt v. Jon A. Richards.

Am I pronouncing your name correctly?

Mr. Ducote: Ducote, Chief Justice.

Chief Justice Rehnquist: Ducote... Mr. Ducote.

You may proceed.

Mr. Ducote: Mr. Chief Justice and may it please the Court, I represent two young girls, one 9 and one 7, who come before you through their mother as their next friend.

Their parents were divorced and their mother was awarded full custody, and during the court-ordered visitation they were physically and sexually molested by their father and his girlfriend.

Because of the abuse, the Jefferson Parish, Louisiana Juvenile Court through its child protection statutes permanently terminated all the parental rights of the father and permanently enjoined him from having any contact whatsoever with the children again.

Therefore, under State law he is a legal stranger to them.

That decision was never appealed and is final.

After that decision, the children filed suit against their father and his girlfriend in tort, in Federal court in Louisiana, under diversity of citizenship, because they were no longer residing in the same State.

The district court in the Fifth Circuit through the case out saying what this really is is a domestic relations case over which the Federal courts have no jurisdiction.

I think it's first important to note what this case is not.

This case is not about establishing a new Federal cause of action.

This case has nothing to do with the concerns expressed by the Chief Justice and other Members of this Court about creating new Federal causes of action such as the actions now pending before Congress concerning making all crimes against women perhaps civil rights actions which could be brought in Federal courts, or against making all crimes committed with handguns Federal offenses.

There's no question, and it's never been contested in this case, that all of the elements of diversity have been satisfied.

Unknown Speaker: Well, we could go further, could we not, Mr. Ducote, in saying what the case is not about, in saying that it is not about a decree of divorce, it is not about child custody, it's not about probate... something like that?

Mr. Ducote: That's correct.

It's a simple diversity tort action.

Every tort action under diversity is a State and a local cause of action, just as this case is.

If these children had been, say, run over by their father by an automobile they would have Federal relief.

If they had been sexually molested, say, by their minister or by their schoolteacher, they would have a Federal forum.

Perhaps... and it's not clear under the Fifth Circuit's test where the line would be drawn, but perhaps if it had been an uncle... an uncle or an aunt or a first cousin who had molested them, they'd also be able to sue in Federal court under diversity of jurisdiction.

Why is it, then, that the Federal courts can abstain or simply refuse to hear a case because it's the father who's involved, and I submit that they can't.

I don't believe that the test of Federal jurisdiction is whether or not we want to get involved, when the Federal courts say I don't want to get involved because it sounds too much like a family matter.

The real question here--

Unknown Speaker: Well, but you... in your earlier answers to the chief justice you seem to be saying that well, if it were a family matter, that would be a different question.

As I understand, your position is if it were probate, if it were any traditional family matter, there would still be no basis for the Federal court staying out, right?

Mr. Ducote: --Well, one of the questions the court asked is whether or not there is a Federal... a domestic relations exception to Federal jurisdiction.

Unknown Speaker: That's right.

Mr. Ducote: My position is that if the diversity criteria are met and the amount in controversy exceeds the $50,000 threshold, no matter what the source of the money is, it should be within Federal jurisdiction unless Congress determines otherwise.

Unknown Speaker: So you can sue in Federal court for divorce.

Mr. Ducote: Well, I don't believe so, because divorce itself has no $50,000 threshold, nor does child custody, nor does child visitation.

If what is sued for is money, then yes, if the $50,000 threshold is met and the diversity criteria are met, the Federal courts have jurisdiction until Congress says otherwise.

Unknown Speaker: Well, what if a husband sues for a divorce and requests a property settlement agreement, saying that the amount of controversy, our property, amounts to several hundred thousand dollars.

Would that meet the jurisdictional amount for diversity?

Mr. Ducote: Unfortunately, at this point, given the fact that the Federal jurisdiction is defined by Congress and Congress is not exempted, that sort of question from the diversity of jurisdiction, I think to be true to the Constitution, yes, the Federal courts would have jurisdiction.

Unknown Speaker: We really don't have to decide that question, do we, to rule in your favor?

There could be a domestic relations exception which embraced divorce, child custody, and still did not extend as far as your case.

Mr. Ducote: That's absolutely correct.

Unknown Speaker: What about a suit for the partition of real estate in another State?

I mean, that, like divorce, has been considered traditionally a nontransitory cause of action, so you had to sue within the State where the property was.

If you sued in another State's courts you couldn't get it, but your position is you can sue in any Federal court for it.

Mr. Ducote: My position is that if the diversity criteria are met and the amount in controversy exceeds $50,000 and the State law that's applicable in the jurisdiction where the Federal court sits allows for that cause of action, the Federal courts under Article 3 and the congressional mandate under 28 U.S.C. section 1332 says that you have jurisdiction.

Unknown Speaker: Don't you think that that congressional mandate took into account accepted notions of transitory causes of action and nontransitory causes of action so that it was entirely understood that to get a divorce you could only sue in the court of the State where the people are resident?

Mr. Ducote: I think first you have to look at the State law, and whatever the State where the forum sits says about what can be done with property that another State would control.

Unfortunately, and as all of the Law Review articles and Judge Weinstein in the Spindel case point out, most of what the courts have said about the domestic relations exception have been on very weak grounding, that these things about well, ecclesiastical courts used to do this, and courts of equity didn't do this and all, just don't apply, and I think with the position, unfortunately, where we have to look at what the Constitution says about who decides what Federal courts have jurisdiction over and return the responsibility to Congress to sort through the problems that you're suggesting, I think as a matter of principle if the Federal courts can simply define their own jurisdictional boundaries we just have all sorts of--

Unknown Speaker: They're not defining their own.

They're just assuming that the congressional grant of jurisdiction, if not the constitutional grant of jurisdiction, took into account ordinary notions of nontransitory causes of action that could only be brought in certain courts.

What about criminal jurisdiction?

Can Federal courts try for State crimes?

The traditional notion is that no sovereign enforces the criminal laws of another sovereign.

Mr. Ducote: --I agree.

Unknown Speaker: Can a State attorney bring in Federal court a prosecution for a State crime?

Mr. Ducote: No, but in the diversity cases... and that's the unique nature of diversity jurisdiction... diversity jurisdiction specifically deals with local causes of action, local concerns, and simply says that because of this... in the Bullone case it's expressed, the concern about local prejudice, and then the... sort of the equal footing that nonState parties should have in that court, that the Federal courts should have diversity of jurisdiction.

Unknown Speaker: In some of our cases, Mr. Ducote, we've said that when Congress enacts a jurisdictional measure it takes it with knowledge of any judicial gloss on it, so to speak, such as Canon v. University of Chicago.

Now, this Court has been speaking about domestic relations exceptions to diversity jurisdiction since the turn of the century, and the Congress has revisited the diversity statute several times and never made any addition to it indicating that it disapproved of that exception.

Doesn't that suggest that your analysis is a little bit two-dimensional when you simply say well, we just look at the statute?

Mr. Ducote: Well, the Court... the last pronouncement was in the 1930's on the domestic relations exception, except for Thompson v. Thompson in 1988, when in a footnote the Court talked about the tradition of the domestic relations exception, and what I'm saying... and again, I don't think this is essential for us to prevail in this cause of action, but I think what we have to do is sort of pull that all back together and make some sense out of it and get back to the issue that Congress needs to set out what the parameters of Federal jurisdiction are and what are the exceptions.

And I think Congress did an excellent job of that in 1990 in the supplemental jurisdiction provision under 28 U.S.C. 1367, where the Court said... Congress said the Federal courts can have supplemental jurisdiction if this criteria is met, this criteria, and they may choose to decline supplemental jurisdiction if State law is uncertain or the issues are too complicated or for other good reasons.

So in that case, Congress specifically authorized an abstention, if you would, from jurisdiction, and I think that's really what we need to do so this doesn't spread further and--

Unknown Speaker: Is there any suggestion that that was done in the light of this Court's statement about the domestic relations exception?

Mr. Ducote: --I think it had to do with perhaps some of the other abstention doctrines, Younger v. Colorado Water District, but I think if we're going to have exceptions to Federal jurisdiction, or we're going to allow for abstention of Federal jurisdiction, then I think it should be by congressional mandate and not by judicial activism.

Unknown Speaker: Well, but these cases, speaking of the domestic relations exception, have been on the books... our books for a long time.

Are you saying we should overrule them?

Mr. Ducote: The specific issue in this case has never been addressed by the Court.

Unknown Speaker: Absolutely right, and one could easily say that those cases referred to things like seeking a decree of divorce, child custody, other nontransitory causes of action, and that therefore your case is not governed by them, but when you get into the more general area, it seems to me you're arguing for just a rather sweeping clearing of the brush, so to speak, which I'm not sure isn't inconsistent with all our cases.

Mr. Ducote: Well, I think the cases of Burrus and Barber and Popovici and De La Rama v. De La Rama have simply said in very broad brush strokes the relations between husband and wife, parent and child, belong to the States and we're not going to get involved in it, and those cases have sort of set up judicial chaos for 100 years in all of the circuits that have led to this sort of decision.

The fact that in 1991 a Federal district court can look at sexual abuse, a sexual abuse tort action and say that well, this is domestic relations under... citing Barber v. Barber in 19... I'm sorry, 1880, shows the extent to which this issue is still uncertain.

So I think yes, it... again, the principle is important that either Congress sets up the parameters of Federal jurisdiction or the courts do on an ad hoc basis, and that's the concern, but I don't think that's the most important issue here, because these kids should be able to sue in tort no matter who the defendant is if there's a cognizable State cause of action and the other criteria of the diversity statute have been met.

The other issue is the Younger abstention issue.

Unknown Speaker: Counsel, before you get to that point, suppose that in this case the mother was involved in the proceedings in the Louisiana domestic court and the court made findings of fact that the abuse had not occurred?

I take it that that would have operated as issue preclusion in the suit that you're bringing now.

Mr. Ducote: Under Louisiana law it would not.

Unknown Speaker: It would not.

Mr. Ducote: Louisiana probably has the most restrictive issue preclusion statutes in the country.

Unknown Speaker: I think that in other States it would, although I'm not sure of that, and if that's so then my next question would be if there would be issue preclusion going back the other way, if the tort were tried first, I assume it would not be a violation of due process at least for a domestic court, say, that this has already been litigated and it's going to accept those findings.

Mr. Ducote: I don't think so.

You know, very often in other contexts, for example in police brutality cases, it's not unusual for there to be State court proceedings and Federal court proceedings in the prosecution as well as administratively in any number of areas, so I think the law should not... or the rules of the game should not change simply because we're dealing with children or because we're dealing with sexual abuse and we're dealing with families.

I think one of the things that's happened in the courts is this issue is something that people haven't wanted to get involved in, and they've looked for a way to sort of get rid of it, and I think in another context, were it not a family context, those questions wouldn't even be raised.

And that's sort of what the district court does with the Younger issue and says well, you know, the State court permanently terminated this man's rights, therefore the State's interest in this case is obviously even more compelling than it would be in another case, and that's even more cause for us to keep out of it.

And I look at it and I say because his rights were terminated, if you apply the Younger rules the State's already finished with the case.

The man is a legal stranger, so it's even more compelling it should be in Federal court.

So again I think the rules have to be clarified... family, no family, whatever.

If it meets the criteria of the statute, unless Congress exempts it it should be adjudicated.

As has this Court said in Deakins v. Monaghan, the Federal courts have an unflagging duty to adjudicate cases that are properly in their jurisdiction.

Unknown Speaker: Mr. Ducote, was there any equitable relief sought in this case?

Mr. Ducote: Absolutely none.

It was straightforward tort action for compensation.

Unknown Speaker: It might be a different case if there were equitable relief.

I mean, would you have any problem with the Federal court using its power to decline to exercise equitable jurisdiction on the basis that family law matters, even more broadly than divorce and status and affiliation and so forth, shouldn't be addressed by Federal courts?

Mr. Ducote: I have no problem with that, and as Justice Kennedy discussed in the case of McIntyre v. McIntyre in the Ninth Circuit, when issues of status are not involved and the court... the Federal court has not asked to impinge on the State supervision of a minor and it's just simply an issue of compensatory damages, it's like every other case, and again we just can't simply say well, this is family business and we don't like to be involved in family business that--

Unknown Speaker: Counsel, I'm interested from a practical point of view.

What is the great attraction for you of a Federal court in Louisiana?

Mr. Ducote: --Well, I think there are two points.

One is that the Federal Rules of Evidence, because of not only the rules themselves but because of Federal court decisions in child sexual abuse cases, provide a better opportunity for the evidence that is available in this case to be presented to a jury.

The second question is the fact that one of the respondents is an attorney in this case who practices in the local State court where the case would have to be brought.

These are the traditional sort of concerns that are the underpinnings of diversity jurisdiction.

We think that these out-of-State plaintiffs having to go into a State court where one of the respondents is a practicing attorney might not receive as fair a shake as they would in the Federal court.

And if there are no other questions I would reserve the balance of my time for rebuttal.

Unknown Speaker: Very well, Mr. Ducote.

Mr. Weidenfeld, we'll hear from you.

Argument of Paul S. Weidenfeld

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

The first issue here is whether or not there is a domestic relations abstention to Federal court jurisdiction.

This Court since 1859 in Barber has stated that there is one.

Unknown Speaker: Mr. Weidenfeld, you just use the word abstention.

Did you mean exception?

Mr. Weidenfeld: I did.

I did, Your Honor... Mr. Chief Justice, excuse me.

Is there an exception to Federal jurisdiction for domestic relations?

This Court has said since 1859 there is such an exception to jurisdiction.

I think from 1859 to 1930, 71 years passed.

There were three intervening cases which reaffirmed that doctrine, and in 1930 Justice Holmes reaffirmed it yet again, allowing that doctrine to defeat the original jurisdiction of the Federal courts in matters involving consoles, and that was of course Papovici v. Agler.

Unknown Speaker: Of course, that general proposition doesn't give us the answer to this case, yet.

Mr. Weidenfeld: No, it doesn't Your Honor, but of course this Court has asked to address that issue, at least in brief, and I think that as a matter... it has to be accepted that there is a domestic relations exception to jurisdiction.

Either there is or there is not, and I suggest that there is, that Congress has had 130-some-odd years, 13 separate terms, to modify it, abolish it, do something to it, and they've never taken the opportunity to do so.

Unknown Speaker: Mr. Weidenfeld, do you think the exception which you would have us continue to recognize is based on the Constitution, or is it something statutory?

Can Congress change it?

Mr. Weidenfeld: I think that the exception goes back to the concept of the Tenth Amendment in that it actually was a matter not delegated to the Federal Government.

I think that the common understanding, as Justice Holmes said, was that domestic matters are matters unique to the States and belong to the States.

Unknown Speaker: So you don't think Congress could directly address this, and for instance in the parental kidnapping case direct Federal courts to have jurisdiction of certain family related matters?

Mr. Weidenfeld: The common understanding at the time was that matters domestic... that is, matters involving parent and child, husband and wife, were excluded from the jurisdiction of the Federal courts in that--

Unknown Speaker: Yes.

Would you answer, though, the question I asked?

Do you think Congress can enact laws such as the parental kidnapping case and give Federal courts jurisdiction over matters that do relate, in a sense, to family matters?

Mr. Weidenfeld: --Well, I think that--

Unknown Speaker: Yes or no.

Mr. Weidenfeld: --No, not as it stands, and this Court has found that it did not, of course, in Thompson v. Thompson.

I would make a caveat to my no, and that is, is a kidnapping act a domestic matter, is the question.

That is, how far does the... how far is there the exception to jurisdiction?

What is excepted from jurisdiction... what domestic matters?

What constitutes a domestic matter?

I think what constitutes a domestic matter--

Unknown Speaker: --you're pressing for an exception to Federal jurisdiction.

Would it be correct to say that we're really talking about abstention rather than exception?

Mr. Weidenfeld: --No, not in the context of the domestic relation exception to jurisdiction.

I'm talking about abstention in relation to Younger, but not in relation to the... if domestic matters are excepted from jurisdiction, then it's not an abstention doctrine.

Then there either is jurisdiction or there is not.

Either it is a matter domestic, or it is not.

Unknown Speaker: Well, they certainly are different, but I'm wondering if all through the years we're really speaking of the Federal courts abstaining from getting into this area rather than formulating a nonstatutory exception, so to speak, to diversity jurisdiction.

Mr. Weidenfeld: Well, the... the broader concepts I think lead to the same place.

The broader concepts are the interrelationship between the Federal Government and the State governments, so that gets to the same place, but this Court has spoken about domestic relations as an exception itself to jurisdiction, so the question is what makes it domestic?

If it is a matter reserved to the State, what makes it domestic, and my answer is that you have to look to the States and have the States created... and do the States give us guidance, and they do.

Unknown Speaker: Well, isn't it dangerous to read into the Constitution what isn't there, to wit, a domestic relations exception to Federal jurisdiction, and aren't we on sounder ground if we were talking about abstention, as maybe the Court should have done over the years?

Mr. Weidenfeld: Well, it is always dangerous to read things into the Constitution.

I think that this Court has decided, or at least has held, that it is jurisdictional, and Congress has never decided to take that position on.

If it... if this Court wishes to rephrase the language and call it abstention, that is something that it can do, but the object is that if it is abstention... whether it's abstention or jurisdiction, although this Court calls it jurisdictional, we have to get to how do we define what a domestic matter is?

The States have defined what domestic matters are.

The States have significant rules that abridge the rights of individuals to sue within the family unit.

Fathers cannot sue their wives, cannot sue mothers.

Children cannot sue their parents.

It was incorrect for counsel to say that had John Richards run over his daughter, she could have sued him in State or Federal... in Federal court because he was her father, if it happened while he was her father.

Unknown Speaker: But that really is a question of what law is applicable, isn't it, rather than whether there's jurisdiction?

I mean, if that is the rule in Louisiana, presumably the same result will obtain on the merits no matter whether it's in the State court or in the Federal district court?

Mr. Weidenfeld: That's correct, Your Honor, my point being that the States have... that each State has its own set of rules involving parent... the domestic harmony, and the results that involve the interrelationship between spouses and between parents and children.

The Federal courts and the Federal Government has always deferred to that for the simple reason that domestic matters are unique to the States.

Unknown Speaker: Well, we may have deferred to it, but it doesn't make it jurisdictional, does it?

Mr. Weidenfeld: Well, by this Court's phrasing of the... by this Court's prior determinations that domestic matters are jurisdictional, the question that leads to is, is it a domestic matter, and how do we decide if something involves the domestic relations.

That's how it seems to come to me, and when you're deciding is something a domestic matter or not, you have to see it's going to be the same considerations as in an argument that involves comity, that involves Younger v.--

Unknown Speaker: So you think it's... your criterion of what is domestic looks to the State law of capacity, is that what you're saying?

Mr. Weidenfeld: --I'm saying that's a factor.

I'm saying... yes to the extent that you look to, not just Louisiana, all States have very particular rules as between suits between spouses and suits between children.

In fact, the common law I think until this century did not permit... well, I know until this century, did not permit suits as between spouses, nor did they permit suits as between parent and child.

They simply didn't permit it.

So they have taken control... they have wrested control of this area, of the area involving parent and children, husband and wife, without any question by anybody, and the reason is because it is a matter uniquely unto the State, so you look narrowly at an individual law, but the scope, these... the areas involving suits between children, or suits between spouses, or a child and their father, are a matter of the domestic relations.

The considerations have always been domestic... the harmony of the family and the peace of the family.

Unknown Speaker: So in any case these are sort of pointers as to what presumably the Court may have had in mind and Congress may have had in mind perhaps in ratifying what we did, but you're not making the argument that every State law with respect to capacity is jurisdictional--

Mr. Weidenfeld: No.

Unknown Speaker: --With respect to Federal jurisdiction.

Mr. Weidenfeld: No, Your Honor, I'm not making that argument, and I'm not making the argument that any tort involves... is domestic.

I think that's a matter for the sound discretion of the Court.

That's a matter that the district judge has to look at and say, is this a domestic matter?

When you get to the heart of it, are we talking about a matter that will be domestic, and if so, then we don't handle it because the Federal courts never have handled domestic matters, and I don't think that Judge Arceneaux's discretion should be overturned, that he made an abuse of that discretion.

Unknown Speaker: If a wife kills her husband somehow in violation of Federal law is it your position that a Federal criminal court could not entertain the suit because that involves domestic matters?

Mr. Weidenfeld: I have not addressed the interplay between the--

Unknown Speaker: I know you haven't.

That's why I asked you the question.

Mr. Weidenfeld: --Would you repeat the question, Your Honor?

Unknown Speaker: If a wife kills her husband in some manner that violates Federal law, using a handgun that's been carried interstate or something like that, is it your position that there can be no Federal prosecution because it's a domestic matter?

Mr. Weidenfeld: No.

Unknown Speaker: Well, why is that different from a tort in which a wife hits her husband, and then the next question is going to be why is that different from a tort in which a father hits his son?

Mr. Weidenfeld: Because Congress has made that a crime.

Congress has specifically stated that it's a crime, and I don't think that the common understanding that Federal crimes... that crimes that occurred at the time of the Constitution, if it was a Federal crime it would have been in Federal court, domestic or otherwise.

Unknown Speaker: This is not a spouse-killing Federal crime, it's a general Federal criminal statute.

You cannot... you know, any crime committed with the use of a handgun that's been carried interstate, and it so happens that a wife kills her husband in violation of that statute.

It's not a specific Federal spousal statute.

Mr. Weidenfeld: But there's... the answer is there has never... at least my answer is there has never been any case that has excluded that as a matter of being a domestic case, whereas there have been in the civil arena.

Had there been such a case, it is my guess that Congress would have looked at it and said you have extended the domestic relations doctrine a bit far.

It is a... if it's a Federal offense, then the Federal criminal courts should handle that matter.

Unknown Speaker: May I ask you, among these cases... I'm just not as familiar as I should be with the earlier cases.

How many of the earlier cases was jurisdiction sought to be invoked on the basis of diversity of citizenship?

Are there some?

Mr. Weidenfeld: No... No, Your Honor.

Unknown Speaker: They were... under the Popovici case they were trying to... suing under Bassett or something or something like that, wasn't it?

Mr. Weidenfeld: Under the original jurisdiction of the Court, and In re Burrus it was a habeas case--

Unknown Speaker: Right.

Mr. Weidenfeld: --In Simms and De La Rama, they were both cases that emanated from the territories.

Unknown Speaker: What is your answer if a child is battered, receives severe injuries and sues for medical payments, sues the father through a next friend?

Mr. Weidenfeld: In Federal court?

Unknown Speaker: Yes.

Mr. Weidenfeld: Is it during... the tort occurred during the existence of the marriage?

Unknown Speaker: Yes.

Mr. Weidenfeld: Then it's going to be a matter--

Unknown Speaker: This is a child suing the parent.

Mr. Weidenfeld: --That would be a matter that would go to the... that would fall within the domestic relations exception and it should go to State court as a part of the State court's unitary system that involves their special interest in the family, because when you're dealing with the family, that is a matter that is uniquely the State's concern... the health and well-being of the domestic harmony of the families within it.

I don't think... I think it goes without saying that the State's interest in the family as a unit is strong and is unique and is very basic to the sovereignty of the State.

In support of that interest, what the States have done is they have... or various States have done it in various ways but they have tried to come up with a unitary way or means of dealing with matters that evolve from domestic disputes.

So that there is the juvenile court system, there is the divorce and custody... as in fact in this case.

This matter ended up in criminal courts, in two separate criminal courts, in a juvenile court, in a custody court, and three separate court of appeals.

There's... the State has recent... the State of Louisiana at least has recently brought together all their juvenile court laws into a 700-page tome and each State, each State in this country is trying to do the same thing.

They're trying to bring together the laws and treat it in a unitary way.

The factors that are always in support of comity, of the doctrine of Younger v. Harris, is that you don't want to disrupt this unified body.

You don't want to risk the Federal courts giving de novo trials after State matters.

The normal circumstance in which this case is going to come to a Federal court is not from the winning party but from the losing party.

The losing party in the State action is going to try and relitigate the matter through the Federal courts.

That's the normal way in which this case... this is the usual way in which this case is going to come to the Federal courts.

That's the way it's going to come in all... in most other cases, to use the United States district court as a court of review for fact-finding unfavorable to the person while they were in the State.

Unknown Speaker: Mr. Weidenfeld, a few minutes ago you were asked by Justice Stevens whether there had been any cases sounding of diversity jurisdiction in which this statement as to the domestic relations exception had been announced.

What do you conceive the basis of the Federal jurisdiction to have been in the case of Barber v. Barber?

Mr. Weidenfeld: That was diversity, Mr. Chief Justice.

I apologize.

That was the enforcement of an alimony decree, and that was in--

Unknown Speaker: Yes, and that certainly suggests that even back then, December term 1858, that the Court saw definite limits to the domestic relations exception, doesn't it?

I mean, didn't they allow there the enforcement of a New York judgment for alimony?

Mr. Weidenfeld: --Yes, they did, Mr. Chief Justice, and the... so that yes, I agree that there is a limit to it.

It does not go forever.

You have to draw a line somewhere, and how do you draw the line, and who draws that line, and I suggest... the way I would suggest that the line be drawn is whether the matter sued upon occurred during the existence of the... during the marriage, because if it occurred during the existence of the marriage, those are the matters in which the State has taken a particular interest.

If it's something that occurs after the marriage, then there's not going to be any revisitation of any of the facts around the divorce or around the custody decrees or around the alimony decrees.

If it occurs... that's if it occurs after the marriage has terminated, but if it occurs before the marriage has legally terminated, as happened in this case, then all of those factors, all of those actions are going to be... are involved in the divorce case itself.

Unknown Speaker: But Mr. Weidenfeld, the State court is through with this case.

It's awarded custody to the mother, the marriage is terminated, only money damages are sought.

It seems to me this is a perfect case for Federal diversity jurisdiction.

Mr. Weidenfeld: Justice O'Connor, these cases never end.

The custody of the children is always, in all instances, subject to review, so much so that for a long time custody judgments were not even considered final judgments for the purpose of full faith and credit, so the case never ends.

If in this case we come and there is a jury interrogatory which determines that no abuse occurred... and no abuse did occur.

These are allegations.

There has never been a full and... a true and full hearing in this matter.

I mean, the only hearings have been where Mr. Richards was unable to present a defense because he was about... because he had criminal charges hanging over his head and elected on advice of counsel not to expose his defenses.

But when there is a full-blown hearing, a full trial, and then the facts are revisited, or actually in this instance visited at the first instance and the factors that come out show that no abuse occurred, or that the abuse occurred at the instance of the mother, or that... or for whatever other contradictory verdict comes down, someone... it may not be Jon Richards because his parental rights have been terminated, but someone is going to go back to the State court, or someone ought to go back to the State court and say is the best interest of this child such that we should not now revisit this in light of all the evidence which has finally come to bear?

Unknown Speaker: In Louisiana, is it open to a third party stranger to come in and reopen a question like that?

Mr. Weidenfeld: Well, it is always a matter that's open.

The State represents the children, and often cases it's the State taking away children as against both parents, so the State would have the responsibility, I would suggest, to reopen that matter.

Unknown Speaker: In another sense that doesn't help you, though, because if the Federal court enters a judgment making certain findings as, let's say the child abuse did occur, if the proceeding is always open in Louisiana and if Louisiana does not give preclusive effect to that determination, the jurisdiction of the Louisiana court remains unfettered and unconstrained by the Federal judgment.

Mr. Weidenfeld: That's... that would be correct, and what... but what would happen is you now have the Federal courts telling the State courts that we don't... that really you haven't done it correctly.

You've come to the wrong result.

You need to relitigate this matter.

Unknown Speaker: But the State court is just as free as it would have been if there had been no Federal proceeding at all, as I understand both your submission and that of your opposing counsel.

Mr. Weidenfeld: That's correct.

Unknown Speaker: Well, couldn't... are you agreeing that you could not claim collateral estoppal, an offensive use, let's say, of collateral estoppal in a State court if the State proceeding is left open and there has been a determination and judgment in the Federal proceeding?

Mr. Weidenfeld: That there'd be no collateral estoppal as between the State proceeding and the Federal proceeding?

Unknown Speaker: No, the other way around.

Let's... I thought you were saying the State proceeding is never closed, so there's no judgment and therefore no preclusive effect running from the State proceeding binding on the parties in the Federal proceeding, but if the Federal proceeding goes to judgment and the State proceeding is always open, one could make, I presume, either offensive or defensive use of collateral estoppal if one reopens the State proceedings based on findings of fact made in the Federal tort action.

Mr. Weidenfeld: That... yes, that's correct.

Unknown Speaker: Okay.

Mr. Weidenfeld: And what would happen is that... and then you see what happens.

A party loses in the State and says well, wait a minute, since I can reopen this matter, I'm going to hop over into the United States district court to relitigate my case because I have a friendlier... I perceive myself to having a friendlier forum there.

I have more favorable laws, as is suggested, and so I get to redo the whole case, which you wouldn't be able to do in the State court.

Unknown Speaker: But Mr. Weidenfeld, there are a lot of tort actions that could have an effect on a custody decree.

I mean, a tort action by a total stranger against the mother who has been given custody on the ground that she was a drunken driver and injured... or on the ground that she was violent and whipped the plaintiff's child, I mean, that would be an indication in the State courts, wouldn't it, of the mother's incapacity or unsuitability to have custody of the child?

Now, is that tort suit to be disallowed in Federal courts as well because it might have a collateral estoppal effect on the State custody proceeding?

Mr. Weidenfeld: No.

My test is whether or not it occurred during the existence of the marriage and it involves the State interests vis-a-vis parent--

Unknown Speaker: Well, I know that's your test because it fits your case, but I don't know why the one is any more logical than the other.

Mr. Weidenfeld: --Well, the State has no interest or no involvement in the other, per se.

I know that this Court has never extended Younger to a diversity case and... but I suggest that the State interests are the same as in a diversity case, and the Federal interests if anything have decreased.

Unknown Speaker: But for Younger, even in the criminal context there has to be a pending proceeding, doesn't there, a pending proceeding in the State court?

Mr. Weidenfeld: There does, and I think that the pending proceeding is the... and this is a stretch which I admit, but the pending nature of the proceeding is that custody is always pending, is always on-going, because the State's interest never ends.

Unknown Speaker: Well, we don't need a domestic relations exception then, if we have that sort of an abstention doctrine.

It's to accomplish exactly the same purpose.

Mr. Weidenfeld: I agree with that.

I agree absolutely with that.

I mean, the same purpose can be achieved in either way, and I think the purpose ought to be achieved, and the purpose that ought to be achieved is that the State... that the Federal court in this instance is not to be used by disgruntled litigants.

In this case they're not a disgruntled litigant, but that's what's normally going to happen, to be used to review or revisit or to gain some advantage.

I don't think that that's the purpose of the Federal courts.

Unknown Speaker: Counsel, one question for clarification.

Let's assume that the domestic relations exception applies to the father, respondent Richards.

How does it apply to his companion, respondent Kesler?

Mr. Weidenfeld: It would not... well, in two ways.

One, she is in effect the co-respondent, and there is the eternal triangle.

It's a domestic matter.

It's a three-edged sort of triangle... mother, the new girlfriend, and the father... so in that sense... and in Louisiana you couldn't marry a proven co-respondent, but I think the easier way that it works is that once it's... once it is Jon Richards, if that... if there's no jurisdiction in that case, then the girlfriend, as opposed to having them in two instances, you come very close to a Colorado River type situation where you've got litigations in parallel jurisdictions and it would... the duplication of resources, it wouldn't make sense to have the two, so the one would... the one against the girlfriend would come back over to the State.

I would only close by saying that there needs to be some way to determine what is a matter that is domestic, and I think that that ought to be a matter that goes to the discretion of the court, of the trial court.

They're in the best position to make that determination, and that Judge Arceneaux in this instance did not abuse his discretion.

Thank you.

Unknown Speaker: Thank you, Mr. Weidenfeld.

Mr. Ducote, you have 11 minutes remaining.

Rebuttal of Richard Lynn Ducote

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

I think there are a number of situations where a State court action can result in a Federal... or the facts that result in a State court action can result in a Federal action, and we don't have all of this fear.

For example, you can have a criminal conviction in State court and then a tort action among the same players, the perpetrator and the victim, and if there's a decision in the Federal court action based on diversity that is contrary to the State court criminal proceeding it's no basis to go back and reopen the criminal court proceeding.

Just as in this case, this man's parental rights were terminately and unalterably and permanently terminated in an unappealed final decision.

That's it.

The case is over.

Unknown Speaker: He could never get custody back.

Mr. Ducote: He would have no right of action under State law because he's a legal stranger to the children.

The case is over and done with.

Now, people can go into domestic court on all sorts of reasons and try to reopen cases.

The fact that people can attempt to do things doesn't mean that the whole constitutional and congressional grant of jurisdiction should then tremble and say well, you know, this might happen, this might happen and this might happen.

He's over and done with as far as the children are concerned as a matter of State law.

Unknown Speaker: Well, most... all of us I guess react by where our own practice was.

Where I practiced, you could... you would... a father who was denied custody could have some years later come back in and moved to reopen that saying look, the mother is not proving to be a good custodian, there are new facts available, the money is situated differently, the child is now 14 years old and expressed a desire to live with me, and the decree would be reopened.

That doesn't happen in Louisiana.

Mr. Ducote: Well, commencing about the 1970's virtually every State has enacted termination of parental rights statutes because of the child abuse problem.

The denial of custody is different than what happened here.

This is a permanent termination of all parental rights, meaning he doesn't even have the right as another parent would to come in and seek custody.

He's not on the same footing any more, and he's permanently enjoined from any contact.

Unknown Speaker: Would you be here making the same argument if instead custody had been awarded to the mother but no termination of parental rights?

Would you still think that the Federal courts should entertain the tort action?

Mr. Ducote: Certainly.

I don't think that has any bearing.

I think that made this a clearer case for review because his parental rights were terminated, but I don't think that in and of itself has any bearing because, as Justice Blackmun questioned, is this an exception, or is it abstention, and if it's going to be abstention, then it has to be one of the abstentions that the Court has recognized... Younger, but again doesn't apply because there are no pending State actions.

So again if it meets the diversity criteria and it's a diversity case, then the Federal court has to do what Congress says it's supposed to do... hear the case, decide on the merits, award damages, don't award damages, whatever the jury decides, and what happens in the State court proceedings will happen, and that's to be dealt with separately.

If there are no other questions--

Chief Justice Rehnquist: Thank you, Mr. Ducote.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

United States v. R. L. C. - Oral Argument

Fri, 09 Jan 2009 14:49:36 +0000

Case:

United States v. R. L. C.

Media File:

90-1577_19911210-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul J. Larkin, Jr.

Chief Justice Rehnquist: We'll hear argument now in 90-1577, United States v. R. L. C..

Mr. Larkin.

Mr. Larkin: Thank you.

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

This case involves an interpretation of the Federal Juvenile Delinquency Act in the Sentencing Reform Act of 1984.

At issue is the meaning of the commitment provision under the Federal Juvenile Delinquency Act.

That statute provides in part as follows, and is reprinted at page 2 of our opening brief:

"The term for which official detention may be ordered for a juvenile found to be a juvenile delinquent may not extend, in the case of a juvenile who is less than eighteen years old, beyond the lesser of the date when the juvenile becomes twenty-one years old; or. "

--and here is the pivotal part of the statute...

"the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult. "

Unknown Speaker: I knew we were in trouble when they said or.

I mean, that's ungrammatical right there, isn't it?

Mr. Larkin: Well--

Unknown Speaker: You know it's poorly drafted.

It should be lesser of something and something, not lesser of something or something.

Mr. Larkin: --If they poorly drafted it by putting in the or, they at least drafted what comes after the or with sufficient clarity, we believe, to make clear that the Eighth Circuit misread it in this case.

The question here is whether that part... the last part of the statute that I just read, the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult... is the statutory maximum term authorized by Congress or is the maximum sentence that can be imposed under the sentencing guidelines.

Put another way, the question in this case is whether the sentencing guidelines fix the maximum term of imprisonment, even though the sentencing guidelines themselves do not apply to juvenile delinquency proceedings.

Unknown Speaker: Another way to put it I suppose, Mr. Larkin, is whether the sentencing guidelines authorize a term of imprisonment any higher... or whether the judge is authorized to impose a sentence in excess of that permitted by the sentencing guidelines.

Mr. Larkin: Well, the judge is always authorized to impose a sentence if the statute allows a sentence of imprisonment to be imposed, but 5037, in our view, does not in any way incorporate the sentencing guidelines.

Unknown Speaker: No, that isn't my question.

Is a sentence... is a district... say you've got a case in which the maximum sentence is 3 years, but the maximum sentence under the sentencing guidelines would be 2 years, is a district judge authorized to impose a sentence of more than 2 years?

Mr. Larkin: Yes.

Unknown Speaker: Oh, he is?

Mr. Larkin: We clearly think the statute--

Unknown Speaker: Wouldn't it be reversible error?

Mr. Larkin: --The statute authorizes--

Unknown Speaker: No, I understand the statute authorizes, but is the judge authorized to impose more than 2 years in that hypothesis?

Mr. Larkin: --Yes, because the statute is what governs in this case, not the sentencing guidelines at all.

Unknown Speaker: But would it not be reversible?

I'm talking about an adult, not a juvenile.

Mr. Larkin: Oh, I'm sorry.

My... I thought you were referring to juveniles.

Unknown Speaker: No, no, no.

I'm talking about an adult.

I'm saying in the case of an adult, would the judge be authorized to impose a sentence of more than 2 years?

Mr. Larkin: Yes.

That is still true, but the reason is... is a little different.

Unknown Speaker: I understand, but the question... the simple question, yes or no question, would the judge be authorized to impose a sentence of more than 2 years?

Mr. Larkin: Yes, the answer is yes.

The reason is, the guidelines do not provide authority to impose a sentence.

We think that's an important distinction between the way we look at the statute and the way the court of appeals did.

Unknown Speaker: But you would agree it would be reversible error were the judge to do that.

Mr. Larkin: No, I would not, because the statute, if you... the statute dealing with adult sentencing--

Unknown Speaker: I'm talking about an adult sentencing.

Mr. Larkin: --Right.

The statute dealing with adult--

Unknown Speaker: You're saying there would not be reversible error for a judge to impose a sentence higher than authorized by the sentencing guidelines?

Mr. Larkin: --Well, I would say two things in response to what you just said.

First, it would not necessarily be reversible error, and secondly, the guidelines do not authorize the sentence to be imposed.

Unknown Speaker: I understand that argument, but why wouldn't it be reversible error?

Mr. Larkin: Because if you look to 18 U.S.C. section 3553, subsection (b), it says that a district court should impose a sentence within the guidelines range that the Commission has set out, unless the Commission... excuse me, the district court were to find an aggravating or mitigating factor--

Unknown Speaker: No, but I'm assuming a situation in which you make all the proper analysis and you either conclude there is no aggravating circumstance, or you conclude that, even with the aggravating circumstance included, a proper application of the sentencing guidelines, the maximum that the... judge... the sentence the judge could impose would be 2 years, and you're telling me he is authorized to impose a higher sentence.

Mr. Larkin: --I would say yes, because the term authorized here is one we use--

Unknown Speaker: Would you also say it was not reversible error to do so?

Mr. Larkin: --No, if... under those circumstances, it would be an error to impose that sentence in this case, but it would still be a sentence that would be authorized.

Unknown Speaker: So you're saying he's authorized to commit reversible error.

Mr. Larkin: No.

A judge who imposes a sentence, for example, without first giving the defendant the opportunity to engage in--

Unknown Speaker: No, no, no, no.

Forget all the procedures.

All the procedures are complied with.

The sentencing is accurately computed, as the maximum under the guidelines is 2 years, and I thought you said if he imposed more it would be reversible error.

Mr. Larkin: --It would be an error, but it would not... but it's, we think, an incorrect use of the term, authorized.

Unknown Speaker: Well, I understand all that.

I'm just trying to get an understanding of what... but you would agree that it would be reversible error if he did it.

Mr. Larkin: Yes.

Unknown Speaker: But you are therefore saying he is authorized to commit reversible error.

Mr. Larkin: If you want to put it that way, Your Honor, I will be glad to go along with you.

Unknown Speaker: Okay.

That's all I wanted... it was rather obvious, but I had a hard time getting out of you.

You're a very good lawyer.

Mr. Larkin: Let me continue just... and briefly summarize the facts and procedural posture, because both are very simple.

Shortly after midnight on the evening of November 5, 1989, LeTesha Mountain was killed when the automobile in which she was driving was hit from the rear by a stolen automobile, driven by respondent.

The district court, after a hearing at which respondent was represented by counsel, concluded that his conduct amounted to involuntary manslaughter and that respondent was a juvenile delinquent.

There followed a commitment hearing at which the district court considered a variety of matters such as respondent's drinking problem, the possibility of his rehabilitation, and the juvenile facilities available for detention.

After that hearing, the district court sentenced respondent to 36 months' confinement.

On appeal, the Eighth Circuit vacated the sentence and remanded it for resentencing.

The court acknowledged that the sentencing guidelines did not apply to juvenile delinquency adjudications.

The court nonetheless ruled that using the sentencing guidelines to define the maximum sentence that could be imposed on the juvenile under section 5037 would eliminate any unwarranted disparities that could arise between the sentencing of juveniles and adults in the Federal courts today.

The Eighth Circuit believes that the legislative history of the Comprehensive Crime Control Act of 1984 made clear that Congress didn't intend for such disparities to exist.

Finally, the Eighth Circuit also relied on the Rule of Lenity.

Now, we believe that the Eighth Circuit misread the statute.

In our view, the pivotal part of the statute, the phrase dealing with the maximum term of imprisonment that would be authorized if the juvenile were tried and convicted as an adult, refers to the statutory maximum term and not to the maximum sentence that would have been imposed under the sentencing guidelines.

And we think part of the reason--

Unknown Speaker: Well, Mr. Larkin, why do we have two separate things, a statutory maximum and sentencing guidelines?

Were they... was the statutory maximum enacted before the sentencing guidelines came into effect?

Mr. Larkin: --The statutory... yes, Your Honor, the statutory maximum for involuntary manslaughter is 3 years.

Unknown Speaker: When was that enacted by Congress?

Mr. Larkin: I don't know the precise year, but I know it was before November 1 of 1987, which is the date that the sentencing guidelines went into effect.

My guess is the statutory maximum, Your Honor, would have been enacted a very long time ago because it's part of the series of laws dealing with homicide, which probably extend back into the 19th century at some point.

Unknown Speaker: Well, that really is your very simple issue in the case.

Mr. Larkin: It is, Your Honor.

We think it's a simple and straightforward issue.

We think that it is erroneous to look at the statute in the way the court of appeals did.

The Eighth Circuit assumed that the sentencing guidelines authorized the maximum term of imprisonment that could be imposed, but the sentencing guidelines do not authorize punishment to be imposed at all.

Perhaps the most elementary principle of Federal criminal law, one stated in this Court's very first Federal criminal law case, the case of United States v. Hudson and Goodwin, is that only an act of Congress can authorize imprisonment as the punishment for crime.

The Sentencing Reform Act carries through that principle.

When Congress adopted the Sentencing Reform Act--

Unknown Speaker: Excuse me, I thought your argument was that the authority is in one place and the guidelines are just a limitation upon that authority, but that's not your argument.

You're relying upon the fact that it's a different person, not the Congress personally?

Mr. Larkin: --No, Your Honor.

My point... I think I haven't changed it... is that it is an act of Congress that can authorize imprisonment, and when Congress used that term in conjunction with, for example, the maximum term of imprisonment, what the statute is most naturally read to refer to is the maximum term of imprisonment authorized by a statute, since it's only a statute that can authorize imprisonment.

The guidelines do not authorize imprisonment in that respect.

Unknown Speaker: Yes, but they do limit the authority of the judge to impose sentences, don't they?

Mr. Larkin: They establish procedures that the judges must go through--

Unknown Speaker: They also impose limits.

They impose limits on the period of time that can be imposed, don't they?

Mr. Larkin: --In that sense they limit the judge's proper exercise of the authority that is given him by the statute, but it is still--

Unknown Speaker: But don't they limit the scope... or don't they limit the scope of his authority?

Mr. Larkin: --They can limit the scope of his authority in the way that we discussed earlier.

Unknown Speaker: Sure.

They limit it to 2 years instead of 3.

Mr. Larkin: But it is still, we think, incorrect to look at having... that the district court is vested with that authority by virtue of the guidelines.

It works in the other direction.

The statutes gave the district court that authority long before the guidelines came into existence, and the guidelines are simply designed to regularize the process of exercising that authority.

Unknown Speaker: If you had a statute that said you get 10 years for a particular crime and then you have a later statute that says, however, if the crime is committed on a Sunday 10 years will not be imposed; you can only impose 5, then it would be the 10-year statute that authorizes the penalty and we would disregard for purposes of this provision the 5-year statute, because that just limits the prior authority.

Mr. Larkin: Well, in both case, Your Honor, the common denominator was they were both statutes, and Congress, if it wants to, can say, I'm authorizing you to sentence a defendant on Monday through Saturday to 10 years, and in a second statute, I'm authorizing you to sentence a defendant on Sunday to 5 years.

They're both statutes.

Unknown Speaker: That's what I said before.

You're relying on the difference between Congress and the Commission, not on the difference between authorizing and limiting an authorization.

Mr. Larkin: Well, the latter, Your Honor, I think is reflected in the former.

When Congress created the Commission it didn't authorize the Commission to set maximum terms of imprisonment.

What the Congress did was give the Commission the authority, if you will, to define presumptive ranges of sentencing.

That's reflected in section 3553 of title 18.

The Sentencing Commission does not have the authority to deal with the maximum or minimum sentences that Congress has posed--

Unknown Speaker: And I suppose that while the judge is free to escalate the term beyond the norm if there's an aggravating circumstance, he can't go above the maximum term set by statute.

Mr. Larkin: --Correct.

As a matter of fact, this Court made that point in the Mistretta case in a passage that we have quoted on page 13 of our opening brief.

The Court there made clear, as the statutes themselves made clear, that every sentence the Sentencing Commission designates as a sentencing range must be within the range of sentences that Congress has authorized in the statutes that form title 18 and the other parts of the United States Code.

Unknown Speaker: Mr. Larkin, it really seems to me you can use authorize either the way you're using it or the way Justice Stevens is using it.

I mean, you can say he's not authorized to impose any more than the guidelines permit.

That's why we reversed the judge.

I mean, it's permissible to use it both ways.

Mr. Larkin: But it is not--

Unknown Speaker: Just make believe that I think it's... that it bears both meanings, okay.

If I believe that, why shouldn't I apply the Rule of Lenity and say, you know, where you can bear either meaning you take the more lenient meaning.

Mr. Larkin: --Because that's not the most natural meaning of the statute.

The meaning we've put forward is the one this Court has used in its own cases, as we've mentioned in our brief.

While it may be true that the term "authorized", if you will, has within it a broad range of meanings, the one we're putting forward is the most natural one, and it's the most... particularly the most natural one when you look at the clause as a whole.

It refers to the maximum term of imprisonment that would be authorized.

Unknown Speaker: But you're assuming it reads as though it were written "would be authorized by statute".

If they'd put the words "by statute" in, there could be no doubt about the meaning.

Mr. Larkin: Well, there is always a possibility of making any statute clearer.

Unknown Speaker: Well, not the one I've drafted.

You can't make it any clearer than I've just made it.

Mr. Larkin: Well, the one... their version of the statute should read as follows: the district court should not impose a sentence greater than the same sentence that would have been imposed on an adult, if he had been tried and convicted as an adult.

Unknown Speaker: No, not that would have been imposed.

Then the judge could have imposed without committing reversible error.

Mr. Larkin: Or that could have imposed without committing reversible error, if you will.

Unknown Speaker: Right, which is quite different from would have been imposed, because it's a maximum.

Mr. Larkin: Well, and that we think strengthens our interpretation a little bit, because what you're referring to is the possibility, the range... the sentence that Congress had set forward that existed prior to November 1 of 1987 and prior to 1984 when the Sentencing Reform Act was adopted.

What you have here in essence is this: for almost 100 years there have been two types of criminal justice systems.

There's been a juvenile justice system that's reflected here in the sections beginning with 50--

Unknown Speaker: But didn't that all change with the Sentencing Reform Act?

Mr. Larkin: --No, it didn't, Your Honor.

In three ways Congress made clear that the sentencing guidelines do not apply.

Unknown Speaker: Well, but the guidelines don't apply, but the basic system changed.

Mr. Larkin: Well, no, Your Honor.

It changed with the limitation that it changed for adults.

That's what Congress did.

In fact--

Unknown Speaker: But when was this statute adopted that we're construing today, in the same act, wasn't it?

Mr. Larkin: --It was readopted in that, but when it was readopted it wasn't readopted with the purpose of making the same sentencing system as applicable to adults applicable to children.

Unknown Speaker: No, but it seems rather anomalous to say they wanted uniformity of sentencing across the board with one exception, that juveniles can get a more severe sentence than adults.

Mr. Larkin: Well, Your Honor, respondents made that argument.

We think they're assuming the conclusion.

They're assuming that Congress wanted uniformity across the board to include juveniles, and it's our view that Congress did not.

Congress, for example, in section 995, subsection (a)(19) of title 28, which deals with the powers of the Sentencing Commission, said that the Sentencing Commission has the power by a majority vote to... to study the feasibility of developing a guideline sentencing system for juveniles.

That is not simply one indication that the sentencing guidelines don't apply to juveniles.

It also represents the fact that Congress was asking the Sentencing Commission for guidance in this regard.

After all, you had a discretionary sentencing system before for juveniles and for adults, and Congress saw that there were terrible problems that had arisen in the adult criminal justice system.

It decided that a sentencing guidelines mechanism was the way of reducing those disparities, and it directed the Commission to adopt a sentencing guidelines system to eliminate those disparities.

But this section I've just cited to you, which is excerpted in footnote 1 in our opening brief at pages 10 to 11, is strong proof that Congress didn't believe that it needed at that time to address the problems of the juvenile justice system.

That's one of the reasons that Congress is... indicated that juvenile justice system sentencing mechanisms with only one minor modification should remain as they were.

The minor modification is a second reason why the guidelines don't apply.

If you look to section 1537(a) of title 18, one of the sections... subsections immediately preceding the one I quoted, you'll see that Congress said that at juvenile commitment proceedings a district court should consider any pertinent policy statements that the Sentencing Commission has adopted, and to date the Commission hasn't adopted any.

Unknown Speaker: Mr. Larkin, that second statute that you refer to on page 11 in the footnote, I agree with you that it does make it clear that the Congress did not intend the guidelines to apply to juveniles, but that's not the issue here, that the guidelines will apply to juveniles.

It's a quite different issue... whether the maximum of the guidelines will be the maximum for a sentencing of a juvenile, and that's quite different.

Mr. Larkin: Well, it's not quite different, Your Honor.

At most, it's only slightly different, for two reasons.

First, as I've tried to summarize, what it does indicate is that Congress left alone the juvenile sentencing mechanisms so that it could address that at a future date if Congress desired to, perhaps after the Sentencing Commission has come forward with a study showing that it is... is or is not feasible to have a guideline sentencing system just for juveniles.

After all, there are caps that apply to the juvenile sentences that can be imposed that don't apply in the case of adults, so you have at least half of the possible sentences that could be imposed under the sentencing guidelines, or more than half, that don't apply in the case of a juvenile.

If you look at the sentencing table that is in the guidelines--

Unknown Speaker: But then that's easy.

Then you look at the statutory maximum.

Mr. Larkin: --Right, but the point is, if you're setting up a guideline system and you say we're not going to apply this system, this new system to the juvenile justice system because we want somebody to study it, that indicates you're looking at the juvenile justice system as something that you may address later, and that's what they decided here.

It's not necessary, or any logical implication from that, that it means we want the statutory maximum sentence from the guidelines automatically to be applied.

I mean, after all, the purpose of a guidelines is to have not simply a maximum but a minimum, and it would be odd for Congress, knowing that the Commission--

Unknown Speaker: No, but the purpose of the statute here is to say we don't want juveniles to get a longer sentence than adults get.

That's what... sort of the simple meaning that comes through.

We don't... then we get a... have a maximum sentence that would be higher than the maximum for an adult.

And you're saying that's not true; they can get a higher one.

That's the message I get out of the statute.

Mr. Larkin: --Well, Your Honor, we would disagree, that what Congress did was say that the maximum authorized sentence shouldn't be any greater, but by leaving the juvenile justice system alone--

Unknown Speaker: But you don't really advance a plausible reason for Congress saying, we don't care if juveniles get a stiffer sentence than adults.

I don't... it's just rather counterintuitive to think Congress would have wanted that particular conclusion.

Mr. Larkin, under the 1950 act, couldn't juveniles get a longer sentence than an adult?

Mr. Larkin: --The 19th... I'm not sure which act you're referring to, Your Honor.

Unknown Speaker: The Youth Corrections Act.

Wasn't that--

Mr. Larkin: Oh, the Youth Corrections Act.

Yes, a juvenile could get a longer sentence than an adult under the Youth Corrections Act.

Unknown Speaker: --Wasn't that repealed in 1984?

Mr. Larkin: Yes, it was.

Unknown Speaker: Well, so don't... you can't really say that Congress didn't address the juvenile sentencing system when they repealed that act.

Mr. Larkin: Well, but that act dealt with different age groups than what you have here under the--

Unknown Speaker: Well, nevertheless it did repeal a... an act that had to do with juvenile sentencing.

Mr. Larkin: --Not juveniles, young adult offender sentencing.

Unknown Speaker: Well, all right.

This statute we're now talking about was in place before 1984.

Mr. Larkin: Yes.

Unknown Speaker: And I suppose everybody would agree that then to apply the act you would look to the maximum term authorized by the statute.

Mr. Larkin: Correct.

Unknown Speaker: And now the suggestion is on the other side that the meaning of that statute has changed.

Mr. Larkin: Correct.

What they have said that Congress now has required that the courts look to the guidelines to fix... to figure out what--

Unknown Speaker: Although it's the same words.

The statute reads exactly like it did before 1984.

Mr. Larkin: --No.

They modified it in some respects.

Unknown Speaker: And they did reenact it.

Mr. Larkin: They reenacted with some modifications in language.

The--

Unknown Speaker: xxx--

--Specifically it no longer refers to the statute.

Just a minute, Justice Scalia, I think I started before you did.

In any respects that were relevant, here... the modifications?

Mr. Larkin: --Not on this point, as we stand today.

If you look to the statute as it was adopted in 1984, you will see that it included three additional words that aren't there today.

It referred to the maximum term of imprisonment that would be authorized by section 3581.

Unknown Speaker: Yes.

Mr. Larkin: That was put in there because section 3581 is the new section that says imprisonment can be authorized for adult offenders.

Now, that three-word phrase came out later to eliminate an anomaly that could have arisen by virtue of the fact that that specific statute was mentioned in the 1984 act, but as we've explained in our brief, Congress took that three-word phrase out in order to make sure that juveniles would not receive a longer maximum sentence to which they would be exposed rather than just to cap the sentence that a juvenile could receive as being the sentence that would be imposed under the sentencing guidelines.

We think that the statute as a whole, as well as the different policies that Congress could have had in mind, which was we think addressing this at a later date after it had gotten the advice of the Sentencing Commission, indicate that it is the statutory maximum term of imprisonment that is what was being referred to here.

Now, the Sentencing--

Unknown Speaker: Can I ask it now?

Certainly.

You don't think it significant that it used to specifically refer to a statute and it now does not refer to a statute?

I consider that a significant change.

Mr. Larkin: --I didn't say it wasn't significant, but it's not dispositive, and it's certainly not dispositive in respondent's direction, because if you look at the reason why they took that out, and if you look at what is left, we think it still as a whole refers to the maximum punishment authorized by statute because it is only Congress that can authorize a maximum punishment, and so we think that is the most natural reading of that entire phrase.

Unless the Court has any further questions, I'd like to reserve the remainder of my time.

Unknown Speaker: Very well, Mr. Larkin.

Ms. Roe, we'll hear now from you.

Argument of Katherian D. Roe

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

If R. L. C. had been tried and sentenced as an adult, the Federal sentencing guidelines would have limited the maximum term of imprisonment that was authorized for R. L. C..

We are not arguing, nor did the Eighth Circuit Court of Appeals find, that the Federal sentencing guidelines directly control juvenile sentencing.

We are not arguing, and nor did the Eighth Circuit Court of Appeals find, that a juvenile must receive the same sentence that an adult receives.

But what we are arguing is the language, the maximum term of imprisonment authorized, has to be the same as an adult, and it also... and it means that it has to be the same under the sentencing guidelines.

The reality is that if an adult had been sentenced for the crime of involuntary manslaughter the sentencing court would have had no choice but to determine what the applicable sentencing guidelines would be.

It would only be after the court looked to the guidelines... at that point, and only at that point, could the court determine what the maximum sentence would be, and that is exactly what you have to do for an adult, because the plain language in this statute... although the Government tries to read it in a different manner, the plain language says that the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult... if R. L. C. had been tried and convicted as an adult in this case, the maximum term of imprisonment authorized would have been 21 months.

He was sentenced to serve 36.

The Eight Circuit Court of Appeals found that to be in direct violation of section 5037.

Unknown Speaker: Ms. Roe, you say that you're not arguing to have the guidelines fully applied to juveniles, but that's cold comfort to the district judge, isn't it?

Isn't it the case that if we find in your favor in this case the district judge is going to have to go through the same steps that one would go through under the guidelines?

He's going to have to compute what the maximum sentence would be.

Mr. Roe: Yes, that's correct, justice, that he would have to compute what the maximum sentence would be, but that's different than applying the guidelines.

We're not arguing that the guidelines are applicable.

What we're arguing is that you have to look to the maximum and then from there you make your determination.

Unknown Speaker: I understand that, but as far as the amount of work that the district judge has to go through--

Mr. Roe: Your Honor--

Unknown Speaker: --it comes to the same, right?

He has to go through the same steps that he would have to do in a criminal proceeding.

Mr. Roe: --Your Honor, in 1990 there were approximately 47,000 cases in the Federal courts; 170 of those cases were juvenile.

I think that's less than approximately one-third of 1 percent, and for this to be applicable what the court would have to do is they would have to determine that the maximum guidelines... maximum under the guidelines would be more than the statutory maximum.

Excuse me, actually--

Unknown Speaker: Would the judge determine upward departures... the possibility of upward departures?

Mr. Roe: --Yes, there is a possibility of upward departures, but I think in the Eighth Circuit Court of Appeals decision and as well as the way we argue this, Your Honor, that is no different than if it had been an adult.

You still make the same determination.

If there are egregious--

Unknown Speaker: I'm just asking to verify your position.

Your position is the judge would take into account any upward departures.

Mr. Roe: --Yes, Your Honor.

If there were egregious circumstances or aggravating circumstances that would result in an upward departure, then that would be the same as if it had been an adult.

Unknown Speaker: Ms. Roe, who was the district judge in Minnesota?

Mr. Roe: The judge was... Judge MacLaughlin, Your Honor.

Unknown Speaker: You mention there are only 170.

Was this cases in a 1-year period, was it, that you get--

Mr. Roe: Yes, Your Honor, that's correct.

Unknown Speaker: --Do you have any idea how many within that 170 the maximum would have been fixed by the age of the juvenile as opposed to the maximum for an adult?

Mr. Roe: No, Your Honor.

We--

Unknown Speaker: I would suppose this is a fairly rare case, the one we have here.

Mr. Roe: --Yes, we believe it is a fairly rare case, Your Honor, but we get our statistics from the administrative office of the court--

Unknown Speaker: And they don't break them down.

Mr. Roe: --And they don't break those down.

The concept that a juvenile should not be subject to a harsher penalty than an adult is certainly not a new concept.

The Federal Juvenile Delinquency Act was enacted in 1938, and ever since that time there has been one constant in the area of Federal juvenile sentencing, and that constant has been that a juvenile will not be subject to a term of imprisonment that would be harsher than that which an adult would receive.

Juvenile sentencing has... or at least maximum for a juvenile sentencing... has always been linked to adult sentencing.

The thing that has changed is how we determine what the maximum sentence for an adult would be, and the reason it's changed is with the adoption of the sentencing guidelines.

Unknown Speaker: Before the sentencing guidelines were adopted, Ms. Roe, would it have been impossible for a district judge considering a juvenile's case to sentence the juvenile to some sort of confinement if faced with the argument well, you would have paroled... you would have given an adult probation here?

Mr. Roe: No, Your Honor, I don't believe it would have been, because they would have still been subject to the same maximum term of imprisonment, because prior to the sentencing guidelines you determine what the maximum term of imprisonment would be for both an adult and a juvenile by looking at the statutory maximum for the offense.

Unknown Speaker: So although the rule you speak for is that... and a juvenile could never have received a higher maximum sentence than an adult, you're not saying that a juvenile could never have received a harsher sentence than a similarly situated adult.

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

What I'm saying is that the juvenile couldn't be subjected to a higher maximum, not that the judge couldn't decide in his discretion that the juvenile should in fact receive a higher sentence than that which he might have given an adult.

Unknown Speaker: Is that changed under the guidelines?

I mean, the guideline does not leave you, does it, with one sentence?

Doesn't it leave a little range?

Mr. Roe: Your Honor--

Unknown Speaker: Even after you apply all the guidelines, does it leave you at least a couple of months to play with?

Mr. Roe: --For an adult, it does, Your Honor.

I believe it's basically a 25 percent spread between the bottom and the top of the guidelines.

For an adult that would be true, but we're not arguing that that... range would be applicable to a juvenile.

What we are arguing is that the only thing that applies in a juvenile case is the maximum.

Unknown Speaker: But my point is that the situation, if we agree with you, would still be what the situation was before this legislation was passed.

That is to say, on some occasions a juvenile may get a harsher sentence than an adult would get--

Mr. Roe: That's correct, your Honor.

Unknown Speaker: --Because they'd both be applying the guidelines but the judge in the juvenile case may take the upper limit of it and the judge in the adult case may take a lower limit of that particular guideline, right?

Mr. Roe: I think that's true, but they would both be subjected to the same maximum.

It's just that the judge in his discretion, or her discretion, would choose perhaps to sentence a juvenile to a higher sentence and an adult to a lower sentence.

Unknown Speaker: How do you find the maximum?

Mr. Roe: You determine the maximum by essentially making a determination under the guidelines.

In this case, the determination was for the offense of involuntary manslaughter, and for--

Unknown Speaker: So you're really say that whatever the maximum might have been in a case like this, what would have a judge... what would a judge... what would have a judge been able to sentence this particular person for if he had been an adult.

Mr. Roe: --If he had been tried and convicted as an adult, you need to determine what the maximum would have been for that adult, and then that will be the maximum that you apply to the juvenile.

Unknown Speaker: And the maximum could have been... could it ever reach the maximum authorized by statute?

Mr. Roe: Yes, sir.

Yes, Your Honor, it could.

In those rare circumstances where the court would find that there are egregious circumstances or aggravating circumstances that would be cause for an upward departure, it certainly could reach the statutory maximum.

Unknown Speaker: But absent aggravating circumstances, it could never go up.

Mr. Roe: Only, Your Honor, if the person had... was probably a very significant criminal history, then the possibility exists that they could come very close to the statutory maximum, if not reach it.

Unknown Speaker: Is there some reason why as a matter of policy Congress would not have wanted the juvenile to be subjected to this process of determining whether upward departures are required, because that's what... for instance, in this case there was a stolen automobile which was not included in the manslaughter offense.

I think that may be a reason for an upward departure.

Is there some policy reason why the Congress would not have subjected the juvenile... want... would not have wanted the juvenile to be subjected to this process?

Mr. Roe: First... I believe that's a two-part question, Justice Kennedy.

The first part I'll answer is that there was a stolen car in this case.

There was never any determination as to exactly who stole the--

Unknown Speaker: Let's just assume that that would be a ground for an upward departure.

Mr. Roe: --All right.

Unknown Speaker: I'm not sure that it would be.

Mr. Roe: Then your question I believe is, is there any reason why Congress would not want to subject a juvenile to this proceeding?

Unknown Speaker: Yes.

Mr. Roe: No, Your Honor, I don't believe so.

I think that it's more likely that the Congress would not want to subject a juvenile to a harsher penalty than an adult would receive, and I think that that's been consistent with their policies from 1938, when they first enacted the Federal Juvenile Delinquency Act.

And I believe that's also consistent with the changes that they made when they drafted the Comprehensive Crime Control Act and made changes to the Federal Juvenile Delinquency Act as part of those... as part of that.

Unknown Speaker: I suppose the district judge would have in front of him all of the history and all of the factors that would be taken into account in the guidelines anyway.

Mr. Roe: That's correct, and Your Honor, when the case did go back for resentencing, the district judge did not find any aggravating circumstances or any grounds for departure.

Unknown Speaker: Ms. Roe, the defendant here has served the shorter sentence, hasn't he?

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

Unknown Speaker: So if you lose here, what happens?

He has to go back to jail?

Mr. Roe: He was released over 9 months ago, Your Honor.

My understanding of the law, sir, is that if he would lose, the court would have it within its power to reinstate the sentence of the original court and sentence him to... and send him back for an additional 18 months imprisonment, or official detention, if you will.

Unknown Speaker: What's your guess as to what Judge MacLaughlin might do?

Mr. Roe: Well, Your Honor, it's hard to say, but certainly when he went back on remand for resentencing Judge MacLaughlin recognized that there were circumstances, and that the circumstances had changed, and sentenced R. L. C. to only 18 months.

Unknown Speaker: Well, he's not the hardest nose of the Minnesota Federal judges by any means.

Mr. Roe: That's correct, Your Honor, he's not.

Unknown Speaker: Ms. Roe, I have one puzzlement.

The section we're talking about is subsection (c).

Subsection (a) of 5037 says that the sentencing judge in these juvenile cases, after considering any pertinent policy statements promulgated by the Sentencing Commission, shall, you know, impose sentence, take the action and so forth.

Why would it say that if he has to apply the guidelines anyway?

Mr. Roe: Your Honor, I think that subsection (a) essentially addresses a different interest.

What subsection (a) addresses is that they want the court to look towards the guidelines, or the policy statements, to determine or help the court to determine what the sentence should be, and what the appropriate sentence should be.

In subsection (c), where they actually talk about what the maximum term a juvenile can receive is, I think at that point then the judge is looking at something different.

The judge is determining what the maximum sentence would be.

So he's addressing basically two different concerns.

Unknown Speaker: Well, but, why wouldn't the guidelines as a whole be relevant to determining the sentence?

Only the policy statements?

I mean, I would have expected (a) to refer to the entire guidelines.

It's a very strange reference.

I don't understand it.

Mr. Roe: It's possible, Your Honor, that they didn't actually address the guidelines because this was part of the comprehensive Crime Control Act.

The amendments were part of the act, and they may have believed... they may have incorrectly believed that everyone would understand what they were referring to, because clearly after the Comprehensive Crime Control Act was passed and the guidelines became effective, the sentencing guidelines determined and limited the sentence that an adult would receive, and the language I believe in the statute is very clear.

The maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.

No question, if the juvenile had been tried and convicted as an adult the sentencing guidelines would limit the sentence that a court could impose, and if the court imposed a sentence in excess of the sentence that the sentencing guidelines authorized, then it would be reversible error under U.S.C. 3742.

Unknown Speaker: Do you think... well, go ahead.

Just going back to (a) for a minute, isn't the more normal reading of that that that refers to sentencing guidelines... Commission policy statements that were contemplated by Congress but that have never actually been written?

Isn't that a possible reading?

Mr. Roe: I think that--

Unknown Speaker: They thought that maybe the Sentencing Commission would develop policy statements for juvenile offenders but they've never gotten around to doing it.

I'm not sure that cuts either way in the case, but isn't that a possible reading?

Mr. Roe: --It's a possible reading, Your Honor.

I'm not sure that I would ascribe to that reading.

I think that what they're talking about is that they wanted the court to look at the... excuse me, to look at the policy statements and determine what the reasons might be for sentencing a certain person to a certain amount of time, not necessarily what the maximum was, because that would come later in subsection (c), but in (a) just to look at the policy statements to determine what Congress' thoughts were and what the Sentencing Commission's thoughts were when they enacted these guidelines.

Unknown Speaker: I was going to suggest something else, and that was to focus on the word "pertinent".

Doing that, you would say well, the sentence in (a) in effect was saying look, we're not importing every possible policy statement that might be applicable in adult circumstances, but you should at least winnow through them and winnow out the ones that would be pertinent to a juvenile proceeding and consider them.

So that that would be consistent both with the theory that they were not subjecting juvenile sentencing to the guidelines across the board, or indeed to the guideline philosophy across the board, but they were doing so if the sentencing court could figure out on a selective basis what might be applicable in a juvenile case and tell them to consider that, and of course ultimately, on your theory, be subject to the cap of the highest possible adult sentence.

Does that make sense?

Mr. Roe: I think that's also a possible interpretation, Justice Souter.

I haven't seen anything in the legislative history or in any other documentation that indicates exactly what their intent was, but I think that all those are possible interpretations.

The Government argues that sentencing guidelines... essentially the sentencing guidelines cannot authorize a sentence, and I think that... or it appears, based on the Court's decision in Mistretta, that the sentencing guidelines do authorize a sentence, because this Court recognized in Mistretta that there was a delegation of authority to the Sentencing Commission, a broad delegation of authority, and that the authority that was delegated was the authority to formulate binding sentencing guidelines, and that there would be determinate ranges, that the guidelines would be mandatory... a judge would have no choice but to impose them... and that if the judge did not impose them there was a provision written right into the act that it would be reversible error.

So clearly the practical and legal effects of the guidelines are that they create an enforceable provision and they set limits that are below the statutory limits, and I believe the Government's interpretation of the word authorized and the fact that the sentencing guidelines are not authorized fails to take that into account.

Our position is and has been since the beginning that this statute is not ambiguous.

Clearly, they could have said what the Government reads the statute to have said, but it doesn't say that, and maybe one of the most important things is that at one time it did make a reference to statutory maximum, and that reference was deleted by Congress.

And I think it's important to know that that reference was deleted before this statute ever became effective.

So the statute, whereas it may have once referred to the statutory maximum, it never referred to the statutory maximum when it became effective.

At the time it became effective, that language was gone.

We do not believe this is an ambiguous statute, but if the Court determines that it is an ambiguous statute, I think that the Court must apply the Rule of Lenity as did the Eighth Circuit Court of Appeals, because in this case to not apply the Rule of Lenity would place the respondent in a position where essentially he would be punished because this Court has to guess... albeit an educated guess, but would have to guess as to what Congress intended.

And the Rule of Lenity has long established that if the Court has to guess, then it should guess in favor of the person, the individual, and it should guess in favor of the shorter sentence.

Unknown Speaker: Could we apply the Rule of Lenity to authorize sentences as well as to these substantive elements of crimes?

Mr. Roe: Your Honor, I think the answer to that is no.

Well, let me rephrase that.

I think the answer to that is yes.

[Laughter]

Unknown Speaker: That is a rephrasing.

Mr. Roe: I think this case, Your Honor, is not that inconsiscent with the Chapman case, because in the Chapman case where the Court did not apply the Rule of Lenity, the Court said that when Congress wants to say something, they know how to say it, and if they don't say it, then we can assume that they didn't mean it.

And I think that that's analogous with our case, because Congress clearly knew how to say it if they meant statutory maximum, and as I indicated earlier they did say it at one point, but they deleted it.

Unknown Speaker: Did we speak of the Rule of Lenity in so many words in the Chapman opinion?

Mr. Roe: Your discussion in the Chapman opinion, Your Honor, is very brief.

Unknown Speaker: Well, but I think you can answer that question fairly specifically if you remember the Chapman opinion, which I don't.

Did we speak of the Rule of Lenity in so many words in that case?

Mr. Roe: Yes, Your Honor, you did.

Unknown Speaker: We did, okay.

Mr. Roe: Yes, Your Honor, you did.

In that case, Your Honor, you held that the case was not... or, the statute was not ambiguous, and I don't believe the statute is ambiguous in this case, but if the Court does believe that the statute is ambiguous, I think you must find in the favor of the shorter construction, the one that's been urged by the... or, the one that was applied by the Eighth Circuit Court of Appeals and the one that's urged by the respondent in this case.

Unknown Speaker: And Chapman was a sentencing case.

Mr. Roe: No, Your Honor, Chapman was not a... no, Your Honor, Chapman was not a sentencing case.

Unknown Speaker: Well, I think the Chief Justice was asking for the closest case you have that involved the application of the Rule of Lenity to sentencing, as opposed to whether an act is a crime.

I'd appreciate--

Mr. Roe: I'm sorry.

I misunderstood the question.

I think the closest case I would be able to cite for that is U.S. v. Bifulco, and that was in fact a sentencing case, Your Honor, and in that case the Court said you can't increase the penalty... it was a United States Supreme Court case, where it said you can't increase the penalty for an individual if all you can do is guess as to what Congress intended.

So yes, you have applied it to sentencing.

Unknown Speaker: --Is that in your brief?

Is that cited in your brief?

Mr. Roe: Your Honor, that is cited in the Eighth Circuit Court of Appeals decision, which is in the record.

Thank you.

Unknown Speaker: Thank you, Ms. Roe.

Mr. Larkin, do you have rebuttal?

Rebuttal of Paul J. Larkin, Jr.

Mr. Larkin: No, Your Honor, not unless the Court has any further questions.

Chief Justice Rehnquist: Very well.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

DeShaney v. Winnebago County - Oral Argument

Sun, 06 Feb 2011 03:45:34 +0000

Case:

DeShaney v. Winnebago County

Media File:

87-154_19881102-argument.mp3

Related Transcript:

87-154_19881102-argument.xml

Transcript:

ORAL ARGUMENT OF DONALD JAMES SULLIVAN ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-154, Joshua DeShaney v. Winnebago County Department of Social Services.

Mr. Sullivan, you may proceed whenever you're ready.

Donald James Sullivan: Mr. Chief Justice, and may it please the Court:

We are here contending today not for a broad constitutional mandate to the states to do all good things to all people, nor do we contend for a broad constitutional duty to prevent all harm or all sadness, nor do we contend for a broad constitutional duty to protect all children in all cases.

Unidentified Justice: xxx narrow one [inaudible].

Donald James Sullivan: None in those situations--

Unidentified Justice: Oh.

Donald James Sullivan: --Justice White.

We do suggest that there is one and only one exquisitely narrow circumstance where there is an affirmative duty.

I would suggest that there are two primary elements to the one and only one circumstance for which we argue.

The first is the existence of a child/parent relationship.

The other is what I term enmeshment, intricate intimacy, enmeshment of the agents of the state in a particular circumstance which would have three characteristics: the first, an extreme danger to a particular individual child; the second, abundant actual knowledge on the part of the agents of the state; and the third, an actual undertaking by the state to protect the child.

Unidentified Justice: You derive all this from the language of the due process clause?

Donald James Sullivan: Indeed, Your Honor.

We think it arises from that and from the nature of the relationship and from the way the Court has... has accorded the relationship.

If I may... if I may explain.

It is my view... it is our view that the protector of the child, the raiser of the child, the person with the right and the power and the authority and the duty to educate the child, teach the child, provide medical care, all those parental things, including setting bedtime, is the parent and not the state.

The... the other side of that coin is that there is one and only one circumstance where when the family unit... and I don't care whether it's a married family or a step-parent or whatever, but when the child is at home and the door is closed to the world, the people with whom that child is locked in, his natural and his inherent protectors, from those individuals alone, whether it's a father, a step-mother, a live-in girlfriend of what have you... from those protectors alone he has no protection.

And in that one and only one circumstance, I think that's appropriate.

And I would further respond to your question, Mr. Chief Justice, by saying this.

It is only in that one circumstance, as I understand the cases... it is only in that one circumstance that the Court has already interposed any aspect of the Constitution.

And I don't want that changed.

I don't ask that that be applied to a different circumstance.

What I'm saying is this.

Take the situation where the child is locked behind the door with his protector and the protector becomes the predator, and a proceeding is brought at the extreme end of the child protection spectrum to terminate the parental rights.

The Court has already said that the Constitution governs that relationship.

The Court has already recognized it in the relationship between the adult and the child that the Constitution prevails and it prevails both substantively and procedurally.

What I mean is this.

We know that any parent has a constitutionally recognized right to the... if I may simplify it, to the possession of the child, care, custody, companionship, all those... all those kinds of things that go with being a parent.

We also know that that right of parenthood cannot be terminated except by procedural due process protections.

So, I'm saying to the Court that in that most intimate relationship, the Court has already recognized that the Constitution has application.

The Court additionally has recognized, I believe, that a child... indeed, any of us... has a constitutionally protected right to physical integrity, to bodily protection.

What I'm suggesting--

Unidentified Justice: A... a right against the state.

Donald James Sullivan: --And a right that... that arises out of the Constitution to remain alive, yes, sir.

Unidentified Justice: Well, but... but it's protected only against the state.

It's not protected against private individuals.

Donald James Sullivan: Well, I think that's part of what the Court is going to have to address in this case.

Unidentified Justice: Well, why don't we start with the language of the Fourteenth Amendment which says that a state shall not... what does it state... deprive any person of life, liberty or property without due process of law.

Donald James Sullivan: Yes, sir.

Unidentified Justice: Now, certainly we've held in many cases that the state may not deprive someone of life, but we've never held that that provision protects in the constitutional sense a private... a private attack on another person.

Donald James Sullivan: I agree with that, Mr. Chief Justice.

And I would further agree that in the... in the context in which prior to today that question has been addressed by the Court, I agree that that's the correct holding.

For example, if you were to hold otherwise, then the police department would have an obligation to prevent the mugging and a whole host of things that are simply unworkable and are not to be found in the Constitution.

What I... what I'm suggesting to you is that, first of all, this is a question in the most intimate relationship.

That has not been addressed, to my knowledge, by the Court before.

And I think that it's consistent with the nature of the circumstance that we're dealing with, and I think it's consistent with the other constitutional applications the Court has afforded to the child/parent relationship.

If you have... if you have the parent and child in an intimate relationship and the Constitution properly lies in... in that setting, and if the rights of the parent with all of his natural powers in addition... if the rights of the parent are recognized, why should the rights of the child be less recognized?

It... it seems to me that it's simply a balancing in--

Unidentified Justice: But... but the rights of the parent are recognized to the extent that the state may not interfere with it.

Donald James Sullivan: --I think that's entirely true.

And--

Unidentified Justice: And the... and the question here is the extent to which you impose a mandatory duty on the state to act affirmatively to protect the child.

Donald James Sullivan: --That's right, Justice--

Unidentified Justice: And the fact that it's... that other cases are not workable seems to me not the point.

The question is where do you derive the duty.

Donald James Sullivan: --Well, it occurs to me that you derive the duty first and foremost from the nature of the... of the relationship that you're... that you're analyzing in a... in a constitutional setting, and secondly, from the fact that the Constitution does admittedly apply in that relationship.

Unidentified Justice: Well, the only... the only cases in which the Court has found an affirmative duty on the part of the state to provide basic services is in a setting like a prison or a state institution where the state has already deprived the individual of the individual's liberty and institutionalized them.

Donald James Sullivan: Justice O'Connor, I... I generally--

Unidentified Justice: This is certainly a step far beyond that that you're asking us to take.

Donald James Sullivan: --The only word I would... I would differ with you is... is the word "far".

It occurs to me... obviously, the prison cases are in an Eighth Amendment context, so they are not... they are not the identical setting.

The institutionalized, hospitalized settings like Youngberg is the other category to which... to which I think you refer.

And I think that... I think that's what the notion of enmeshment... and that's not a phrase that I'm aware the Court has used.

That's... that's a... that's a word that I use for my own understanding and the clarity... I hope the clarity of my own thinking... that I think that's what's described there is to what extent has the state become involved in... in the life of this person.

If I may give an example.

Unidentified Justice: If... if your theory were to be accepted, it seems to me it would have a real deterrent effect on state child abuse programs.

Why would a state want to undertake a child abuse program at all if they face liability if they guess wrong?

I can't... I think you're asking the Court to take a step that is perhaps quite unwarranted and quite dangerous.

Donald James Sullivan: If... if the circumstance were as you... as you phrased it, Justice O'Connor, I would agree.

If... and the Seventh Circuit addressed that in its razor's edge argument.

The Seventh Circuit said you would put child protection authorities in a damned if we do, damned if we don't situation.

But this Court relatively recently decided Daniels and decided Davidson, and I think solves that problem entirely because I understand under... under those cases that even if we guess wrong, we are safe from liability.

And that's... that's vitally important here.

I understand Daniels and Davidson... again, to simplify in... in paraphrasing... to say even if you're negligent, it's okay in a 1983 setting.

And the Court reserved for another occasion... I think this may well be the occasion... the... the question of something more aggravated than... than negligence.

But what I'm saying is this.

In the whole range of state action dealing with children, all conduct that is... let's assume that we can recognize some standard.

All conduct that is proper, obviously, is not actionable.

All conduct that is negligent is not actionable.

And it has never been in contest that if we had the circumstance where the police officer or the child protection worker or someone else were inflicting a beating... you know, that's not the kind of case we're talking about.

And the next topic, obviously, that we have to address is the question of whether it's gross negligence, deliberate indifference or what have you.

So, I... I respectfully and very strongly suggest that it's not a question of do we guess wrong at our peril.

We... under the existing holdings of this Court, which I do not ask the Court to change, we've already said to the child protection agency it's okay to guess wrong.

It's okay if you make a mistake.

And that has to be.

I think government can't function without that--

Unidentified Justice: Well, Mr. Sullivan, don't you have to persuade us that the child has an entitlement under Wisconsin law?

Donald James Sullivan: --Well, I... I think first I have to persuade you that the child has an entitlement and the--

Unidentified Justice: What... what's your argument that he does?

Donald James Sullivan: --Well, there are two.

The one... the one I've addressed, which is the... the substantive due process inherent in the relationship and inherent in the constitutional control of the child/patient... parent relationship.

The second one--

Unidentified Justice: You mean from that arises an entitlement?

Donald James Sullivan: --I feel that from that arises an entitlement in the extreme and only in the extreme circumstance that I posit to the Court.

Unidentified Justice: Has a Wisconsin court said that it--

Donald James Sullivan: The Wisconsin standard is mere negligence.

The Wisconsin state tort law standard is mere negligence, and this Court has already said that's not acceptable in a 1983 context.

Justice Brennan, your... your question to me was... was do I have to persuade you--

Unidentified Justice: --Yes.

Donald James Sullivan: --that the child has an entitlement under Wisconsin law.

That's addressed in the briefs.

That would be basically the Roth approach to it, and that's a... that's a separate approach which I'm happy to address at this juncture since you... since you put the question.

Unidentified Justice: Mr. Sullivan, let me put it another way.

This child was severely injured.

Donald James Sullivan: Yes, sir.

Unidentified Justice: And the state placed him in a position of extreme danger, did it not?

Donald James Sullivan: Eventually they did, yes, sir.

And the reason for that--

Unidentified Justice: Well, they put him in... not eventually, but they put him in a position of extreme danger.

It certainly turned out to be that way.

Donald James Sullivan: --When they... when they unilaterally returned him to the abusive father, yes, sir.

Unidentified Justice: Now, suppose the... the state or the county, municipality knew that it was putting the child... placing the child in a situation of extreme danger.

Do you have any trouble in working out liability on that situation?

Donald James Sullivan: No, Your Honor.

I have no trouble.

And I would further say that that's not a supposition in this case.

Unidentified Justice: Well, I wonder why you don't argue it.

Donald James Sullivan: Well, I did--

Unidentified Justice: I haven't heard you--

Donald James Sullivan: --I did in my pleadings, but I... I would... I would remind the Court that one of the... and we addressed it three or four or five times in our brief.

Not to rehash, but because I think it's so important, this case worker... the evidence in the record before the Court demonstrates that she told witnesses... and I think I'm quoting accurately...

"I always knew the phone would ring some day and Joshua would be dead. "

Unidentified Justice: --That she knew--

Donald James Sullivan: I understand it that way.

Unidentified Justice: --or should have known.

Donald James Sullivan: I understand it that way, yes, sir.

Now--

Unidentified Justice: And in... in effect admitted that she knew--

Donald James Sullivan: --Yes, sir.

Unidentified Justice: --or should have known.

Donald James Sullivan: That was... that's how I understand that... that language.

Unidentified Justice: Well, that's the way I parse your case, and maybe it is a step ahead.

But it doesn't shock me as much as it seemed to shock some of my brethren.

Donald James Sullivan: Yes.

The... the... the hangup that... that I think I've seen in reading the colloquy in our briefs on the notion of intent... we do not argue... we certainly do not argue that the case worker or the supervisor or the county wanted this child dead.

That would be irresponsible, and we don't make that claim.

But we do, based on the record that's in... in front of you... and I think the joint appendix at 109 to 160 is the... is the DSS case file itself, and that I find shocking... quite candidly, I find shocking.

We know that there were... and Justice Brennan, you alluded to this.

There are black and white absolute mandates in the state statute that... that say when you receive a report from a doctor or from a nurse or from an outside social worker or from a police agency suggestive of child abuse, you shall investigate.

It doesn't go into you got to do it this way or that way, but you got to make a real investigation.

You got to do it in a timely manner.

On the first occasion in January of 1982 that the police reported suspected child abuse, they made an investigation which was cursory but I can't fault them at that point.

They complied with the statute.

In January of 1983, they had a doctor report from a hospital... they... saying I am finding an abused child here.

They take custody of the... of the child.

Three days later they send the child back to the abusive home.

Unidentified Justice: Did they at that point commit a constitutional violation?

That is the time when they placed the child in extreme danger, as I understand Justice Blackmun's question, is it not?

Donald James Sullivan: I think that's right.

Unidentified Justice: And why... why was that a constitutional violation to return the child at that time?

Donald James Sullivan: I'm not prepared to say that that was, but I am prepared to say that the next incident was.

And the difference was that they were informed by--

Unidentified Justice: But they didn't... the child had already been placed by then.

Donald James Sullivan: --They took the child out and placed the child in the technical custody of the hospital during his period of hospital confinement.

That's right.

Unidentified Justice: That's January of 1983.

Donald James Sullivan: Yes, sir, which is the--

Unidentified Justice: All right.

And you say that was not a constitutional violation to return the child then.

When did the constitutional violation occur and what was it?

Donald James Sullivan: --I think it was the very next contact they had with the child and each succeeding contact--

Unidentified Justice: Well, in the very next one then you say it did occur.

And what was the constitutional violation?

Donald James Sullivan: --At that point... and by way of background information so that we're clear on this, if I may, Justice Stevens... the... when the case worker made the decision to return the child... and this is in the record at 159 and 160... she dismissed the protective proceeding that they had started, and--

Unidentified Justice: Was that a constitutional violation?

Donald James Sullivan: --I don't think so.

What she said, though, in--

Unidentified Justice: I want to get to the constitutional violation and when it occurred.

Donald James Sullivan: --All right.

What I... I need you to understand that she made a written promise to the child and to the family court that the very next time there was a suspicious lesion on this child, she would bring the matter back to the court for the child to be protected.

She made that... that promise to the... now, the child was a toddler, so I don't mean to say that child understood that.

But she made that guarantee and it was on that premise that the child I think erroneously was returned.

The very next time she was in the house all of the things that she had insisted on, all of the things that had been guaranteed by the birth father, all of the things that were necessary for the child's protection had been absolutely thrown out the window.

For example, the father told the county that it was the girlfriend who had abused him on this occasion.

And that's probably credible because he was out of town on a fishing trip.

So, he... he probably was not the physical abuser in that case.

Unidentified Justice: But just summarizing, what you're saying is it's... she got sufficient information on that occasion that she had a constitutional duty to remove the child.

And that was the... that was the constitutional violation.

Donald James Sullivan: On the... on the ensuing occasion?

Unidentified Justice: Yes.

Isn't that your theory?

Donald James Sullivan: Yes, yes.

Unidentified Justice: So, your theory is not that the state placed the child in a position of extreme danger, but rather that the state failed to remove the child from a position that they should have known was extremely dangerous.

Donald James Sullivan: Subsequently.

I think... I think that that placing the child back is the ultimate act--

Unidentified Justice: Would your case be any different if you had none of this history but a very stupid social worker who went in and saw lots of evidence of child abuse and failed to remove the child from the home immediately?

Donald James Sullivan: --It's a... it's a question of the level of... of... and that's why I'm using the word "enmeshment".

Unidentified Justice: Well, I know.

The word "enmeshment" is not one that really helps me very much.

Donald James Sullivan: Okay.

I... I think that--

Unidentified Justice: My question is if you just have those stark facts, a social worker visits a home, sees the child that a reasonable social worker should have known was in extreme danger--

Donald James Sullivan: --Yes.

Unidentified Justice: --and fails to remove the child, has the state committed a constitutional violation?

Donald James Sullivan: In an appropriate fact setting, yes, I believe so.

Unidentified Justice: Well, I've given you the facts.

The answer is yes.

Donald James Sullivan: If we... to... to... to illustrate what I think your question is, if on the very first occasion--

Unidentified Justice: That's right.

Donald James Sullivan: --maybe even by accident, stopping to use the phone, no official business, and the... and a case worker finds the... the parent holding a knife to the throat of a toddler, I would say that obligation arises at that point.

Yes, sir.

Now, that's not the factual setting that we have here.

Unidentified Justice: Now, how do you... how do you place within the words of the Fourteenth Amendment again?

How is the state depriving... depriving the child of--

Donald James Sullivan: It is the state alone--

Unidentified Justice: --You see I can... I can understand it's depriving the child of something when the child is safe with the state and the state turns it back, which happened here.

But you... you acknowledged that when that happened, it was all right.

The state had no inadequate reason to believe that... that the parent was abusive.

Donald James Sullivan: --Well--

Unidentified Justice: But I don't understand how the state is depriving the child of anything when... when the child is already in the home and all the state has done is failed to take the child out of the home.

Donald James Sullivan: --Well, that's the... that's the final argument in the Seventh Circuit's opinion that all we did was not stop it.

And what I'm saying is in this one and only one circumstance, the child has no one else.

The... the only protector he has in the world is now the predator.

Unidentified Justice: That's... that's not... well, I... I could think of a lot of cases.

Well, that's true in every child abuse situation.

Sure.

Wasn't that always true in a child abuse situation?

When a social worker visits a home, has very good reason to believe an abuse is going on, you're saying there's an immediate constitutional duty arise to remove the child if it's close enough to the knife at the throat example.

Donald James Sullivan: Right.

Unidentified Justice: But there is, of course, all shades of evidence.

This is not quite a knife at the throat example.

Donald James Sullivan: That's correct.

Unidentified Justice: It's pretty serious, but you say the evidence is clear enough so that the constitutional duty arose to remove the child.

Donald James Sullivan: I think the evidence... and, yes, I do.

And I want to... I want to mention as well that the evidence, of course, is cumulative so that even if the second or third or fourth instance, if you feel that's not enough, the 14th or 15th or 20th instance certainly is.

You know, I... I lose track of how many different doctor reports of abuse there were and how many different nurse abusive reports there were... reports of abuse there were and how many direct observations on separate occasions by the case worker.

But I suggest to you that after two years, approximately, of this, when the case worker goes to the home and sees cigarette burns on the face of the child, I suggest that's knowledge.

Unidentified Justice: What is magical about the fact that the citizen, here the child, is in threat from... from his father rather than from someone else?

Suppose a case worker goes in and finds an elderly person starving.

Why wouldn't there be a similar obligation on the part of the state?

Why wouldn't you... you find the state liable for depriving this person of life if the person dies because the state did not provide food?

Why wouldn't that--

Donald James Sullivan: To the... to the best of my knowledge, in the first place the Constitution does not intrude into each individual life in the sense of an obligation to provide food, shelter, clothing.

That's a political issue.

The Constitution is interposed in the relationship between the child and its... and its parent.

And that's the only place in that... in that child's life where the... where the Constitution--

Unidentified Justice: --How... how is the Constitution interposed there?

I don't... I don't see how it's interposed.

It's interposed when the state moves in and takes the child away and then gives it back.

Donald James Sullivan: --It's interposed, more precisely, when the... when the state says we suspect there might be a problem for this child.

We're going to terminate your rights.

At that point there's no question but what the parent's constitutional rights in the relationship are recognized, both his substantive rights to his possession of his child and his procedural rights to have witnesses and hearings and burdens of proof and all those kinds of things.

And if we have one... one equation... and the Constitution is in here for the parent and we know the Constitution recognizes the child has at least the right to be alive and more or less healthy--

Unidentified Justice: But that's a... that's a limitation on the state... those cases.

They say the state can't do certain things.

You're trying to turn that around and say that arising out of that same relationship is a duty on the state.

Donald James Sullivan: --I... I think that the procedural things, Mr. Chief Justice, clearly are... are limitations on... on the mechanics by which you can effect a termination.

Unidentified Justice: Well, no doubt.

And what I'm saying is I don't see how you turn that around and say from these limitations on the state, we also derive a duty on the state.

Donald James Sullivan: Well, if we've recognized... and... and manifestly--

Unidentified Justice: Can you answer that question?

Donald James Sullivan: --Well, I... I hope so.

I hope so, Mr.--

Unidentified Justice: Why don't you try?

Donald James Sullivan: --Okay.

The... the situation of the child, his place in the world, when the door is closed, there... there literally is no one else.

And if the child has--

Unidentified Justice: That has nothing to do with the limitations on the state's authority to take the child away from the parent.

Donald James Sullivan: --No.

And I don't... I don't propose that for that--

Unidentified Justice: I thought... but I thought that was the basis of your argument.

Donald James Sullivan: --Well, what I'm saying is that we recognize that the Constitution has a legitimate place in the relationship between the parent and the child.

If it does, I... I suggest that it should fairly apply both ways.

It doesn't make sense to me that the... the Constitution applies between the parent and the child only for the benefit of the parent.

And I think that's the... that's the result.

Unidentified Justice: xxx.

Well, it applies in Justice Scalia's hypothetical too if the state can't take away the person's food, but that doesn't mean the state has to give the person food.

And you're... you're in the same box either way it seems to me.

Donald James Sullivan: Well, I agree that there's no obligation to... to provide food to somebody.

In fact, I would say there's not a constitutional obligation to provide food to a child.

That's not what I'm... that's not what I'm suggesting.

Unidentified Justice: But there is a constitutional obligation I would assume not to arbitrarily take it away.

Donald James Sullivan: Yes.

Unidentified Justice: All right.

So, there's a--

Donald James Sullivan: That's a--

Unidentified Justice: --So, the Constitution is in the house with the elderly woman just as it's in the house... just in the same sense that it's in the house with the parent and the child.

Donald James Sullivan: --I... I'm not sure I follow your question or... or I'm seeing it very differently.

Clearly you can't send the agent of the state in to empty out the old person's refrigerator, you know, without... that's... no one is going to fight about that.

That's different from saying that you have to create a responsibility where you have to bring food to the... to the elderly person.

Unidentified Justice: Do you think it makes any difference what agent of the state finds outs that this child is in danger from his father?

Suppose it's just a... suppose it's a trash collector that goes around and finds out that it's official... and he just knows that that child is in real danger.

Donald James Sullivan: Yes.

I do think it makes... it makes a difference.

In contemporary society, we have... in all the states, we have child protection agencies.

And certainly I would think they would be within the scope of the--

Unidentified Justice: So, it has to be a certain kind of a... of a state agent who has a duty under state law or not?

Donald James Sullivan: --I think that would be correct.

Certainly someone with the power under state law.

Unidentified Justice: Well, isn't it a state law... isn't it a state law issue here then as to... do you... do you suggest that this social worker was violating state law when she--

Donald James Sullivan: In addition, yes... yes, sir, we do because of--

Unidentified Justice: --Is there any... do you have some Wyoming cases for that?

Wisconsin.

Wisconsin cases.

Sorry.

Donald James Sullivan: --I'm... I'm a citizen of Wyoming.

Unidentified Justice: I know you're from Cheyenne, aren't you?

Donald James Sullivan: Yes, sir.

Yes, sir.

The--

Unidentified Justice: Well, Mr. Sullivan, aren't there any Wisconsin tort remedies assuming you're right--

Donald James Sullivan: --There clearly are.

Unidentified Justice: --Hmm?

Donald James Sullivan: There clearly are state tort remedies.

Unidentified Justice: Well, what are they?

Donald James Sullivan: A negligence--

Unidentified Justice: If they're... if they're adequate, isn't that the end of your claim?

Donald James Sullivan: --I think it would be as to the property interest claim.

What I... what I have to say on that is this.

I believe that the child's entitlement... and this is the Roth analysis.

Now, I believe the child's entitlement is to the procedural protections of the investigation and the intervention.

Unidentified Justice: Did you argue that in the lower courts?

I looked through Judge Reynolds' opinion.

Donald James Sullivan: No, it wasn't addressed, Mr. Chief Justice, at--

Unidentified Justice: You... you didn't argue the Roth entitlement in the lower courts.

Donald James Sullivan: --No.

We raised... we raised the statutory claim in the... in the complaint.

It was not a factor in either Judge Reynolds' or Judge Posner's decision.

That's correct.

Unidentified Justice: Now, is... there's a limitation of some amount, isn't there, on a--

Donald James Sullivan: There is--

Unidentified Justice: --State tort remedy?

Donald James Sullivan: --There is--

Unidentified Justice: Fifty thousand dollars?

Donald James Sullivan: --Yes.

Yes, Justice Brennan.

I am not here arguing that the dollar amount makes that remedy insufficient.

I am not arguing that at all.

What I am saying is that under the state system, the objective, the stated objective of it, is the well-being of the child, the safety of the child, and I suggest that no after-the-fact damage action can address that question.

The only--

Unidentified Justice: How can we be confident that this social worker violated state law?

Donald James Sullivan: --Well, you have the record before you which reflects that on countless occasions--

Unidentified Justice: I know.

But where... where do you find the duty on a social worker to do anything more than the social worker did?

Donald James Sullivan: --The statute says by its terms when you get notice of evidence of child abuse, you shall make a fresh, de novo investigation--

Unidentified Justice: All right.

Donald James Sullivan: --promptly and you shall intervene as appropriate.

On time after time after time, there was notice of--

Unidentified Justice: Do you have some... do you have some case in... in Wisconsin that--

Donald James Sullivan: --This is the only circumstance we've been able to find in Wisconsin where this has occurred.

We're not trying to pick on Wisconsin.

Unidentified Justice: --[inaudible].

Donald James Sullivan: But the fact is that if... if the... if the rule says that when the members of the court come in, I have to stand up, it's a simple matter of whether I stood up or not.

And that's the... that's the situation that we have.

They simply in the face of doctors' warnings, nurses' warnings, their own observations of profound abuse--

Unidentified Justice: Well, do you think it was intentional?

Donald James Sullivan: --In the sense that the--

Unidentified Justice: Or was it just negligent?

Donald James Sullivan: --No.

I think... I think that it was not malicious.

I think it was intentional in the sense of knowing and understanding the significance of the action and nonetheless choosing not to act to do the things the statute says you must do.

Unidentified Justice: Was that... was that just a negligent omission or what?

Donald James Sullivan: No.

I think it was a very conscious, a deliberative, a thought-through decision.

And I think that's part of... and--

Unidentified Justice: Wasn't it just a failure to realize that... that a breach of duty was involved, a negligent failure to know... know her duty?

Donald James Sullivan: --If we didn't have the factual setting in the record of... of the lady saying to people she believes on a current basis the child is being abused and saying later I believed the child was going to die, that might be the case.

But I think given the facts that exist, I don't think that's the situation.

I have only two minutes left.

Obviously, I'll answer your questions.

I would like to reserve what little time there may be, if that's acceptable.

Unidentified Justice: Very well, Mr. Sullivan.

Donald James Sullivan: Thank you.

Unidentified Justice: Mr. Mingo, we'll hear now from you.

ORAL ARGUMENT OF MARK J. MINGO ON BEHALF OF THE RESPONDENTS

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

May it please the Court:

We believe this case involves an attempt by the Petitioners to transform the private wrongdoing of a natural father into state action for purposes of invoking the Fourteenth Amendment.

The primary issue presented is whether a county's failure to prevent the infliction of harm by a third party upon a person at liberty constitutes a due process violation of the Fourteenth Amendment.

We believe that there was no state deprivation of a constitutionally protected right for three main reasons.

First, the Fourteenth Amendment's concept of liberty does not include a right to basic protective services from the state.

Secondly, there is no state action in a constitutional sense which caused a deprivation in this case.

Third, we believe that the actions of the social worker did not evince the state of mind necessary to invoke the Fourteenth Amendment.

In addition, we believe that there are two independent reasons for urging affirmance of the Seventh Circuit's decision.

First, with respect to the municipal Respondents, there was no policy or custom which led to a deprivation and with respect to the individual Respondents, we believe they are clearly entitled to the defense of qualified immunity.

Unidentified Justice: The lower courts didn't reach any of those issues, did they, because they found there was no constitutional duty?

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

It seems to us that what Petitioners are attempting to do is use Section 1983, on one hand, and the Fourteenth Amendment on the other hand to affirmatively compel the states to act to protect.

Yet, in analyzing the... the legislative history and intent of Section 1983, it's quite clear that the statute was not designed for those purposes.

Section 1983 is remedial in nature.

Therefore, we must look to the... the constitutional right that the Petitioners seek to invoke by way of use of Section 1983, which brings us precisely to the Fourteenth Amendment.

The Fourteenth Amendment has been viewed by this Court as imposing no constitutional duty upon the states to provide substantive services to its citizens.

The Court also has held that if the state chooses to provide some form of protective services, the Fourteenth Amendment does not tell the state how far they must go in providing those services.

Unidentified Justice: Mr. Mingo, if this child had been in foster care placed by the state or the county, would there be potential liability?

Mr. Mingo: Justice O'Connor, in that instance, we believe there may well be potential liability because in that case we have, at least arguably, state action in the sense that the state took a child out of his natural surroundings, arguably put him in state-controlled surroundings and thereby increased the risk of harm to that child.

In that instance, I believe we may well have a case somewhat analogous to the prison setting and perhaps more analogous to the mental institution setting that was present in Youngberg v. Romeo.

Unidentified Justice: What... I... I'm sure Justice Stevens is going to ask the same question.

So, go on.

You take it, John.

[Laughter]

Why wasn't that what happened in January of 1983 when they returned the child?

Is that what you were going to ask?

[Laughter]

Mr. Mingo: In January of 1983--

Unidentified Justice: Because they had custody of the child for a few days.

Mr. Mingo: --the hospital had custody of the child because of the fact that the juvenile court... not the social workers, not the Department of Social Services, but Wisconsin juvenile court... through its intake worker placed the child in the temporary custody of a hospital.

Unidentified Justice: All right.

And assume, having done that, the hospital now learns if we return the child to his father, the father has the knife and is about the abuse the child, do you say the state can go ahead and return the child?

Mr. Mingo: Although that is certainly not the case before this Court, in that instance, I believe from a constitutional standpoint only a county or a department of social services could return the child without facing constitutional liability.

Unidentified Justice: Even with knowledge that there's... even with knowledge of extreme danger and almost certain serious abuse of this kind?

Mr. Mingo: Even with that knowledge, Your Honor.

Unidentified Justice: Well, why is that different then from the foster home case that Justice O'Connor asked you about?

Mr. Mingo: In the foster home setting, we have the state taking a child away from his natural surroundings, putting him in another set of surroundings, which are state controlled, state operated--

Unidentified Justice: That's exactly what happened here.

Mr. Mingo: --No, that's quite different from what happened here.

Here we have a child being taken out of his home for three days by the juvenile court and then, because no petition was filed by the Corporation Council which was... had nothing to do with the decision of the social worker, but the Corporation Council failed to filed a petition.

Therefore, the--

Unidentified Justice: No, but during those three days, the child was in the custody of the state, wasn't it?

Mr. Mingo: --No.

The child was in the custody of the hospital.

Unidentified Justice: Who owned... who operated the hospital?

Mr. Mingo: As far as I know, it was a public hospital.

The child was placed there for purposes of examination only.

Unidentified Justice: But... but who had custody?

You... you don't think the state or this agency had custody of the child during that period?

Mr. Mingo: The agency I believe definitely did not have custody of the child.

I also don't believe this was a state-run institution.

The reason that the child was placed in this hospital was for... primarily for... for observation and secondly because his father could not be located.

The child was examined.

After the three days in the hospital, it was the concurrence by the hospital personnel and by the Corporation Council that evidence of abuse could not be substantiated.

That automatically triggered Wisconsin's statute coming into play which required that the child automatically be returned to the parent in the event a petition was not filed--

Unidentified Justice: And the statute required whom to... to return the child?

Mr. Mingo: --Pardon me?

Unidentified Justice: Who was it that had the duty to return the child?

Mr. Mingo: Wisconsin's statutes say that the juvenile court... not the social worker, but that the juvenile court must return the child to the home in the event a petition is not filed within 72 hours.

Unidentified Justice: All right.

Supposing the juvenile court is given evidence that if you return the child to the home, the child will be seriously abused forthwith?

xxx.

Would the state be liable if it went ahead and returned the child?

Mr. Mingo: Even though we may have the requisite state of mind, Your Honor, present in that case, I do not believe--

Unidentified Justice: xxx state action too.

Mr. Mingo: --I don't believe in that instance we would have state action because we have not done anything to increase the risk of harm to that child, whereas in Justice O'Connor's example, we certainly can be said to have increased the risk of harm to the child because we took that child away from his or her natural surroundings and put that child into an arguably more dangerous set of surroundings.

And we believe that's what triggers state action.

Unidentified Justice: What if you don't give it back to the father, but you give it back to... to the wrong person?

You give it back to some... some--

--Some child--

--right... some... some mad criminal who has just been released from a mental institution knowing or you ought to know that this is not the... not the father.

Would the state have any liability in those circumstances?

Mr. Mingo: Justice Scalia, I believe in that set of circumstances there well may be liable... liability because we have state action--

Unidentified Justice: So, what you're saying is what makes a difference is whether you're just returning him to the status he was in before you took over the temporary custody.

Is that... is that the difference?

Mr. Mingo: --I believe that the important factor to be looked at is whether or not the state action can fairly be said to have increased the risk of harm to that child.

If the answer to that threshold question is yes, then I believe we have state action in a constitutional sense.

Unidentified Justice: Increased it from what?

From what it was before the state took custody or from what it was when the state had custody?

Mr. Mingo: From what it was before the state interjected and took custody.

Unidentified Justice: Well, you were just returning it to the person who had the legal right to custody.

Mr. Mingo: That's correct.

When an individual such as the--

Unidentified Justice: Which is more important than the abuse to poor Joshua?

Mr. Mingo: --We're not saying it's more important, but the parents certainly have a constitutionally protected right which must be observed by the social worker.

Unidentified Justice: Poor Joshua.

It's the... I... I guess the... the malfeasance was by the person who didn't file the petition to change custody.

Mr. Mingo: If there was any malfeasance, that certainly would be an argument.

The record is quite clear, though, that all of the professionals in this case, the pediatrician, the child psychologist, the police officer who investigated the case... they all believed that abuse could not be substantiated.

Every one of the professionals involved concurred, and the record is absolutely clear in that regard.

They all concurred that there was no evidence to substantiate a claim for child abuse.

Unidentified Justice: Well, except the social worker.

Mr. Mingo: I'm now talking about the January 22 incident where the state arguably took custody or custody was placed with... with the hospital.

At that time there was an initial suspicion of child abuse which after the three-day stay in the hospital, all professionals agreed could not be confirmed.

In looking at this Court's decisions, it appears to us that state action has been found primarily in two settings: first, and most obviously, where the state goes out and directly inflicts harm upon an individual; secondly, state action has been found in a custodial setting where the state by its intentional act deprives a person of liberty, and by depriving that person of liberty, assumes a degree of control over that individual such that they have a reasonable means of protecting that individual, such as in a prison setting, and where they assume some responsibility for that individual's welfare.

Unidentified Justice: Well, Mr.... Mr. Mingo, I wonder if you wouldn't be better advised to use the term "constitutional duty" rather than state action.

There's no doubt that the social worker was a state actor.

She was a... she was a public employee doing this, and her acts were those of the state.

Your point really is that she was not under a constitutional duty to do certain things that your opponent says she was under a duty to do.

Mr. Mingo: Yes, Your Honor, you're quite correct.

State action can be quite misleading, and when I use the term "state action", I'm trying to use it in a constitutional sense which necessarily implies a deprivation of a constitutionally protected right.

Unidentified Justice: And under your theory, I take it if two policemen see a rape and watch it just for their own amusement, no violation of the Constitution.

Mr. Mingo: We would concede that there is no constitutional violation in that particular case.

Unidentified Justice: You're not... you're arguing it as well as conceding it.

[Laughter]

Mr. Mingo: That's correct.

In this case it is undisputed by both sides that there was no direct deprivation or direct infliction of harm upon the Petitioners nor was the Petitioner in the custody of the state at the time of the alleged wrongdoing.

In order to circumvent the... the state action or constitutional deprivation requirement, counsel has proposed in their brief a special relationship theory which today they appear to call an enmeshment theory.

No matter what it is, this theory would hold states liable wherever they have expressed a desire to afford protection to an individual and where they have some generalized knowledge of the victim's plight.

We submit that such a theory has no support in the language of the Fourteenth Amendment, no support in Section 1983, nor does it have any support in any prior decision of this Court.

What their theory would do is open up local governments to massive new areas of exposure precisely because of the fact that the states, if we were to accept Petitioners' theory, become liable for the acts of private wrongdoers.

There are numerous governmental agencies other than social services departments which seek to afford some degree of protection to the public.

Certainly police departments, fire departments, emergency ambulance services fall into that very same category.

It seems to us that if Petitioners are to prevail in these types of cases, the effect will be to greatly expand the financial drain on local governments thereby making the very services that Petitioners claim they wish to encourage less available to the public as a whole.

Unidentified Justice: Mr. Mingo, under Wisconsin law, does Joshua have a cause of action against his father?

Mr. Mingo: He certainly would have a cause of action against his father.

In fact, his--

Unidentified Justice: No... no barrier between child/parent relationship?

Mr. Mingo: --That... that immunity was done away in Wisconsin some 10 or 15 years ago.

And, in fact, I might note that Randy DeShaney, the father, was in fact a party defendant to this action when it was first... when the complaint was first filed.

He was subsequently dismissed on a voluntary basis by counsel.

So, he was in fact a party defendant, and there was no objection on the basis of immunity.

Again, we wish to emphasize that the problem with this special relationship or enmeshment theory is that it fails to distinguish between privately inflicted harm and state action.

On the other hand, we believe that the Court's adherence to the traditional state action or constitutional deprivation requirement provides a bright line standard which would separate actions of private wrongdoing from actions which can fairly or truly be attributed to the states.

We also believe that the Petitioners cannot prevail upon their Fourteenth Amendment claim because the social workers in this case did not evince the state of mind necessary to support a Fourteenth Amendment action.

This Court has recently told us in Daniels and Davidson that negligence certainly is not enough.

And the Court also indicated to us that traditionally the due process clause has been applied to deliberate decisions by government officials to deprive a person of life, liberty or property.

This case we believe is even less constitutionally compelling than Daniels and Davidson because we are not dealing with a custodial setting, and we are faced with claims of inaction versus action.

In such circumstances, we have proposed that the requisite state of mind must be that of deliberate indifference or a failure to act.

And the reason we propose this heightened state of mind requirement is twofold.

First, we believe it avoids trivializing the Constitution by allowing individuals to bring ordinary tort claims in the name of the Fourteenth Amendment.

And we also believe that this heightened state of mind requirement recognizes the real-life dilemma which front-line social workers and many other governmental workers face on a daily basis.

As the Seventh Circuit indicated below, social workers truly do operate on a razor's edge.

First, a social worker must respect the constitutional rights of a parent to the care, custody and management of their children.

Secondly, where a social worker's involvement is on a purely voluntary basis, such as it was in this particular case, she must walk a fine line to avoid having the door slammed in her face thereby preventing any future involvement of the department.

This--

Unidentified Justice: You... I take it you don't agree with your colleague on the other side that the social worker was... was disregarding her duty under state law?

Mr. Mingo: --We certainly do not agree with that position, and we believe the record is quite clear.

The only duty she had under state law was to investigate when she received a report of abuse.

The only report of abuse which the department ever received in this case was the initial report of suspected abuse.

Immediately following that report, there was an investigation.

The child was placed in the hospital for three days and then, since there was no filing of a petition at the end of three days, the child was automatically returned to the home.

After that first incident, there was absolutely no further reports of abuse.

Unidentified Justice: Yes, but there was further information received by the social worker, wasn't there?

Mr. Mingo: There was information in the sense that the social worker suspected that there might be abuse.

Unidentified Justice: And the... wasn't there visits after that?

Mr. Mingo: By the social worker?

In fact, there were 12 visits on a voluntary basis.

Unidentified Justice: Well, that's better... that's better than having a written report I suppose.

Mr. Mingo: In fact, those were tantamount to informal investigations.

But there was only one formal investigation, and that was triggered by the initial report of abuse.

Unidentified Justice: Well, but the submission... the submission is that the social worker knew enough that under state law it was her duty to take the child out of the house or do something to... to remove the child from that position of danger.

And you disagree with that I take it.

Mr. Mingo: We do disagree with that.

Under state law, it's quite clear that the only duty that the social worker had was to investigate.

And she only had a duty to investigate when she received formal reports of abuse.

Unidentified Justice: Well, what... what was the purpose of investigating?

Wasn't there... didn't the law... doesn't the law say, well, and if you find out certain things, you must do certain things?

Mr. Mingo: The law doesn't say that, but I believe the law probably presupposes that if there is an investigation and that investigation reveals probable cause to believe that there was child abuse, that that information will be relayed to, in this instance, the Corporation Council who will then file a petition in juvenile court.

Unidentified Justice: In Wisconsin--

--So, you're relying--

--what's the difference between a formal and an informal investigation?

You keep saying that this wasn't a formal one.

What's the difference?

Mr. Mingo: The only formal investigation--

Unidentified Justice: Well, what is the difference?

Mr. Mingo: --A formal investigation is an investigation triggered by the statute.

And the statute only triggers a duty to investigate when the social worker receives a report of abuse.

Unidentified Justice: Well, what's the difference in what the social worker does?

Mr. Mingo: Again, the... a formal investigation is any investigation triggered by the statute, 48... Section 48.981.

Unidentified Justice: So, there's no difference between a formal and an informal one.

Is that right?

Mr. Mingo: I don't believe that is correct.

Unidentified Justice: Well, what is the difference?

This is my last time I'm going to ask you.

Mr. Mingo: The only way I can answer that question, Justice Marshall, is to tell you that a formal investigation is one that's triggered by a statute.

An informal investigation is one voluntarily undertaken by the social worker.

The net effect may be the same, but the triggering process is different.

Unidentified Justice: So, you really are drawing the distinction between a formal report and an informal investigation.

No matter how much she uncovers, if no... there is no resulting formal report, no possible liability.

Mr. Mingo: That's not the basis of our... our... our position is.

Unidentified Justice: I thought that's just what you've been arguing.

Mr. Mingo: What I've been attempting to argue is that a formal report is required to trigger an investigation.

If she receives a formal report, then she does have some affirmative duties imposed upon her by the statute.

The statute says she shall investigate.

Unidentified Justice: Thank you, Mr. Mingo.

Mr. Ayer, we'll hear now from you.

ORAL ARGUMENT OF DONALD B. AYER AS AMICUS CURIAE SUPPORTING THE RESPONDENTS

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

I want to address the... the due process... the deprivation of due process analysis briefly if I could, but before I do, I'd like to say a few words about the relationship between federal and state government and the role of the federal Constitution because I think it is reasonably clear that the area of child protection is not one that is crying out for federal constitutional oversight.

First of all, it is not an area where there is any sort of history of hostility between the state and the interests that we're talking about trying to protect.

Quite the contrary.

There being no constitutional right to this protection in the first place, it's clear I think that the state programs that have been set up have all been set up as a matter of state and local government initiative born of exactly the same sentiments and concerns that everyone feels toward children who are exposed to the kinds of abuse and hazards that we're sadly reviewing in this case.

So, we don't have... we don't have a... a state actor who there is a need to step in front of and stop in any sort of habitual way.

Quite the contrary.

The state is actively intervening to do all that it reasonably can do.

Second of all, I think there's no reason to think that federal oversight, federal constitutional oversight, is going to add very much to the handling of these sensitive and difficult problems.

There is I think little reason to think that federal courts have any special expertise in the reviewing of what is at least in some sense a balance between interests of parents, respect for the interest of parents in controlling their children, as opposed to the priority of intervening when you... when you need to and must in order to protect the child.

It's the kind of a sensitive situation that requires close, on-the-scene involvement, the exercise of discretion and the exercise of a great deal of care and concern.

It's an area of... of traditional state law involvement and local government handling.

And the idea that at a federal court review engrafted on top of what is already in place, machinery that has been put in place by the state and local governments... the idea that that is going to help rather than hurt I think is... is really a misguided one.

We're talking about a number of things.

We're talking about, number one, creating another layer of judicial action, judicial review, which itself will result in delay.

It will divert resources from the... the real everyday problems and the handling of these personal situations.

We are talking possibly not only about awarding damages and creating a... a chill and a discouraging factor which Justice O'Connor alluded to being involved at all, also a day-to-day possible, I suppose, injunctive role for the federal courts coming involved not only after the fact when something has happened to award damages, but becoming involved as these cases evolve.

You go to the local court.

You go to your local social service agency.

You go to the local court, and then you go to federal court.

The idea that that is somehow going to help the resolution of these problems seems to be... seems to be misguided, and I think there is a good reason to fear that it may well just primarily discourage the involvement of local agencies for fear that they're going to be facing an unmanageable and very expensive situation.

All of that is basically irrelevant unless it is wholly consistent with the law and what the Constitution requires.

And very briefly I'd like to say that I think it's quite clear that when you take to heart the Court's statements that the due process clause is not to be a font of tort policy which will evolve as tort policy does in response to various economic and distributive concerns and theories and... and sort of comes and goes with... with social concerns and the social situation, it's clear that we can't create the liability which is requested by the Petitioner here without really creating an open-ended possibility--

Unidentified Justice: What if a police officer responding to a complaint of a neighbor goes into a house and sees a father beating up his son and the officer just says, well, I guess the son deserves it and just watches as the beating goes on?

Would there be any liability on the... on the officer himself and--

Mr. Ayer: --I don't--

Unidentified Justice: --[inaudible] on the state?

Mr. Ayer: --I don't think that there is going to... I think the answer is probably no.

It might change depending on the particular facts you're talking about, but I... I think it has got to turn on whether what happens can be described as an abuse of government power which is a moving force behind the harm that is taking place.

Unidentified Justice: But protection is never one of the... one of the things that the Constitution would require the state to furnish.

Mr. Ayer: I don't... I don't think it is.

I don't think that the state is obligated to provide a particular service as desirable as that may be and as concerned as most everyone probably is that that not go on.

Unidentified Justice: And even if the... even if the state law put... put the affirmative duty on the officer or the social worker to remove the child or stop the abuse if it occurs in their very presence.

Mr. Ayer: Well, it might be possible to write a statute in a way that created a procedural due process interest.

I don't know quite how you'd do that, but you'd have to link... the words would have to be fairly mandatory and would have to link rather closely to the harm that you're talking about now occurring.

And if that happened, the question would then be about the adequacy of the remedy that was provided for... for the harm when it did in fact occur.

Unidentified Justice: We're just talking here about whether there's a federal cause of action.

I... I presume--

Mr. Ayer: Absolutely.

Unidentified Justice: --I presume that there would be a state cause of action against the officer in those circumstances if he had a duty to act and didn't.

Mr. Ayer: Well, in most cases, I would think there would be.

And, of course, the point I guess I was making earlier in summary is that there is no reason why we can't rely on the mechanisms of state and local government to create the remedies that are appropriate in these circumstances.

Unidentified Justice: Well, my only purpose of asking the question is that I... I take it that... that you had to answer that way and... but also it makes irrelevant how much the social worker knew.

Mr. Ayer: Well, I... I think that's right unless you... unless you are--

Unidentified Justice: Yes, and if... but if we... if we decide... if we... if we decide for the state, it... it really does mean that it's irrelevant how... how much the social worker knew or--

Mr. Ayer: --That's correct.

Unidentified Justice: --how much of a duty she had under state law or anything else.

Mr. Ayer: That's correct unless you are thinking of going down the... the Roth line of argument which I think is... is--

Unidentified Justice: Well--

--But your--

--that's never been argued around here.

But your basic position is there's no affirmative duty on the part of the government to... to provide the protection of the law to a particular citizen--

Mr. Ayer: --Well, there... there's a duty--

Unidentified Justice: --even though there is a duty to provide equal protection of the law.

Mr. Ayer: --That's right.

That's right.

And... and I think... I think the way that one... what one would have to do to violate equal protection of the law is... is useful in thinking about how to think about a violation of due process in the sense that there the denial of equal protection which could, in fact, be other than an affirmative act or... or the government being a moving force behind the harm, nonetheless it must be intentional.

It must be an act which intends the result... the denial of the protection that they otherwise would be entitled to.

And I would suggest that that concept of intent... whereas it's... it probably is not the best way to decide this case, I would suggest that an intent to take an action which does deprive one of liberty, such as by putting... putting them in jail, putting them into a mental facility or something like that, that that's the kind of intent that you ought to have to have.

That's an issue, of course, the Court did not reach in Davidson and Daniels as to whether that degree of intent is required.

We would suggest that it is.

Unidentified Justice: What about giving him back to his father?

What... what... what... what's the government's position on that?

Mr. Ayer: xxx the case?

Unidentified Justice: If the state had... well, let's assume the state had a lot of knowledge at the time the child was returned to his father.

Would you consider that to be enough affirmative state action to--

Mr. Ayer: Well, I... I... I would think not and the reason would be that the removal in this case was a temporary removal for specific purposes.

The father remained the legal custodian of the child.

No affirmative action had been taken to determine that the... the father was unfit and that the expiration of this temporary period, absent further action, the child was going to go back to... to the parent.

And the fact that it did not take that affirmative action, but rather let the status quo continue, I think is not the kind of affirmative action that you've got to have in order to have the state be the moving force... its abuse of power be the moving force behind the injury that occurred.

Thank you very much.

Unidentified Justice: --Thank you, Mr. Ayer.

Mr. Sullivan, you have one minute remaining.

REBUTTAL ARGUMENT OF DONALD JAMES SULLIVAN

Donald James Sullivan: Thank you, Mr. Chief Justice.

Unidentified Justice: Mr. Sullivan, do you rely on due process or equal protection?

Donald James Sullivan: Due process, Your Honor.

Unidentified Justice: Due process?

Donald James Sullivan: We... we posed this case in terms of--

Unidentified Justice: All right.

Well, spell it out.

Just what due process point--

Donald James Sullivan: --I'm sorry.

I didn't hear.

Unidentified Justice: --What denial of due process is it that you deny... that you object to?

Donald James Sullivan: We feel there... there are two: one, the... what we see to be a... a substantive due process right inherent in the balancing of the constitutional involvement in the child/parent relationship.

Unidentified Justice: Well, what facts do you object to?

Facts.

Donald James Sullivan: We object to the fact that the... the county agency and its personnel knowing and believing that the child was probably going to die or at least be seriously, as he turned out to be, profoundly injured and knowing that he was in immediate need of medical care for lifesaving purposes, nonetheless, despite its power, its exclusive power, refused to help the child.

It is that that we believe is the abuse of power.

And we agree with Mr. Ayer's comment that abuse of power is the... is the... is the key here.

I see my time is up.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Sullivan.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

New Jersey v. T.L.O. - Oral Argument

Thu, 30 Aug 2012 22:28:12 +0000

Case:

New Jersey v. T.L.O.

Media File:

83-712_19840328-argument

Related Transcript:

83-712_19840328-argument

Transcript:

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in New Jersey against T.L.O.--

Mr. Nodes, I think you may proceed whenever you are ready.

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, this Court granted certiorari to the New Jersey Supreme Court in this case on the issue of the applicability of the Fourth Amendment exclusionary rule, the school searches conducted by school teachers and school officials.

In this case, the respondent was observed smoking a cigarette in a school restroom by a teacher.

The teacher took the student to the vice principal's office, and reported the incident to the vice principal.

After the vice principal left, the student not only denied having smoked in the restroom, but also stated that it couldn't have been her because she didn't even smoke.

After... following this statement, the vice principal asked for the student's purse, and opened the student's purse, finding a pack of cigarettes lying on the top.

He picked up the cigarettes and said something to the effect of,

"You lied to me about smoking cigarettes. "

looked back in the purse, and saw rolling papers for cigarettes.

He believed these were indicative of the presence of drug paraphernalia in the purse, and continued to look through the purse.

He found marijuana and other indications that the marijuana was in the purse for purposes of distribution.

Unidentified Justice: Mr. Nodes, under New Jersey law, can a minor consent to a search?

Allan J. Nodes: I don't think there would be any distinction under New Jersey law between a minor consenting to a search and an adult consenting.

New Jersey has a slightly stricter standard than the federal standard concerning consent, and it would have been absolutely necessary that the juvenile be aware of her rights prior to the search taking place in order for it to be a consent search.

Because of this, the state has always conceded that it was not a consent search.

The trial court and the appellate division in New Jersey--

Unidentified Justice: You left out one item in the pocketbook, the $40.

Allan J. Nodes: --I beg your pardon?

Unidentified Justice: You left out one item in the pocketbook--

Allan J. Nodes: Yes.

Unidentified Justice: --which was $40 in $1 bills, which signified that she was selling it.

Allan J. Nodes: Yes, Your Honor.

Unidentified Justice: You left that out.

Allan J. Nodes: There were also pieces of paper indicating that various other people, Johnny, people like that, owed her $1, $1.25, things like that, and all these items were entered into evidence at the juvenile delinquency proceeding against T.L.O., and they were all evidence of an intention to distribute the marijuana which was found in the purse.

T.L.O. was adjudicated a delinquent as a result of the evidence which was found, and the trial court and the New Jersey Appellate Division found that the search was totally proper.

However, the New Jersey Supreme Court found that the search exceeded reasonable grounds, and therefore found that it was required to exclude the evidence which had been found in the search.

Now, in reaching this decision, the New Jersey Supreme Court found that due to the amount of state action involved, that the Fourth Amendment to the United States Constitution would apply to this situation, and we have not protested this ruling.

In addition, the New Jersey Supreme Court found that in order for a search to be reasonable under the United States Constitution in the school search context the person conducting the search must have reasonable grounds to believe that the search will uncover evidence of a crime or evidence of a violation of school discipline or school regulations.

Unidentified Justice: Mr. Nodes, in your question presented for certiorari, you say whether the Fourth Amendment exclusionary rule applies to searches made by public school officials and teachers in school.

Now, the unwary might think that you were talking perhaps about an administrative proceeding where someone has been kicked out of school, wondering whether the exclusionary rule would apply in that, but here the exclusionary rule is applied by the Supreme Court of New Jersey in connection with a criminal prosecution of this person, was it not?

Allan J. Nodes: Yes, it was applied in connection with a juvenile delinquency prosecution.

The rules in New Jersey would be the same whether it was a juvenile delinquency prosecution or a criminal prosecution.

Unidentified Justice: So what we are really talking about here is the standard supporting a search, aren't we, in a school, rather than whether the exclusionary rule applies in this proceeding?

Allan J. Nodes: Well, the primary motion that was made by the defendant was for exclusion of the evidence, and the first question that had to be reached by the New Jersey court was whether or not under any circumstances there could be exclusion of evidence illegally taken in the school situation.

If the answer to that question was no, under no circumstances would this type of evidence be excluded, then setting a standard wouldn't be absolutely necessary.

That would no longer really be in controversy.

In the case, the New Jersey Supreme Court did do both.

It did set the standard and it also ruled that exclusion was warranted.

Unidentified Justice: And so your argument I take it is primarily addressed to the standard?

Allan J. Nodes: No, our argument here is primarily addressed to the exclusionary rule issue.

We basically agree--

Unidentified Justice: Well, do you think it is open to us to deal with the reasonableness of the search?

Allan J. Nodes: --I believe that could be considered a question subsumed within the--

Unidentified Justice: But it wasn't your intention to raise it?

Allan J. Nodes: --It wasn't our intention to raise it because we agree with the standard that was set forth by the New Jersey Supreme Court.

We feel that that is a workable standard.

Unidentified Justice: Courts around the country have differed somewhat on that standard, have they not?

Allan J. Nodes: Yes, they have.

In this whole area there has been a great deal of difference.

There have been courts which have held that the Fourth Amendment... they have gone all the way from saying the Fourth Amendment doesn't even apply to saying that the Fourth Amendment always applies and exclusion is always needed.

The reason we didn't specifically address the issue, though, of the standard, we believe both counsel have addressed that issue in their briefs, in footnotes, and we have set forth arguments, and the arguments were made before the New Jersey Supreme Court, is, the reason we didn't address it is because we think the New Jersey Supreme Court set forth a good standard and a workable standard.

Unidentified Justice: What exactly is your quarrel with the Supreme Court of New Jersey?

Allan J. Nodes: Our quarrel with the Supreme Court of New Jersey is that we do not feel that the exclusionary rule works as a deterrent in the school search situation, and because of that we don't feel that exclusion of evidence from a later criminal proceeding should ever occur when the search was instituted by school teachers and school officials.

Unidentified Justice: So teachers and school administrators should not be treated the same way as policemen and law enforcement--

Allan J. Nodes: That is our primary contention.

Yes, Your Honor.

Unidentified Justice: --Has the exclusionary rule been applied in other administrative search contexts?

Allan J. Nodes: Yes, it has been applied in other... in exclusionary... in other administrative search contexts, such as OSHA searches--

Unidentified Justice: Or fire protection people, and so forth?

Allan J. Nodes: --Well, yes.

I am not certain that those are actually administrative searches.

The people involved in them were searching for evidence of arson, which is definitely a crime, and it often wasn't a firefighter per se.

Unidentified Justice: In the other context, do you think it was based on a deterrence rationale?

Allan J. Nodes: I believe that certainly with the firefighters--

Unidentified Justice: In administrative contexts?

Allan J. Nodes: --Yes, I believe it was.

The persons who--

Unidentified Justice: But you somehow think that school officials can't be deterred?

Allan J. Nodes: --I think it is much less likely that a school official will be deterred.

The firefighter, and I believe in both Clifford and Tyler, the real persons who were doing most of the searching were either fire inspectors or police who were called in by fire inspectors, and they were very definitely searching for evidence of a very serious crime.

It wasn't an administrative search, and the other searches that are closer to pure administrative searches, such as Cameron and Barlows, cases like that, the persons who were doing the searches on a regular basis conducted searches for violations of civil regulations and administrative regulations.

That was their primary duty, and the purpose of the search was to find violations and it was clear that that evidence would be presented in the trial.

That was their primary function.

I think--

Unidentified Justice: Well, is it your view that school officials, regardless of the exclusionary rule's application, would continue to do what they always have done?

Allan J. Nodes: --It is our contention that the exclusionary rule has very little effect on a school teacher.

We feel that there are other means of teaching school teachers compliance with the Constitution and ensuring that there is compliance with the Constitution.

Unidentified Justice: Well, if that is so, then how can you square that with your argument that the application of the rule will create havoc in the schools?

It just seems inconsistent.

Allan J. Nodes: Well, I think that what it is is that if the exclusionary rule is to be applied, and if it is to have any effect, it can work only under very limited circumstances.

I think that one of the journals pointed out in the respondent's brief, the Journal of Law and Education set forth the way the exclusionary rule could work, and basically the journal suggested that in the school situation administrators and teachers could identify people in schools who were likely to cause trouble.

They could watch where these students went, and make notes of where they went.

They could watch who these students associated with and make notes of that.

They could make notes of whether the people... the students seemed to sometimes be intoxicated, seemed to be acting belligerent seemed to be cutting classes, seemed to be late a great deal of time.

And basically, what it sounds like is that in order for the rule to work, school teachers are going to have to turn into policemen, and they have to turn into policemen who will develop a dossier on a student before conducting a search.

Unidentified Justice: Mr. Attorney General, in this particular case, if the girl involved had a locked briefcase, would it have been all right to break it open?

Allan J. Nodes: I think this case presents a difficult question, and it was a question obviously in the New Jersey Supreme Court, in the New Jersey courts, and that is why there was a split.

A locked briefcase would show an added indication that the person had an expectation of privacy.

Under the standard set up by the New Jersey Supreme Court--

Unidentified Justice: But a closed pocketbook wouldn't be?

Allan J. Nodes: --Well, I think that the--

Unidentified Justice: Have you ever seen a woman that didn't take her pocketbook without a purse?

Allan J. Nodes: --Possibly not, Your Honor, but I think that it was a standard set up by the New Jersey Supreme Court.

The court indicated that the greater the intrusion, the more significant the intrusion the higher the standard would have to be in any event.

So I think before we went into something that was locked--

Unidentified Justice: That could be classified as free-wheeling.

Allan J. Nodes: --I think it would better be classified as a common sense approach which school teachers can actually use.

Unidentified Justice: But sometimes... anyway.

General Nodes, let me just ask you this question, if I may, following up on what Justice O'Connor was asking you, on the effect of what you are asking for.

You are not challenging the standard or the application of the standard in this case.

You are taking a broad position, as I understand you, that the exclusionary rule simply doesn't apply in the criminal context when the search is made by a school official.

Allan J. Nodes: Absolutely.

Unidentified Justice: But as I understand the New Jersey court, it would permit these searches to go ahead and let the results of the search be used for school disciplinary purposes and management of the school without any deterrent whatsoever.

Allan J. Nodes: Okay.

The New Jersey Supreme Court has not specifically addressed that issue, and has not said that.

Unidentified Justice: But this case doesn't preclude that.

Allan J. Nodes: No.

Unidentified Justice: All this case deals with is whether after the material is obtained it can be used for criminal purposes.

Allan J. Nodes: That is correct.

I would note that a chancery judge in New Jersey did rule in this case that evidence would be excluded from the disciplinary proceeding.

Unidentified Justice: But that is not before us.

Allan J. Nodes: That is not before us, and that is a single opinion that wasn't contested.

Our only contention is really that the exclusionary rule shouldn't apply in a criminal trial when the search was conducted by school officials.

Unidentified Justice: And that is no matter how flagrant the violation might be.

Allan J. Nodes: Yes, we think that regardless of how flagrant it would be, the standard would be the same, the application of the exclusionary rule would have very little effect, and that is the problem.

We just don't believe the effect is there.

This Court has often noted that there is a balancing test that must be used in determining whether or not the exclusionary rule would be applied in any context.

For instance in United States v. Havens, the Court allowed excludable evidence to be used for purposes of impeachment.

In United States v. Colandra, possibly excludable evidence was allowed to be presented before a grand jury.

In U.S. v. Janis, the Court allowed evidence which had actually been suppressed, quashed a state criminal proceeding to be introduced in a federal civil proceeding.

In Stone v. Powell, this Court found that the additional benefits of allowing search and seizure points to be raised in the federal habeas corpus context would be slight relation to the costs.

I think that all these cases have centered very square on the idea that a balancing test must be used, that the exclusionary rule has as its purpose the deterrent effect, and that we must be sure that that deterrent effect outweighs any detriments of the exclusionary rule before we will automatically apply the rule.

I believe that the benefits of applying the exclusionary rule to the school search situation are really very limited and very questionable.

The rule in effect punishes law enforcement officers for transgressions which are committed by law enforcement officers and transgressions themselves and other law enforcement officers.

Chief Justice Warren E. Burger: We will resume there at 1:00 o'clock, counsel.

Allan J. Nodes: Thank you.

Chief Justice Warren E. Burger: You may continue, Mr. Nodes.

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONERS -- RESUMED

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, at the recess I was trying to explain that our position is that the benefits of applying the exclusionary rule to the school search situation would be very questionable.

The idea of the rule is to punish law enforcement offers for offenses committed by themselves or constitutional transgressions committed by themselves and by other law enforcement officers.

It is thought that those who are in charge of formulating policies for law enforcement will be the persons most greatly affected, since they will be the prosecutors who will lose cases if there is not compliance with the Constitution.

Because of this, the rule is thought to have the effect of causing education of the police officers and detectives and investigators who actually conduct searches, and by this means the entire law enforcement community will be given an incentive to comply with the Constitution.

This simply will not work with school teachers, because they are not a part of this law enforcement community, and their interests are different than law enforcement officers.

They do obviously have an interest in ensuring that there is discipline in the schools.

This interest, however, is secondary to the primary interest, which is to educate the students.

The primary function of a police officer is law enforcement.

A policeman becomes a policeman because of an interest in enforcing laws.

A school teacher becomes a school teacher because of an interest in education.

Because the interest in law enforcement is so secondary, the benefits of the exclusionary rule in the school search situation would be even less than they are in the general criminal law situation.

This Court has noted often that there is clearly very little empirical data of the effectiveness of the exclusionary rule, and there is some question as to how well it works for law enforcement.

When we remove the person who is doing the search one step further from the law enforcement and one step further from the trial at which exclusion will occur, there is much more question about the effectiveness of the exclusionary rule, and much more question as to whether or not it will actually be a deterrent.

As far as the real detriments of the exclusionary rule, the major detriment has, of course, been noted on many occasions by this Court, that the guilty may go free because of the rule.

This is tolerated because the rule is felt to foster respect for criminal laws and respect for our system of criminal justice in general.

But as Justice Powell writing for the Court in Stone v. Powell noted, the indiscriminate use of the exclusionary rule could actually have the opposite of the intended effect.

It could actually nurture disrespect for our criminal laws, and could actually nurture disrespect for our system of criminal justice.

This is obviously a detriment any time the exclusionary rule is possibly extended.

This detriment may be even greater in the school search situation because disrespect of our criminal laws and disrespect of the system of justice is not a lesson which we should teach our students.

Therefore, before the exclusionary rule is applied to school searches by school teachers and officials, it should be very clear that the benefits of the rule outweigh the detriments, and that there are no other means of exacting compliance with the Constitution.

We believe that the detriments have been set forth very clearly and that the benefits are very limited, and the only way that we could really get a beneficial effect from the exclusionary rule in a school search situation so that it would foster compliance with the Constitution is to have teachers act as policemen, to have teachers follow the same rules as policemen, for teachers to actually investigate as policemen.

I suggest that this would totally change the educational system in this country.

Unidentified Justice: May I ask one question on this?

As Justice O'Connor pointed out before lunch, there is apparently some diversity among the states as to what the right standard is, but we don't reach that question.

I was wondering, have any of the states that have addressed this question, has any court held that the exclusionary rule does not apply?

Allan J. Nodes: The District Court... the Supreme Court of Alaska found that the Fourth Amendment in a DRC case didn't apply.

Unidentified Justice: But any court that has held the Fourth Amendment has been violated but you don't apply the exclusionary rule to school teachers?

Allan J. Nodes: I don't remember the name of the case offhand, but I know there have been District Courts that have held that.

I could supply the Court with the name of the case.

Unidentified Justice: Federal District Courts?

Allan J. Nodes: Yes, sir.

But in addition to this detriment that would occur by either... by changing the school system, by using the exclusionary rule and by forcing school teachers to act as policemen, we believe that the exclusionary rule is unnecessary because there are other deterrents in the school situation which will really work.

As this Court noted in Ingram v. Wright, the school situation is different than many other situations.

In the school situation, there is a great deal of community interest and a great deal of parental interest.

Now, in that case, of course, this Court found that if corporal punishment in a public school went too far, the community pressures in addition to possible criminal proceedings and possible civil proceedings would have the effect of stopping further transgressions.

We suggest that this would be at least as true in a school search situation, and we suggest that the more egregious a search, the more chances the deterrence would occur.

If a student goes home and complains to his parent that he has just been the subject of an unreasonable search, there is a high likelihood that the parent will complain to the principal or to the board of education, and there is a great likelihood that the principal or the board of education will take action on the basis of that complaint.

In New Jersey, as in many other states, there are systems for bringing community complaints to boards of education.

If a complaint were filed against a school teacher or an administrator, the local board of education would consider the complaint, and if there was merit, they would report the complaint to the state board of education.

That board has the power to remove tenure from the school teacher, cause the school teacher to be fired, or to revoke the license of a school teacher.

We believe that this is the type of a real deterrent against unlawful actions which will actually work and which will actually have an effect on school teachers and on school administrators, and I think that the final analysis is, we will find that if unreasonable searches continue, the community pressure will stop them.

So there is an automatic safeguard in place to unreasonable searches in the school situation.

In addition, there is the possibility criminal action being brought against a student or teacher who conducts an unreasonable search, and this would be particularly true in the situation of a possible strip search or a search of that type.

There are obvious criminal possibilities, and the teacher who is involved in a search like that or the official would have to consider those possibilities.

Unidentified Justice: But that is not this case.

Allan J. Nodes: I beg your pardon?

Unidentified Justice: What criminal action would there be in this case?

Allan J. Nodes: I think there would be--

Unidentified Justice: Visual, charged with looking?

Allan J. Nodes: --Admittedly, there would be very little chance of criminal action in a case like this.

We believe that this is a less intrusive search than many others that have been referred to in the defendant's brief, and I believe that this is a much closer call than in many of the other situations which defendant has referred to.

And because it is such a close call, there would be less of a chance of deterrence obviously.

The Supreme Court of New Jersey, while finding that the search in this case was not within Constitutional bounds, did not say that the general actions of the school vice principal were totally unreasonable, but just that they were unreasonable under the Constitution.

In that situation, it is obviously much harder to deter.

I think, though, that this case, at least in New Jersey, has taught educators what the framework is within which they must work.

I think because of this case they have learned something, regardless of whether there is actually exclusion or not.

There is also the chance of bringing a tort action or a 1983 action either in the state court or in the federal court against a teacher or a school official who unreasonably searches a student.

These types of things have been known not to be effective deterrents in the law enforcement situation where law enforcement officers are dealing primarily with criminals and people who on the most part are found to have contraband.

However, in the situation of an unreasonable search of a school student, I suggest that there would be a much greater chance that a 1983 action could be successful because the school student is simply going to provide a much more sympathetic figure to put before a jury when requesting damages.

And even if damages aren't actually returned in each case, the school teachers and school officials' awareness of the possibility of damages can have a detrimental... a deterrent effect.

Defendant or respondent has pointed out that in Wood v. Strickland this Court limited the liability of school officials from 1983 actions, and said that they would not be liable for good faith violations, and the respondent points out that this would limit the detrimental... the deterrent effect which these type of actions can have.

We believe that these cases teach another lesson.

The Court has determined that because of the realities of a school situation, because of the necessities for making sure that there is discipline in schools, that schools shall be treated somewhat differently, that school teachers and administrators shall not be treated precisely as law enforcement officers.

Now, having limited the first party deterrent effect that a 1983 action may have, we believe that it would not be appropriate to try to enforce compliance with the Constitution by means of a third party deterrent, and in the school search situation, that is what the exclusionary rule would really amount to, because the school teacher is clearly one step removed from the police officer to whom they turn over the evidence, and that person is one step removed from the prosecutor from who the evidence will be suppressed.

We believe that in an ideal situation a means would clearly be developed to ensure that the Constitution was complied with while enforcement of criminal laws went on.

This Court has noted that in the criminal situation this wasn't possible and therefore a choice must be made and a compromise must be reached, and the exclusionary rule was set up as a choice, as compromise between ensuring full criminal prosecution and ensuring the constitutional rights are highly regarded by law enforcement officers and other state officials.

We now are facing a situation where we don't have to make a choice, where we don't have to accept a compromise.

We have a situation where the benefits of the rule would be slight, but we do have other deterrents.

We can teach the school children that they must comply with the criminal laws while also teaching them that there are deterrents in place which will ensure that their constitutional rights won't be violated.

We suggest this is the rule we should be teaching these students.

I would reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Ms. DeJulio?

ORAL ARGUMENT OF LOIS DE JULIO, ESQ., ON BEHALF OF THE RESPONDENTS

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

This case arises in the factual setting of the public school system, but I would urge the Court not to let the context obscure the fact that the issues presented here are not ones of educational policy, but are rather ones of criminal law.

The question is not whether or under what circumstances schools may regulate the conduct of their students.

It is not whether this school may use certain types of evidence in its own internal disciplinary proceedings to form the basis for imposing school sanctions.

Rather, the question is whether a court of law may permit an individual to be convicted of a crime based upon evidence illegally seized from him by a government official.

Unidentified Justice: Suppose, Ms. DeJulio, that all of these events that took place here took place not in the principal's office, but after the young lady got home, and it was her mother, not the school teacher.

Lois Dejulio: Well, Your Honor--

Unidentified Justice: And lay aside for a minute how the police get the evidence, but do you think the Fourth Amendment enters that setting?

Lois Dejulio: --Your Honor, the Fourth Amendment has never been applied to actions by purely private citizens, and certainly a parent would be acting in a purely private capacity.

However, courts have distinguished between the teacher acting as a state official and the parent acting in a parental role.

At one time, courts held that the teacher acted in loco parentis, that is to say, instead of the parent, and that doctrine may well have accorded with facts of the educational system as it stood 200 years ago, when the parent would hire a tutor or select a private school that would carry out the parents' own educational philosophy and disciplinary standards.

But in today's modern compulsory system of education, the teacher serves a very different role.

Unidentified Justice: Let me follow that now.

The mother is called to the school by the principal, and the whole episode occurs just as it did here, except that the mother orders the girl to open her purse.

The same answer?

Lois Dejulio: I would submit, yes, that that might very well be perfectly proper under the Constitution, and if the parent gave the evidence to the police, that may well also be proper.

Unidentified Justice: Well, I just said that the parent didn't give it to the police here.

The principal of the school then takes the evidence after the mother directs the daughter to disclose it.

Lois Dejulio: That may very well be a perfectly proper course of events.

In this case, it did not occur in that way, and the issue of whether the juvenile herself consented to the search by the principal under New Jersey law was decided against the state because it was not shown that she was aware she had a right to refuse, which would be the test under New Jersey state law for a consent search.

Unidentified Justice: May I ask another hypothetical question?

Let's assume you have a patient in a state hospital, and the hospital has a patient who has been forbidden to smoke, and the nurse has reason to believe that the particular patient is smoking, and searched his or her purse.

You would have the same situation?

Would you or would you not?

Lois Dejulio: I think that conduct would most likely be permissible.

Unidentified Justice: Why?

Lois Dejulio: Well, the test the New Jersey Supreme Court set forth did not prevent teachers or educators from conducting searches.

It merely required that they have some reasonable basis to do so.

Unidentified Justice: Yes.

Well, I am thinking about the application of the exclusionary rule.

Lois Dejulio: With regard to the application of the exclusionary rule, we would submit that if an improper search were conducted by a governmental employee, and I would--

Unidentified Justice: Well, let's assume that the nurse had probable cause to believe that there were cigarettes there and when the purse was opened found marijuana.

Lois Dejulio: --Well, if that were found to be correct, if there were probable cause, then that would be a constitutionally permissible search.

However, if not, it might be that the exclusionary rule would apply in that circumstance, depending on whether the actions of the nurse were considered--

Unidentified Justice: If the court found the search was not reasonable, the exclusionary rule would apply?

Lois Dejulio: --If the court found as a matter of fact, and I don't know, because I am not aware of the circumstances in state hospitals, whether the actions of a state hospital employee would constitute governmental action for Fourth Amendment purposes.

Unidentified Justice: A state hospital would be similar in that respect, wouldn't it, to a public school?

Lois Dejulio: I could certainly see some very definite similarities, and I would, without knowing more, conclude that that may be the case.

Unidentified Justice: So the hospital would be in the same situation generally that the school is?

Lois Dejulio: In that circumstance, it may very well.

Again, the circumstances that I am not aware of might lead a court to conclude that it would not be state action, but with regard to schools and educational officials, the vast majority of state courts and lower federal courts which have considered the question have found that school authorities, at least in our modern system of compulsory education--

Unidentified Justice: Could you help me?

What do you think the predicate is for a legal search by a school officer of a young lady's purse?

Under New Jersey law, I take it it is probable cause.

Lois Dejulio: --No, Your Honor.

With the--

Unidentified Justice: What do you think the Fourth Amendment would be satisfied with?

Lois Dejulio: --Well, the standard that the New Jersey court set forth was a reasonable ground standard, which, by reading the context of the decision they viewed to be a significantly less stringent standard than probable cause.

Unidentified Justice: So you think the Fourth Amendment doesn't apply in full force in the school context?

Lois Dejulio: Well, certainly the New Jersey Supreme Court did not think so.

Unidentified Justice: I am asking you what you think.

Lois Dejulio: We argued below that the standard of probable cause should be applied.

Unidentified Justice: And you still are submitting that?

Lois Dejulio: Well, Your Honor, that issue was not before the Court because the--

Unidentified Justice: I am asking you what you think the standard is.

Lois Dejulio: --Well, certainly when the search at issue is a personal search, and by that I mean a search of a--

Unidentified Justice: Well, a search of what is involved here, search of a purse.

Lois Dejulio: --Of a purse, of a pocket.

I would submit, and the New Jersey Supreme Court did indicate that its own standard, as the search became more intrusive, the level of reasonableness would closely approach probable cause, that certainly that--

Unidentified Justice: Why would you dispense with the warrant requirement?

Lois Dejulio: --Well, the requirement of a warrant presents certain difficulties for the school authorities.

Unidentified Justice: So the Fourth Amendment rules really don't apply in their full force in the school context?

Lois Dejulio: That has been the prevailing decisions by most courts which have considered it.

Unidentified Justice: And you are comfortable with that?

Lois Dejulio: I would certainly be comfortable with a probable cause standard even in the absence of a warrant.

Unidentified Justice: Without a warrant.

Search without a warrant.

Lois Dejulio: But I think that the circumstances may well devolve into the exigent circumstances exception in most cases because of the nature of the school environment.

The ability of the administrator--

Unidentified Justice: Well, if there are exigent circumstances, there is no violation of the Fourth Amendment.

Lois Dejulio: --That is correct, Your Honor.

Unidentified Justice: And no ground for excluding the evidence.

Lois Dejulio: And I think that is why the New Jersey court and many other state courts found that the warrant requirement would be particularly difficult for schools to comply with because, as my adversary noted, schools are not primarily involved in investigating criminal conduct.

Unidentified Justice: Well, they could hardly get a warrant anyway, could they?

Lois Dejulio: It would be difficult.

They would have to go--

Unidentified Justice: Difficult?

I don't know how they could even get a warrant.

They aren't law enforcement officials, are they?

Lois Dejulio: --It might present very difficult procedural problems.

Unidentified Justice: Ms. DeJulio, are you suggesting that the presence of exigent circumstances dispenses with the need for probable cause as well as the need for a warrant?

Lois Dejulio: No, Your Honor.

In our position before the New Jersey State Supreme Court, we argued that probable cause should be the required test when a full search was being conducted.

We obviously distinguish between the less intrusive search, such as the frisk for a weapon, which might arise in the school setting because obviously the police would only have to meet a reasonable suspicion test in that circumstance, and we conceded that if a school authority had reasonable suspicion to believe that a student was armed and dangerous, that the lesser standard would be justified in that circumstance as well.

Unidentified Justice: Do you think a Terry standard would be enough then?

Lois Dejulio: Well, certainly in a weapons situation if we hold the police to that standard I think it would be difficult to argue that we should not allow educators to act in that circumstance on the basis of reasonable suspicion or reasonable grounds, but again, the New Jersey Supreme Court determined that the reasonable grounds was the standard that they would adopt for all school searches, regardless of the purpose or the nature of the substance being searched for, with the caveat that as the search became more intrusive, the reasonable grounds would more closely approach probable cause.

Unidentified Justice: Do you agree that issue isn't before us?

Lois Dejulio: Your Honor, it is not before this Court as I understand it because the New Jersey Supreme Court found the search of the juvenile to be unreasonable.

Therefore we were not in a position to petition, and the state did not take issue, as I understand it, with the nature of the standard which the New Jersey Supreme Court adopted.

Unidentified Justice: So you think as it comes to us we must accept the notion that there was no... not even reasonable suspicion or reasonable grounds.

Lois Dejulio: I think the facts of the case do support the conclusion that there was no reasonable basis for the search at the outset.

Moreover, the New Jersey Supreme Court made the further finding that even if the initial opening of the purse had been reasonable, the scope of the search enlarged far beyond the reasonableness that would have justified the opening of the purse.

The principal testified that he opened the purse looking for tobacco cigarettes, and that he saw a package of Marlboro cigarettes sitting right on top.

At that point, he had done all that one could argue would be reasonable by any stretch of the imagination, but he then proceeded to remove the cigarettes, observe the rolling papers, which he then felt gave him a basis to go further, to open up zippered compartments, to read personal papers which the student had.

Unidentified Justice: Well, when he found the Marlboro cigarettes, he had more evidence towards probable cause than he did before he found them, because she had said, I don't smoke, and that shows that she lied as to saying that she didn't smoke, and therefore supports an inference that she lied in her other denials.

Lois Dejulio: Well, Your Honor, I think it is a close case, but I think that we have to keep in mind that in this school, unlike many others, smoking was not per se forbidden.

The school permitted students to smoke in certain designated areas, so that many students would be lawfully carrying cigarettes in their purses or pockets.

So that the search for cigarettes really was not proof positive either that the juvenile had been smoking in the girls' room, which was not a specially designated area.

Unidentified Justice: No, but it was proof positive that she had lied, or a very strong inference that she had lied when she said she didn't smoke.

Lois Dejulio: Your Honor, I think it may have been some evidence, but I don't think it was conclusive in that the fact that she was carrying cigarettes did not prove that she herself smoked.

Unidentified Justice: No, but I mean, you don't need a whole lot more than that, I don't think.

Lois Dejulio: Well, as I would be happy to concede, I think that it is a close case, and that the facts would support, however, the conclusion that the New Jersey Supreme Court made.

Unidentified Justice: Well, the only... as you have suggested yourself, there is only one question here, the application of the exclusionary rule.

Lois Dejulio: Of the exclusionary rule.

Unidentified Justice: Which I suppose assumes that there has been a violation.

Lois Dejulio: Yes, Your Honor, and certainly the state--

Unidentified Justice: And that even so, the evidence should not be excluded.

Lois Dejulio: --And we would submit that that... the past decisions of this Court, without exception, when the state is attempting to utilize the fruits of its illegal conduct on its direct case in chief in a criminal matter, that the exclusionary rule must be applied.

While, as my adversary notes, the more recent decisions of this Court have indicated that the exclusionary rule is not constitutionally mandated in every circumstance where Fourth Amendment violation occurs, those cases have not in any way affected the core deterrent function of the rule, which is to prevent the government from profiting from the fruits of its own illegal conduct, to impose a criminal sanction upon the victim of the search.

This case arises from a criminal prosecution in which the state was attempting to use the evidence to prove guilt the result of which would be the imposition of the criminal sanction upon the victim of the search.

Unidentified Justice: When you use the term "criminal, unlawful conduct", you are speaking of the teacher's conduct in opening the purse, are you?

Lois Dejulio: Yes, Your Honor.

I would suggest that is the government's action in opening the purse, and that in that capacity the teacher acted as the government.

Unidentified Justice: But you said that that is perfectly valid for the teacher to do that in terms of dealing with school discipline.

Lois Dejulio: It would be perfectly valid if the school teacher had some reasonable grounds to believe that the student was violating a school regulation or--

Unidentified Justice: Well, I thought you had conceded that before.

Lois Dejulio: --No, Your Honor, we did not concede that in the facts of this case.

The student had violated a school rule.

There is no question about that.

She was observed by a teacher smoking in a restricted area, an area where it was not permissible to be smoking, but that fact would be, I think, analogous to a situation where a teacher may have found two students fighting in a hallway.

Certainly that is a breach of school rules as well as a criminal violation.

Unidentified Justice: So you don't say at all or concede at all that a school official may search a purse just as a routine matter without reasonable grounds and use that as a matter of school discipline?

Lois Dejulio: Whether the evidence that was found--

Unidentified Justice: Without ever... and with no intention of ever presenting it in a criminal prosecution.

Lois Dejulio: --I don't believe that the intention of the searcher should govern the outcome.

The Fourth Amendment protects against intrusions into personal privacy.

The intrusion is equally invasive regardless of the intent of the individual searching, whether it be for some innocuous substance such as bubble gum in a school context or whether it be for a dangerous object, such as a weapon.

We permit the intrusion--

Unidentified Justice: Well, I would think then on the facts of this case if you are right that there was no reasonable grounds to search the purse that you would object to the use of the fruits of that search to impose any kind of discipline on this person.

Lois Dejulio: --Your Honor, that argument could be made, and in fact--

Unidentified Justice: Well, how about... what is your position on that?

Lois Dejulio: --This case came out of a criminal proceeding.

Unidentified Justice: I know it did.

I know it did.

Lois Dejulio: The decision would be with regard to a school disciplinary proceeding.

The law is unclear.

There is no law--

Unidentified Justice: Well, why wouldn't the answer be the same?

If the school officer has violated the constitutional rights of the student, why would the evidence be usable against him?

Lois Dejulio: --The more recent decisions of this Court have distinguished between the types of proceedings in which the exclusionary rule would be applied.

I could certainly make very substantial argument that a school disciplinary proceeding might well be the type of proceeding to which we would want to apply the exclusionary rule.

However, I think that we recognize that while people may suffer substantial detriments in civil cases in other settings, we have certain very strict rules that we apply to criminal prosecutions because we recognize that the consequences there are even more serious than might be the case in a comparable civil law setting.

Certainly if this matter had come up on the appeal from the ruling of the chancery court in this matter that the evidence could not have been utilized to impose a disciplinary sanction, it would be a very different case, and I think the arguments that would be made on both sides would be very different.

That was not the case here, and I did not nor can I at this point definitively make the arguments that should be made on both sides of that question.

I do feel that perhaps the briefs filed by the amicus curiae in this case, the school boards associations, really address arguments that ought to be made at some point in an appropriate appeal where the issue was whether the illegally seized evidence could be utilized in a school disciplinary proceeding, but I would state without exception that when we are dealing with a criminal law proceeding, the exclusionary rule must be applied when a state seeks to introduce fruits of an illegal search into its direct case in chief.

Unidentified Justice: Ms. DeJulio, may I ask you a somewhat different type question?

I am sure you know that many states conduct rather intensive educational programs for police officers to make sure that they know their duty and the basic legal principles applicable to the performance of those duties.

Had New Jersey instituted any such programs for the education of its teachers?

Lois Dejulio: Your Honor, I was called by the New Jersey Department of Education subsequent to the decision in the state court, and they indicated to me that they were interested in making that kind of training available, but then the petition for certiorari was filed, and I believe the matter has been held in abeyance pending the outcome of the matter in this Court.

Unidentified Justice: How many public school teachers are there in New Jersey?

Lois Dejulio: I would not have any estimate.

I couldn't begin to tell you.

Unidentified Justice: Do you have any idea how much instruction New Jersey gives its police officers?

Lois Dejulio: Your Honor, I don't know.

I would suggest, however, that the test which was involved in this case is a very simple one.

Reasonable ground is a very flexible, very easy concept to understand, and I think that in dealing with teachers and school authorities, we are by definition dealing with a very educated, highly motivated group of people.

Unidentified Justice: But we have exclusionary rule cases at every term of this Court, and I am told by law enforcement officers that every time we hand down a new decision, that requires a new briefing of the police.

Lois Dejulio: Well, certainly, Your Honor--

Unidentified Justice: Is it your idea that should be done in the public school system?

Lois Dejulio: --I think that public school teachers are already on a continuing basis being made aware of a variety of legal concepts that do impact upon education.

We live in a modern society, with many, many laws, and certainly schools are the subject of much litigation and many statutes and many regulations.

Unidentified Justice: And this also would have to be done in the hospitals?

Lois Dejulio: Well, Your Honor, as I indicated, I think that might be the case if it were found that the action of a state hospital or a state institution rose to the level of government action for Fourth Amendment purposes.

Also, I think that it is fair to say that when you are dealing with a complicated educational system, the continuing education of teachers in all aspects is something that is rather routine.

This could be very easily incorporated into that kind of ongoing training that teachers are getting in their academic fields and other related areas.

Perhaps ironically, many teachers themselves are responsible for teaching their students constitutional principles.

As a history teacher, I was required to teach constitutional law to my students.

So I think we are dealing with a core of people and a core of expertise that is more than adequate to deal with whatever demands the legal standard may require.

Unidentified Justice: Ms. DeJulio, when the principal saw the pocketbook and knew the facts around it, what then could he do legally in your mind?

How much?

Lois Dejulio: I believe that when he... he should not have opened the pocketbook.

I believe that the search of the pocketbook was independent of--

Unidentified Justice: What could he have done?

Lois Dejulio: --I think he could have imposed a sanction upon the student based upon the testimony of the teacher who observed her smoking a cigarette in a non-permitted area.

Unidentified Justice: And that is it?

Lois Dejulio: And that would have been the extent of it.

I think we are not dealing with a possessory offense, and the search of her purse would have been a fishing expedition.

Unidentified Justice: Ms. DeJulio, you have private secondary schools in New Jersey, don't you?

Lois Dejulio: Yes, Your Honor.

Unidentified Justice: Suppose the same facts here took place in a private school, and instead of being a public school principal it was a headmaster or headmistress.

Different case?

Lois Dejulio: That may very well present a different case, because the Fourth Amendment has been held not to apply to private citizens such as cases involving employers searching employees' desk drawers and it may be that a private school teacher, since private schools are different, and are perhaps not subject to the same regulations and standards, and are not an arm of the government--

Unidentified Justice: So if a youngster wants to get into drugs, he had better stay in the public school side?

0 [Generallaughter.]

Lois Dejulio: --Well, Your Honor, I think that that is very much oversimplifying, and I think it is ignoring the fact that the rule imposed by the New Jersey Supreme Court would not prevent a teacher from conducting a search if he had reasonable grounds to believe that a student had drugs in a purse or a pocket, and I think that the cases are... the reported cases are legion where searches were conducted under a reasonable grounds or reasonable suspicion test in various states, and the teachers were upheld because they did have some reason to believe that the student either possessed drugs or some other substance which was dangerous to them--

The test that the New Jersey Supreme Court developed was one which took into consideration the special problems of educators while at the same time recognizing that we do have to protect the rights of students and their rights to personal privacy.

The state counts many costs of applying the exclusionary rule to this type of circumstance, but it does not consider the costs that society will suffer if we fail to deter unreasonable searches of students.

For every search of a student that uncovers evidence of wrongdoing, countless other students, innocent students, will have had their privacy violated, and some of those intrusions may not be minimal, but as some of the reported cases show, may extend to such extremes as strip searches.

The emotional trauma which this type of indignity will inflict upon impressionable adolescents is a cost which society would have to pay and which should not be ignored in any cost benefit analysis.

Unidentified Justice: What about the costs to the children of other parents to whom this young lady is selling drugs?

Lois Dejulio: Your Honor, the--

Unidentified Justice: That is a social cost of some importance, isn't it?

Lois Dejulio: --It certainly is, and certainly the question of dealing with drugs and other criminal conduct in the schools has been the subject of many studies which have suggested many remedial measures that could be implemented to attack the problem.

I think that the use of searches is at best a bandaid approach to a problem which I don't think any educator would view as a remedial measure of first choice.

Certainly the drug problem has to be dealt with and should be dealt with.

The question is whether we have to throw out students' Fourth Amendment rights in order to do it.

The drug problem in society at large is certainly a serious one, but we have not permitted the police to throw away the Fourth Amendment.

We have not completely neutralized the Fourth Amendment protections through the exclusionary rule in order to attack the problem of drugs or weapons in our society.

The standard which was imposed below was a compromise that recognized that when you are dealing with children you perhaps have more responsibility than when you are dealing with adults, and that may justify the lesser standard that was imposed.

Also, the court specifically stated that there were many factors which could be taken into consideration, such as the age of the child, the child's prior involvement in criminal activity or disruptive behavior, the nature of the school's own problems, all of which would be considered by a court in determining whether a reasonable grounds existed for the search to be conducted.

It is also important to recognize particularly in the school context that the exclusionary rule does deter conduct on the part of teachers, that while teachers are not, like the police, directly involved in the criminal justice process, they do have some interest, substantial interest in seeing criminal prosecutions against their students brought to a successful conclusion, because they are responsible for maintaining order in the school.

And the fact of a juvenile or criminal conviction would certainly assist the school in dealing with a dangerous or disruptive student.

It might remove the student entirely from the school by means of a custodial disposition, or through some lesser sanction might persuade the student to conform his conduct to school norms.

So, I think that teachers would be deterred, and do have some incentive to follow Fourth Amendment guidelines that would ensure that no evidence would be suppressed in a later court proceeding.

I think it is also important to recognize in the school context that the exclusionary rule serves an educative as well as a deterrent function.

Suppression of evidence is a demonstration to society as a whole and to those who govern us that we value highly our constitutional rights, and we attach serious consequences to those who violate them.

If we expect schools to teach students to respect--

Unidentified Justice: You said serious consequences on those who violate them.

The teacher, in your view, violated the rights.

Now, what is the serious consequence on the teacher?

Lois Dejulio: --Your Honor, the serious consequence will be the fact that the subsequent court proceeding stemming from the illegal evidence that was discovered will be dismissed.

Unidentified Justice: Well, in the abstract, the teacher perhaps couldn't care less.

Lois Dejulio: Your Honor, I think in many ways the teacher has more reason, because it is not in the abstract.

The teacher... the student will be back in the classroom.

Unidentified Justice: But the teacher, unlike the policeman, is not involved in a criminal justice project or law enforcement.

Lois Dejulio: But the teacher does have the responsibility of maintaining order and discipline in the school, and if a destructive student or a dangerous student is not dealt with in the criminal justice process, then the school may have to deal with him under much more difficult circumstances.

I think that it is important that we show students that the constitutional system of government is more than a collection of empty promises, and that by applying the exclusionary rule in these circumstances, we protect the students' Fourth Amendment rights and give an effective deterrent for their violation.

Unidentified Justice: Do you think that the teacher having suffered this penalty that you describe is thereafter not going to be concerned about whether students are using marijuana or other drugs?

Lois Dejulio: I think that the teacher--

Unidentified Justice: What is going to be the impact on the teacher?

Lois Dejulio: --I think that the impact will be that the teacher or school authority will learn to conform their behavior to the reasonable grounds standard which was adopted and which was the basis for determining whether conduct is proper or improper under the unreasonable search and seizure guarantees.

Unidentified Justice: Then as Justice Powell, I think, suggested, teachers had better take a course on the Fourth Amendment.

Lois Dejulio: I think that teachers will have to learn something about the Fourth Amendment.

I think that they already have to learn a great deal about law and how law impacts upon them and their role as educators.

I think this will be a relatively easy lesson to teach, and certainly we are dealing with professionals in the area of teaching and learning.

In conclusion, I would merely remind the Court that we opposed the granting of certiorari and continue to oppose it on the grounds that the decision below was based upon independent and adequate state grounds.

The New Jersey Supreme Court we would argue based its decision upon independent grounds which would not be affected by any modification of the federal law which was cited in the--

Unidentified Justice: May I ask in that connection whether apart from the federal cases, does New Jersey have its own exclusionary rule?

Lois Dejulio: --Your Honor, we have a provision in our state constitution which, though worded very similarly to the federal provision, has been construed by the New Jersey Supreme Court on many occasions to provide broader protections.

Unidentified Justice: That is not my question.

My question is whether New Jersey has an exclusionary rule.

I know you have argued they have a broader protection of Fourth Amendment.

Do they have an independent exclusionary rule?

Lois Dejulio: I do not believe that they do, but I do believe that in this case they determined that the exclusionary rule should be applied based on their state law proceedings and on provisions of the state constitution.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Nodes?

ORAL ARGUMENT BY ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Allan J. Nodes: Yes, Mr. Chief Justice.

Very briefly, in regards to the question that was asked by Justice Powell concerning police training, I believe that the general rule in New Jersey is that an attempt is made to train police officers at least twice a year, and they are given updated training each time a major new constitutional decision comes down which impacts on the Fourth or Fifth Amendment.

Unidentified Justice: How long has that been going on, if you know, this kind of police training?

Allan J. Nodes: I am aware of it for about the last five or six years.

I am just not aware of it earlier than that, Your Honor.

Unidentified Justice: Is that for municipal as well as state police?

Allan J. Nodes: Yes, there is a program.

I do not... cannot speak to the frequency for each municipality, but the municipal police are included in that program.

After this decision in State in the Interest of T.L.O. came down from the New Jersey Supreme Court, there were inquiries from school boards concerning what they were allowed to do, and these inquiries have continued.

I don't believe that many of these inquiries have related to what can we do in order to ensure that you, the Attorney General's office, can get prosecutions.

They simply want to know that they are legally entitled to do.

Questions have always been asked in those terms.

Legally, what can we do to keep the schools safe?

I believe the interest is much more, what can we do to actually follow the law and to ensure that we won't be subject to civil liability later on.

Unidentified Justice: Do you think if there were no exclusionary rule they would lose interest in knowing what the law was?

Allan J. Nodes: I don't believe so, no.

Unidentified Justice: So they wouldn't have this problem of trying to find out what the Fourth Amendment means anyway, I guess.

Allan J. Nodes: Well, I think it would come up in other contexts.

I think it would come up in the context such the Wood v. Strickland context.

It would later have to be determined in a case like that.

Unidentified Justice: So the outcome of this case really won't affect the teachers' need for or desire for education about the Fourth Amendment.

Allan J. Nodes: That's correct.

We don't believe the exclusionary rule will do that.

Unidentified Justice: If you wanted... if you only raised the single question about the exclusionary rule, and if you wanted to argue about the Fourth Amendment, you should have come up here with another question.

You seem to... You come here on the assumption that there has been a violation of the Fourth Amendment.

Allan J. Nodes: We didn't contest the constitutional violation.

That is correct.

We didn't contest it because we believe that the Court never needed to reach that, because the exclusionary rule did not automatically have to be applied in any event.

Unidentified Justice: Well, part of your argument is that the teachers would like to know what the Fourth Amendment means, because you would expect that they would obey it then.

Allan J. Nodes: Yes, Your Honor.

Unidentified Justice: And there wouldn't be the same temptation to disobey it that there is in law enforcement?

Allan J. Nodes: I don't know if I understand the question, Your Honor.

Unidentified Justice: Well, the exclusionary rule rests on, at least a lot of people think so, not everybody, on its deterrent effect, and you must exclude the evidence to deter police conduct that is violative of the... it isn't enough for them to know what the Fourth Amendment means.

You must also exclude the evidence.

Allan J. Nodes: Yes, or provide another deterrent, so you have to teach people... yes, people have to know what the Fourth Amendment says, and then there has to be a deterrent to their violating and doing what they know is wrong.

Unidentified Justice: Well, actually, in New Jersey is it not just the Fourth Amendment, since the protections of the counterpart of the Fourth Amendment in the state constitution apparently broader than we have said they were under the Fourth Amendment.

Allan J. Nodes: In many cases--

Unidentified Justice: I guess your teachers have to know what the state constitution guarantees are, don't they?

Allan J. Nodes: --I believe under this case that... although in some cases the New Jersey Supreme Court has given broader protections--

Unidentified Justice: In the consent area.

Allan J. Nodes: --I beg your pardon?

Unidentified Justice: In the consent area.

Allan J. Nodes: Yes, in the consent area.

In general, the opinions of the United States Supreme Court are followed in New Jersey.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

Featured:

New Jersey v. T.L.O. - Oral Reargument

Fri, 31 Aug 2012 18:30:28 +0000

Case:

New Jersey v. T.L.O.

Media File:

83-712_19841002-reargument

Related Transcript:

83-712_19841002-reargument

Transcript:

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments first this morning in New Jersey against T.L.O.--

Mr. Nodes, you may proceed whenever you are ready.

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, last term the State of New Jersey argued before this Court that the Fourth Amendment exclusionary rule should be held inapplicable to school searches conducted by school teachers and school administrators.

Following argument, this Court requested additional briefing and argument on the issue of whether under the facts and circumstances of this particular case the vice principal's search of the student's purse violated the Fourth Amendment at all.

We suggest that there was no constitutional violation in this case.

We argue firstly that the Fourth Amendment should be held inapplicable to school searches.

That amendment was intended as a deterrent to law enforcement officers and police officers, and was not intended to be used against private citizens or against those who act in loco parentis.

We believe that school teachers do act in loco parentis.

I will address the in loco parentis functions of school teachers later in my argument, and I would refer to my brief for the remainder of the argument concerning the applicability of the Fourth Amendment.

We would also urge that--

Unidentified Justice: You mean of the exclusionary rule, don't you?

Allan J. Nodes: --I beg your pardon?

Unidentified Justice: You mean of the exclusionary rule?

Allan J. Nodes: Of the exclusionary rule or the Fourth Amendment.

We would rely on the briefs for the exclusionary rule and for the application of the Fourth Amendment.

I would like to argue the standard to be applied assuming that the Fourth Amendment is held to be applicable to school searches.

And we believe that the standard which should be applied to school searches should be lower than probable cause, and in fact should be a standard of reasonable suspicion.

Unidentified Justice: Mr. Nodes, assuming the applicability of the Fourth Amendment, do you think that on this record there was probable cause for the search?

Allan J. Nodes: Yes, I do, Your Honor.

I believe that what we had in this case was an instance where a person who was very, very reputable witnessed an action which was a violation of a school regulation.

He reported this violation to another person, who is also reputable.

Now, what he said was, he saw a cigarette in a person's hand, and I believe that it is pure common sense to believe that when one sees a cigarette in a person's hand, that that person will also be carrying cigarettes in a pack somewhere on their person.

So, I--

Unidentified Justice: Or, that the person is holding it in the hand because they intend to smoke it or are smoking it?

Because they are going to smoke it?

Allan J. Nodes: --Yes.

The fact that they have the cigarette indicates firstly that they are smoking it, secondly, that they have cigarettes, and I believe that that is all the vice principal actually needed in this case.

Unidentified Justice: Well, Mr. Node, assuming again the applicability of the Fourth Amendment, if you are right that there was probable cause shown here, why should we address the question whether something less would satisfy?

Allan J. Nodes: Well, I believe for two reasons.

Firstly, I don't believe that it is settled that probable cause should be the standard to which school teachers should be held.

In this case, of course, the New Jersey Supreme Court found that there wasn't probable cause and there wasn't even reasonable suspicion, even though we argued all along that probable cause was present.

The mere fact that we have met the highest possible standard, or that we argue that we have met the highest possible standard which could be enunciated doe not mean that this Court could not set forth the appropriate standard for lower courts to follow in future cases.

I believe that--

Unidentified Justice: Or that this Court could disagree with you that there was probable cause in this particular case.

Allan J. Nodes: --Very clearly this Court could disagree with that, and then it would be necessary to determine what lower standard would apply and whether or not we had met that lower standard.

Unidentified Justice: What was the rule of the school?

It was no smoking, right?

Allan J. Nodes: There were school rules that there was no smoking in certain areas.

T.L.O.--

Unidentified Justice: And she was smoking in that area?

Allan J. Nodes: --Yes, that is correct.

Unidentified Justice: Isn't that the end of the case?

Why do you have to go and search?

Allan J. Nodes: Well, I think that, Your Honor, the reason why we did go and search, and it may very well be that we did not have to go and search, but the reason that we did go and search was that the principal was trying to be fair to the student.

Rather than merely accepting the word of the teacher who said, I saw two students smoking, he had a--

Unidentified Justice: Well, suppose that the teacher reported that the child had cursed.

Would that be enough?

You wouldn't have to get additional proof for it, would you?

Allan J. Nodes: --No, I don't believe that it would be necessary to get additional proof.

Unidentified Justice: Why do you need extra proof here?

Allan J. Nodes: I don't believe that we had--

Unidentified Justice: Well, didn't she deny it?

Allan J. Nodes: --I do not believe we had to have additional proof here.

That does not mean that it is wrong for us to obtain additional proof.

Unidentified Justice: Well, I am just raising the question.

Is it necessary to violate somebody's rights in order to add on to the necessary ingredients for conviction?

Allan J. Nodes: No, we would not advocate violating somebody's rights in order to add additional evidence.

Unidentified Justice: I can understand... you didn't need to search to get the... I don't mean conviction, the action of the school board.

You didn't need the search.

Allan J. Nodes: We could have... the vice principal could have disciplined T.L.O. without the search.

I do not agree that we had to violate somebody's rights in order to get additional evidence.

I believe that the vice principal was able to get the additional evidence with absolutely no violation of the person's rights.

What the vice principal ended up doing was listening to what the student had to say.

The student presented a defense.

The vice principal talked to the student, and asked the student what the student had to say for herself.

Under Goss v. Lopez, this was the proper standard.

I believe that it is appropriate, not mandatory, but appropriate then--

Unidentified Justice: What is the defense to... because she wasn't smoking?

Allan J. Nodes: --The defense was a total denial of smoking, and the additional element--

Unidentified Justice: Did she say that?

Allan J. Nodes: --that she couldn't have been smoking then because she never smoked at all.

And I believe that by demonstrating whether or not this person smoked, the vice principal had a much better idea of whether or not she was smoking on that particular occasion.

Yes, the vice principal could have said to T.L. O, T.L.O., I am going to believe the teacher, who is totally credible, and I am going to assume without checking anything that you are lying to me.

I think the vice principal tried to act more reasonably than that.

I think the vice principal tried to ensure that the school regulations were followed, but at the same time was also trying to ensure that a possibly innocent person wasn't punished.

And I think that an action of that type should be condoned rather than criticized.

Unidentified Justice: All I can say is, schools are different from when... when I went to school, if a teacher said something, the vice principal believed the teacher and not the student.

0 [Generallaughter.]

That was when I went to school.

Allan J. Nodes: That could very well be the case.

0 [Generallaughter.]

Your Honor, I would suggest also when I went to school searches were allowed much mere easily.

Unidentified Justice: I never got one hearing the whole time I was in school.

Allan J. Nodes: But this Court has now decreed that in certain circumstances there will be at least limited hearings, and I think that this is what the vice principal followed.

He did give a limited hearing before imposing discipline, and he didn't just give a pro forma hearing and at the end of the hearing say, okay, now I am going to ignore what you said.

He checked what the juvenile had said, and he checked what the juvenile said, in an extremely reasonable manner, because we believe that at the very least he had a reasonable suspicion that an infraction had occurred, and that evidence of the infraction--

Unidentified Justice: May I ask you, in the prior argument you seemed to accept the standard that the New Jersey Supreme Court laid down.

I am not sure whether you still do or not.

Allan J. Nodes: --The standard reasonable suspicion, the name reasonable suspicion is--

Unidentified Justice: That is not my question.

Allan J. Nodes: --Yes, we--

Unidentified Justice: My question can be answered yes or no.

Allan J. Nodes: --Do I accept the standard--

Unidentified Justice: That they laid down.

Allan J. Nodes: --No, I do not.

Unidentified Justice: I didn't think... you have changed your position, haven't you?

Allan J. Nodes: I think that that is a proper interpretation.

I believe that the name reasonable interpretation is an appropriate name for a standard.

Unidentified Justice: But the question, I suppose, is reasonable suspicion of what, and in your view I gather it is a suspicion of any violation of any school regulation would justify a search, whereas they say it has to be suspicion of a crime or of something, a major disorder.

Is that right?

Allan J. Nodes: No.

I believe that they said crime or violation of school disciplinary regulations.

Unidentified Justice: Would seriously interfere with school discipline or order.

Allan J. Nodes: Yes, I don't think that first of all it would have to be a serious infringement, and I don't think--

Unidentified Justice: So you disagree with that part.

Allan J. Nodes: --So I disagree with that part, but more than that, I disagree with their application of the announced standard to this case.

Unidentified Justice: I understand, but you also do disagree with their standard.

You would take the view, I take it, that if there was reasonable suspicion that the purse contained, say, a note or a diary or something that would disclose a violation of any rule, the rule requiring students to be on time for athletic games or something like that, they could still search?

Allan J. Nodes: I think that you have to evaluate the need for the evidence and whether or not--

Unidentified Justice: Well, the purpose is exactly the same, to find out if there is evidence of infraction of a school regulation that does not involve harm, physical harm or anything like that, just the child may have been late to school.

Could they search to determine that?

Allan J. Nodes: --Yes, I believe that they could, provided that student is carrying that diary and that information with them.

I believe that that would be constitutionally permissible.

Unidentified Justice: Mr. Nodes, would you believe that if a reasonable suspicion standard is applied, that it would have justified a strip search of the pupil in this case?

Allan J. Nodes: I believe that when we are dealing with what we are classifying generally as school searches, we are talking about searches which would normally be made for violations of school regulations and school disciplines rather than law enforcement searches.

Unidentified Justice: What standard do we apply to determine the validity of the search, assuming one is authorized?

How far can you go in the search?

Allan J. Nodes: I believe that a search of, for instance, lockers, items which a person carries into school, or searches of clothing or pockets would be within the normal area which a teacher under the normal functions of a teacher could search.

I believe--

Unidentified Justice: Do you think then that a male teacher could conduct a pat-down search of a young woman student at age 16 to find the cigarettes?

Allan J. Nodes: --I believe that that would be constitutionally permissible.

I would note that as in the area with airplane searches and with most police searches, if it can be avoided, that simply is not done.

I don't expect that that is something which would occur.

Now, if that does occur, if there is a pat-down of a female by a male teacher or administrator, or if there is a strip search, and that search is for anything except a constitutionally permissible purpose, if there is any evidence of harassment or anything of that type, of course, other actions can be brought, the same as they could against--

Unidentified Justice: Well, do you concede that there would be a further requirement in any event that the extent of the search itself would have to be reasonable under the circumstances considering the age and sex of the child and the circumstances?

Allan J. Nodes: --Yes, I would agree with that.

I would agree that we are not advocating strip searches of students to find out whether or not they have been stocking cigarettes, and I don't think that that is what is normally held to be a school search, and in fact I believe that there are the laws, the regulations, and possibly other parts of the Constitution--

Unidentified Justice: Well, I am more concerned with your view of what the Constitution requires rather than your view of what is normally done in the school scene.

Allan J. Nodes: --I believe that the extent of the search could become part of the standard, and while it might be reasonable to search a person's pockets, search a person's jacket, the person's locker, or person's purse for a certain item, it would not in many instances, possibly the same circumstances, be permissible to strip search the student.

I think it would almost never be permissible.

Unidentified Justice: If the school official suspected the commission of a crime and called a policeman to the scene, would the policeman conducting a search at the school have a higher standard in any event, in your view?

Allan J. Nodes: I believe when it becomes a police search--

Unidentified Justice: Probable cause?

Allan J. Nodes: --yes, a higher standard, possibly probable cause, depending on the circumstances, would apply.

Unidentified Justice: Is there any regulation against the possession of cigarettes?

Allan J. Nodes: In this particular case, there was no regulation in this school against the possession of cigarettes.

It was permissible for the student to possess cigarettes.

The search which--

Unidentified Justice: Are you going to get to the question of whether there is a difference between people on the street and students in the school?

Allan J. Nodes: --I am not sure I fully understand Your Honor's question.

Unidentified Justice: The difference between a man or a woman walking on the street, downtown Washington, and a student, a minor, in a school.

Allan J. Nodes: Well, I believe that there are many differences between a person on the street... I believe that first of all there may be a difference between a minor on a street carrying a purse--

Unidentified Justice: Well, we don't have to worry about a minor on the street.

We are worrying about a minor in the school here, and the comparison I am surprised you haven't made in your analysis is that there is a difference between a student who has been sent to school by the parents and is required by law to go to school in the school quarters and a person walking on the street, an adult.

Allan J. Nodes: --Well, I believe that when a student is sent to school, of course, the school and the state takes on a responsibility for ensuring not only that that student is educated, but also that that student is safe and secure while in school, and that discipline is maintained while in school.

Unidentified Justice: Well, Mr. Nodes, you think there is such a difference that the Fourth Amendment shouldn't apply at all?

Allan J. Nodes: I believe--

Unidentified Justice: That was your first submission.

Allan J. Nodes: --Yes, I believe that there is such a significant difference in the function performed by the school teacher during the school day that the Fourth Amendment shouldn't apply.

However, the same arguments would also be applicable concerning a reduced standard.

Unidentified Justice: Right.

Allan J. Nodes: The teacher does act in an in loco parentis manner during the school day.

Now, it is possible that since the advent of mandatory compulsory education up until a certain age, that the traditional Blackstonian views and reasons for imposing the in loco parentis doctrine would no longer apply.

However, when we lock at what is happening in fact, it is clear that as far as the supervision of juveniles, the teacher acts in loco parentis.

Firstly, the student spends as much as a third of his or her day attending a public school.

During that period, the teachers and administrators provide the only supervision which that juvenile, that student has, and in many ways they take the place of and perform the functions of parents.

Unidentified Justice: That's correct.

And does that mean that their authority then to make searches, if the Fourth Amendment is completely inapplicable, extends to any kind of search, strip search or otherwise?

Allan J. Nodes: I believe that if the Fourth Amendment is inapplicable, of course, the Fourth Amendment would not itself forbid strip searches.

However, I think that strip searches are such an egregious example, and the courts, the Circuit Courts have continuously held this, that there could quite possibly be another constitutional violation.

Unidentified Justice: What one?

Allan J. Nodes: It is possible that under Roshen, for instance, this would be considered such an invasion of the person's privacy, and such an unwarranted invasion that it would be constitutionally impermissible.

However, I think that even that, it would not be necessary to use that.

I believe that strip searches can be stopped very easily without the Constitution, and I might note that in many of the strip search cases there has been either a finding of no constitutional violation or there has been no punishment of the violators.

I believe primarily the cases say no punishment of the violators because of the circumstances.

But for two reasons, those searches will be stopped.

First of all, I believe that in all states people are becoming more sensitive to strip searches whether they are conducted by law enforcement authorities or by other persons, and there are laws now which limit even the authority of a police officer to conduct a strip search.

However, maybe even more importantly, the factors which were noted in Ingraham v. Wright by this Court--

Unidentified Justice: Well, if I understand your argument, though, Mr. Nodes, it is that because the Fourth Amendment is inapplicable, nothing in the Fourth Amendment can restrain a strip search of a student by a teacher?

Allan J. Nodes: --I believe that that would be correct, yes.

Unidentified Justice: What is the basis for that argument?

You are saying they are not unreasonable searches?

Is that what it is?

In terms of the text of the Fourth Amendment.

Allan J. Nodes: As far as the text of the Fourth Amendment, I believe that the Fourth Amendment was directed at the state acting as the state.

Now, in certain circumstances I believe that the state can take on a role which is traditionally held by private persons.

Unidentified Justice: So what you are saying is, it is not unreasonable.

Allan J. Nodes: It is not unreasonable--

Unidentified Justice: Even a strip search is not unreasonable.

Allan J. Nodes: --Yes.

That is not unreasonable.

It would not be unreasonable for a private person, and in this instant it is not unreasonable for the state.

Unidentified Justice: Are you saying that the school and the teachers and the authorities stand in the shoes of the parent?

Allan J. Nodes: Yes, at least as far as the supervision and welfare of the student is concerned.

The school teachers and administrators ensure that the students arrive at school properly.

They ensure that they behave while they are in school.

They maintain discipline.

If there is an injury or sickness, the school teacher or school administrator is the first person responsible for taking care of that.

In many instances, a parent can't be contacted.

The school makes the decision as to whether or not a doctor or a hospital will be called in.

Unidentified Justice: Well, Mr. Nodes, we are dealing here with a public school, are we not?

Allan J. Nodes: Yes, we are.

Unidentified Justice: And there are laws requiring children to attend that school, whether they want to or whether their parents want them to or not.

Isn't that so?

Allan J. Nodes: That's correct.

Unidentified Justice: And you contend that this isn't state action then, when the state acting in the school setting conducts a search?

Is that your position?

Allan J. Nodes: No, I would not say that there is no state action involved in this case.

What I would say--

Unidentified Justice: Now, we found state action, I suppose, for occupational and health safety inspections, and for welfare workers, and in other administrative agency searches, have we not?

Allan J. Nodes: --Yes, the Court has.

Unidentified Justice: But you think somehow schools are different, even though the law requires the student to be there?

Allan J. Nodes: Yes, I do, and maybe it isn't even though the law requires the student to be there, quite possibly.

I believe it is because the law requires the student to be there.

The state has intentionally taken on a function which the parent normally exercises.

The state does have, obviously, the ultimate parens patriae function, to ensure the welfare of all students.

However, that function is normally taken over by the parent.

When the state takes that function back and says for a period of time, and for as much as a third of the student's day, we will take custody of the student, and we will ensure that during this period the student's well being is maintained, in addition to educating the student, then I believe it becomes reasonable for the person who has not only these functions but also these responsibilities to act under different standards than the state would normally act under.

Unidentified Justice: Would that go to a reform school?

Allan J. Nodes: I believe that a reform school--

Unidentified Justice: Are you saying that the Fourth Amendment doesn't apply in the reform school?

Allan J. Nodes: --I believe that either my argument that the Fourth Amendment doesn't apply or that a lower standard is required would apply to a reform school, yes.

Unidentified Justice: Why don't you take the position it is not involved in this case?

Allan J. Nodes: I beg your pardon?

Unidentified Justice: Why don't you take the position that the question is not involved in this case?

Isn't it that you want the broadest rule you can get?

Allan J. Nodes: No, I am not--

Unidentified Justice: Isn't that what you are up to?

Allan J. Nodes: --No, no, I am not asking for the broadest rule I can get.

I was attempting to answer... only answer Your Honor's question.

I don't believe that that is necessary for this case.

However, I do believe that it is an example of the function which the state takes over.

Your Honor used the term reform school.

Very often the state takes custody of a juvenile even though the juvenile has done nothing wrong.

In New Jersey we have shelters for juveniles who are in need of supervision, and juveniles placed in these facilities can be there simply because their parents haven't taken care of them, and I believe that that would be similar to the school situation, where the state has taken over part of the function of the parent.

Unidentified Justice: You are arguing the Fourth Amendment issue because the Court directed you to argue it.

Is that not so?

Allan J. Nodes: That's correct.

We do believe, again, that if the Fourth Amendment does apply, that a standard lower than probable cause is warranted, and I think that although the in lecc parentis arguments would also have application here, and although I think it is apparent that students have a lesser expectation of privacy while attending a public school than they would have on the street, I believe that very simply the educational system cannot properly operate if teachers are required to abide by a probable cause standard.

We must have discipline in the schools, and this discipline cannot be maintained by teachers who are encumbered by the same rules and regulations as police officers are.

Unidentified Justice: Mr. Nodes, assume for a moment that the Nero Jersey court is correct in saying that the Fourth Amendment applied, that a reasonable suspicion standard was the appropriate standard for review.

Do you think that that means individualized suspicion under the New Jersey rule, or would that mean, for example, that if the school authorities suspected there were drugs being used in the restrooms, they could install two way mirrors or listening devices based on a generalized suspicion?

Allan J. Nodes: Your Honor, I think that that probably would be determined by the type of investigation which they were attempting to conduct.

I am not sure exactly how far they could go with minor school violations.

Unidentified Justice: Well, I was curious to know what you thought the New Jersey rule was, whether it required individualized suspicion or something else.

Allan J. Nodes: I believe that the New Jersey court was, because of the contours of this case, talking about individualized suspicion, and they simply weren't faced with a standard where a school had to take care of a situation, for instance, where knives were being brought to school every day, and they might have to search students coming into the school to make sure there were no knives being brought in.

That could raise a whole new set of problems, but the New Jersey court didn't have to deal with those questions in this case.

Unidentified Justice: Mr. Nodes, you are not adopting the New Jersey court standard, and I would be interested to know your answer to Justice O'Connor's question.

Supposing the school had reasonable suspicion that the restroom was being used to smoke in, as was the case here.

Could they put in two-way mirrors?

That you can answer yes or no.

Allan J. Nodes: I believe that they could put in two-way mirrors.

I believe other things--

Unidentified Justice: Under your standard, they clearly could.

Allan J. Nodes: --Yes, they could.

I believe even if the Fourth Amendment applied under the reasonable suspicion standard they could, or they could search students on their way into the restroom.

Unidentified Justice: Why would you need reasonable suspicion of anything under the Fourth Amendment to put two-way mirrors in a restroom?

That is... you know, why is that a violation of the Fourth Amendment at all, to do that?

Allan J. Nodes: I am not sure that it would be.

Unidentified Justice: No, I am not either.

You don't think there is any expectation of privacy in a restroom?

0 [Generallaughter.]

Allan J. Nodes: There are many--

Unidentified Justice: That is a serious question.

Allan J. Nodes: --I understand.

Unidentified Justice: Apparently you don't.

Allan J. Nodes: I understand that, but I would assume that the two-way mirrors would replace the mirrors which would already be up in the mens' room, and I assume that that would be the mirrors in front of which you normally stand to comb your hair or make sure that your clothing is appropriate, and things like that.

I don't believe that the more private areas of a men's room are going to have mirrors, two-way or otherwise.

So that was the assumption that I was making in my question... I mean, in my answer.

In this case, we believe that the problem with the standard as enunciated by the New Jersey Supreme Court, again, assuring the Fourth Amendment applies, is that the court acted as if it were actually operating under a probable cause standard, and as if it were actually evaluating the actions of a police officer.

The Court first drew a line between a good hunch and a reasonable suspicion.

They admitted that there was probably a good hunch, but said that there wasn't a reasonable suspicion.

I believe it is very hard to draw a line of this type, and as I said before, I believe that at the very least there was a reasonable suspicion in this case.

However, I think more importantly what the Court should be looking to is a common sense approach to the problems that school teachers face each day while trying to maintain order and discipline in schools.

And I don't believe that if the courts are going to evaluate situations like this with the strictness that they evaluate police officer searches, that it is going to be possible for teachers, first of all, to know what they can and cannot do, and secondly, for them to be able to maintain any order and discipline.

I think that a much more common sense approach is needed in judicial review of the standard, assuming that a reasonable suspicion standard is adopted.

I believe that the vice principal in this case did take a very reasonable and did take a very common sense approach to ensuring that both school regulations were followed and that a student wasn't punished unnecessarily, and that the New Jersey Supreme Court rather should have condoned this action, and viewed in this light the actions of the school vice principal were totally appropriate and should have been affirmed by the New Jersey Supreme Court.

I would reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Ms. DeJulio?

ORAL ARGUMENT OF ICIS DE JULIO, ESQ., ON BEHALF OF THE RESPONDENT

Lois De Julio: Mr. Chief Justice, and may it please the Court, throughout the course of this litigation, the juvenile respondent has maintained that the search of her purse by the vice principal of her high school violated her Fourth Amendment rights, and that as a result the evidence which was seized from her could not be admitted against her in a criminal proceeding.

The State of New Jersey suggests that no constitutional violation occurred because the Fourth Amendment does not apply to searches conducted by school personnel.

The great majority of state and lower federal courts that have considered this question have agreed with the Supreme Court of New Jersey that searches conducted by school personnel do come within the ambit of the Fourth Amendment, and we would submit that this conclusion is constitutionally required.

As a matter of historical fact, it is true that the framers of the Constitution adopted the Fourth Amendment in response to the repression that they had experienced at the hands of the King's colonial revenue agents.

The compulsory government-sponsored system of education which we now have simply did not exist at the time, so it is unlikely that the framers considered either including or excluding school personnel from the ambit of the Amendment.

Unidentified Justice: What would be your view, Ms. DeJulio, about the same factual situation in a private school, not a public school?

Lois De Julio: Your Honor, I would submit that that would be outside the scope of the Fourth Amendment, since the Fourth Amendment has never been applied to purely private action.

Unidentified Justice: In other words, there is no state action then?

Lois De Julio: No, Your Honor.

Unidentified Justice: Then you are going to have two different rules on searches.

Lois De Julio: Yes, Your Honor, you would.

You would have--

Unidentified Justice: All parochial and private schools will have one rule, and the public schools another.

Lois De Julio: --That would be correct, Your Honor.

The Fourth Amendment has never been applied to purely private action, even though in certain cases, for example, the case of a search by an employer of an employee, there might certainly be significant--

Unidentified Justice: I suppose it isn't relevant to this case, but is it possible that that might lead parents who want their children to be in schools where cigarettes aren't floating around and drugs aren't being used to take their children out of public schools and put them in private schools?

Lois De Julio: --Your Honor, I think that that is somewhat oversimplifying the situation for two reasons.

One is that the standard promulgated by the court below does not prevent public school officials from conducting searches when they are reasonably necessary for the pursuit of their educational responsibilities, and when there are some reasonable grounds to believe that the student is either engaging in criminal conduct or has violated some school rule that would disturb or disrupt safety and order in the school.

We would submit that that is a very workable, flexible standard, and is--

Unidentified Justice: Ms. DeJulio, do you think there is any school rule not related to safety that would justify a search of a child's pockets or purse or lunch bag or whatever?

Lois De Julio: --I would have to concede that there might be.

It is difficult to know the many circumstances which might arise.

I would certainly submit that the offense of smoking in the restroom would not be the type of infraction which would in itself justify the search of a student.

The threat to safety and school order is simply not at the level that would warrant such an extreme intrusion into the area of personal privacy.

Unidentified Justice: What about smoking marijuana in a restroom?

Lois De Julio: Certainly smoking marijuana or use of drugs, because of the dangers to the student, might very well justify a search under proper circumstances.

Unidentified Justice: You would distinguish marijuana from tobacco then on the basis that marijuana is more harmful, or on the basis that probably smoking marijuana might be a crime?

Lois De Julio: I would suggest that both factors would be taken into consideration.

Obviously, many dangerous activities also violate the law.

So there are times when both of those considerations would converge.

Unidentified Justice: Well, suppose there was the same report as occurred in this case, except the report was that the student was smoking marijuana in the restroom, and that that is contrary to not only school rules but to the law.

Now, would that furnish whatever cause might be required to search the purse?

Lois De Julio: Well, Your Honor, it would certainly be the type of infraction that might justify a search.

The question--

Unidentified Justice: Of the purse.

Lois De Julio: --Well, that would be a second question.

Unidentified Justice: The inference would be, if you are smoking marijuana, maybe your have got it in your purse.

Is that it?

Lois De Julio: Well, I think the information would have to be evaluated, as we do with the police.

Unidentified Justice: Well, let's evaluate it on the facts of this case.

They call a student in.

She denies that she was smoking marijuana at all.

She never smokes marijuana.

And the official says, well, I would like to... the teacher says you were smoking.

Now, I want to look in your purse.

And she says, no.

And so he searches it anyway.

Now, would that be reasonable suspicion?

If the reasonable suspicion standard is the proper one, would it be satisfied in that situation?

Lois De Julio: I think not, simply because the information did not implicate that the marijuana was being possessed by her either in her clothing, her purse, or anywhere else.

Even with regard to the police, the police may observe a criminal violation taking place.

That does not necessarily lead immediately to the conclusion that a search can be conducted.

Unidentified Justice: Ms. DeJulio, at most we are talking about probable cause, not mathematical certainty.

What about Mr. Nodes' argument that if you see someone puffing on a cigarette, it is a reasonable inference that he has got more on his person where that came from, whether it is marijuana or tobacco?

Lois De Julio: Well, Your Honor, I think in the facts of this case that isn't necessarily the proper inference to be drawn.

There were a number of students in the girls' restroom, one of whom did candidly acknowledge that she was smoking.

I think that the inference that all of the possessed tobacco cigarettes, or in the alternative hypothetical that they all possessed marijuana in their purse would not be reasonable.

It may well have been, and may have been the case, that perhaps they were all passing one cigarette around, and no one possessed anything.

Unidentified Justice: Don't you recognize the difference that marijuana is contraband and cigarettes are not?

Lois De Julio: Certainly that is a very important difference in this case, and the problem with the search conducted here is that even if the information had been that the student was seen tucking a package of cigarettes into her purse, there was no reason for the principal to locate and seize that package.

Unidentified Justice: Well, is it customary in New Jersey schools for students to pass one tobacco cigarette around to several different people?

Lois De Julio: Your Honor, I believe that occurs with a fair amount of frequency, or so I am told.

But I think that the problem here is simply that the search was for something which was not against school rules to possess, was not illegal or contraband per se, and also had--

Unidentified Justice: Well, it was a violation of the rule to smoke in the location of the restroom, was it not?

Lois De Julio: --Yes, certainly it was.

Unidentified Justice: What if the school official just said, hand over any cigarettes that you have, and the student handed them over, and the school official confiscated them?

Is that a violation of the Fourth Amendment?

Lois De Julio: Well, I guess it would be there the question of whether the student's consent to relinquish the materials was a knowing and voluntary one.

Assuming that it were, then I suppose it would be--

Unidentified Justice: Well, suppose it is not.

Is that a violation then of the Fourth Amendment?

Lois De Julio: --I believe that it would be, since the--

Unidentified Justice: And if a third grader is chewing gum in school, in violation of the teacher's established rule of preventing that, would it be a violation of the Fourth Amendment if the teacher confiscated the child's gum?

Lois De Julio: --Well, I think in that circumstance the rule may be that the student is not permitted to possess bubble gum in school.

The problem here in this particular school, and I certainly think--

Unidentified Justice: Well, let's assume that's the rule.

May the teacher then search the child's pocket, or confiscate the gum?

Lois De Julio: --Well, again, I would certainly break down a bubble gum situation in that it may not be a serious enough threat to school order to warrant a search, but if it were a situation where the item was for example, the case involving firecrackers.

The item was certainly one that could jeopardize safety and order in the school.

Unidentified Justice: What about a crib sheet, evidence of cheating on a test?

Lois De Julio: That might under proper circumstances, yes, support a reasonable search.

Again, the contours of the search under the New Jersey court standard, the search has to be reasonable in light of the purpose.

Unidentified Justice: Incidentally, Ms. DeJulio, I gather you don't agree with your colleague that even a probable cause standard would be satisfied here, assuming the applicability of the Fourth Amendment.

Lois De Julio: No, we do not believe that the information which the principal had satisfies even the lesser standard of reasonable grounds, and certainly the extent of the search went far beyond any scope that would be constitutionally permitted, even if he had arguably had reasonable grounds to open the purse.

Unidentified Justice: Incidentally, am I correct that as a matter of state law consent is no justification unless those consenting have been told they didn't have to?

Lois De Julio: There is a component in the New Jersey standard for consent search that the individual be aware that he has a right to refuse.

With regard to a student, I am--

Unidentified Justice: That is a matter of state law, is it?

Lois De Julio: --Yes, Your Honor.

The student in New Jersey is required by state law to submit to the authority of teachers, so it would be doubtful that a student could realize that he could refuse, because under a state statute, I am not sure that he could, and that fact, the fact that students are by law required to submit to the authority of a teacher we submit is one of the most important reasons why school officials must be considered governmental action for Fourth Amendment purposes.

I private citizen could stop a child on the street, ask to see what he had in his pockets, and the child could say no, and walk away.

But in the school context, the lawful authority, the teacher, the school administrator, can compel the student to submit to the intrusion of a search, and the student has no recourse but to submit.

This is exactly the type of governmental harassment which we submit the framers of the Fourth Amendment designed the Amendment to protect against.

Unidentified Justice: May we come back to the standard for just a moment?

You used the term reasonable grounds.

Do you distinguish that from reasonable suspicion?

Lois De Julio: Your Honor, I don't believe that the New Jersey Supreme Court intended to distinguish from reasonable suspicion or reasonable cause.

The school case literature, of which there is now a large number of reported decisions, about equally use the term reasonable cause, reasonable grounds, or reasonable suspicion.

All of those terms have been used and have a body of case law.

Unidentified Justice: You would accept reasonable suspicion, would you?

Lois De Julio: I don't believe that there is any meaningful difference, or that there was intended to be any meaningful difference.

The New Jersey Supreme Court, I believe, adopted reasonable grounds because that standard had been used by several prominent cases in the area, and was one that was recognized and understood by persons involved with the school search issue.

Unidentified Justice: Would you ever require probable cause?

Lois De Julio: Yes, Your Honor.

I think that the New Jersey Supreme Court very clearly stated that as the intensity of the intrusion increases, the standard of reasonable grounds may very well approach or become that of probable cause.

Certainly in the area of strip searches, I would submit that the search cannot be reasonable unless there is probable cause at a minimum, and even then, of course, there may be problems with the proper scope of the search.

But I think the New Jersey Supreme Court recognized that the term school search could encompass a broad spectrum of intrusions, some, as is with the case with the police, are rather minimal, stopping a student in the hallway and asking a question, but at the opposite end, of course, there could be much more intrusive searches into purse, pockets, clothing, and of course perhaps the ultimate indignity of a strip search.

So, we would submit that as formulated, the reasonable grounds test covers a certain portion of the intrusions, but that as the intrusion becomes more severe, we are talking about probable cause at the ultimate end.

Unidentified Justice: Having in mind the facts of this case, what more would have been required in your view to satisfy the requirement to make the search of the purse?

Lois De Julio: In this case, I don't believe that a search could be properly made, since it had no relationship to the offense.

Unidentified Justice: Well, suppose three teachers observed the girl smoking, actually smoking, and brought her into the principal's office and said, as soon as we called her attention to her smoking in violation of the rules, she put the cigarette out and put it in her purse.

What then?

Would they be permitted to search the purse?

Lois De Julio: Well, Your Honor, certainly the information would implicate the purse, but again, I think that we are talking about a situation where the fact of a search may just have been completely inappropriate under the circumstances.

Unidentified Justice: Well, would it be appropriate in these circumstances?

Or are you telling us that they must go down and get a policeman and go to a magistrate and get a warrant?

Lois De Julio: No, Your Honor.

Certainly I am not saying that.

In this particular case, we are talking about an infraction which was complete in itself.

To borrow Justice Marshall's example, if the student had been cursing in the hallway, the infraction is complete in itself.

There would be no basis to conduct a search because there is nothing that a search could contribute to the--

Unidentified Justice: But here the girl denied that she had cigarettes.

Lois De Julio: --She denied that she smoked.

And certainly the question of whether she smoked or not would not have been determined by the discovery or the failure to discover cigarettes in her purse.

To take the opposite approach, if the principal had opened her purse and had not found a package of cigarettes, if he had found nothing in her purse, that would not have acquitted her of the infraction.

Unidentified Justice: That may be so, but what if he had found them, like he did?

Do you mean that doesn't support the inference that she was smoking?

Lois De Julio: No, Your Honor, simply because under school rules it was proper to smoke in certain areas of the school, and--

Unidentified Justice: Well, I know.

I am not suggesting that possession would infringe a school rule, but if the young lady denies that she was smoking, and that she never smoked, and then it turns out she has got cigarettes in her purse, you don't think that supports the inference that she had been smoking?

Lois De Julio: --It may support it somewhat, but I don't believe that it is determinative, simply because she could have been carrying someone else's cigarettes, and I think we are talking about a chain of inferences.

Certainly there are any number of things which might in some way contribute to proof, but when we are talking about a chain of inferences, we have already gone three steps away from the infraction at hand.

It is not permitted for the police to go searching or to obtain a warrant when they have some amorphous idea that there might be something that would be evidential.

They cannot go into the house of a suspect and take away everything in the house on the theory that some of it might at some point prove evidential.

Unidentified Justice: May I ask this question?

We are talking about standards a good deal.

Ordinarily police officers or otherwise trained state personnel make the judgments as to whether there are reasonable grounds, reasonable suspicion, probable cause.

Is it your view that teachers should be held to the same standard of good judgment as police officers?

Lois De Julio: I think so, Your Honor.

Unidentified Justice: Whatever the standard?

Lois De Julio: Whatever the standard, because I think first of all that the educators operate in a much more... an easier environment than the police do.

The police are frequently on the street dealing with strangers and circumstances that are changing from minute to minute.

The educator deals with a group of students whom he probably knows very well, whom he will continue to see on a daily basis, and in many instances has a far better basis to make an informed judgment.

Also in many instances if he suspects, has a hunch that something is going on that he feels might be a violation of the law or school rules, the student will be back in the classroom on a regular basis.

The teacher can simply continue to make observations and see if that hunch--

Unidentified Justice: Does knowing the student well enable one to make a judgment as to what is reasonable cause or what is probable cause, reasonable suspicion, do you think?

Lois De Julio: --One of the factors which the New Jersey court pointed to in assessing whether reasonable grounds exist is the age, school record, and past history of the student, and I think that those are tools which sometimes the police are able to utilize in their determinations of probable cause, but I think it would be, of course, appropriate to evaluate those criteria in determining whether reasonable grounds existed.

Unidentified Justice: Does New Jersey provide any special training for teachers with respect to making these judgments?

Lois De Julio: Well, I believe that New Jersey provides a great deal of ongoing training for teachers in a myriad of fields, both academic and professional.

Unidentified Justice: Of course.

Lois De Julio: This would perhaps become part of it.

But I would like to call Your Honor's attention to a recent recommendation of the National School Board Association.

They recommended that law-related education as a program be adopted by schools because they have found that it is very effective in preventing delinquency and contributing to a safer school environment.

Unidentified Justice: How many teachers are there in New Jersey, roughly?

Lois De Julio: I don't know, Your Honor.

Quite a large number.

Unidentified Justice: But in this case it was the vice principal.

It wasn't a teacher.

Lois De Julio: It was a vice principal.

Yes.

Unidentified Justice: Suppose the teacher reports to the vice principal that a particular young man, student, a male student has been threatening other students with a knife, and perhaps brings that student into the office.

Would you say the same thing, they could not ask him to produce the knife or conduct a pat-down search, not a strip search, a pat-down search?

Lois De Julio: I think that under those circumstances a pat-down search might be appropriate, yes.

Certainly when weapons are involved, the immediate threat... we recognize that with regard to the police, and permit frisks when the circumstances suggest that there is a weapon and that there is a danger of harm.

But again, I think we have to make a distinction--

Unidentified Justice: Well, what makes the... the fact that somebody saw the person threatening someone with a knife, how does that support the inference that it might be in his pocket?

Lois De Julio: --Well, again, the nature of the information would have to be... would have to suggest that conclusion.

Unidentified Justice: I know, but does it or doesn't it?

Lois De Julio: I think if the information were fresh that, you know, this was seen right away, the inference--

Unidentified Justice: What was wrong with the inference about the cigarettes?

Lois De Julio: --Well, again--

Unidentified Justice: The information was very fresh.

Lois De Julio: --The fact of the students being in, first of all, being together in the restroom, that the cigarettes were not being seen being taken out or removed, they were being consumed, and also the fact that possession of cigarettes, again, was not prohibited by school rules.

There was no reason to seize them.

Whereas a knife I would assume would be prohibited by rules in every school, and a teacher would be well within his or her rights to seize a knife, even if it was seen just being displayed, and not being used in a threatening manner toward another student.

Unidentified Justice: Getting back to this case, is there anything in the record where the principal said, if we don't find cigarettes in your purse, we will drop the charges?

Lois De Julio: Absolutely not, Your Honor, and I would submit that in the face of the eye witness testimony of the teacher, the principal could not have ignored the infraction based upon the failure to find cigarettes in the purse.

I would also suggest that the principal, if he cared to investigate further, could have very simply questioned the other girls in the restroom.

One of those girls was present in his office, and had candidly admitted that she was smoking.

Unidentified Justice: Of course, Ms. DeJulio, a lot of Fourth Amendment law is based on second guessing of what people right on the spot did.

This would have been more reasonable.

This would have been a little better.

But really the test is whether this particular reaction was reasonable.

It was not whether it was the best, or whether something could have been proved or not.

Lois De Julio: That is certainly true, and I am only suggesting that in response to the concern that what else could the principal have done to be fair.

Certainly it is quite correct that hindsight is better than foresight, but once again I think that we have to recognize that we are not dealing here with an exigent situation.

Smoking in the restroom is certainly an infraction of school rules, and is certainly a problem that the school had to deal with, but it just simply does not rise to the level of a student possessing a weapon and threatening other students, or selling drugs in the restroom.

There was no immediate harm.

It was not a situation, as the police frequently have to contend with, where a split second decision had to be made.

Unidentified Justice: Well, I suppose you do agree in general, though, that a school needs to respond quickly and informally to violations of its rules by the students, do you not?

Lois De Julio: Certainly, but I--

Unidentified Justice: How do you think it would impact then on that interest of the school to require the assistant principal to drop everything and go down to the police station and get somebody to authorize a search?

Lois De Julio: --I am not suggesting that that should be a requirement.

We have not at any point during this appeal here argued that a teacher should be required to get a warrant.

In this particular circumstance, I think what I am trying to... the distinction that I am trying to draw is between infractions of school rules which have to be dealt with in some way but which do not implicate a search, and which simply are not serious enough.

In day to day life there are many adults who smoke cigarettes in places where it is not legal to do so, but it would be difficult for a police officer to justify seizing an adult that he sees coming out of an elevator smoking a cigarette illegally and conducting a search.

The level of the infraction, the level of harm, the level of jeopardy is just simply not such that we would authorize that type of conduct.

Certainly if the... another New Jersey case, State in the Interest of G.C., where the principal was told by a student that another student was selling drugs in the restroom, the court found that the principal acted perfectly reasonably in apprehending that student and searching her and seizing those drugs.

That is the kind of threat where a search may be immediately required, and where a school administrator would be found to have acted perfectly reasonably.

Unidentified Justice: Suppose the vice principal had been apprehensive about the Fourth Amendment problem and said to the girl, sit down, picked up the phone, called the mother, said, come over to the school, the mother said, I can't get there for 15 minutes.

The girl was required to sit there.

Is she under arrest?

Lois De Julio: No, Your Honor, I don't believe that she is under arrest.

Unidentified Justice: Can they require her to stay there?

Lois De Julio: Yes, I believe under New Jersey law certainly he can.

Unidentified Justice: If when the mother got there she took the purse and opened it, would the mother be violating the Fourth Amendment?

Lois De Julio: No.

Unidentified Justice: What is the difference between the mother and the teacher in your view?

Lois De Julio: Well, the difference is, I think, the difference between private action and governmental action.

There have been cases which have recognized that private citizens--

Unidentified Justice: Only the state action factor is different.

Is that it, in your view?

Lois De Julio: --Yes, Your Honor, I think... with regard to the Fourth Amendment.

Unidentified Justice: In other words, the parent has an inherent right to open the purse of the girl, but there is no inherent right on the part of the teacher.

Lois De Julio: Certainly the Fourth Amendment would not be violated by the parent conducting a search herself or himself.

Unidentified Justice: Haven't you got a little bit of state action mixed in with the mother's action when the mother is there at the command or request of the state, and the mother is responding to the state's inquiry?

Lois De Julio: Well, certainly, if it were found that there had been any coercion or attempt to mislead or in some way implicate the parent as a tool of law enforcement, there might be, and the New Jersey Supreme Court recognized that in certain school searches if police instigation were found, or some attempt to circumvent the Fourth Amendment, that might be dealt with as a Fourth Amendment problem.

But in a purely parental situation, where a parent, acting as a parent, searches a student, searches their child that evidence would not be proscribed by the Fourth Amendment, even if it had been seized under circumstances that we would not perhaps find to be proper, such as the employer breaking into the desk of an employee.

That might violate certain criminal statutes, but it would not prevent the state from utilizing that evidence in some--

Unidentified Justice: Would you have any problem with metal detectors such as those we have outside the Court being at the schoolhouse door?

Lois De Julio: --Well, certainly that is well outside the facts of this case, but assuming that hypothetically the cases allowing the use of a metal detector on a general basis, such as the airport, or that line of cases, are based upon the idea that the individual is voluntarily seeking the service that makes it necessary for him to go through the gate.

Here, with students, they are compelled to attend school, so by forcing them to walk through a metal detector, which is a more minimal intrusion into privacy, certainly, but the element of choice is simply not there.

An adult can choose to take a plane or not, knowing, that a metal detector is one of those things he will have to submit to, but a child is required to go to school, and cannot refrain.

Unidentified Justice: Even if you had an epidemic of use of knives in a particular school, no metal detector?

Lois De Julio: Well, certainly there would have to be some showing that this particular tool was necessary, but apart from that, again, I think that the distinguishing factor, the factor which makes that type of search possible and constitutionally permissible in an airport and not in a school is the element of voluntariness.

Unidentified Justice: What about searching purses, as takes place in this building?

Lois De Julio: Well, once again, the individuals who enter this building do so--

Unidentified Justice: Is that the only difference, that they enter the building voluntarily?

Lois De Julio: --I think that that is certainly a significant difference.

Unidentified Justice: What about a prison?

Would you say you can't have metal detectors at a prison because the people going to prison aren't going there voluntarily?

Lois De Julio: Well, Your Honor, certainly the difference between a prison and a school is a critical factor in the analysis.

This Court last term found that inmates have no expectation of privacy in their cells based upon the nature, goals, and operations of a penal institution.

I don't believe that any of the factors which were utilized in the Court's analysis of a prison have application in a school.

First of all, we are not talking about confining people who have committed crimes and are shown that they are dangerous.

Unidentified Justice: But it at least suggests that your voluntariness analysis is rot good for all cases.

Lois De Julio: Well, I think it is a factor that has to be taken into consideration.

Prison--

Unidentified Justice: You are a respondent here.

How voluntarily have you come?

Lois De Julio: --I personally have come voluntarily, although certainly someone would have had to appear on behalf of the respondent.

That I think is a voluntary assumption on my part.

But I think that the prison analogy fails also because the lack of rights is part of the punitive feature of prison, whereas certainly in an educational context respecting the constitutional rights of students is considered part of the educational purpose of schools.

Thank you.

Chief Justice Warren E. Burger: Very well.

ORAL ARGUMENT OF ALLAN J. NODES, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Allan J. Nodes: Mr. Chief Justice, and may it please the Court, I believe that the analysis which was just given concerning the distinction between a student in a public school and a student in a private school has some importance in evaluating the differences between a juvenile and an adult.

Last term in Shaw v. Martin this Court noted that juveniles are continuously under some form of custody or another, and this does not mean custody with total liberty, and it doesn't mean custody except when a student attends a public school.

What it really means is that they are under that form of custody and the amount of custody which will ensure their safety and their well-being and that is why society insists on adult supervision of juveniles, and that is why society insists that the juveniles do be under continual custody.

Unidentified Justice: Mr. Nodes, may I ask you a question on that?

Supposing a juvenile, a young lady in this case, was riding in an elevator with a law enforcement officer, and she smoked in his presence.

Would he be free to search her purse in the elevator?

Allan J. Nodes: I don't know if a search of the purse would be at all... I don't know if there is any kind of a violation that has occurred under your hypothetical.

Unidentified Justice: There is a no smoking sign in the elevator.

There is a city ordinance against smoking.

I should have made that clear.

Allan J. Nodes: I think the violation would be smoking a cigarette, and in that case there would be really no relevance at all to whether or not she had additional cigarettes.

Unidentified Justice: What if she denied she smoked?

Just like this girl did.

Allan J. Nodes: It would be very difficult.

If he was the same person who observed her, there is no question of his credibility.

He doesn't have to do this to check his own credibility.

Unidentified Justice: Then in this case the vice principal could search the purse but not the teacher who saw her in the restroom.

Is that what you are saying?

Allan J. Nodes: I think that the vice principal could search the purse.

I think there would probably be less need for the teacher to search the purse, or if the vice principal had directly seen it, there would be less reason for him to do it.

And I think that is something that--

Unidentified Justice: What if the officer in my example took her to the station, and then the person at the station says, I would like to search your purse.

Could he have done it?

Allan J. Nodes: --I believe the further you become removed from individual direct observation, the more need for proof of credibility there is, and the more need for credibility proof you have, the more necessary the search.

Unidentified Justice: Is there anything in this record to show that the vice principal didn't trust the teacher's veracity?

Allan J. Nodes: No, there isn't anything to show that he didn't trust the teacher's veracity.

What there is is, there is evidence to show that he was willing to give the student the benefit of every doubt, and we feel that that is something which is appropriate, and which he should not be criticized for, at the very least.

But whether the Fourth Amendment is held inapplicable or whether a lower standard is applied, we feel that what is necessary is that teachers be given an immediate and effective means of conducting searches and performing other disciplinary factors, and we believe that either by ruling the Fourth Amendment inapplicable or by holding a much lower standard than probable cause to be appropriate, that this can be accomplished.

Thank you.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

Featured:

Schall v. Martin - Oral Argument

Thu, 30 Aug 2012 22:14:14 +0000

Case:

Schall v. Martin

Media File:

82-1248_19840117-argument

Related Transcript:

82-1248_19840117-argument

Transcript:

ORAL ARGUMENT OF MRS. JUDITH A. GORDON, ESQ. ON BEHALF OF THE APPELLANT

Chief Justice Warren E. Burger: We'll hear arguments next in Schall against Martin and the consolidated case.

Mrs. Gordon, I think you may proceed when you are ready.

Ms Judith A. Gordon: Mr. Chief Justice, and may it please the Court:

The principal question presented is whether a New York State Family Court judge violates the due process clause when he detains an accused juvenile delinquent after he has conducted a detention hearing and after he has found, based on facts and reasons elicited at that hearing that there is a serious risk that the juvenile, if released, will commit a pre-trial crime.

When the judge acts in this premise, he relies on specific statutory authority, namely, Section 320.5(3)(b) of New York's Family Court Act, which is the statute involved in this appeal.

The appeal is from the United States Court of Appeals for the Second Circuit and it arises in the proceedings brought by detained juveniles for a class writ of habeas corpus and for a declaratory judgment.

I will address Section 320.5(3)(b) and related provisions of Article 3 initially and I do so both to inform the Court about the procedural constraints that New York imposes on the judicial decision to detain an accused delinquent prior to trial and to rebut at the same time several alleged deficiencies in this procedures which were assigned to it in the opinions below and are noted by Appellees.

I will then turn to Appellees' two principal arguments under Mathews versus Eldridge, namely, that some crimes must be excluded from Section 320.5(3)(b) and that some guidelines for judicial decision making must be added so that the statute would survive scrutiny under the due process clause--

Unidentified Justice: What are the conditions on which an adult offender, given all the same factors, could be detained before a trial?

Ms Judith A. Gordon: --In New York, Your Honor?

Unidentified Justice: Yes, in New York.

Ms Judith A. Gordon: In New York... New York provides bail for adults and does not have a preventive detention statute.

It has been noted, however, that New York's bail law generally does take at least some account of future crime in the community if that is your point.

Of course Your Honor is aware that the District of Columbia itself does have a preventive detention statute which was cert denied in United States versus Edwards.

I believe it was the term before last.

And, we suggest... we contend... that our statute is identical in all material respects to Edwards and, accordingly, would pass muster in the same manner.

Appellees do make one other argument other than their Mathews argument and that is that pre-trial detention to prevent crime as distinguished from pre-trial detention to assure appearance at trial is constitutional punishment and we have addressed that argument in our reply brief at pages 1 through 11.

Turning to the--

Unidentified Justice: In your view what constitutional limits are there on a state's authority to detain people who are not accused of any crime to prevent them from committing future crimes?

Ms Judith A. Gordon: --People who are accused of a crime to prevent them from committing a crime?

Unidentified Justice: Who are not.

Can you detain somebody if they are not?

Ms Judith A. Gordon: No, Your Honor, you cannot detain somebody that has not been accused of a crime--

Unidentified Justice: All right.

And, if they have been accused of a crime, what constitutional limits are there in your view?

Ms Judith A. Gordon: --We would suggest, Your Honor, that there are two separate constitutional limits.

One is quite important and one you have heard a great deal about today and that the Fourth Amendment and probable cause.

That is not quite... Well, probable cause is noted by Appellees in the course of their discussion.

They have not really made a separate Fourth Amendment challenge.

Unidentified Justice: Do you think that is a requirement, probable cause?

Ms Judith A. Gordon: I think that probable cause in the sense of Gerstein, which we believe is met under this statute, and in the sense of New York's further requirement that there be an adversarial probable cause hearing for these juvenile, which the prosecution has the burden, that that probable cause requirement is well met in this case.

We do not suggest that an affirmative finding of probable cause must be present at the time of detention.

In other words, it is sufficient in our view that it is provided and the child be given an opportunity to negative it at the time of detention and that it is there after found based on the prosecutor's burden.

In other words, it need not be simultaneously affirmatively found.

Unidentified Justice: Is there any other constitutional limitations?

Ms Judith A. Gordon: Yes, Your Honor, absolutely, and that arises from the existence of the detention or perhaps if you want to call it conversely, the release statute itself.

And, that statute has a due process relation in the same sense as any other statute that creates an interest in property or liberty would have a due process relation.

And the appropriate test for that statute is the Mathews versus Eldridge test and it involves both considerations of it permissibility under the due process clause and the appropriate measure of the process that is due which is exactly the issue we addressed in this case, the principal issue we addressed in this case.

Returning to the statutory scheme, I think it is significant that we know, first of all, who the person is or who the child is that is involved.

And, the juvenile, according to New York law is... the juvenile delinquent under New York law is an individual who commits an act between the ages of 7 and 16 which, if done by an adult, would be a crime.

Under Section 302.2 of the Family Court Act, the Family Court's jurisdiction is not quite so confined.

A juvenile who has done that conduct within the 7 to 16 age range may be prosecuted in the Family Court until he is 20 if a designated felony is involved or until he is 18 if another felony or misdemeanor is involved.

A designated felony is... We provide a list of them for you at page 6 of our brief in the second footnote.

It is essentially a list of crimes allocated by age which permit a Family Court judge sitting at disposition, which is the analog of sentencing, to give an initial placement period of three to five years which is somewhat higher than the 12 to 18 month initial placement period that is available for other crimes.

The place at which... The proceeding at which detention may be considered is called an initial appearance and if a child has been detained on an emergency basis by an admitting detention authority, who is represented here today by the New York City Department of Juvenile Justice which is administered by Appellant, if he has been admitted to such an agency on an emergency basis, this initial appearance where detention may be considered, must be on the next court day and never set more than 72 hours later.

If the child has not been detained, in other words he has been released by the police after his arrest, his initial appearance is within ten days.

And, I call your attention to a new provision of the statute, noting parenthetically that this juvenile delinquency procedural code was recently amended and all the amendments became effective last July.

And, there are some differences between the new law and the old law and this is one of the differences.

Unidentified Justice: Is the probable cause standard the same?

Ms Judith A. Gordon: The probable cause standard is exactly the same, Your Honor.

There is one difference, however, the police, on releasing the child, must give him an appearance ticket and the appearance ticket now must provide that in a designated felony he must return to court within 72 hours and in other cases, crimes charged, he must return within 14 days.

This makes some difference in looking at the opinions below and in noting Appellees' brief, because one of the assignments of error in this case is that somehow the police decision to release a child rather than detain him or bring him directly to the court, made, according to the district judge and Appellees, the judge's decision, who was sitting in that court later, error because he decided to detain him and the gap in time between the time the child was originally arrested and released and ultimately appeared in court and when detained was' pointed out as an inadequacy in the statute, although, of course, it relies on the police decision and not on the judge's decision.

In any event, the new provision of the law now restricts the time limit the child could possibly be on the street if the police arrest him.

Unidentified Justice: Do you think there are stronger reasons to apply this restraint on juveniles than on adults?

Ms Judith A. Gordon: Absolutely.

I don't know whether they are stronger, Your Honor.

I think they are different.

And, essentially they are as follows: Let us assume that a state has an interest, a preventing crime interest, which is universal.

It applies to adults, it applies to juveniles.

The state has, with respect to that juvenile, another interest which I would submit to you it does not have, at least in the same form that it has with respect to the juvenile, and that is child protective interest.

It is concern that a child at the formative stages of his life not be engaged in a series of criminal acts, lest that kind of anti-social behavior harm him normative development.

And, related to that, that he should not be engaged in those criminal acts lest he actually become physically harmed by them, namely, a police officer shoots him.

The liquor store that he is holding up, the individual, the owner, not realizing that he is only 14, thinking he is 18, acts immediately and harms him.

New York has those interests in the child.

In that sense, it has its parents' patria interest which--

Unidentified Justice: You are suggesting that liquor store owners shoot people, I think, who are 18 but not 14?

[Laughter]

Ms Judith A. Gordon: --I am sorry, Your Honor.

The point I was trying to make was that the state has an interest in keeping the child harm free, and while it may have some interest in that with respect to adults, it has a stronger interest with respect to the child.

That is the only point.

In addition, Your Honor, we would also say that the child's pre-trial interest in liberty is not the same as an adult.

The essence of being a child, of being an unemancipated minor is dependence and custodial status.

Obviously, an adult does not have an absolute right to freedom, that is certainly true, but he certainly has a higher right than the child.

So, those interests in relation make what I would submit to you is a match in favor of the state interest in preventive detention, pre-trial preventive detention for juveniles, which match might not turn out to be the same if one carried the analog to the adult, to adult pre-trial--

Unidentified Justice: But, the trouble is if you have got a hardened criminal, you can deny him bail.

But, the infant doesn't get any benefit.

He can be the most decent child and committed one mistake and he goes.

Ms Judith A. Gordon: --No, Your Honor, not quite.

Unidentified Justice: I said he could go.

Ms Judith A. Gordon: Could go, right.

It is true under New York statute any--

Unidentified Justice: Well, why that difference?

Why not give the child a chance, the same chance you give a grown person?

Ms Judith A. Gordon: --Well, it is equally true, Your Honor, that a first offender, if that is the point, who comes up for bail may be denied bail.

At least in New York that is true.

Denied bail is a discretionary matter.

Unidentified Justice: A first offender can be denied bail?

Ms Judith A. Gordon: A first offender may be denied bail--

Unidentified Justice: In New York?

Ms Judith A. Gordon: --In New York except for--

Unidentified Justice: For petty larceny?

Ms Judith A. Gordon: --No.

Unidentified Justice: Well, all right.

Ms Judith A. Gordon: Petty larceny--

Unidentified Justice: But, an infant can be held in jail for petty larceny, first offense.

Ms Judith A. Gordon: --That is correct.

Unidentified Justice: There is a difference, isn't there?

Why the difference?

Ms Judith A. Gordon: That is correct.

Whether--

Unidentified Justice: On that one hypothetical.

Ms Judith A. Gordon: --There is a further difference which I think follows from my elaboration to the Chief Justice and that is New York has a stronger interest, I think, in preventing that juvenile from committing any further crime than it perhaps has in the adult.

The risk to the juvenile from committing that crime is higher than the adult charged with petty larceny.

And, perhaps more importantly--

Unidentified Justice: Are you sure that a juvenile in the average juvenile home is better off on not committing another crime and not learning how to commit another crime?

Ms Judith A. Gordon: --Do you mean--

Unidentified Justice: The average juvenile home is not as conducive to good living as a home is, the average home.

Ms Judith A. Gordon: --It depends a lot, as our detention specialist said, and indeed the detention expert for the City of the trial below, it depends a lot on the home, Your Honor.

If you are a child living on the streets, then perhaps any home is better, and that is not to suggest that there is anything wrong with the detention facilities that we have.

I would call one other fact to your attention, Your Honor.

When I say that a juvenile accused of petty larceny may be considered for detention, I say that advisedly, because in the juvenile case histories that are presented to you by the Appellees, there is at least... I believe at least two petty larcenists.

None of them were first offenders, Your Honor.

They had records of seven, six, five prior contacts with the Family Court.

Unidentified Justice: Well, I do assume that in the City of New York you have found at least one first offender juvenile.

Ms Judith A. Gordon: Who was detained?

Unidentified Justice: Well, are there any?

Ms Judith A. Gordon: These are Appellees' exhibits.

They were Petitioners' below.

They--

Unidentified Justice: Do you say there are no... How do you get the second offenders up there if you don't have any first ones?

[Laughter]

Are you able to shed any light... What is the practice if you know with respect to first offenders?

Are they detained for shoplifting?

Ms Judith A. Gordon: --First offenders are considered for detention.

For any detention, there must be facts and reasons on the record that are developed at this hearing.

If we look at these hearings, at least so far as we have them in the record, and we only have 34, we find not merely criminal... the commission of a crime, but as Appellees' witness below, the psychiatric witness below, Dr. Zinn testified, a pattern, associated characteristics... In other words we find a child who is charged with committing a crime who is also not being supervised at home, who, when he was arrested, lied to the police, who is a truant at school.

In other words, you find a combination of associated characteristics which are called a delinquent pattern.

Now, we do not have in this record, and so far as we know from the information that we have, Mr. Chief Justice, we don't have a single petty larcenist detained.

That is all we can say because the data is not assembled any other way and Appellees, who are attempting to prove their point, I assume, in showing us that there were minor criminals who were detained who did not have records, did not provide us with that information.

Just returning briefly to the statutory scheme, at this initial appearance, the juvenile has all due process rights that this Court has heretofore elaborated.

He is for a preliminary stage of a proceedings and indeed some others.

He is present, he is represented by counsel, he has the right to remain silent, he has the right to oppose any information offered against him, and he has the right to offer information on his own behalf.

The judge, if he comes to the detention decision at all, must pass through two release options, options for conditional and unconditional release, much like the Federal Bail Statute, one must pass through some unconditional release options, much like the District of Columbia Preventive Detention Statute where the judge must also pass through some release options.

Judge Quinones, who testified below for the state, indicated, I think quite eloquently, exactly how a judge comes to this conclusion and that is... He said, and this a point of the application of the statute, Chief Justice, he starts with absolutely no detention.

In other words, he starts essentially opposed to detention.

If then facts and circumstances are developed at this hearing, then those facts and circumstances overcame or may have overcome what Judge Quinones called the strong presumption against detention.

Unidentified Justice: I guess there are no statutory requirements in that require under the New York scheme, is that right, for what the judge has to consider?

Ms Judith A. Gordon: No.

There are no additional criteria, as Appellees call them, or guidelines for decision making other than the standard itself which is precise, serious risk of pre-trial crime.

Unidentified Justice: What review is there of the Family Court decision to detain a juvenile?

Ms Judith A. Gordon: The decision is reviewable by several routes, generally by writ.

Now, Appellees say that this really is a non-reviewable situation omitting to point out that most of the appellate law with respect to juvenile delinquency has been made by the progress of these writs up through the courts and that New York takes a relaxed or quite liberal view of the doctrine of capable of repetition, yet evading review, and renders these decisions.

Indeed, the New York Court of Appeals decision which upheld this very statute was on a writ.

And, they omit one other thing.

In the juvenile case histories that they brought to bear and introduced as evidence, one, Tony Gomez, was released from pre-trial detention by the writ that they suggest to you is not available.

So, there is a thorough going review.

Unidentified Justice: Does the New York... Go ahead.

I just wanted to know, you said there were several mechanisms.

What are the others?

Ms Judith A. Gordon: There is an appeal by commission to the Appellate Division.

There are motions for reconsideration and I believe--

Unidentified Justice: What about the probable cause hearing?

Won't that occur before anything else could happen and it has to happen within six days, doesn't it?

Ms Judith A. Gordon: --Correct.

Unidentified Justice: That is reviewable.

Ms Judith A. Gordon: That is reviewable.

Unidentified Justice: Wouldn't that always be... If probable cause isn't found, there is a release, isn't there?

Ms Judith A. Gordon: That is correct.

Unidentified Justice: So, really what is going to be reviewed in all these proceedings by a writ is the finding of probable cause, isn't it?

Ms Judith A. Gordon: No.

Unidentified Justice: Well, why... I would think by then the probable cause... By the time you can get a writ, the probable cause hearing will go on.

Ms Judith A. Gordon: Well, that is exactly what Appellees are saying.

They are saying, well, this is really non-reviewable because the issue of my detention become moot, not necessarily a probable cause but a fact-finding when the child is arguably convicted, which, in New York if you are detained, it proceeds very quickly.

Unidentified Justice: Well, by the time you could get a writ wouldn't the probable cause hearing have been held?

Ms Judith A. Gordon: Yes, but the probable cause--

Unidentified Justice: And, then there would have been a release if there isn't probable cause.

Ms Judith A. Gordon: --Yes, Your Honor, but as I was indicating, these are two separate notions, one the Fourth Amendment notion, and the other the detention standard.

The fact that there was probable cause found would not necessarily mean that the detention was appropriate, that the pre-trial detention was appropriate.

But, in any event, even if it were so construed, New York--

Unidentified Justice: But, it would mean that it couldn't happen without probable cause.

Ms Judith A. Gordon: --Certainly that is true.

He certainly couldn't stay in without the probable cause hearing, but an affirmative finding of probable cause doesn't necessarily cure a bad detention.

But, the New York State courts--

Unidentified Justice: But, it helps.

Ms Judith A. Gordon: --Yes, it does.

The New York State courts have not viewed the detention issue as moot, thus we have in the Court of Appeals the very case we have before you.

Unidentified Justice: Right.

But, when they review it, at least for all practical purposes, there already has been a finding of probable cause?

Ms Judith A. Gordon: Yes.

Unidentified Justice: Okay.

Ms Judith A. Gordon: And, often a fact-finding, a conviction.

Unidentified Justice: Yes.

Do you mean they will still review if there has been a conviction?

Ms Judith A. Gordon: Yes.

Unidentified Justice: For what purpose?

Ms Judith A. Gordon: To establish the appropriate detention--

Unidentified Justice: Just for the guidance for the future?

Ms Judith A. Gordon: --Pardon me?

Unidentified Justice: Because of the guidance for the future?

Ms Judith A. Gordon: Exactly, guidance for the future and because it is an issue capable of repetition, yet evading review.

The child in People ex rel. Wayburn versus Schupf was long convicted when the Court of Appeals decided the issue.

There are relatively few remaining minutes and I would like to come to... I think we have at least touched upon the first Mathews argument that Appellees advance which goes to this balancing of interest that I was elaborating for the Chief Justice before.

We believe that there are at least... In addition to their failure recess the second child protective interest that is involved in the statute, and their failure to note that there is a distinction between a juvenile's interest in pre-trial liberty and an adult's interest in pre-trial liberty.

When Appellees press this analysis they get to a third error which is perhaps the most pervasive.

And, that is since they hypothecate that some group of crimes must be excluded from this prevention detention statute and they characterize them as trivial crime, but they never define what kinds of crimes they mean.

Their weighing of the state interest and the juvenile's interest in these crimes that are to be excluded is, in fact, a false weighing.

In other words, without knowing what kinds of crimes Appellees have in mind, they never can assess the importance of the state's interest in including them in a detention standard, nor from the juvenile's interest in pre-trial liberty in excluding them from the standard.

So, that when they say that the juvenile's interest outweighs the state's interest, they really have not made the requisite comparison or the one that Mathews requires.

In addition, the suggestion that some group of crimes should be excluded from the statute turns out to be, on the testimony of their own witness, the criminologist below, to yield a worse statute than the statute that is now on the books.

It yields a worse statute because, as their witness testified, the more you qualify crimes, the more you require that somebody predict a specific crime, which you would necessarily have to do to exclude crime, the worse your prediction becomes.

In other words, your error rate increases with every adjective or modification and with every particularization.

And, indeed, the easiest thing to predict is the eventuation of crime and not particular crime.

Unidentified Justice: Attorney General, may I ask this question?

Ms Judith A. Gordon: Surely.

Unidentified Justice: What do we do about the fact that both courts below found as a fact that the law was carried out with unfettered discretion by the Family Court judges and they decided against you on due process grounds?

Ms Judith A. Gordon: Well, that I don't find a problem with.

Unidentified Justice: You do?

Ms Judith A. Gordon: Because there was a question of law.

It is a question of law.

In other words, they did not find as a matter of fact that the law was administered with unfettered discretion.

Unidentified Justice: Well, they... If I may interrupt you again, it seemed to me that they concluded that whatever might be said under Gerstein against Pugh which was a Fourth Amendment probable cause case--

Ms Judith A. Gordon: Right.

Unidentified Justice: --that under the Fourteenth Amendment there were no standards so that the Family Court judges, in their own unfettered discretion, determined when to detain these young people.

Ms Judith A. Gordon: I was about to... Let me turn to that argument and pick up with you and Justice O'Connor.

And that is that we have said, said at the outset of this case that it is not guidelines for the decision making that will make this statute constitutional.

It is the facts and reasons requirement and the stenographic record which is the requirement that takes a standard and translates it to a particular case.

And, that is the standard here.

In other words, the stenographic record and the facts and reasons requirement.

We said that Kent versus the United States established that proposition and we adhere to it.

The converse proposition that Appellees are arguing, namely, that guidelines for decision making, as opposed to the facts and reasons requirement, somehow are the thing that makes the statute constitutional, finds no warrant in the law, and they cite us to no case which says that guidelines, whether administrative or judicially... quasi judicially created in a legislative capacity of a judiciary body, are what make the law constitutional.

There is no case like that.

Now, I think if we follow in terms of logic exactly what results from guidelines as opposed to from facts and reasons we have to conclude that what the court said in Kent, namely, it is facts and reasons and not guidelines, that that is the appropriate standard.

And, I point out the following: We cited in our opening brief the prefatory nature of guidelines for bail decisions, not the Federal Bail Statute and the New York Bail Statute.

Appellees don't challenge us on that at all.

They agree apparently that these are prefatory.

What is prefatory, Your Honor, seems to me cannot possibly be constitutionally mandated.

Second, the existence of guidelines in no way translates itself into the decision making process.

For example, if I were to take the seven general considerations that Judge Quinones testified were common in making these decisions and distribute them widely to every judge... every Family Court judge in New York State, I would nonetheless be unable by that distribution to guarantee that any judge would not write on his record, to use the classic law school example, the boy was wearing a red tie.

In other words, the guidelines themselves don't make the judge do anything.

Now, certainly the facts and reasons requirement can result in an error here and there, but certainly that requirement, the translation of the standard to the record, is what protects the juvenile from unfettered discretion.

Indeed, the guidelines allows exactly the same kind of subjective decision making that Appellees are arguing against because they don't won't the judge to do anything.

The facts and reasons requirement, in contrast, do.

Unidentified Justice: How can you measure due process without guidelines?

Ms Judith A. Gordon: What do you mean, Your Honor, guidelines?

If I give you--

Unidentified Justice: How can you... Any kind of guidelines, written, oral.

Don't you have to have guidelines to have due process?

Ms Judith A. Gordon: --I have to have a relatively certain standard.

Unidentified Justice: Well, don't you have to have a standard?

Ms Judith A. Gordon: I have to have a standard and I have a standard here.

Unidentified Justice: What is the standard?

Ms Judith A. Gordon: Risk, serious risk of pre-trial crime.

It is not suggested... At least Appellees bring no authority--

Unidentified Justice: Is that all?

Ms Judith A. Gordon: --That is... And in the context, you must understand, a post-arrest context where the conduct is regulable in and of itself.

Unidentified Justice: What else?

Is protection of the child a guide?

Ms Judith A. Gordon: Protection of the child certainly is a guide.

It is the state interest in the statute and it does obviously guide the decision making.

But, for example... Let me call your attention to one example.

The Judiciary Act of 1789, Your Honor, had a provision in it that said defendants accused shall be admitted to bail.

That... And that statute was constitutional, Your Honor, and that didn't have any more guidelines than that.

Now, the Kent statute--

Unidentified Justice: Do you want me to give you some cases where this Court said in due process you do have to have guidelines?

Do you need those?

Ms Judith A. Gordon: --Your Honor, the question is what is--

Unidentified Justice: You don't, do you?

Ms Judith A. Gordon: --No, I don't think so, Your Honor, but I am not--

Unidentified Justice: Do you know of any other case that the answer to the lack of due process is answered by you don't need any guidelines?

Ms Judith A. Gordon: --I... To go to Mathews, Your Honor, the weighing process and the risk of error analysis that Mathews requires, the risk of error analysis... I think, as I have been trying to point out to you, that the additional of guidelines in this case, just like the addition of prefatory guidelines in a bail statute, no more make that risk of error analysis better or worse.

In fact, they do almost nothing.

Unidentified Justice: Well, let's put it this way.

Does it help?

Ms Judith A. Gordon: I don't know especially in light of the fact that Judge Quinones--

Unidentified Justice: I give up.

Ms Judith A. Gordon: --that Judge Quinones testified that there were common considerations, that the Second Circuit found that there were common considerations, and that Appellees now concede at page 67 and page 21 and 22 of their brief that there are common considerations that are used--

Chief Justice Warren E. Burger: Your time has expired now, counsel.

Ms Judith A. Gordon: --Thank you.

Chief Justice Warren E. Burger: Mr. Guggenheim?

ORAL ARGUMENT OF MARTIN GUGGENHEIM ON BEHALF OF THE APPELLEES

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

The issue in this case in an important one which permits the Court to answer the question left open In re Gault, whether the Constitution has a role to play in protecting juveniles from inappropriate depravation of liberty before their trials.

To ask the question is to answer it.

In this case the decision to detain before trial is an important one in any criminal justice system, but it is especially important in the juvenile system.

The time between arraignment and trial has been recognized by this Court to be the most critical time in the trial process.

Detention for juveniles, as this record amply supports, is even worse for young offenders.

Unidentified Justice: Why is it worse for young offenders?

Martin Guggenheim: As the record supports, it can traumatize them... Actually I used the wrong phrase when I said offenders... young persons accused of crime.

It is the needless detention.

If they didn't need to be detained in the first place, it is worse for them than for adults.

It is their first experience very often away from their home and loved ones.

It can disrupt their school setting and their opportunity for advancement.

This record shows it has done that to prejudice individuals.

Unidentified Justice: Does the record show how many first offenders or at least persons brought for the first time before the juvenile court are detained on that basis?

Martin Guggenheim: There were two kinds of record, two parts of the record that are relevant.

One are the 34 case histories.

Of them, nine juveniles had never before been arrested and brought before the court.

Seventeen... Twenty-three of the juveniles had never had any prior adjudication whatsoever.

So, there is a powerful record to demonstrate that this is applied to people arrested for the first time.

Unidentified Justice: Is there a report in the nature of probation report presented before the decision is made?

Martin Guggenheim: Yes.

There was testimony at trial by Hubert Benjamin, a probation officer of 30 years experience, who testified that the juvenile will be interviewed for from ten to forty-five minutes prior to the initial appearance.

And, during that interview, the probation officer will ask the juvenile questions, including what were you doing at the time you were arrested, what got you involved in this offense.

And, based on that interview, ten to forty-five minutes, make a recommendation to the court whether to parole or to detain the juvenile pre-trial.

It has been applied countless times to juveniles who have never before been arrested, to juveniles who have never before been convicted, and, as the record demonstrates, to juveniles overwhelmingly the number of times who are accused of only minor offenses.

And, detention along with adults--

Unidentified Justice: When you say minor offenses, Mr. Guggenheim, can you give us some example of what specifically you are talking about?

Martin Guggenheim: --Yes.

In the record one example was a juvenile who was playing a game called "Three Card Monte", a gambling game in violation of the New York gambling law.

He was detained before trial.

Another was a juvenile--

Unidentified Justice: What was the character of the New York offense which he violated?

Martin Guggenheim: --Gambling law.

Unidentified Justice: What, a misdemeanor?

Martin Guggenheim: Yes, a misdemeanor.

The record also shows that 33 percent... New York, of course, categorizes by Felony A to E and then Misdemeanor A and B.

Misdemeanor is punishable by one year for A's and B's six months.

Thirty-three percent of the Vera Justice study of accused juveniles were accused... Thirty-three percent of those brought on charges of the misdemeanors were detained before trial.

Unidentified Justice: Now, what is the upper limit of the punishment of an adult on a B misdemeanor?

Martin Guggenheim: Six months.

Unidentified Justice: Six months.

And, your clients were detained for what crimes?

Martin Guggenheim: Well, my clients is the whole class.

Unidentified Justice: The named class representatives.

Martin Guggenheim: They were accused of more serious offenses, but they were only--

Unidentified Justice: Armed robbery and what else?

Martin Guggenheim: --One was armed robbery.

One was attempted murder.

Unidentified Justice: Yes.

Martin Guggenheim: But, of course, they only represent the class... The class, as the briefs clearly show, are all juveniles in the state who were eligible for detention and all juveniles in the state who were accused of being delinquent are eligible for detention.

Unidentified Justice: One wouldn't have to reach out to the unnamed class member, the "Three Card Monte" defendant, to adjudicate the cases of your clients, would they, an armed robber potentially and an attempted murder?

Martin Guggenheim: One would not have to reach out to them to what end?

The question in this case is whether this statute is constitutional.

Unidentified Justice: But, underlying the presentation of your case to the Second Circuit, I gather, was the assumption that there couldn't be any sort of an individualized consideration or whether this statute as applied to certain people might be constitutional and unconstitutional as to others.

What is unconstitutional about applying this statute to the particular named people in this case?

Martin Guggenheim: Several things, but before I give an answer, I would like to point out that that is only a third or a half of the question about the case, because the case--

Unidentified Justice: Why don't we try it with that third or that half?

Martin Guggenheim: --The broadest issue raised before this Court is whether detaining and individual accused of even serious offenses before he or she has had a day in court, presumptively innocent, because of a belief that the individual will commit more crime if released, thereby assuming the individual has already done something wrong, violates the due process clause.

Unidentified Justice: The Second Circuit didn't answer that question.

Martin Guggenheim: That is right.

The Second Circuit--

Unidentified Justice: So, why is it before this Court?

Martin Guggenheim: --It is before this Court, in answer to your question, because it is an issue in the case which goes to this point.

Even if this statute contained the kind of standards and criteria which might permit a court to detain an individual before trial, comporting with the due process clause in the Mathews and Eldridge test, the question would still remain, may a court detain an individual before trial or is that punishment before trial?

Unidentified Justice: Well, you are saying then that because the standards may be unsuitable or perhaps unconstitutional for a "Three Card Monte" defendant, your clients were armed robbers and attempted murders can't be detained under it because of some overbreadth concept?

Martin Guggenheim: No.

With all respect, my client is the "Three Card Monte" accused as much as to the same extent as--

Unidentified Justice: Who are the named parties in the case?

Martin Guggenheim: --Martin, Rosario--

Unidentified Justice: What are they charged with?

Martin Guggenheim: --Justice O'Connor identified charges correctly, but--

Unidentified Justice: Okay.

Martin Guggenheim: --they are not my only clients.

Unidentified Justice: Well, you are saying that the named parties can't be held under this statute because it is unconstitutional as to a "Three Card Monte" defendant.

Is that what you are saying?

Martin Guggenheim: No.

I am saying that we have proven that the Appellees class has had its rights violated under the Constitution.

Unidentified Justice: What rights of the named plaintiffs in this case have been violated?

Martin Guggenheim: Well, if this were not a class action, the question would be could Mr. Martin challenge this statute because arguably it could be invoked or permits detention for crimes that he hasn't been accused of.

I don't believe though that the law of class action limits the Court in any way to that inquiry.

Unidentified Justice: Well, it certainly doesn't prevent us from addressing the question of the standing of the named plaintiffs to represent the rest of the class and to at least determine... I would think you at least start out with the status of the named members of the class.

The class action may be a good deal broader, but certainly you don't ignore the status of the named members of the class.

Martin Guggenheim: Well, I think that once a class--

Unidentified Justice: Let me put the question to you another way.

Your suggestion, it sounds to me, is that because a class has been certified, the Court must adjudicate the statute on its face rather than as applied to A, B, C, or D.

I would think the class action certification wouldn't prevent the Court from saying, well, this statute is perfectly all right as applied to the named plaintiffs.

It is unconstitutional as to this lawyer's other clients.

Martin Guggenheim: --That may be right, Justice White.

Unidentified Justice: Well, is it right or not?

Martin Guggenheim: Well, my point is that the inquiry as applied includes the as applied in this record.

It would be moot for this Court to consider the question of whether the statute was applied fairly to Martin--

Unidentified Justice: Well, we might--

Martin Guggenheim: --who is already over 16.

Unidentified Justice: --Well, we might come out with completely different answers as to how... as to its constitutionality as applied to the named plaintiffs and as applied to the "Three Card Monte" plaintiff.

Martin Guggenheim: But, both were detained under the same statute, so I--

Unidentified Justice: Oh, all right.

Martin Guggenheim: --would now answer--

Unidentified Justice: Then you are attacking the statute on its face.

Martin Guggenheim: --And, that is exactly the action.

Unidentified Justice: We don't have to do that.

We don't have an overbreadth doctrine for criminal procedural statute.

The overbreadth doctrine, facial attacks, involve only First Amendment situations.

Martin Guggenheim: This isn't an overbreadth attack in the way that it is in the classic First Amendment case.

This is an attack on a statute which says that the depriving individuals of liberty in the absence of any standard, not because of absence of notice to the accused, but because the statute has been and can be applied inappropriately is unconstitutional.

Unidentified Justice: Well, that argument goes just as well to your clients as to the other members of the class.

I agree with that.

Martin Guggenheim: I can finally answer the question Justice Rehnquist put to me by saying that even the named plaintiffs have a proper attack on this statute by arguing that the absence of standards in this scheme render the statute unconstitutional on its face and as applied to them.

But, this is not an as applied case.

This record was an attempt to show, as the New York Court of Appeals agreed, although finding it constitutional, that this statute contains no criteria that would require a court to make a finding one way or another.

It is up to the court's unfettered discretion each and every time.

That is true for Martin.

Unidentified Justice: Okay.

But, apart from adjudicating the case of Martin, the court may not be required to make a finding, but it makes perfectly sensible findings that he is apt to commit another crime.

Now, the statute may be unconstitutional as applied to somebody else with respect to whom different findings have been made.

What is unconstitutional about that?

Martin Guggenheim: This statute contains no precisely drawn standards.

Unidentified Justice: Well, so what?

What case says you have to have precisely drawn standards when you can examine the way a statute is administered on a case-by-case basis?

Martin Guggenheim: Well, okay.

That leads to another infirmity in this statute.

Its very existence permits the depravation of liberty without meaningful review.

Martin couldn't obtain.

The "Three Card Monte" offender couldn't obtain it.

Unidentified Justice: Well, Martin is getting it right now.

Martin Guggenheim: I would respectfully disagree.

If that is the Court's view, the case is moot.

Martin has been convicted, he is no longer under 16, the statute is no way capable of repetition as to him.

The very nature of this case is that it is an on-going problem.

Unidentified Justice: You used the word "convicted".

Has he been convicted as an adult or as--

Martin Guggenheim: No.

Adjudicated, sentenced, sentence fully served, and he is now 19 years of age and his particular facts, I respectfully submit, are not dispositive in any way respecting the broad reach of this statute or its unconstitutionality.

Unidentified Justice: --Well, I suggest to you you may not want an adjudication.

If all you want is an adjudication on space and we find that in some circumstances this statute is perfectly constitutionally applied, you lose your entire case.

It just isn't unconstitutional on its face.

Then I would think you would want us to say, well, it is unconstitutional as applied to other people in your class, other members of your class.

Martin Guggenheim: But, they are part of the record in every sense.

Unidentified Justice: I understand that part of your argument certainly goes to a facial challenge even with respect to the named plaintiffs and everybody else like them.

I understand that.

But, we may not agree with you on that.

Martin Guggenheim: This statute is a textbook example of a statute without standards.

Any juvenile is eligible for detention.

The record shows that most juveniles detained not only were accused of minor offenses--

Unidentified Justice: What if a state... What if the federal government or the state, in order to implement its constitutional requirements of bail, says unreasonable bail shall not be required?

Now, what kind of a standard is that?

Martin Guggenheim: --The--

Unidentified Justice: Sometimes you just adjudicate individual cases under that standard.

No standards other than reasonableness.

Martin Guggenheim: --The question of bail is a very different one.

With respect to the standards, there is an overlap, but with respect to the basis for detention, what goes to the heart of the infirmity of this scheme is that the prediction or the reason for the detention is not that someone won't return to court, which is the bail basis, but that someone will commit a crime if released.

That goes to the heart of what the court has to find or presume in order to detain.

We claim that this statute has no standards in several respects, but among them is that the court is not limited in a finding of substantial probability that the individual committed the offense of which he or she is accused, no finding of probable cause, no finding of probable conviction or sentence.

Unidentified Justice: With your argument I would take it would go to adults as well as juveniles, to the same statute, the same vagueness.

Martin Guggenheim: Not with bail but with preventive detention.

Unidentified Justice: Yes.

Martin Guggenheim: It is inconceivable to me, as this Court said in Kent against the United States, that a court of justice dealing with adults with respect to a similar issue would proceed in this manner.

There is no such state--

Unidentified Justice: Kent wasn't a constitutional case, was it?

Martin Guggenheim: --No.

I am simply making the point of the language of the opinion.

It was inconceivable to this Court that the District of Columbia would deal with adults, that any state would the way they dealt with juveniles.

That is the argument here.

Inconceivable that a state would deprive an individual of liberty on the unfettered, open-ended discretion that it can do so in this case.

Unidentified Justice: You mean you don't know of any jurisdictions around that are considering prevention statutes for adults?

Martin Guggenheim: Yes, I do, but to contrast that--

Unidentified Justice: What do you mean you do?

You do know some?

Martin Guggenheim: --I know of one in this district, for example.

And, in Hunt against Roth, although the Court struggled with the meaning of the phrase, proof is evident and presumption great, in both schemes the legislature required as a sine qua non that there be a finding that the individual probably committed the crime, a substantial likelihood, that it be limited to very serious offenders.

Unidentified Justice: Well, wouldn't you be here making the same argument if the judge or the officer in the first instance before he had to make a finding of probable cause?

That is a great standard too.

Martin Guggenheim: Well, yes, it is.

Yes, it is, Your Honor.

Unidentified Justice: Well, would you be here making exactly the same argument?

Martin Guggenheim: I would for this reason.

The Mathews and Eldridge test--

Unidentified Justice: The answer is, yes, you would be making the argument.

Martin Guggenheim: --But, only in this sense.

It is a flexible test.

What is due process?

The question is is the mere finding of probable cause enough?

I would be here saying no.

Add to that, limited to the Martin fact pattern, accused of attempted murder, limited to a showing of substantial probability of ultimate placement, clear and convincing evidence of the ultimate fact that the person is likely to have committed a crime, raise the standard of proof.

Add them together and I think Mathews is met and detention is not arbitrary assuming the second argument would be reached adversely to our case which is that detention before trial itself is punishment for that purpose.

I clearly put that argument aside to say I would be here if the only thing New York did was add probable cause.

But, New York not only doesn't have probable cause, it has no standard of proof.

It is applied to everybody.

Unidentified Justice: But, very quickly it has it.

Martin Guggenheim: Yes, but the limit of detention in no way mitigates the massive curtailment of liberty that this Court finds to be at the heart of the due process clause.

It interferes with preparation for trial, it increases the probability of conviction, it increase the probability of ultimate placement.

The record demonstrates all of those things overwhelmingly and in an undisputed way.

So, the mere 17-day detention is only the tip of the iceberg in its effect adverse to the person's liberty interest.

Unidentified Justice: But, there is no possibility of conviction here.

Martin Guggenheim: I am using the word not in its technical sense.

Adjudication and placement.

There is no possibility of conviction.

One of the other irrational aspects of this case... and I could answer this in another way, Justice Rehnquist, to the Martin and Rosario fact pattern, although I frankly think the case is much broader than that... that juveniles accused of the most serious offenses from 13 to 16 are prosecuted in New York as juvenile offenders in the adult court.

For them preventive detention may not be applied.

Similarly, juveniles... Persons 16 to 18, which in most states are juveniles, but not in New York, are not eligible for preventive detention.

Unidentified Justice: Well, the first example may simply vindicate your opponent's view that New York regards its parents' patria role with the children as being involved to a certain extent in the detention.

Martin Guggenheim: I cannot explain the irrationality of the scheme I have just described.

But, the record is plain, from Judge Quinones to every piece of datum in this record, that the purpose of this detention is singular.

It is to protect the community from crime in the interim.

That is its only purpose and there is no dispute about that.

Now, one of our claims in this case is that it is punishment before trial and I would very briefly like to explain that argument.

This constitutes an affirmative restraint imposed by the state for a purpose historically regarded as punishment, incapacitation.

In United States against Brown and Kennedy against Mendoza-Martinez this Court has plainly held that.

This comes into play only because the individual is accused of wrongdoing and it is applied to behavior which is already a crime.

The state may not detain individuals before trial because of a belief that they will commit a crime in the interim before their conviction.

But, if they may, it is plain that any exception to the general rule that incarceration follow rather than precede adjudications of guilt can be justified, if at all, by a compelling state interest.

There is none in this case.

The only and lame justification for the scheme presented by the state is that the facts and reasons requirement of this statute make up for all of the absences of procedural due process protections.

That requirement of facts and reasons was put into this statute by the legislature, as the Attorney General in his brief at page 36 points out, solely so that the legislature could see how the statute was operating.

There is no question that there is no meaningful opportunity to review the detention decision made by the judge even with the facts and reasons.

Unidentified Justice: How about habeas?

Martin Guggenheim: Habeas is available as a theoretical remedy, but when a judge has before him or her a case in which the other side, the state, says, Your Honor, the statute says that the court may detain when it finds a serious risk and it has found so in this case and stated its reasons and facts on the record, that ends the inquiry.

Not a single case has been uncovered by the state or by the Appellees to show release of a juvenile for violation of the statute of detention when the facts and reasons were given on the record.

I have litigated countless habeas corpus cases, a decision in the record, but one does not win unless the violation was that the court said go to jail without--

Unidentified Justice: What happens in the counties outside of New York where the judge is not a juvenile court judge, he is a regular judge?

Martin Guggenheim: --No, he is a juvenile court judge.

He is sometimes what they call a three hatter and sits as judge of three courts.

But, when he is sitting a juvenile court judge, that is his role.

Unidentified Justice: Is that the judge that is going to get a writ of habeas?

Martin Guggenheim: I don't know--

Unidentified Justice: Against himself?

Against himself?

Martin Guggenheim: --I doubt that, but I frankly don't know.

But, certainly in New York different judges sit, but the point is it is an illusory... And, as the legislature said, we want to see a review of the scheme, but it doesn't meaningfully protect.

Justice White is quite right, as the process moves along, the individuals in detentions, that is the way it works.

Unidentified Justice: Mr. Guggenheim, you made an equal protection claim below as well.

Oh, yes.

Martin Guggenheim: We believe as a basic point that if this Court does not find that this statute violates due process of law, it almost certainly does not violate equal protection of the law.

We have abandoned that claim at this time.

We think that the heart of our case is that this statute cannot withstand scrutiny.

We think as a bottom-line point detention before trial for the purposes envisioned by this statute offend for other reasons the due process clause.

It is not necessary for the the Court to decide this case to reach that other issue.

But, if it is to reach that other issue, we submit that this is a classic example of utilizing the statute in the wrong way.

Most of the juveniles who are detained are ultimately released home.

The vast bulk are released home and half are never even convicted.

Unidentified Justice: Is it possible also that a class action was not the appropriate way to approach this problem?

Martin Guggenheim: Frankly, Your Honor, it is the only way to approach this problem.

Unidentified Justice: Not a case by case?

Martin Guggenheim: There is no Article 3 case or controversy.

I have litigated this case in different manner since 1973 in the state courts.

Now, when you come into the federal court to challenge this, if you don't have a class action, your clients group up and they grow out of the age... This isn't even a Hunt v. Roth case where you can say, well, when you are released from prison, you may ultimately be rearrested assuming you don't get life.

Here, when they are 16, they are out of the jurisdiction.

It is incapable of repetition.

It is only by the device of class action that we can litigate it.

And, the identity of the plaintiff is relevant only to the inquiry, I submit, of whether a class action is properly certified.

Once it is properly certified, and in this case it would be all juveniles eligible for detention, then the "Three Card Monte" detainee is as important an example as the Martin example.

We have evidence in this record that judges base their decision to detain on the political climate of the situation, of how much media attention a case gets.

One judge's policy, perfectly lawful under this statute, reviewable by writ or otherwise, to detain all juveniles who are accused of an offense in which a gun was involved.

That is in the record.

Now, that may be lawful with a statute which has a showing of a standard of proof and a probable cause and likelihood of conviction and other protections.

This statute lacks all of the essential protections which the Constitution requires in the due process clause.

What is nice about this case, if I may, is that affirmance is going to improve a system of justice which this Court on numerous occasions has condemned for its failure to live up to its ultimate promise.

What is wrong with juvenile justice in part, this Court has noted on many occasions, is that it fails to deter and it often fails to rehabilitate.

Every major study of juvenile justice shows in full conformity with this record that the vast majority of juveniles are punished, if at all, before their trial.

Unidentified Justice: Could bail be required, reasonable bail be required?

Martin Guggenheim: Yes.

New York, in its wisdom, has not imposed such a requirement and we think frankly that that is sensible in many ways because there are laws that--

Unidentified Justice: It may be that my question is would it be constitutional to require bail before there is release?

Martin Guggenheim: --I think it would be constitutional.

Unidentified Justice: Reasonable bail?

Martin Guggenheim: Well, now you are asking me the same question as before.

Is that standard itself constitutional?

Unidentified Justice: I thought you were making an argument that... bordering on an argument that you shouldn't be able to detain juveniles at all.

Martin Guggenheim: No, I am not making that argument.

I am saying that this Court can comfortably affirm in the knowledge that it will result in fewer juveniles being punished before their trial, but not in fewer juveniles being detained when there is a need to bring them to court for their trial when there is a risk of flight because they are eligilbe for detention under a statute not being charged.

Since 1981, in June, this statute has been enjoined in New York.

It hasn't been operating, and yet arrest statistics show that the arrest rate is down.

There is not compelling state reason to justify this statute.

There is a strong policy reason to overrule this statute so that juveniles will be detained in conformity with the Constitution after they have been proven guilty beyond a reasonable doubt and not before.

If there are no further question--

Chief Justice Warren E. Burger: Thank you, counsel, the case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Featured:

Tuten v. United States - Oral Argument

Wed, 18 Feb 2009 07:11:16 +0000

Case:

Tuten v. United States

Media File:

81-6756_19830301-argument.mp3

Related Transcript:

81-6756_19830301-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF LINDA GILLESPIE STUNTZ, ESQ., ON BEHALF OF PETITIONER

Chief Justice Burger: We'll hear arguments next in Tuten against the United States.

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

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

This is a criminal case involving the application to the particular facts of this case of Section 5021(b) of the Federal Youth Corrections Act of 1950 and Section 3204 Chapter 22 of the District of Columbia Code, in particular a provision of that section multiplying by a factor of ten the penalty for repeat offenders.

These provisions are set forth at pages 2 and 3 of petitioner's brief.

The question before the Court is: Whether petitioner may be sentenced as a recidivist under Section 3204 based on a conviction for which he served a sentence of 2 years of probation pursuant to Section 5010(a) of the Federal Youth Corrections Act and was granted an unconditional discharge.

The Fifth Circuit Court of Appeals which answered a similar question in the negative is in conflict with the District of Columbia Court of Appeals, the court below, which answered this question in the affirmative.

Petitioner maintains that the District of Columbia Court of Appeals is in error and that his sentencing as a recidivist was improper for two independent reasons: Number one, his earlier Federal Youth Corrections Act conviction was set aside pursuant to Section 5021(b) when he received his unconditional discharge; and number two, whether or not it was technically set aside pursuant to Section 5021, it is not a proper basis upon which to impose a recidivist penalty under Section 3204.

The facts are not in dispute.

On February 12, 1971, petitioner, then 19 years of age, entered a plea of guilty in the District of Columbia Court of General Sessions to the charge of carrying a pistol without a license, in violation of 22 D.C. Code Section 3204.

The imposition of sentence was suspended, and petitioner was placed on probation under Section 5010(a) of the Federal Youth Corrections Act for a period of 2 years.

Contrary to established Probation Department procedures, petitioner's term of probation was allowed to expire without judicial attention to the question of whether or not he should have been discharged prior to the end of his two-year term.

At the end of his term in 1973 petitioner was granted an unconditional discharge.

However, no certificate was issued setting aside his conviction pursuant to Section 5021(b) of the Youth Act.

On June 19, 1980, a two-count indictment was filed charging petitioner with assault with a dangerous weapon, a stick, and carrying a pistol without a license, after having been previously convicted of carrying an unlicensed pistol.

Both offenses were allegedly committed on November 23, 1979.

Prior to petitioner's trial, the government informed the Court below, pursuant to D.C. law, that petitioner had previously been convicted of carrying a pistol without a license and was therefore subject to the increased recidivist penalty provided by Section 3204.

The previous conviction relied upon by the government was the same 1970 offense for which petitioner had been sentenced under the Federal Youth Corrections Act.

On November 27, 1980, a jury found petitioner not guilty of assault with a stick but guilty of carrying a pistol without a license.

On January 26, 1981, petitioner was sentenced to a felony term of not less than two nor more than six years.

Had he been sentenced as a first-time offender pursuant to Section 3215 of the D.C. Code, the maximum sentence that he could have been given is one year imprisonment.

Petitioner appealed his sentence as contrary to Section 5021(b) of the Youth Act and of the construction placed on that section by the Fifth Circuit Court of Appeals in United States versus Arrington.

However, the District of Columbia Court of Appeals affirmed.

It found Arrington to be based on unpersuasive authority and held that under Section 5021(b) only those youth offenders who are unconditionally discharged by a court prior to completing a Youth Act probationary sentence are entitled to have their convictions set aside.

The Court concluded that a conviction which was not set aside was a proper basis for the recidivist sentence that petitioner received.

On October 12, 1982, this Court granted a petition for writ of certiorari to review the decision of the District of Columbia Court of Appeals.

The gist of petitioner's argument is that the use of his 1971 Federal Youth Act conviction to trigger the felony recidivist penalty contained in Section 3204 of the District of Columbia Code was improper on two independent grounds: first, the 1971 conviction had been automatically set aside pursuant to Section 5021(b) by petitioner's unconditional discharge from probation; and second, whether or not it was technically set aside, it may not properly be used to trigger a recidivist penalty.

I would--

Justice Rehnquist: Ms. Stuntz, would your second ground require us to interpret differently than did the D.C. Court of Appeals a statute dealing primarily with local matters in the District?

Mr. Stuntz: --Mr. Justice, the District of Columbia Court of Appeals, as I understand its treatment of that issue, which was very perfunctory, felt it was not a matter for its determination as a court, but that the issue was better addressed to Congress.

Unidentified Justice: Well, that's one way of telling you that you lose, I suppose.

Mr. Stuntz: I do not think there would be involved any alteration of their interpretation.

They did not approach the question that fully.

Unidentified Justice: Is it an independent state ground for decision?

Mr. Stuntz: Your Honor, since it... since this question involves the interrelationship of both statutes, it would be petitioner's position that there would... could be no independent state ground since it necessarily involves the construction of both the Federal Youth Corrections Act and the District of Columbia provision.

Unidentified Justice: But supposing this case had come to us from New York or Illinois and the state court had said, we are going to treat the Federal Youth Corrections Act as a proper basis for a state recidivist penalty.

Now, that would clearly be an adequate state ground, wouldn't it?

And isn't that pretty much what this Court did?

Mr. Stuntz: To the extent that that interpretation of the Federal Youth Corrections Act, which is plainly a matter for this Court's purview, differed with a matter of this Court's interpretation, I should think it would not be an adequate State ground.

Unidentified Justice: Do you think we could prevent a State court from treating a Youth Corrections Act conviction as a basis for its own recidivist statute?

Couldn't New York pass a statute that says a second conviction will result in an enhanced penalty and we shall for this purpose treat any Federal conviction whether youth or adult, as a first conviction?

They could do that, couldn't they?

Mr. Stuntz: Yes, Your Honor.

I believe that they could.

Unidentified Justice: Well, isn't that pretty close to what has happened here?

Mr. Stuntz: That is not the primary basis for this Court's decision below--

Unidentified Justice: Well, you say they--

Mr. Stuntz: --as I understand it.

Unidentified Justice: --didn't articulate it that way, but that's the net effect of the result reached, is it not?

Mr. Stuntz: It may be, but as applied to this particular case, but I believe the precedential value that this case would set in terms of its construction of the Youth Act Section 5021(b) and when set aside occurs would have an impact far beyond this particular jurisdiction.

Unidentified Justice: At any rate, that's your second point, isn't it?

I take it you'd probably want to argue your first point first.

Mr. Stuntz: Thank you, Your Honor.

I will proceed to that.

The government contends that the language of Section 5021(b) is entirely clear and compels the conclusion that a Youth Act conviction will be set aside only when the youth has been discharged prior to the expiration of his probationary sentence.

Petitioner was not discharged prior to the end of his 2-year probationary term.

Therefore, the government reasons in the Court below, that this conviction was not set aside.

However, Section 5021(b) does not provide for the set-aside of the conviction of a youth offender who is discharged before the expiration of his sentence or whatever sentence it is that's imposed upon him.

The language of the statute is that automatic set-aside shall be granted to those youth offenders who are discharged prior to the expiration of the maximum period of probation, theretofore fixed by the Court.

Now, as with any question of statutory construction, it is necessary to go back to the history, structure, and underlying policies of the Youth Act itself, at least briefly because I know the Court is familiar with these matters, to see those... what those who drafted this language intended to do.

In its exhaustive review of the Federal Youth Corrections Act in Dorszynski versus United State, this Court found that the principal purpose of the Youth Act is to rehabilitate persons who because of their youth are especially vulnerable to the dangers of recidivism.

In furtherance of this principal purpose, sentencing judges were authorized to choose from a variety of sentencing options.

Under Section 5010 of the Act a youth offender may be committed to the custody of the Attorney General for a period up to six years or such longer commitment as may be authorized for an adult violator.

The youth offender may also be placed on probation with the execution or imposition of his sentence suspended.

Or the youth may be sentenced as an adult should the Court find he would not benefit from the Youth Act treatment.

The drafters of the Federal Youth Corrections Act provided a powerful tool to the Youth Act Division to be used in achieving this principal rehabilitative purpose.

This was the Division's discretion to discharge committed persons unconditionally before it was statutorily required that they do so under the Act because upon such discharge the conviction of the youth would be automatically set aside.

It was this provision, Section 5021(a), that was before the United States Court of Appeals for the Fifth Circuit in United States versus Arrington.

There the Court held that a youth offender's unconditional discharge after satisfactorily completing a six-year sentence under Section 5010(b) of the Youth Act set aside his conviction under Section 5021(a).

As a result, the offender could not be convicted of violating the Federal law which prohibits the possession of firearms by a convicted felon, 18 U.S.C. Section 1202.

Citing the Court's decision in Dorszynski, the Fifth Circuit stated, if a youthful offender has been unconditionally discharged, the disabilities of a criminal conviction are completely and automatically removed.

Indeed, the conviction is set aside as if it never had been.

The government would have the Court discard Arrington as an aberration, not based upon a complete reading of Section 5021.

According to the government and the Courts below, Arrington's conviction was not set aside because Arrington was not released prior to the end of his Youth Act sentence.

The Fifth Circuit determined, however, that because Arrington was given a sentence less than that which he could have been given, his unconditional discharge following the completion of that lesser term earned him the set-aside of his conviction under Section 5021(a).

The Fifth Circuit's construction of Section 5021 is true to the distinctive character of the Federal Youth Corrections Act as a tool of rehabilitation rather than one of retribution.

Petitioner's case is even stronger than John Arrington's.

Arrington had been committed to the custody of the Attorney General under Section 5010(b) and had received unconditional discharge after completing the six-year maximum term provided by Section 5010(b).

Petitioner, on the other hand, received unconditional discharge after serving a probationary term of only two years.

Now, when the Youth Corrections Act was enacted, no provision whatever was provided whereby youths placed on probation rather than committed could obtain the set-aside of their convictions.

This waited until 1961 when Section 5021(b) was added to extend the same conviction set-aside benefits to youths serving Youth Act probation as had been available to youths committed under the Federal Youth Corrections Act.

Unlike the terms of commitment, however; the Federal Youth Corrections Act specifies no maximum term of probation at the end of which unconditional discharge must occur, nor does it provide for mandatory conditional release prior to the end of that maximum term as is the case for committed youth offenders.

The government contends that according to the plain language of the statute the youth must be released prior to the term of probation initially imposed in order to qualify for the set-aside of his conviction.

This reading of the statute, however, ignores the term 5021 both (a) and (b) for a reason.

The reason is to provide a benchmark by which the youth eligibility for the set-aside of his conviction can be measured.

Unconditional discharge prior to that benchmark grants automatic set-aside.

What is the maximum term of probation theretofore fixed as is discussed in petitioner's reply brief?

This is not an easy question to answer.

Petitioner maintains, however, that the drafters of the Federal Youth Corrections Act intended unconditional discharges occurring before six years or such longer period as an adult term may provide to carry with it the set-aside of the conviction underlying that term.

Acceptance of the government's contention would lead to a number of anomalous results.

An offender discharged before the end of an extended period of probation would be treated better than one discharged at the end of a brief initial period of probation.

Unidentified Justice: But isn't the thought, Ms. Stuntz, that if someone sentenced under the Youth Corrections Act is discharged prior to the term for which they have probation, however long, that's a recognition of kind of a specially good rehabilitation, whereas if the person simply serves out the term, it's thought that's probably about as expected but no big pluses?

Mr. Stuntz: Your Honor, I think that is precisely why the statute was written as it was, to, as the government puts out and as petitioner agrees, reward not just average adjustment but... but good behavior, special response to the Federal Youth Corrections Act program.

There is, however, in the language of the statute the term "maximum", in recognition of the anomalies that may result were a person discharged after two years not allowed the set-aside of his conviction and yet a person discharged after five years allowed that set-aside.

The term "maximum", which relates back, petitioner contends, to the six years in the original statute, provides a solid benchmark by which all behavior under Federal Youth Corrections Act treatment may be measured, especially in this case where there never was an opportunity for petitioner to be discharged before the end of his two-year probationary term due to the failure of the Probation Department to alert the sentencing Judge to the expiration of his term of probation.

The government's interpretation of Section 5021(b) violates the foremost intent of the drafters of the Federal Youth Corrections Act: to rehabilitate those youths who can be reached by giving those who respond to Federal Youth Corrections Act treatment a fresh start.

Turning now to the second independent grounds for reversal--

Unidentified Justice: How does the fresh start concept fit an acknowledged recidivist now, going to the policy underlying the statute?

Mr. Stuntz: --The question--

Unidentified Justice: Assuming... assuming he was entitled to some special consideration for his first offense, what justification is there for any special consideration for him for the second offense?

Mr. Stuntz: --Your Honor, I agree that the benefit of hindsight often would change the application of a--

Unidentified Justice: Well, do not--

Mr. Stuntz: --search warrant or... or--

Unidentified Justice: --do not Judges in sentencing take... use hindsight to... suppose a Judge were totally free... this is not directly related to your case... but suppose the Judge were entirely free, don't you think a Judge would treat him as a second offender if there were none of the points you raise?

Mr. Stuntz: --I am sorry, Your Honor, I am not sure I understand the--

Unidentified Justice: Well, the Judge is going to look at the total record.

He looks at a sentencing probation report, presentence report, and he finds the person has committed other offenses.

Now, suppose he had committed an offense but had not been prosecuted for one reason or another.

Wouldn't the Judge, any sensible Judge making the sentence, take that into account?

Mr. Stuntz: --I think that is precisely why, Your Honor, the set-aside provision was inserted and--

Unidentified Justice: To prevent Judges from taking it into account?

Mr. Stuntz: --That... whether or not the set-aside completely expunges the record is an issue which has not yet been finally adjudicated by the Court, this Court or even the Courts below.

They are in disagreement on that matter, and I do not believe it is an issue that needs to be determined today.

But the question is not whether petitioner's commitment of a crime years later somehow goes back and... and disqualifies him from the set-aside of his conviction.

Unidentified Justice: Even when it's... even when it's practically the same crime?

Mr. Stuntz: Whether... whether it is... whether or not it is the same crime, Your Honor, the question before the Court is did he qualify pursuant to the statutory criteria set out in the Federal Youth Corrections Act.

That he committed a crime years later is... is unfortunate.

And the Judge at that time has the right to use his sentencing discretion in whatever way he deems best.

The question here is was that conviction on the books at the time the Judge ten years later when the second crime was committed.

Petitioner's position is, according to the language of the Federal Youth Corrections Act and as Arrington held, that conviction was set aside and was not available to be used to trigger the increased recidivist penalty.

Turning to the second independent grounds for reversal, petitioner argues that whether or not his conviction was set aside, it's not proper to use it as the basis upon which to impose a recidivist penalty.

Federal Youth Corrections Act convictions are very different kinds of creatures.

Youths may be sentenced to longer terms under the Federal Youth Corrections Act than... than may an adult.

Unidentified Justice: Ms. Stuntz, you say it is not proper to use it.

Do you have some statutory frame of reference in mind when you say that?

That the... is it the general recidivist statute was not intended to incorporate it or there is some constitutional problem or is it a common-law observation?

Mr. Stuntz: Your Honor, I rely primarily upon the rule of lenity.

There is no legislative intent that in the D.C. Code Section 3204 that Federal Youth Corrections Act convictions be counted there.

In the absence of such legislative intent, it has been the long-held doctrine of this Court that the imposition of a harsher penalty which presumes such intent--

Unidentified Justice: Well--

Mr. Stuntz: --is improper.

Unidentified Justice: --Do you concede that at least by implication the D.C. Court of Appeals has resolved the issue of legislative intent against you?

Mr. Stuntz: The D.C. Court of Appeals has certainly, at least by implication, resolved the issue of the legislative intent of Section 3204.

Unidentified Justice: Which is the one you want construed according to the rule of lenity?

Mr. Stuntz: What I am asking the Court is not just 3204 but also the Federal Youth Corrections Act, because I think it's important to keep in mind the policies of both acts to determine whether applying them together, as they were in this case, makes sense and serves the policies of either one.

It is petitioner's position that such use does not.

In conclusion... and I would respectfully ask that the remainder of my time be available for rebuttal--

Unidentified Justice: Very well.

Mr. Stuntz: --petitioner would ask that for these reasons and the reasons set forth in his briefs, the decision of the District of Columbia Court of Appeals be reversed and that his felony sentence be vacated and his case remanded for resentencing pursuant to Section 3215 of the D.C. Code as a first offender.

Unidentified Justice: But he is no longer a youth?

He is no longer a youth?

Mr. Stuntz: That's correct, Justice.

Unidentified Justice: He's 27 years old when he was convicted, he was 27 years old?

Mr. Stuntz: That's correct.

Chief Justice Burger: Ms. Etkind, you may proceed whenever you are ready.

ORAL ARGUMENT OF BARBARA E. ETKIND, ESQ., ON BEHALF OF RESPONDENT

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

We believe that the question presented by this case, whether petitioner is entitled to a set-aside of his conviction under the Federal Youth Corrections Act, is answered in the negative by the plain language of the statute.

18 U.S.C. 5021(b) provides that a court may unconditionally discharge a youth offender from probation

"prior to the expiration of the maximum period of probation theretofore fixed by the Court which discharge shall automatically set aside. "

the youth offender's conviction.

Here petitioner was sentenced to two years' probation under the Youth Corrections Act.

It is undisputed that he completed the entire probationary term.

Accordingly, he was never unconditionally discharged prior to the expiration of the maximum period of probation theretofore fixed by the Court.

Unidentified Justice: If he were discharged one day before the expiration, he would satisfy the statute?

Mr. Etkind: Yes, he would.

Unidentified Justice: What do you think is the purpose of the statute?

Mr. Etkind: I think the purpose of the statute, Congress' purpose, was to hold out to youth offenders the possibility of a set-aside as an inducement to fully rehabilitate themselves and to take--

Unidentified Justice: Even though it's one day before?

Mr. Etkind: --Well, I think... I think it may have to be one day before.

Congress was looking for some evidence of this rehabilitation, and the evidence would be an early set-aside whenever that would come, particularly in the case of a probation with a short sentence, it might take nearly the whole sentence to rehabilitate.

Petitioner was never unconditionally discharged prior to the maximum period of probation.

He therefore was never entitled to the set-aside, and the government was fully intent... was fully entitled to use it as a basis for the subsequent recidivist penalty.

Petitioner attempts to create ambiguity where none exists in this statute by focusing on the statute's use of the word "maximum".

and on the absence of any language in the statute such as "the sentence imposed on him".

But it is clear from the phraseology of the statute, the period of probation theretofore fixed by the Court, that Congress was talking about the sentence that would be imposed on the defendant.

And Congress could not have more clearly expressed that its use of the word maximum referred to

"the maximum period of probation theretofore fixed by the Court. "

In addition, petitioner now suggests that YCA as the maximum.

But in fact, when a court sentences a probationer, the maximum to which he can be sentenced under 3651 in the Federal Courts and also in the D.C. Courts is five years' probation.

So according to petitioner's theory, any... any probationer would ultimately be entitled to set-aside relief.

As I mentioned to Justice Blackmun, it was Congress' purpose in... in... in holding out the possibility of a set-aside to induce probationers, to induce all youth offenders, to take advantage of the treatment and guidance that was offered by the YCA program.

Accordingly, any construction of the statute that makes the availability of set-aside relief turn on the initial sentence as imposed would... would thwart that congressional purpose.

And it's for that reason, as well as the more significant fact that its conclusion flies in the face of the statutory language, that the Arrington decision on which petitioner relies and which is the only decision contrary to the holding below is of no persuasive force at all.

While the case... while this case here presents... involves the set-aside provision applicable to probationers, Arrington involved the analogous set-aside provision applicable to committed youth offenders; that is, incarcerated youth offenders.

That section provides,

"Upon the unconditional discharge by the commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside. "

Notwithstanding this clear statutory language, the Fifth Circuit in Arrington held that the defendant there, who had completed his... the six-year sentence that was imposed upon him was entitled to a set-aside.

That Fifth Circuit decision represents nothing less than a holding that every defendant who is sentenced under the Youth Corrections Act will ultimately be entitled to a set-aside.

Petitioner complains that we are... that we interpret the Arrington decision too broadly, that really all that the Fifth Circuit was holding was that any youth offender who was committed to a sentence less than that to which he could have been committed will be entitled to a set-aside.

But there is no basis for petitioner's reading of the Arrington decision.

In the first place, the Fifth Circuit never articulated such a limited ruling.

Indeed, it never even discussed the critical statutory language prior... before the expiration of the maximum term imposed upon him.

And moreover, the petitioner's reading of the Fifth Circuit's decision makes no sense at all, as a hypothetical will show.

If you take two defendants, both of whom are sentenced to six years youth... to six years under 50... Section 5010(b) of the Youth Corrections Act, one of the defendants has committed a string of murders, the other one has been convicted of loitering.

Under... under petitioner's reading of the Arrington decision, the only defendant who would be entitled to set-aside relief would be the mass murderer because only he could have been sentenced to a greater sentence; that is, under Section 5017(c), he could have been sentenced to the maximum... to a youth offender sentence equivalent to the maximum sentence an adult could have received.

But in any event, either reading of the Arrington decision ignores the critical statutory before the expiration of the maximum sentence imposed on him.

Moreover, either meaning makes the unavailability of set-aside relief turn on the sentence as initially imposed, and therefore it thwarts the congressional purpose of it holding out the set-aside as an inducement to the youth offenders to take advantage of YCA treatment in correctional programs.

If the Court has no further questions, I will rely on our brief.

Chief Justice Burger: Very well.

Do you have anything further, Ms. Stuntz?

ORAL ARGUMENT OF LINDA GILLESPIE STUNTZ, ESQ., ON BEHALF OF PETITIONER -- Rebuttal

Mr. Stuntz: Thank you, Your Honor.

Petitioner does not maintain that any probationer would be entitled to set-aside relief.

As the Justice pointed out, it is plain that Congress was looking for evidence of rehabilitation and that this was necessary in order to qualify for the set-aside of the conviction.

It was not to be a benefit indiscriminately bestowed upon everyone under the Federal Youth Corrections Act.

In looking for the evidence of rehabilitation, the government would suggest, according to a strict reading of all of the statute except one word, that it must have happened one day or five days or any time prior to the period of that probationary term.

Aside from the fact that, as we know in this case, there never was even an opportunity for that to happen, this turns the rehabilitative purposes of the Act on its head.

The more reasonable reading, more in line with the policy of the Act, a more better gauge of evidence of rehabilitation would be was the petitioner, was the youth offender discharged prior to the six years under which... specified in Section 5010(b) of the Act?

If the Court would determine that in fact the maximum is the five-year probationary term provided in the Federal probation statute, that would be acceptable as well.

But there is most definitely a reference in the statute to some maximum as the benchmark.

This is to how the evidence of rehabilitation is to be determined.

And only if that evidence is demonstrated would set-aside be in order.

In this case, that evidence is demonstrated.

And petitioner would urge that conviction and the decision of the Court of Appeals below be reversed.

Thank you.

Chief Justice Burger: Thank you, Counsel.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10 a.m..

Attribution:

The OYEZ Project

Featured:

Santosky v. Kramer - Oral Argument

Fri, 09 Jan 2009 14:46:50 +0000

Case:

Santosky v. Kramer

Media File:

80-5889_19811110-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF MARTIN GUGGENHEIM, ESQ., ON BEHALF OF THE PETITIONERS:

Chief Justice Burger: We will hear arguments first this morning in Santosky against Kramer.

Mr. Guggenheim, you may proceed when you are ready.

Mr. Guggenheim: Thank you.

Mr. Chief Justice, and may it please the Court, the issue in this case is whether the state may permanently destroy a family when it is not clear that the evidence justifies doing so.

It is the Petitioners' position that the Constitution requires that the finder of fact be reasonably convinced that the result of permanent destruction of the family is appropriate before the state may force such an irrevocable and fundamental deprivation of liberty on an individual.

New York and eleven other states permit the permanent destruction of a family based on quality of evidence which is sufficient to prove liability in an automobile accident.

This is offensive to basic notions of due process.

Unidentified Justice: Well, Mr. Guggenheim, I realize that your point is certainly legally well taken, but do you think your client would have been better served by the rather searching family court inquiries in this case; albeit they were said to be made upon the preponderance of the evidence rather than a very short hearing in the family court which announced that it found by "clear and convincing evidence" that parental rights should be terminated and it was affirmed by the appellate division?

Mr. Guggenheim: Absolutely, not only in this case but in the 1,200 other cases litigated in New York each year on this subject.

It would of a measurable and real value, a benefit to parents because, as Justice Harlan indicated in Winship, what the standard of proof does, what the setting of a constitutional standard of proof does is impress upon the finder of fact the degree of confidence in the judgment which is to be rendered.

Now, if your question, Justice Rehnquist, is whether under any reading of this case a higher standard would have been met, the test for harmless error in constitutional adjudication is a reasonable doubt test set forth in Chapman against California.

The question would be whether any reasonable person could have found that this did not amount to clear and convincing evidence.

Unidentified Justice: No, my question was directed more to the practicality matter.

The family court devoted considerable time, and wrote out its conclusions, and held more than one hearing on the matter, and the fact that it ended up concluding that it was by the preponderance of the evidence strikes me as being a rather technical point which could have been obviated by a much shorter and less searching inquiry than simply a boilerplate finding at the end that we find this by clear and convincing evidence.

Mr. Guggenheim: Courts have regularly reviewed records upon a higher standard of proof, appellate courts have, and in this case, the test before the appellate division was merely whether the evidence did justify the result by a preponderance of the evidence.

There is both an impression to be made upon the finder of fact of the degree of confidence he or she should have in making the finding, as well as an entire change of the direction of the case, of the scope of the issue before an appellate court.

The burden is more squarely placed upon the state, and the question for review is whether they have met that burden by convincing evidence.

I do think that this is a practical and meaningful right being sought, both for the 1,200 cases each year and for this one.

Unidentified Justice: From the size of the record in this case, is it not quite clear that the judge gave it very close attention, and made an exhaustive inquiry?

Mr. Guggenheim: Absolutely.

There is no challenge being made to the process attendant to the proceedings or to the judge's own careful analysis of his opinion other than a steadfast refusal to both declare the statute unconstitutional insofar as it required a higher standard of proof and a refusal to rule that by that higher standard of proof this same result would have been effected.

The trial court judge did not do that.

The appellate court, the third department, appellate division, affirmed expressly finding that the evidence satisfied the preponderance standard, and expressly finding that a higher standard was not constitutionally mandated.

Unidentified Justice: Mr. Guggenheim, if we were to agree with you about the standard, what should we do with this case?

Send this record back and tell them, look at this record again and applying the correct standard, or to retry it?

Mr. Guggenheim: I think that the former alternative would not necessarily be impermissible.

I am not certain of the answer.

I think that at least remand--

Unidentified Justice: This is the trial record.

Mr. Guggenheim: --No, no, that is a very... a bulky set of exhibits annexed to this case, most of which we regard, frankly, as unnecessary for consideration.

The record is--

Unidentified Justice: You don't suggest that the judge didn't consider them.

Mr. Guggenheim: --I do suggest that, indeed.

Unidentified Justice: That he didn't consider them?

Mr. Guggenheim: He did not.

Some of those are simply reports issued after the case was decided, long after the case was decided.

These are just exhibits submitted to the court by the Respondent.

They were not... Some of these are part of the record in earlier litigation, dating back to the time the children first entered the state's care, and some of the parts of Volumes 1 and 2 do contain... I don't mean to suggest that anything submitted to this Court respecting a transcript was not part of a record in an earlier case.

I don't mean that at all.

Unidentified Justice: Given the amount of time, the whole record of this case, if you are correct on your standard, would not the appropriate... would it not spare this family unit that you are concerned about, very properly, considerable trauma if they didn't have to go through the whole process again, if the judge would merely be directed to evaluate this evidence on the standard that you are suggesting if the court should happen to agree with that?

Mr. Guggenheim: Frankly, I find myself in a difficult position answering that question candidly, because there have been facts that have occurred after the trial that are not in this record, that I think speak favorably to the parents.

I don't know how to bring it to the Court's attention without answering that a new trial, I think, would be possibly appropriate, but I do think frankly that question should be considered by the appellate division upon remand for reconsideration in light of this Court's opinion were it to strike this standard.

Unidentified Justice: The appellate division, not the--

Mr. Guggenheim: Or the trial court.

Unidentified Justice: --court of first instance?

Mr. Guggenheim: Fine.

Remand to the trial court.

At that point, we would be in a position not circumscribed by Supreme Court rules to advise that court of change of circumstances which we would regard as favorable that may bear upon the court's decision, and indeed, that leads to a point--

0....

Unidentified Justice: Wait until the matter is cleared up.

Perhaps a lightbulb.

0....

The first surmise was correct.

Counsel, you may continue.

Mr. Guggenheim: I am certainly glad it was correct.

Unidentified Justice: We will not deduct that time from Mr. Guggenheim's allotted 30 minutes.

Mr. Guggenheim: As I was saying, among the points to be made here is that the decision to terminate is for speculative purposes.

It is for purposes of hopefully leading to an adoption of a child.

Whatever happens after the record is fixed is really for... is beyond the capacity of a parent or the court to reopen.

Unidentified Justice: May I ask, Mr. Guggenheim, under New York law, suppose the state fails to get an order terminating parental rights.

Mr. Guggenheim: Yes.

Unidentified Justice: May it come back later and seek such an order?

Mr. Guggenheim: Absolutely, and I think--

Unidentified Justice: Suppose... the state may, but suppose the parents lose, and parental rights are terminated.

Have they any way of getting parental rights restored?

Mr. Guggenheim: --No, none whatsoever under New York law.

There is in most American jurisdictions the right of a parent to reopen an adoption of a natural child based upon fraud or duress within a period of time after the adoption is fixed, but of course those standards would be inapplicable to these types of proceedings.

Not only may the state relitigate when it loses, it did so in this very case, and it underscores one of the important advantages to the state on its side when it litigates against parents.

In this case, it tried first to terminate permanently in 1976.

The court found by a preponderance of the evidence they didn't have the ground sufficient under state law to terminate.

The state then appealed to the appellate division, the same court from which we are now here on review, and that court affirmed, finding that the preponderance of the standard... of the evidence wasn't met, and found for the parents in 1978; in that same year, they filed this lawsuit seeking to terminate a second time.

We are not suggesting that that is inappropriate.

We are not suggesting that notions of res judicata are applicable, but merely to indicate one of the significant advantages the state has in this kind of proceeding.

We are, of course, here dealing with rights far more precious than property rights, our most significant and fundamental rights of all, the rights to be with our children, the rights to visit with our children, the rights of our children to be with our parents and to know our parents.

At the very least--

Unidentified Justice: Well, when was the last time your clients saw those three children?

Mr. Guggenheim: --Until they finally lost parental rights, they never missed a visit.

They loved their children.

They were diligent in meeting with their children whenever possible.

They haven't now seen their children since the court permanently terminated their rights.

Unidentified Justice: I suppose you must concede, Mr. Guggenheim, that New York does have some advantages in its system that other states do not have.

Mr. Guggenheim: I do make that concession.

Unidentified Justice: I am speaking of the right to counsel, the right to a representative of the child.

I forget what you call it.

Mr. Guggenheim: Yes, that's correct.

Unidentified Justice: And yet this Court in Lassiter last year said that the right to counsel was not constitutionally mandated.

Mr. Guggenheim: Yes, but Lassiter flows from the Sixth Amendment right to counsel, and from an entirely different analytic framework.

Lassiter is an opinion that follows logically from Scott against Illinois, in that in Scott this Court held--

Unidentified Justice: Well, there were some of us who thought it didn't follow.

0 [Generallaughter.]

Mr. Guggenheim: --Well, I respectfully suggest that.

I am not sure I disagree with some of those views, but the point is that Scott held that the bright line is not even threat of imprisonment, as it might be in a jury case.

It is actual imprisonment.

So the presumption... I think that, Justice Blackmun, even those who dissented might agree with the phrase that counsel cases come to this Court with a presumption against application of counsel automatically except where there is a loss of liberty.

Where the Court may have disagreed, I think, was how to resolve the particulars in Lassiter, the dissent finding that counsel was necessary to meet due process overcoming the presumption, but at least for five members of this Court the presumption does follow logically, even if the result in Lassiter could be disputed, from Scott, and from Argesinger, and from Gideon.

In standard of proof cases, that bright line has never existed.

This Court didn't utilize that reasoning in Vance against Terrazas.

To the contrary, the Court examined quite carefully the heavy burden on the state to show voluntary, purposeful relinquishment of citizenship as a balancing question in determining what standard of proof was necessary, and so Lassiter, of course, for those states in which counsel is not required makes this case all the more important, but ultimately--

Unidentified Justice: Mr. Guggenheim, what provision... you are urging us to say a state must do something in this context.

What provision of the Constitution do you rely on?

Mr. Guggenheim: --We rely on the Fourteenth Amendment, and on the--

Unidentified Justice: On what part of it?

Mr. Guggenheim: --the Mathews and Eldridge analysis, asking what process--

Unidentified Justice: This is a question of procedural due process?

Mr. Guggenheim: --Yes, sir.

Just the way this Court found that to be the case in Winship.

The Court in Lassiter has already determined... Justice Stevens in Lassiter suggested in his--

Unidentified Justice: Well, you are not arguing, then, or are you arguing that there is some right to family, some family right that is being violated here?

Mr. Guggenheim: --Well, the liberty rights being violated are--

Unidentified Justice: Liberty?

Mr. Guggenheim: --include... could be said to include the substantive concept of family privacy, integrity of family rights, but one does not have to go off on substantive due process in this kind of case.

Justice Stevens's dissent in Lassiter recognized the point that the Mathews and Eldridge test belittles constitutional analysis, or is mistaken constitutional analysis when we are concerned with fundamental, basic liberty rights, such as the right of parents and children to be related to each other.

Unidentified Justice: You have spoken to the rights of the parents here, and of course that is very important, but is there not a right which is more important than the right of the parents, namely, the right of the child, or the children?

Mr. Guggenheim: Absolutely, and this case is not at all to suggest that permanent destruction of a family is inappropriate.

But permanent destruction of a family when it is unnecessary is inappropriate.

Permanent destruction of a family which shouldn't be done by the state is offensive to the rights of children, at least as much so to the rights of parents.

To be made a permanent ward of the state needlessly, to lose the love and affection of a family... even to know that there are parents out there, as this Court recognized in Kabann, is a fundamental right, and this case doesn't suggest that children aren't entitled at some point to be severed from their parents.

This case is merely to suggest that when that grave act is set out, that it be done so in a convincing manner.

Unidentified Justice: What was the standard that was applied here?

I mean, what was the substantive rule that was applied here?

Mr. Guggenheim: The question before the court that was litigated, although the test is a little broader than this, was whether the parents substantially, continuously, or repeatedly planned for the future of their child.

Unidentified Justice: Well, now, is it your contention that the clear and convincing standard should apply to the findings of historical fact, who did what to whom, or who said what, or what actions people take?

Is that what you are talking about?

Or are you talking about the conclusion from these facts that this standard has been violated?

Or both?

Mr. Guggenheim: I think only the former.

The question in the latter context, I think, embraces more directly the question of the scope of the substantive test, and I think a challenge to that ought to be made forthrightly.

Unidentified Justice: By the latter, do you mean the conclusion that it is in the best interest of the child or the children to be separated from the parent?

That is the ultimate conclusion, is it not?

Mr. Guggenheim: Well, except that New York bifurcates those questions, and makes the final revocation at a dispositional hearing where the standard is merely best interests.

Unidentified Justice: As to which of these do you direct your claim of clear and convincing evidence standard?

Mr. Guggenheim: Whether the parents and the state engaged in conduct or failed to engage in conduct which justifies the termination itself.

The condition precedent to the order terminating rights is a finding by the court based on an historical record that the parents did or did not do something and that the agency or state did or did not do something, and I think Justice White's question embracing the second component goes more directly to a substantive challenge to a standard.

Unidentified Justice: Well, I just wanted to know what your contention was.

Mr. Guggenheim: It is that the facts have to be--

Unidentified Justice: You do not urge us to apply the clear and convincing standard to this mixed question of law and fact, as to whether or not the historical facts add up to--

Mr. Guggenheim: --Enough.

Unidentified Justice: --to enough?

Mr. Guggenheim: No, that is not this case.

That is not this case.

Unidentified Justice: Tell me, Mr. Guggenheim, under the answer you have just given, would circumstantial evidence ever be enough under your standard of clear and convincing then?

Mr. Guggenheim: Yes.

It is in a criminal proceeding.

Unidentified Justice: I know.

Mr. Guggenheim: We have tests.

Absolutely yes.

But we want the finder of fact to be convinced.

We want at least that much.

This is fundamental to basic notions of American tradition, that you can't destroy a family forever when you are not convinced that it is the right thing to do.

Unidentified Justice: Mr. Guggenheim, isn't it ultimately perhaps more important to look at the overall scheme and requirements for severance of parental rights to determine whether it is a fundamentally fair scheme for handling the problem than to simply apply an artificial standard of proof, without an examination of the entire scheme?

Mr. Guggenheim: I think an examination of the entire scheme is appropriate, but I think that in any case where the finder of fact is convinced no more than the evidence is probably right, no more that would justify a showing that somebody struck somebody in an automobile and has to pay damages.

It just isn't enough, and Justice Blackmun's question respecting the distinction in Lassiter, where that is exactly what the Court did, it said, we will look at each case as it comes, simply cannot be done in this context.

This case wouldn't be before this Court unless there was a substantial question that the Constitution requires a higher standard of proof.

If the Court were to rule that there is no constitutional requirement of standard of proof, certiorari couldn't even be brought under... to this Court to review the record, but even if it could, or if the appellate courts were to review records, you can't after the fact judge that, well, this did meet the preponderance of the evidence standard, but somehow that is not enough here.

That is not the way law is made.

It is instead in this kind of context, the allocation of risk must be calibrated in advance.

The degree to which we want the finder of fact to be convinced must be set out before the trial takes place so that the parties know in what framework they are litigating.

Unidentified Justice: What in practice is the difference between the standard by a preponderance of the evidence and the standard by clear and convincing evidence?

Mr. Guggenheim: Chief Justice Burger, in Addington against Texas, I believe, wrote that we may never know the answer to that question, but we do know that there is a difference.

We do know, as this Court in Sumner against Mather just last term, Justice Rehnquist's opinion pointed out that the difference between overturning a conviction based upon the preponderance of the evidence and overturning a conviction by convincing evidence, as Section 2254(D) of the habeas corpus statute requires, means something.

It meant enough in that case to remand for the specific findings.

What does that do?

That heightens the pressure or the critical moment, which is exactly what Justice Harlan in Winship was suggesting ought to be done, when you interfere with fundamental liberty, on the finder of fact to express precisely what and how the judgment is justified, so that appellate courts and the finder of fact him or herself is satisfied.

We don't know precisely what it means, but we certainly know in the multifaceted ways in which it has been used that it means something.

Unidentified Justice: But say in a charge to the jury in a fraud case, which is typically clear and convincing evidence--

Mr. Guggenheim: Yes.

Unidentified Justice: --do you think it really makes much difference whether they are charged that they must find fraud by clear and convincing evidence or by a preponderance?

Mr. Guggenheim: I have never been a juror, and I have frankly never tried a case of that kind, but I would think that it has potential to make a difference in every case.

Now, it may be that a juror would say, I don't understand the difference, but I don't think judges say that.

The judge certainly didn't say that in Winship.

This Court didn't say that in Sumner against Monta.

It does make a difference, I think.

These cases are non-jury cases, and I think that impressing upon judges the obligation they have to be sure of their result is an important one and a meaningful one.

Comparing this kind of problem with the problem in Vance against Terrazas also favorably indicates that a higher standard of proof is necessary.

The agency only need show the everyday, ordinary facts of life to win its case, unlike in Terrazas, the heavy burden of showing purposeful, voluntary relinquishment of citizenship.

Here, the question is, have the parents visited, and when I suggested that the standard, Justice White, for making the determination of termination includes a number of factors.

One of them is whether they planned.

That was the one in this case.

Another is whether they visited.

Another is whether the agency has utilized diligent efforts.

These are all matters in the agency's knowledge, within the agency's records.

Everyday, ordinary events.

And when we permit the permanent destruction without the certainty that it is appropriate, we have simply not measured up to constitutional rule.

If there are no further questions, I will reserve some time for rebuttal.

Chief Justice Burger: Very well, Mr. Guggenheim.

Mr. Guggenheim: Thank you.

Chief Justice Burger: Mr. Scavuzzo.

ORAL ARGUMENT OF STEPHEN SCAVUZZO, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Scavuzzo: Good morning.

Mr. Chief Justice, and may it please the Court, Respondent requests that the judgment of the New York State Supreme Court be affirmed.

At issue before the Court is the constitutionality of a comprehensive state plan dealing with an important state interest in an area of domestic relations traditionally regarded as a matter of state law.

The New York permanent neglect statute is the result of a delicate balancing of competing and intertwined interests between multiple parties whose rights and relationships are affected by all the branches of government.

We don't feel, in light of the record in this case, that a different standard of proof would vary the outcome.

However, if the Court should raise the burden, it would frustrate a specific intent of the legislature.

In 1976, there was commissioned the Temporary Commission on Child Welfare.

It undertook a year-long study.

These results are published.

They are cited extensively throughout Robert Abrams' brief, the Attorney General for New York.

This extensive study was the basis for the present law.

There is a risk of error here which Petitioners are challenging is incorrect.

The legislature has evaluated this very risk of error.

Its conclusion, based on that year-long study, was that under the preponderance standard, the risk of error ran considerably in favor of the parent.

It went farther than that.

That was certainly the main conclusion.

However, it also determined that raising the burden would shorten the reach of the statute, which is precisely what the legislature did not want to do.

Unidentified Justice: What do you mean by that?

Mr. Scavuzzo: The legislature extensively evaluated the case files throughout the jurisdiction.

There were thousands of people languishing in foster care.

The legislature... of that set, the legislature identified a specific subset.

These people, it felt, could not be reached by the statute under a clear and convincing standard.

To adopt that standard--

Unidentified Justice: So you really... I take it the state's position is, yes, there is indeed a difference between preponderance and clear and convincing, in terms of actual results.

At least that was the conclusion of your committee.

Mr. Scavuzzo: --The main conclusion was that under the preponderance standard, the risk of error ran considerably in favor of the parent.

However, it also felt that to adopt a higher standard would create a barrier to the freeing of adoption.

That was precisely what it did not want to do.

Rather, it made the statute more specific, set out the grounds for permanent neglect in much greater detail, to ensure greater accuracy so that everyone would feel comfortable with the statute's application.

The legislature did feel that adopting the clear and convincing standard would create a barrier which they did not want.

It cited in that report--

Unidentified Justice: Do we know that from the legislative history?

Mr. Scavuzzo: --From the temporary--

Unidentified Justice: Or is it a post-legislative history analysis?

Mr. Scavuzzo: --Oh, no.

The legislature adopted the new law based upon the conclusions in that temporary commissions.

As a result of that finding, they specifically decided to raise the standard to clear and convincing in cases where both parents, due to their mental illness, could not take care of their children in the foreseeable future, but they specifically decided not to raise the standard in permanent neglect cases, so that another barrier would not be raised to the adoption of these children.

Unidentified Justice: Tell me again how you justified that distinction.

Mr. Scavuzzo: The legislature--

Unidentified Justice: Where you ask clear and convincing evidence for a mental disability but a preponderance of the evidence otherwise.

Mr. Scavuzzo: --The legislature felt that due to the scientific nature of the testimony involved in that type of proceeding, it is also not mental illness such that they cannot care for themselves or care for their children in the foreseeable future.

The legislature felt in that instance that the parents should be protected due to the nature of the scientific testimony by a higher standard of proof.

Unidentified Justice: Let me ask another question.

We are concerned primarily with three children here, aren't we?

Mr. Scavuzzo: Yes, Your Honor.

Unidentified Justice: These people have two others, younger.

Mr. Scavuzzo: Yes, Your Honor, they do.

Unidentified Justice: Has the state ever moved on them?

Mr. Scavuzzo: No, Your Honor, they have not.

Unidentified Justice: Are you in a position then that they are unfit to handle the three older ones but not unfit to handle the two younger ones?

Mr. Scavuzzo: At this particular time, yes, Your Honor, they would be.

I would like to point out to the Court that at the time of the dispositional hearing, parental rights cannot be terminated at the permanent neglect finding which Petitioners are suggesting now is unconstitutional.

There is a dispositional hearing later on under New York law.

At that time, the parents had two children living in the home.

They had the opportunity to demonstrate to the judge that notwithstanding the previous finding of permanent neglect, the children could be returned home in the foreseeable future, that notwithstanding the previous finding of permanent neglect, the children could be returned home in the foreseeable future.

That is, conditions in the home had changed since that one-year period of permanent neglect.

They had that opportunity to bring in the precise inference that the two children being in the home now would raise.

Unidentified Justice: Of course, the parents are older, and the family is smaller with two than it would be with five.

On the other hand, if one takes away... if the state takes away a driver's license in the state of New York, it is on clear and convincing evidence, isn't it?

Mr. Scavuzzo: Yes.

Unidentified Justice: That is more important than taking away children?

Mr. Scavuzzo: No, absolutely not.

What you have to look at is the entire package, the entire package of rights which is guaranteed by the New York state statute.

Petitioners are challenging only one particular aspect of that statute.

The safeguard... There are more safeguards under this type of permanent neglect statute than there would be in the the one hearing to take away a driver's license.

There is in this case an initial removal proceeding, where, based upon a finding of abuse and neglect, the child is removed from the home.

Again, there is a permanent neglect finding which the Petitioners are challenging here, but rights cannot be terminated at that permanent neglect finding.

There is another hearing.

At that other hearing, known as the dispositional hearing, the government has the burden again to show that notwithstanding the previous finding, the children cannot be returned to the home.

There is also, I would like to point out, direct the Court's attention to Family Court Section 1061.

Upon good cause shown, the parents may move to vacate any order of the family court.

One of the grounds is precisely this newly discovered evidence that Petitioners are alluding to here, so they do have another opportunity.

They certainly have the opportunity at the dispositional hearing to present further evidence.

Unidentified Justice: But, Mr. Scavuzzo, once at the dispositional hearing there is an order terminating parental rights, that is the end of it, isn't it?

Can the parents come back and attack that order?

Mr. Scavuzzo: Under 1061, they can move to attempt to vacate that order.

The grounds, however, are much narrower.

It would be newly discovered evidence, fraud.

The statute spells it out.

Unidentified Justice: But if the state loses, as I understand it, the state may initiate another termination proceeding.

Mr. Scavuzzo: That's correct.

The procedure that I am suggesting would only--

Unidentified Justice: So that if the parents have any attack at all open to them on a termination order, it is only this limited one that you mentioned--

Mr. Scavuzzo: --Yes.

Unidentified Justice: --the newly discovered fraud or something like that?

Mr. Scavuzzo: It would be--

Unidentified Justice: Have there been many like that under New York practice?

Mr. Scavuzzo: --No.

Unidentified Justice: Any?

Mr. Scavuzzo: Not in the cases of permanent neglect.

No, Your Honor.

Unidentified Justice: As you know, counsel, there has been a great deal of writing on this subject by people who purport to be students of it, and many of them have said that as a practical matter, judges do not remove custody in this way unless they are fully convinced, which certainly implies that the evidence is clear and it is convincing to the judge, and that it is probably more than a preponderance.

What do you have to say about that?

Mr. Scavuzzo: That was precisely one of the findings of the New York state legislature.

They found that the way the judges were applying this particular preponderance standard, the risk of error ran considerably in favor of the parents, and that to raise another barrier was not necessary since the parents were already protected, and Number Two, they felt, after review of the case files, it would eliminate some people from the reach, the umbrella, the protection of the statute, and they wanted the specific subset to be within the reach of such a statute.

Unidentified Justice: Did the Commission look at the laws of other states?

Did they make a survey of the practice?

Mr. Scavuzzo: No, they did not.

It would be much too complicated to evaluate every particular safeguard of every particular statutory scheme.

They evaluated--

Unidentified Justice: Well, there are some 30 or more states with a clear and convincing standard in cases like this.

Mr. Scavuzzo: --That's correct, Your Honor, but the legislature's job, the only job they could undertake with any type of certainty--

Unidentified Justice: To deal with the New York situation.

Mr. Scavuzzo: --The entire package, how does the statute operate as the whole, what is the risk of error in this particular jurisdiction--

Unidentified Justice: Mr. Scavuzzo, may I ask a question here?

In your brief, you suggest that the right at stake here is comparable to the right in a licensing procedure or various property cases, and that one should weigh the burden of proof as part of the total package of procedures, and if the entire procedure is fair, burden of proof isn't very important.

Supposing the burden of proof for probable cause, that there was probable cause to believe the children would be better off in the foster home.

Would that be constitutional in your judgment, if all the other procedures you can think of were given to protect the parents?

Mr. Scavuzzo: --As I understand your question, Your Honor--

Unidentified Justice: My question is, would that be constitutional in your view.

Mr. Scavuzzo: --No, because that would place the burden on the parents.

Unidentified Justice: Well, but it may well be... well, anyway, you say that would be unconstitutional.

What is wrong with placing the burden on the parents as a matter of constitutional law if they have all the other procedures and protections you talk about?

Mr. Scavuzzo: Certainly under New York law, as we would suggest should be the case, the burden should be on the state to prove that the family cannot be reunited in the foreseeable future.

That is the essence of this law.

That is where the state switches roles.

The initial function of the state under the statute is to reunite the family.

They can do no other.

At some point in time, however, the agency, checked by the trial judge, has to make a determination that that goal is no longer possible and that the children cannot be returned home in the foreseeable future.

It is only at that point does the state have the right to go in and terminate those rights.

Again, the legislature evaluated how that precise standard operated under New York law, and came to the conclusion, the well-reasoned conclusion, that the risk of error still ran considerably in favor of the parents.

The substantive grounds based here, the failure to plan, are neither vague nor subjective.

They are specifically defined by the law.

That failure to plan for the child's future is merely the failure to utilize the programs and services which are available to the particular parent.

The plan relates to the initial problem.

There should be no question here there was an initial problem in the Santosky home.

The plan, the services made available to the parents are then utilized to solve that problem.

I would like to point out that the parents can formulate a plan of their own.

They need not adopt the agency's plan, utilize the services which the agency offers them.

A good example is the facts and circumstances here.

A problem in the Santosky home was economic.

Mr. Santosky was unemployed.

Ulster County offered him vocational training, which he participated in for some period of time.

Later on, it was his contention that he would be better served by working under the supervision of a relative as a car mechanic.

The agency had no objection to that plan, the utilization of that service to solve his problem.

Unidentified Justice: Mr. Scavuzzo, how do these cases originate?

Mr. Scavuzzo: Okay.

The permanent neglect findings, the child has to be in the custody of the agency.

That happens at an initial proceeding before the family court where the state proves beyond a preponderance of the evidence that abuse or neglect has transpired in the home.

The child is then removed from the parents' custody.

Unidentified Justice: But to go back one step, I mean, presumably 90 percent of the families in New York never get into this mill.

What is the first step that gets them into this procedure?

Mr. Scavuzzo: It would be that... that initial finding of abuse and neglect by the family court.

Unidentified Justice: How do you find... who detects that?

Mr. Scavuzzo: Well, the system operates in New York, these cases have to be reported to the agency.

There was approximately 70,000 reports last year of abuse--

Unidentified Justice: Well, who reported it in this instance?

Mr. Scavuzzo: --The grandmother of Mr. Santosky.

Unidentified Justice: That is the way the whole thing started?

The grandmother complained?

Mr. Scavuzzo: That was Tina.

Unidentified Justice: What initiated that was some injuries to the children, was it?

Mr. Scavuzzo: Yes.

Tina was initially removed in 1972 based... she had some severe welts on her backside.

She was taken away from the parents for three weeks, returned back from the home.

Approximately a year later, more problems developed.

Another report from the grandmother.

She was adjudicated to be neglected.

There was a finding by the trial judge that abuse had transpired in the Santosky home.

She was kept away for a period of approximately eight months, and returned home on a trial basis.

The agency recognized that there are specific problems when a child is removed for more than one year.

They tried to avoid that problem here, returned Tina to the home on a trial basis.

She was home for about two months when there were other abuse problems, which we have described in our brief, to John the second.

Ulster County in this case did everything possible, offered every service that could have been made available to the Santoskys, psychological counseling, psychiatric counseling, educational service, vocational training, nutritional, homemaker service, family counseling, every possible service was urged upon them by Ulster County.

Not all of those services have to be accepted by the parent.

A good indication of that is the first termination proceeding of parental rights, which the government lost, in November of 1976.

It is a good indication of how well parental rights are protected by the trial judges in New York state.

The legislature by that survey indicated they had a tremendous amount of confidence in our trial judges.

This survey, this commission determined that under the preponderance standard, parental rights were more than adequately protected.

It is evidenced here.

One government witness testified after approximately three months of seeing the Santoskys.

This was in 1976.

The children had been away from the home for approximately two years.

The government witness testified that, yes, they were making some type of movement, they were benefitting from our service, and Mr. and Mrs. Santosky took the stand and felt, yes, they had received the benefit from the service.

That was enough for the trial judge to say, yes, these people are utilizing the services.

They are taking advantage of them, and thus planning for the future of their children under New York law.

That stands in stark contrast to the second termination proceeding in February of 1979.

The government witness, the family counselor, who said in November of 1976, yes, there is hope that this family can be put back together, finally, even she gave up hope.

And the Santoskys never took the stand themselves to testify.

Certainly at that time they had the opportunity to offer any type of evidence that they would utilize these services, deriving some type of benefit from programs that were being offered to them, and they failed to do so.

Unidentified Justice: Do you happen to know how much the New York state budget is to deal with all these problems?

Mr. Scavuzzo: No, Your Honor, I am not aware of that.

Unidentified Justice: You said there were 70,000 complaints of maltreatment last year, so I suppose there is an enormous expense in the investigatory aspect of those complaints.

Mr. Scavuzzo: Well, of those complaints.

Not all of those cases the agency has the funding to investigate.

They open up a file in only some of them.

Unidentified Justice: Well, 70,000 complaints means that someone has got to make some inquiry in those cases, does it not.

Mr. Scavuzzo: Yes, Your Honor, that is correct.

Unidentified Justice: And you said about 1,200 a year are cases where the children are taken away from the parents?

Mr. Scavuzzo: No.

The agency acts in approximately 10 percent of those cases.

We are talking about approximately... I have laid out the statistics as well as we can determine them in our exhibits.

We are speaking about approximately 7,000 initial custody or removal proceedings, which the agency indicates.

The 1,200 number is the permanent neglect, the termination proceedings which the agency eventually decides to--

Unidentified Justice: But you don't know the total cost of this care of these children, do you?

Mr. Scavuzzo: --No, Your Honor, I don't.

If the Court is interested, I would be happy to provide that information.

The evidence, the failure to utilize those services, indicated a state of mind of the parents, that these parents had virtually abandoned their children at that termination proceeding in April of 1979.

The trial court described their meetings between parent and child as devoid of any type of emotional contact.

The children viewed those meetings as something merely to be endured.

Throughout the course... this is six years... before the same trial judge, as... that's the practice; once the initial removal proceeding is instituted, the case remains before the same trial judge, who takes judicial notice of all the prior proceedings... the Santoskys never asked when their children would be returned home permanently.

Judge Elwin based his decision, as he had to under New York law, on a preponderance of the evidence.

However, the strength of his decision is not... his decision is not one of a man who had any reservations about his factual findings.

He asserted that the Santoskys' failure to utilize these services was total and complete.

Their miniscule efforts had tapered off to the point where he could not even measure them as an experienced trial judge.

It has been nine years since the initial abuse of Tina, and this case cries out to be ended.

I would like to close with the contention that there is a logical fallacy in Petitioner's argument.

They are isolating their whole challenge on a comprehensive, very well thought out state scheme on only one particular procedural protection in the entire statute.

The statute, with all those protections, all those hearings, has to be evaluated as a whole.

That is the essence of the procedural protections.

The parents must come before a neutral and disinterested magistrate at least three times before their parental rights are terminated.

Again, the legislature evaluated precisely the risk of error under that package, and determined that it ran considerably in favor of the parent.

Unidentified Justice: Mr. Scavuzzo, is it not still critical to your argument that the termination of parental rights does not involve a fundamental liberty interest?

Mr. Scavuzzo: I don't think so.

Unidentified Justice: That is where you start your main argument in your brief, at least.

Mr. Scavuzzo: Certainly it is--

Unidentified Justice: Would you concede the termination is a fundamental liberty interest and nevertheless make the same argument?

Mr. Scavuzzo: --No, I would suggest to the Court that this is not a fundamental liberty interest.

However--

Unidentified Justice: In fact, you rest your whole argument on that premise, I think.

Mr. Scavuzzo: --No, Your Honor, I don't.

Even if the right is viewed in the abstract as fundamental, it is mitigated.

It is distinguished from those other fundamental liberty cases.

It is distinguishable by the interests of the children here involved, that is across the country, and specifically under New York law the length of time that that child has been away from the home, that mitigates the parental interest.

Unidentified Justice: The thing that puzzles me about your argument is that you stress the fact that it is New York policy to presume that the natural parent-child relationship is in the best interests of the child.

There is that kind of a presumption that runs throughout your statutory scheme.

Mr. Scavuzzo: Oh, yes.

Oh, yes.

Unidentified Justice: Doesn't that tend to support the notion that New York regards this as a rather important liberty interest?

Mr. Scavuzzo: Oh, New York regards this as an extremely important liberty interest.

Unidentified Justice: But not fundamental.

Mr. Scavuzzo: Not fundamental.

They feel it is protected adequately by the procedural safeguards which they have developed in their statutory package.

Unidentified Justice: Well, New York could regard it as important both for the parents and for the children, and when they come to cross purposes, perhaps neither one would have a "fundamental right".

The issue is whether they are at cross purposes or not.

That is the issue.

Mr. Scavuzzo: The issue at what point does the state determine when the family cannot be reunited in the foreseeable future, someone has to make that evaluation.

The question is, under what standard.

The agency, when it begins, when the child is initially removed from the home, must bring... put that child... do everything possible it can to put the child back in the home.

It can act in no other fashion.

If it does, the parents have a right to file a petition to terminate placement.

However, there is a balancing here of the interests of the child.

Not in all cases can the statutory obligation be met.

Unidentified Justice: No, but in all cases at the beginning of the proceeding, because you must meet a preponderance standard, there is a presumption that the interest of the child is to remain with his parents.

Mr. Scavuzzo: Yes.

No question that the--

Unidentified Justice: Does it make much difference whether we call it a fundamental right or use some other adjective if... is not the question whether, taken as a whole, the procedure gives paramount status to the interest of the children?

Mr. Scavuzzo: --Yes, Mr. Chief Justice, that is precisely the evaluation which New York State undertook in 1976.

The question--

Unidentified Justice: You think they do that with a preponderance standard then.

Mr. Scavuzzo: --Yes, I do.

Unidentified Justice: Plus the other protections.

Mr. Scavuzzo: Yes.

If there are no further questions, thank you.

Chief Justice Burger: Very well.

Mr. Guggenheim?

ORAL ARGUMENT OF MARTIN GUGGENHEIM, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Guggenheim: The question of the rights of the children and the rights of the parents here are, as Justice Stevens suggested just a moment ago, before the Court in the same context.

It begs the question to suggest that their interests are different.

They may be and they may not be.

Chief Justice Burger indicated in questions to Mr. Scavuzzo that judges around the country, commentators have told us, frequently regard the decision to terminate of such a great moment that they want to be convinced that it is the right thing to do before they do it.

That is because, if it is true, we have recognized as a society the social disutility of an erroneous permanent destruction of a family.

This case merely would suggest that that social disutility is of constitutional moment.

If, as Chief Justice Burger has stated, the commentators correctly to be correct and people are doing this already, then very little is lost by it.

But if people are not doing it, if children are being destroyed needlessly, then this case will protect them, and that should be done.

Even where, and the record shows this, permanent destruction is effected, adoption, which could be the only feasible benefit accruing to the children, is effected only about 40 percent of the time.

So we have children... 60 percent of the time.

I am sorry.

Forty percent of the cases, permanent adoption is not effected for children free for adoption by this route.

So, we have a preponderance of the evidence terminating rights where it benefits children at best a preponderance of the time.

The Constitution requires more.

If there are no further questions, I will stop at this point.

Chief Justice Burger: Thank you, gentlemen.

This case is submitted.

Attribution:

The OYEZ Project

Featured:

Ralston v. Robinson - Oral Argument

Fri, 09 Jan 2009 14:47:02 +0000

Case:

Ralston v. Robinson

Media File:

80-2049_19811005-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF DAVID A. STRAUSS, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Ralston against Robinson.

Mr. Strauss, I think you may proceed whenever you are ready.

Mr. Strauss: Mr. Chief Justice, and may it please the Court, the issue in this case is whether a Federal prisoner serving a sentence under the Youth Corrections Act, who commits a crime and is sentenced to a consecutive term of imprisonment as an adult, must continue to be treated as a Youth Corrections Act offender for the remainder of his Youth Corrections Act term.

In 1974, the Respondent in this case, Mr. Robinson, was convicted of second degree murder in the District of Columbia.

The maximum punishment for that offense is life imprisonment.

The Respondent was sentenced to ten years under the Federal Youth Corrections Act, or YCA.

The YCA permits a Judge as an alternative to imposing an adult sentence to commit an offender under the age of 22 to the Bureau of Prisons for a program of treatment designed to correct his antisocial tendencies and restore him to a normal, productive, and law-abiding life.

Unidentified Justice: Not to fit in with a group of hardened criminals.

Mr. Strauss: That's right.

There is no suggestion that Congress intended it for that reason.

Congress intended also that the YCA be modeled on the English Borstal system, and provided as one aspect of YCA treatment that YCA offenders be segregated insofar as practical from other classes of offenders.

In 1975, while he was serving his YCA sentence, the Respondent was convicted of assaulting a Federal correctional officer with a deadly weapon.

The Judge before whom he was convicted expressly declined to sentence him under the YCA, found that the Respondent would not benefit further from YCA treatment, and sentenced him as an adult to a five and a half year term of imprisonment.

The Judge specified that this sentence was to run consecutively to the YCA term, and recommended that the Respondent be moved from the youth facility where he had been being confined to a more secure institution.

Two years later, in 1977, the Respondent was again convicted of assaulting a Federal prison guard, and although he was not yet 22, he was again sentenced to an adult term of imprisonment.

This time the sentence was one year and a day.

The Judge specified that this sentence was to run consecutively to his other two sentences.

When the Respondent received his adult sentences, he acquired a dual status; although he was still serving a YCA term, he was also under an adult sentence.

At this point, the Bureau of Prisons, following an established policy for dealing with dual status offenders, began treating the Respondent in prison as an adult offender.

The effect of this was that the Respondent was given access to those treatment programs designed for adults as opposed to those programs designed for youthful offenders.

In doing this, the Bureau was exercising a power that is possessed by correctional authorities under the Borstal system, the English Borstal system, which as I said was the model for the YCA.

In that system, the authorities could transfer an offender from a youth institution to an adult prison in a case like this.

Unidentified Justice: Mr. Strauss, just on that analogy, in the Borstal system they could do that even without a second conviction, couldn't they?

Mr. Strauss: That's right.

They could do it.

Unidentified Justice: Do you take the position that the Bureau of Prisons could do that under the YCA if this man had just been a very unruly inmate, and caused a lot of trouble, but never actually was convicted of a second felony?

Mr. Strauss: That is not a necessary part of our argument here, because he has been convicted twice.

Unidentified Justice: Well, what is your view on that question?

Mr. Strauss: Our view is that the Bureau should have considerably more latitude in doing that than--

Unidentified Justice: But what is your view on the question I asked you?

Does the Bureau have the power to do that without a second conviction?

Mr. Strauss: --The Bureau does have the power to... Given the practicalities of the situation, the Bureau should have the power to place him in an adult institution.

Unidentified Justice: You really don't need to rely on the second conviction then to sustain your position.

Mr. Strauss: That is our position, but we do have the second conviction in this case.

In 1978, the Respondent brought this action to challenge the Bureau's policy by filing a pro se document in the United States District Court, in which he sought to be segregated from adult offenders, and to be treated according to the provisions of the YCA.

The District Court ordered relief, ordering that Respondent be moved to an institution where he would be segregated and would receive YCA treatment.

At the time the District Court granted relief, the Respondent, because of his two adult convictions, and because he had compiled an extensive disciplinary record in prison, including several violent incidents, was in the control unit of the United States Penetentiary at Marion, Illinois.

That is the most secure facility in the Federal prison system.

Unidentified Justice: And as of January, this all will be moot.

Mr. Strauss: That's right, Justice Marshall.

As of January, he begins his first adult sentence.

The Seventh Circuit affirmed the District court's order, and on our petition this Court granted certiorari.

The Respondent relies on the provisions of the YCA, which prescribe segregation and treatment for YCA offenders.

The segregation requirement, as Respondent virtually concedes, and as, in any event, this Court has said and the legislative history demonstrates beyond any reasonable doubt, was intended to allow the Bureau to insulate YCA offenders from the corrupting influence of more hardened, experienced adult offenders.

The Respondent is precisely the sort of offender from whom YCA offenders are supposed to be segregated.

He is under two adult sentences.

He has been in prison since he was 17, and his terms will not expire until he is 31.

He has committed three violent felonies, and he has an extensive disciplinary record.

This is just the sort of offender Congress had in mind when it decided that YCA offenders should, insofar as practical--

Unidentified Justice: But I gather, Mr. Strauss, that there is nothing in the legislative history to show that Congress ever contemplated this situation, is there?

Mr. Strauss: --That's right.

In fact, it seems reasonably clear that Congress did not contemplate this situation.

Unidentified Justice: On the face of the statute, it might appear that he is entitled to YCA treatment.

Mr. Strauss: Well, the language--

Unidentified Justice: On the face of the statute it seems that way, doesn't it?

Mr. Strauss: --It is essentially unenlightening.

We do not suggest that it supports our position directly.

Unidentified Justice: It is rather explicit, it seems to me.

But in any event, in any event, I gather your argument is that we can forget what the statute says, and just in contemplation of what Congress had in mind, this is not the kind of chap who is supposed to get YCA treatment.

Mr. Strauss: Well, when the language of the statute is essentially not addressed to this problem, and leaves us where we started, then we have to--

Unidentified Justice: Your argument seems to be that it would defeat the purposes of the statute as explicitly declared by Congress, if they were to put him with other young youth offenders.

Mr. Strauss: --That is exactly right.

Unidentified Justice: And there is no provision in the Federal institutions for hardened YCA people and unhardened ones.

There is only one level.

Mr. Strauss: Well, there are different levels of security for different types of YCA offenders and types of adult offenders.

Unidentified Justice: There are?

Mr. Strauss: That's right.

Unidentified Justice: Why couldn't you put this guy in that one?

Mr. Strauss: Well, there are several problems.

One problem is that--

Unidentified Justice: I thought you only had one.

Well, excuse me.

There are different levels.

Is this by regulation or is this by the statute?

Mr. Strauss: --This is not by the statute.

This is by Bureau of Prisons policy.

Unidentified Justice: By regulation.

Mr. Strauss: That's right.

The statute authorizes it, but the Bureau of Prisons has established it.

One problem, Justice Marshall, to answer your question, is that in several lower Court decisions constraints have been put on the Bureau's power to place troublesome YCA offenders in maximum security institutions, and given those constraints, they have to place this sort of offender, for whom the Act is so clearly not designed, in a YCA institution--

Unidentified Justice: Like a maximum security YCA institution.

Mr. Strauss: --There are no maximum security YCA institutions.

There are YCA offenders in maximum security custody.

Unidentified Justice: Where are they?

In the regular institutions?

Mr. Strauss: That's right.

Unidentified Justice: So in the YCA institutions you don't have any separation.

Mr. Strauss: There are YCA offenders in separate units.

Actually, this is a difficult matter to talk about, because the policy is in flux.

Unidentified Justice: I think you are not addressing my question.

In the same YCA institution, do you or do you not have two levels of security, in the same YCA institution?

Mr. Strauss: There are... The YCA units consist only of offenders at a single level of security in any institution.

Unidentified Justice: That is what I thought.

Mr. Strauss: There are YCA units within institutions, and the institution is at a security level.

Unidentified Justice: The man involved here, if put in a YCA institution by a Court, would be right beside the guy that was doing just fine.

He might very well.

That's right.

We have something of a practical problem with this case, too, don't we, because if the case is argued now and the opinion doesn't come down before he begins serving his adult sentence, there will be an issue of mootness which we have traditionally dealt with by the Munsingwear case.

Mr. Strauss: That's right.

Yes.

We regret the practical problem.

We agree the proper disposition would be a Munsingwear order should the Court--

Unidentified Justice: So whatever this Court does, it isn't going to have much effect on this particular Respondent.

Mr. Strauss: --Well, it will only affect a couple of months of his custody, but of course, that is enough to save it from mootness, and as we explained when we asked the Court to expedite consideration of this case, it is a pressing issue for several other reasons.

There is a severe conflict in the Circuits.

Unidentified Justice: I want to be sure, because I think... I want to be sure about your colloquy with Justice Marshall.

There is no such thing as a YCA institution as such.

Mr. Strauss: At this time, there is not.

There is a plan in the works for establishing two and possibly three institutions consisting exclusively of YCA offenders.

Unidentified Justice: Does that depend on the outcome of this case?

Mr. Strauss: No, it does not.

It depends on the outcome of separate litigation.

Unidentified Justice: And the budget.

Mr. Strauss: No doubt, the budget.

Unidentified Justice: Mr. Strauss, may I ask you a question?

Under the Youth Corrections Act, I suppose it is possible that the youth offender will serve a longer period of time in custody than if he were an adult, for example.

Mr. Strauss: That is right.

Unidentified Justice: That is possible, right?

Mr. Strauss: That is right.

Under a different provision of the Act from the one under which the Respondent here is sentenced.

Unidentified Justice: Right, and if that is the case, and the theory of upholding that kind of a provision was that the youth offender would be getting special treatment, so there is a quid pro quo, in effect, is that not right?

Mr. Strauss: That is the theory that some Courts have used.

Yes.

Unidentified Justice: Then, if the Bureau of Prisons can transfer someone in the middle of a youth offender sentence to an adult facility, then you lose that quid pro quo, don't you?

Mr. Strauss: Well, that seems to be right, Justice O'Connor.

The quick answer to that concern is that Mr. Robinson, the Respondent here, was not sentenced to a longer term than an adult would have received.

An adult could have received life imprisonment.

He was sentenced to ten years.

So, whatever those concerns are, they are not present in this case.

Unidentified Justice: But wouldn't our holding here cause major concerns in future cases if that happened to be the situation?

Mr. Strauss: Well, that would, of course, depend on the contours of the holding.

As for the other cases, I would point out that the argument is by no means decisive, because what offenders in YCA custody are entitled to is what Congress gave them, and if we can establish that Congress did not intend that this program would survive beyond the point where is served any purpose, then it can't be said that they are being denied or deprived of something that Congress intended them to have.

Unidentified Justice: May I follow up with that?

Is it your view that the second trial judge at the time of the second offense could have imposed a concurrent sentence instead of a consecutive sentence, which would then have authorized the Bureau to treat him as an adult rather than a YCA offender?

Mr. Strauss: Yes, if the second judge... you mean the judge who sentenced him to his first adult sentence?

Unidentified Justice: Yes.

Mr. Strauss: If he had imposed a concurrent sentence, I would think there would be no question.

Unidentified Justice: Couldn't the Department of Justice pretty much take care of the problem by asking for concurrent sentences whenever a YCA offender commits another felony?

Mr. Strauss: Well, it could.

Of course, that actually points out a paradox in the situation, that an offender whose crime was not sufficiently serious--

Unidentified Justice: It can't get the benefit of the longer YCA sentence that Justice O'Connor adverted to it it did that, of course.

Mr. Strauss: --That's right.

Also, he wouldn't get the benefit--

Unidentified Justice: What he wants to do is get the benefit of the length of the YCA sentence but not the quid pro quo.

Mr. Strauss: --Well, he wants to impose a consecutive sentence essentially, the adult sentence to go on top of it.

The paradox is that consecutive sentences ordinarily denote a more serious offense, and the lower Court's decision--

Unidentified Justice: So they want the additional time, and they also want to change the character of the first sentence.

Mr. Strauss: --Well, the Judge decided the additional time was necessary, and that makes it necessary also to change the character of the first sentence.

Unidentified Justice: Well, it doesn't make it necessary.

Under the Department's policy it is desirable to change the character of the first sentence.

Mr. Strauss: Well, that's right.

It is not necessary.

It is not something we are required to do.

In our view, it is necessary in order to maintain Congress' intention in enacting the statute.

The other point about the segregation requirement is that, as Justice Rehnquist pointed out, and as Justice Blackmun, in three months' time, the Respondent will begin his adult sentence, and at that time it is beyond dispute that he will be an adult offender, and no one would contend that at that time he can claim a right to be segregated from adults or placed as a YCA offender, but there is no basis for thinking that he is somehow less of a corrupting influence now than he will be three months from now, or that he is more fit to be placed with YCA offenders now than he will be in three months.

Unidentified Justice: Well, any decision the Court is going to make is going to apply to someone who might have nine years left, or a longer period.

Mr. Strauss: That is right, but I think the same point still holds, that there is no basis for believing that at the earlier point, after he has committed a crime and sentenced as an adult, that somehow he will not become a corrupting influence until that sentence begins to run.

The other provision of the YCA on which the Respondent relies is the treatment provision, and again, the Courts below have applied this provision to the kind of offenders for whom Congress did not intend it.

YCA treatment in Congress' view was designed, as Justice Rehnquist suggested in an earlier question, to return offenders to productive lives in the community, and to that end an integral part of the treatment Congress envisioned was a gradual phased, supervised reintegration of an offender into society.

At the end of his YCA term however, the Respondent, of course, will not be returned to a productive life in society.

Instead, he will begin two adult prison terms, and for that same reason it will be impossible gradually to reintegrate him into society.

So, an integral part of YCA treatment as Congress saw it will not be capable of being afforded to this Respondent.

Nothing in the Act suggests that YCA treatment is preparation for a life in prison, and nothing in the Act suggests that the custodial phase of YCA treatment followed by an adult prison term will do anyone any good, society or the offender.

It is at least plausible that a custodial treatment program designed to culminate in an offender's return to society when followed not by a return to society but by an adult prison sentence will do even the offender more harm than good.

So, if anything, it thwarts Congress' intention to attempt to provide Respondent with YCA treatment.

Certainly, there is no basis in the YCA for requiring the Bureau of Prisons to provide treatment to an offender such as this.

Unidentified Justice: I think you have answered this, but there would be no question if either one of these two Judges had said YCA, would there?

Mr. Strauss: If the Judge had imposed YCA sentences, he would be a YCA offender.

That is right.

Unidentified Justice: And there would be no problem.

Mr. Strauss: He would still be a YCA offender.

There would be no basis for claiming he is an adult offender.

I would point out that, as Justice Stevens suggested earlier, if his prison record were very bad, it might be necessary to take some steps that would require confining him in conditions comparable to those of an adult offender, but the Bureau would still regard him as a YCA offender.

Unidentified Justice: It is up to the Judge, not to the Department of Justice.

Mr. Strauss: To decide whether someone is a YCA offender or an adult offender.

Unidentified Justice: Right.

Mr. Strauss: That is right, although the treatment conditions have to be in the control of the Bureau, and the confinement conditions more generally.

Unidentified Justice: I still don't understand why it isn't sufficient to achieve the Department's end to just leave it to the Bureau if he is a youth offender to deal with him as an adult, or confine him as an adult, or confine him like they would an adult, if he gets out of hand.

Mr. Strauss: Well, it may be sufficient if we could do that.

One problem with that is that constraints have been put on the Bureau by the lower Courts.

The other problem--

Unidentified Justice: So you really think what this case is really about is the validity of the existing policy of the Bureau.

Mr. Strauss: --Well, the case is about the validity of the existing policy.

Unidentified Justice: I mean, whether they may confine a youth offender as an adult if he gets out of hand.

Mr. Strauss: The obstacles that have been put in the way of implementation of that policy give this case its practical importance.

Our view is that the proper interpretation of the statute remains, that Congress did not intend YCA treatment for someone who is going off to an adult--

Unidentified Justice: Mr. Strauss, are you suggesting to my brother White that without a second conviction, just because of misbehavior, the policy of the Department would permit their treating him as an adult, even though he had been sentenced as a youth offender?

Mr. Strauss: --There may be some circumstances, in our view, under which a YCA offender is such a problem, the only practical way to deal with him is to place him in an adult penitentiary.

Unidentified Justice: Well, that is the Bureau's presently published policy, isn't it?

Mr. Strauss: That is the Bureau's present policy, and it is one that--

Unidentified Justice: Well, its validity is not involved in this case.

Mr. Strauss: --That's right.

Its validity is not necessarily involved in this case, because he would--

Unidentified Justice: Not necessarily.

It is not involved.

You put in another word.

You put in another word, not necessarily.

Mr. Strauss: --Well, if the Court were to hold that the Bureau has complete discretion to place an unruly offender in adult conditions whether or not he has a YCA... has an adult sentence, then a--

Unidentified Justice: Well, if we were to do that, we would be answering a question that this case doesn't present.

Mr. Strauss: --That's right.

Unidentified Justice: Ordinarily, isn't it the case that if you take a person 23 years old off the street and try him for a crime and the Judge sentences him to 20 years, he begins serving that sentence as soon as the Trial Judge directs, or as soon as his appeals are exhausted?

Mr. Strauss: That is my understanding.

Unidentified Justice: And here, of course, he begins serving the adult sentence after the YCA sentence expires.

Mr. Strauss: That's right.

Unidentified Justice: If there was a ten-year YCA sentence, as there was here in 1974, and say in the first trial, the first offense was in 1975, and the Trial Judge gave him one year, as he did the last time, it is your view that that one-year adult sentence would entitle the Bureau to give him ten years of adult treatment, isn't it?

Mr. Strauss: That one-year adult sentence, in our view, would make him an adult offender, yes.

Unidentified Justice: And then the whole ten-year sentence could be treated as an adult sentence.

Mr. Strauss: That's right.

Unidentified Justice: Mr. Strauss, would the government regard an affirmance here as invalidating the policy?

The present policy.

Mr. Strauss: The policy of treating YCA offenders with adult convictions as--

Unidentified Justice: Yes.

Mr. Strauss: --I assume.

Unidentified Justice: The present policy you told us, without regard to an adult conviction, that they can treat him as an adult if he gets too far out of hand.

I thought you just told me that.

That is the policy.

Mr. Strauss: The policy of treating a straight YCA--

Unidentified Justice: A YCA offender may be treated as an adult if he gets too far out of hand.

That is the present Bureau policy, isn't it?

Mr. Strauss: --That's right, essentially.

Unidentified Justice: And if we affirm here, are you suggesting that that would invalidate that policy?

Mr. Strauss: Well, that would be a difficult question.

It would depend on the nature of the affirmance.

It would be difficult--

Unidentified Justice: Well, I am just talking about an affirmance.

Mr. Strauss: --Well, this offender has two adult sentences for serious crimes in prison.

It is hard to see how someone could be more unruly than that.

So to that extent it would be a problem.

Unidentified Justice: That is true, but you think an affirmance here would prevent the Bureau under its present policy from confining him as an adult?

Mr. Strauss: Again--

Unidentified Justice: If we affirmed.

Mr. Strauss: --Simply, if you simply entered an order of affirmance, I suppose it would be possible to carry out the other policy, but as I said, it is difficult to see how this offender can be... can assert a right to continue the YCA treatment unless any unruly YCA offender could.

Unidentified Justice: The argument is, that is what the Act says.

Mr. Strauss: Well, in our view, that is not what the Act says or intends.

I should also point out that the Bureau's policy that we have been talking about of placing unruly YCA offenders in adult conditions applies only to segregation.

The YCA forms of treatment, the characteristic forms of education and counseling made available to youths would still be available to them.

Essentially the problem is that he would have to be put in some place like the control unit at Marion, where he is under very close supervision all the time, and as a practical matter in those conditions we cannot talk of segregation from adult offenders.

Unidentified Justice: Mr. Strauss, if you know the policy, or if you know the background, has the Bureau of Prisons had any occasion to take an unruly youth offender who is in custody, who is thought to be subject to some emotional problems, and sent him off to a Federal psychiatric institution for analysis and treatment?

Have they done that, do you know?

If you know?

Mr. Strauss: I would suspect they have.

I don't know of any particular cases, but I would suspect it has been done.

Unidentified Justice: That is common, or at least it is not uncommon with respect to other prisoners in other Federal institutions, isn't it?

Mr. Strauss: No, it is common, and in fact my understanding is that at the Federal psychiatric prison institution at Butner, there are YCA offenders.

That is a mixed institution specializing in psychiatric treatment.

The Respondent also happens to be there, but he is there as an adult.

Unidentified Justice: Of course, Burner is a very special institution.

Mr. Strauss: That is right.

It specializes in psychiatric treatment.

If there are no further questions, I will save the rest of my time.

Chief Justice Burger: Mr. Solovy?

ORAL ARGUMENT OF JEROLD S. SOLOVY, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Solovy: Mr. Chief Justice, may it please the Court, I would like first to address Justice Blackmun's question of mootness, because Mr. Robinson and I sort of feel like the baseball player who came up from the minors to the big leagues, and then a baseball strike is called, and Mr. Robinson having struggled this long to get his YCA-mandated treatment as directed by Congress, I hate to see him lose it.

Number one, the mootness argument presumes that this Court will not act expeditiously.

I will not indulge in that presumption.

But if one were to indulge that presumption, I would like to point out that in January 1982, Mr. Robinson will only be conditionally released from this YCA sentence.

At that point he will start serving his adult sentence, and should he be paroled within two years, he would still be subject to the YCA sentence and could be called back into the YCA system.

Now, a lot of questions have been asked by the Court--

Unidentified Justice: You mean in a sense for what would amount to violations of parole, the equivalent of parole.

Mr. Solovy: --That is correct, Mr. Chief Justice.

Unidentified Justice: Well, what do you have to say about the proposition, laying aside the statute for just a moment, that this man is now demonstrably on this record precisely the kind of person that Congress said should not be mixed in with youth offenders?

Mr. Solovy: Quite to the contrary, with all respect, Mr. Chief Justice.

Unidentified Justice: What do these two convictions mean?

Mr. Solovy: All right.

Well, let's take... the government says that Mr. Robinson is a hardened criminal, and he must be kept in the most maximum confinement possible, namely Marion, but yet when Mr. Robinson wound his way up to the Seventh Circuit, the Bureau of Prisons started thinking about its obligations, and they transferred him to the Memphis facility, which is a minimum... a medium security, and then to Butner, which is an administrative facility.

Now, at Butner we lodged with the Court his current report, where they say he requires a minimum of supervision, his attitude is positive, he interacts well, he does his job well, he has completed courses, and that is what Congress wanted to do when they passed the YCA.

Under the YCA, a person could get a 20-year sentence.

That means that the Trial Judge thinks that this person is a hard core case.

He takes a long time to be rehabilitated.

The whole purpose--

Unidentified Justice: What would you say if a man was up for youth correction, YCA treatment, and the record showed he had three felony convictions for violent crimes.

Do you think he would be a good subject?

Mr. Solovy: --That, Justice Marshall, of course, is what Congress gave to the Trial Court.

Each time that that defendant came before the Trial Judge, the longest he--

Unidentified Justice: I am not talking about this man.

Mr. Solovy: --Yes, I am talking about any person--

Unidentified Justice: I am talking about a man who is brought before a Court, and this is his third conviction for violent felony.

Do you think the Court would be obliged to give him YCA treatment?

Mr. Solovy: --Oh, no, the Court is never under--

Unidentified Justice: To the contrary.

You would think he was not, wouldn't you?

Now, wouldn't you?

Mr. Solovy: --Justice Marshall, this Court--

Unidentified Justice: I say three violent felonies.

Mr. Solovy: --This Court has mandated the answer in Dorszynski.

So long as the person is under the age of 22, the Trial Judge must make a specific no benefit finding.

You take, for example--

Unidentified Justice: I am saying he makes the finding.

Which finding do you think he would make?

Mr. Solovy: --Well, if I were the Trial Judge, I would make the finding of no benefit.

Unidentified Justice: And then I am going to ask you what is the significance of this case.

Mr. Solovy: There is a world of difference, because Mr. Robinson was judged by the Trial Court in this case to require ten years of rehabilitative treatment to straighten himself out, and I have to back away from the question that when you read the government's brief, the Court and I, until I start reading the cases, are sitting in a never-never land.

The Bureau of Prisons says, listen to our expertise, and it is impractical to mix these people together, but this system doesn't exist.

There is no YCA treatment.

There is no YCA system.

Unidentified Justice: Well, in this case, you are not attacking the action of the Judges under later convictions.

Mr. Solovy: Not at all, Your Honor.

Unidentified Justice: They sentenced him as an adult.

You don't complain about that.

Mr. Solovy: Not at all, Your Honor.

Unidentified Justice: All you complain about... and the Judge himself didn't attempt to terminate his prior youth condition.

Mr. Solovy: I couldn't agree with that more.

Unidentified Justice: And it is the Bureau of Prisons that said, because he has been convicted as an adult, we will terminate, treat him as an adult.

Mr. Solovy: That is exactly the--

Unidentified Justice: You are not suggesting that any later Judge is bound to sentence him for a later felony as a youth offender?

Mr. Solovy: --Not at all.

Unidentified Justice: What is the longest sentence that you are aware of under the Youth Corrections Act?

Mr. Solovy: Twenty-five years under the YCA.

Unidentified Justice: How many sentences over ten years under the YCA are made, do you know?

Mr. Solovy: The government sets it forth in its brief, and there are quite a number of them.

I don't remember the exact figures, but there are quite a number of long--

Unidentified Justice: But percentagewise, it is a small percentage of cases, is it not?

Mr. Solovy: --Percentagewise, I would say the long sentences are about 15 to 20 percent, and of course the answer that Congress gave to these difficult prisoners, and Congress envisioned this, is found right in the statute, at Section 5011.

It says

"Classes of committed youth offenders shall be segregated according to their needs of treatment."

So Congress knew that when you gave a youth offender 20, 25 years' worth correction sentence that there might be problems, and it said that you could house those youth offenders according to their needs for treatment.

Unidentified Justice: Like sending them to Marion.

Mr. Strauss: No, you can't send them to Marion--

Unidentified Justice: Why not?

Mr. Solovy: --because Marion is a penitentiary, and Marion does not afford what Congress mandated should be afforded, which was rehabilitative treatment.

Now, the Bureau of Prisons says that the Youth Corrections Act is passe, and therefore we won't enforce it.

The Bureau of Prisons likes to mix the adult offenders with the youthful offenders, and they think that prevents violence, but that is exactly contrary to what Congress said.

Unidentified Justice: Has the Bureau ever made any announcement of any such policy, or is that your inference?

Mr. Solovy: That is the direct testimony of the Bureau of Prisons in Watts versus Hadden, Bell versus Johnson, Brown versus Carlson, and as they say, that the Bureau of Prisons are much more direct in their testimony in the litigation than they are in the briefs filed with the Court.

In Watts versus Hadden, the District Judge held as follows, and this is 469 Federal Supplement 234.

I think this is a rather astounding statement.

There is an incredible irony in reading the Supreme Court's careful articulation of the policy, purposes, and procedures of the YCA in the directions given to sentencing Judges in Dorszynski with the knowledge that the entire system therein simply does not exist.

Unidentified Justice: Well, that is not the only incredible irony in this case, is it?

In a sense, you are urging that your client be continued to be confined under the sentence, whereas the government is urging that he be released from that sentence and start serving another sentence.

Mr. Solovy: I agree, Justice Rehnquist, that that is a complete irony, and that when people come before the Courts, they do not want to be sentenced under the Youth Corrections Act, because the Youth Corrections Act is not a picnic.

It gives them a longer sentence than they might normally get, and it gives them in many ways different types of treatment.

This was not supposed to be a picnic.

The Borstal system was hard work.

Now, they want to take... What the government, though, has done, Justice Rehnquist, is try to put Mr. Robinson in a penal never-never land.

Bear in mind that one year after his ten-year YCA sentence he got a consecutive adult sentence.

Unidentified Justice: For doing what?

Mr. Solovy: For assaulting a prison guard.

Unidentified Justice: Does that seem unreasonable to you?

Mr. Solovy: No, the sentence doesn't seem unreasonable.

Unidentified Justice: Suppose the government paroles him from the YCA Act today.

Is this case moot?

Mr. Solovy: Yes, except for the--

Unidentified Justice: He will stay right where he is, won't he?

Mr. Solovy: --Except for the possibility--

Unidentified Justice: And you couldn't say a mumbling word.

Right?

Mr. Solovy: --Well, except... No, that isn't correct, because there are cases like that, Mickless, for example, Mickless versus United States, because they could then parole him the next day from the adult sentence, and since he would still be subject to being called back for a parole violation, I think the Court would have the right to render a decision as to the conditions of confinement.

But meanwhile, Justice Marshall, they haven't paroled him, and he is still there, and he is still in the wrong place, and they are still not giving him treatment.

Unidentified Justice: Mr. Solovy, on your initial point, I want to be sure I understood you.

Mr. Solovy: Yes.

Unidentified Justice: You contend that because of the two-year parole at the end of his eight-year time in custody, this case will not be moot next January.

Mr. Solovy: That is correct.

Unidentified Justice: Technically, because there is a possibility of the other sentences being paroled--

Mr. Solovy: That is correct.

Unidentified Justice: --within the two-year period.

Mr. Solovy: That is correct, but I want to make sure that the Court understands my position.

I am not quarreling with the legality of the second... of the first consecutive sentence.

The irony is that the second consecutive sentence is an illegal sentence, as this Court determined in Dorszynski, because there was no no benefit finding.

The government's position would result in strange anomalies.

Take, for example, a misdemeanor who could only get a six-month sentence.

He gets an indeterminate YCA sentence.

That means he is there for a potential four to six years.

He then gets in trouble, and he gets a one-year consecutive adult sentence.

That means he is going to end up serving five to seven years for an offense that if he were sentenced as an adult he could only be imprisoned six months, and that would be an anomalous result.

Under the Congressional scheme, it doesn't matter what pattern of sentences occur.

If a youth at the age of 18 commits a robbery and gets a one-year adult sentence, then gets in trouble again before the age of 22, he can get a YCA sentence.

This Court has mandated that a Judge make a no benefit finding.

But the question of what the Bureau of Prisons could do, whether they could yank a man in and out of his status as a YCA offender, Mr. Strauss referred to the Borstal system.

Well, the Borstal system was plainly explained to Congress, including the power to take a person from a youth facility and put him in a penal institution.

Congress did not adopt that suggestion.

They explicitly left it out.

When the initial Act was proposed in 1943, the American Law Institute proposed that the Bureau of Prisons be given the authority to determine YCA status.

All the Judges in America screamed about that.

That was rejected.

Then they proposed that the Judges and the Bureau of Prisons share these powers.

That was rejected.

And what you had was a system in which only the Trial Court could impose a YCA sentence.

Now, bear in mind, in Dorszynski, this Court held that that determination of the Trial Judge is not reviewable by this Court.

Now, what the Bureau of Prisons is saying is that either they can countermand the judgment of the initial Trial Judge or that the second Trial Judge could do that.

Now, if this Court could not review a YCA sentence, then certainly the Bureau of Prisons could not do it, nor could the second Trial Judge, nor did the second Trial Judge in this case intend or pretend to countermand the Youth Corrections sentence.

Unidentified Justice: I suppose your position would be the same if the sentence were concurrent.

Mr. Solovy: No, Your Honor.

Unidentified Justice: Why not?

Mr. Solovy: That is a good question.

I am not surprised you asked.

Unidentified Justice: Well, I have been waiting for you to get to it.

Mr. Solovy: Well, that is because it is probably one of the most difficult questions in the case, and we have agonized over what the correct answer is, and correct not in the manner of espousing our position but intellectually and legally correct.

Unidentified Justice: The question is, the question in this case is whether the later conviction automatically terminates the youth sentence, wholly aside from any discretion of the Bureau of Prisons.

That is the question I want an answer to.

Mr. Solovy: Exactly.

Unidentified Justice: Does it automatically terminate it when there is a concurrent sentence?

Or does it give some discretion to the Bureau to do it?

Mr. Solovy: The Bureau can have no discretion, and bear in mind when I give this answer, and I may be sailing away the rights of some poor indigent someplace--

Unidentified Justice: But not yours.

Mr. Solovy: --Not mine.

I don't represent him.

We believe that in this case the concurrent sentence would take precedence over the Youth Corrections sentence, because otherwise you would be having the discretion of two Trial Judges in conflict.

When the Trial Judge gives a YCA and the second Judge gives a consecutive sentence, there is no tension whatsoever.

The first Judge in effect is deferring to the discretion... the second Judge defers to the discretion of the initial Judge.

But when you have a concurrent--

Unidentified Justice: Well, there is a conflict in the sense that in order to sentence him as an adult, he has to make a no benefit finding, which is contrary to what the first Judge found.

Mr. Solovy: --Under different circumstances for a different time and a different--

Unidentified Justice: I know, but he nevertheless says at this very moment he will not benefit from being treated as a youth, and yet your argument is that he must be treated as a youth.

Mr. Solovy: --Justice White, I don't think those sentences are in conflict, because his no benefit finding takes effect only upon the expiration of the youth offender sentence.

Unidentified Justice: Well, that is your argument.

Mr. Solovy: Well, that is the clear--

Unidentified Justice: You go ahead on your concurrent sentence--

Mr. Solovy: --All right, but that is the clear answer under the Congressional Act.

However, as to the concurrent sentence, now you have two Courts of equal jurisdiction, and the second Court says, for this offense, I wish to impose a concurrent adult sentence Now, I might point out the Bureau--

Unidentified Justice: --And he says no benefit.

Mr. Solovy: --No benefit.

The Bureau of Prisons, according to their statistics, they say they have in the youth corrections facilities 175 persons who have consecutive and concurrent sentences so although the Bureau of Prisons... it doesn't make any difference to them because they mix adult and youth offenders up all together, so it makes no difference, but they treat them as a youth offender.

I think the answer is that that person can be immediately incarcerated as an adult offender, because the second Judge has exercised his discretion that this person should be immediately incarcerated as an adult, and I think the question is not without its difficulty, because the first Judge made a determination that the offender would benefit, but the second Judge says no.

They are both Judges of concurrent jurisdiction.

The first Judge cannot veto the power of the second Judge; as in this case, the second Judge could not countermand the sentence of the first Judge.

Unidentified Justice: Well, he didn't even try to.

Mr. Solovy: He didn't, Justice White.

That is exactly correct.

The government quotes in its brief the language that he would not benefit further, but they omit the rest of it in which he says,

"and I decline to sentence him under the Act."

which is exactly what he was required to do under Dorszynski.

Unidentified Justice: Let me give you an easier one.

Mr. Solovy: Yes, I wish you would, Justice Marshall.

You have been giving me awful hard ones.

Unidentified Justice: Suppose this man had been acquitted originally, and then knifed somebody.

Where would he go?

Mr. Solovy: Well, he would go back before the sentencing Judge and that sentencing Judge under Dorszynski would exercise his discretion--

Unidentified Justice: No, he was acquitted.

Mr. Solovy: --No, but I mean, under the second--

Unidentified Justice: He was acquitted--

Mr. Solovy: --Yes.

Unidentified Justice: --and he knifed somebody.

Mr. Solovy: Correct.

Unidentified Justice: He would go to an adult jail, wouldn't he?

Mr. Solovy: Depending... if he were under 22, the Trial Judge is mandated by law and by this Court's decision--

Unidentified Justice: Right.

Mr. Solovy: --to make a no benefit finding.

Unidentified Justice: And if he found that he was entitled to adult treatment, where would he go?

Mr. Solovy: He would go to an adult--

Unidentified Justice: So the only difference here that is instead of being acquitted, he was convicted.

Mr. Solovy: --The difference is, Justice Marshall--

Unidentified Justice: Is that right?

Mr. Solovy: --that the first Judge made a judicial determination that Mr. Robinson would benefit from treatment under the Youth Corrections Act for a ten-year period.

No other Court--

Unidentified Justice: Regardless of how many crimes he committed?

Mr. Solovy: --Well, the theory of--

Unidentified Justice: Suppose he shot 18 people in six days?

Mr. Solovy: --Well, then I assume they would electrocute him, you know, fairly, promptly, but the theory of the Youth Corrections Act, and Mr.--

Unidentified Justice: Could they do that under your theory?

Could they electrocute him under your theory?

Mr. Solovy: --Well, if he keeps shooting people, either... it depends upon your theory of penology.

I might veer more towards the Bureau of Prisons in that case, but--

0 [Generallaughter.]

Unidentified Justice: I thought you would.

Mr. Solovy: Well, even lawyers like some protection.

Unidentified Justice: What would happen... Suppose a Youth Corrections Act, as it was here, was pronounced, sentence was pronounced, and then the Judge said, however, I am going to put you on probation.

That will be hanging over you.

And then he goes out and commits a murder or something else.

Do you think the Youth Corrections Act sentence must be served first before the second conviction, sentence must be served?

Mr. Solovy: Well, I think that is a situation that could quite frequently happen, and I think that the Judges normally in those situations will determine whether under the second offense the Judge is going to sentence him as an adult, and whether--

Unidentified Justice: I am assuming that the second sentence then for murder--

Mr. Solovy: --Is as an adult?

Unidentified Justice: --is as an adult.

Is the Youth Corrections Act sentence going to be a barrier?

Mr. Solovy: Normally, the Trial Court Judges exercise good sense, so if he has a second Judge who has given this gentleman, let's say, ten years, and as as an adult, he would not reinstitute the Youth Act sentence.

If he did, then he would have to determine which really was in progress, and I guess the answer might be that he might have to serve his Youth Corrections Act sentence, but of course, in this case, Mr. Robinson--

Unidentified Justice: Do you think that is what Congress had in mind in this Act?

Mr. Solovy: --What Congress had in mind, it is very clear that if someone had the time, as I had, to read the Act and the legislative history from beginning to end, what Congress had in mind was that there was going to be a big surge of youth coming back from the war, because this Act started being considered in the early forties, and because it got tied up with an adult indeterminate sentence that the Trial Judges didn't like, it got kicked off to 1949, and they said that the percentage of crime committed by youth far exceeded their percentage of the total population, so that what Congress was trying to do was to stop hard core criminals, and we are penalizing Mr. Robinson in a way.

We are saying he is a hardened criminal, and a failure of the system, when the system really didn't exist.

Now, when he finally gets to Butner a year ago, and they finally give him the treatment that Judge Moultry said in 1974 that he should get, which was intensive individual therapy, he has reacted wonderfully.

He has completed courses in real estate, basic math.

He is a member of the band.

He does his job.

He interacts positively.

That is what Congress wanted to do.

They wanted to take the youth of America and save them from being repeater criminals.

This wasn't, as they said, a molly-coddling feel sorry for the underprivileged.

Unidentified Justice: But any time a Judge, when he finds a youth offender is convicted of another crime, any time a Judge goes to sentence, if he thinks the status of the youth offender should be terminated and he should start serving an adult sentence, he can affect that by just sentencing him concurrently.

Mr. Solovy: Exactly, Justice White.

Unidentified Justice: And so that option is always available in such cases like this.

Mr. Solovy: That is correct.

Unidentified Justice: Do you know if the government asked the Judge to do that in this case?

Mr. Solovy: We, unfortunately, of course, were not appointed until we got to the Seventh--

Unidentified Justice: Of course, the government's position is that you should say that automatically the youth offender status ends with the second conviction--

Mr. Solovy: --That is correct.

Unidentified Justice: --and wouldn't want to leave it just to the Judge.

Mr. Solovy: That is correct, but--

Unidentified Justice: But the Judge could control it.

You agree with that?

Mr. Solovy: --Yes, no question, Justice White, that if he wanted to terminate a Youth Corrections Act sentence, the second Judge would enter a concurrent sentence.

Unidentified Justice: Is a YCA defendant entitled to the good time credits and the two-thirds maximum?

Mr. Solovy: None whatsoever, Justice Rehnquist.

Unidentified Justice: So those are strictly for adult offenders?

Mr. Solovy: Poor Mr. Robinson, as I say, at the end of the first year of his ten-year YCA sentence, he gets this adult sentence.

The Bureau of Prisons says, it is all over, Mr. Robinson.

No more Youth Corrections treatment, which you never got in the first place, but you are not going to get it.

And you are going to... they concede his YCA sentence is going, so therefore you will serve your full eight years before you get your conditional discharge, but as for your adult sentence, you get no credit whatsoever, and that is why the government and the Bureau of Prisons is so nervous about this case, because really you cannot say that it makes penological sense to keep Mr. Robinson incarcerated for eight years under the Youth Corrections Act and not give him the treatment that Congress mandated, and at the same time house him in Marion as an adult offender with the hardest of criminals in the nation, and say, you don't get your good time credits, you don't get your time off, nothing.

Unidentified Justice: But as soon as he starts serving his adult sentence, he will receive those.

Mr. Solovy: No, not retroactively.

Unidentified Justice: Not retroactively, but--

Mr. Solovy: He won't start receiving them until January of 1982.

Unidentified Justice: --Which will be the date he commences his adult sentence.

Mr. Solovy: Correct.

Unidentified Justice: Do you think the Judges across the country are aware of the fact that a concurrent sentence will terminate the youth offender sentence?

Mr. Solovy: I think the Trial Judges are aware of that.

What they are not aware of, Justice White, is that the Judge found in Watts versus Hadden that the Youth Corrections Act is a myth, and that this system does not exist, because if you ask the Trial Court Judges what is going to happen to their youth offenders when they are sent to the facility, they think they will be segregated from adult offenders, they think that they will receive rehabilitative treatment.

They don't think they are going to be mixed with adult offenders who are going to enforce peace and quiet, because that isn't the intention of the Judges.

And I am surprised that the Bureau of Prisons, with the state of litigation that is going on, in Brown versus Carlson, Watts versus Hadden, Johnson versus Bell, where they are being told continuously to bring your performance within the Congressional mandate... I mean, it is 32 years later... that they would have the temerity to bring this case before the Court and say, defer to our expertise, and it would be impractical to operate the Act as Congress has mandated, when they have never tried.

Unidentified Justice: Well, the cases you have referred to are not from this Court, are they?

Mr. Solovy: No, but Dorszynzki--

Unidentified Justice: Right.

Mr. Solovy: --mandates segregation, rehabilitation.

It is all set out in this Court's opinion.

Unidentified Justice: And it also makes the finding on review.

Mr. Solovy: Correct.

Unidentified Justice: You still keep talking about poor Mr. Robinson, and all he did was stab a prison guard.

Mr. Solovy: But poor Mr. Robinson is someone--

Unidentified Justice: Poor Mr. Robinson wants youth treatment.

Isn't that rather adult action to stab a guard?

Mr. Solovy: --Justice Marshall, his first offense could not have been more adult.

It was a murder committed in the course of a robbery.

I don't think that any human being should be written off.

Unidentified Justice: I just object to your using the word "poor".

Mr. Solovy: All right.

Well, let us say--

Unidentified Justice: I mean, don't make me cry about it.

Mr. Solovy: --Let us say that it is my position that Congress has mandated, whatever adjective we ascribe to Mr. Robinson, that he was to receive certain treatment, and that was rehabilitation and correction so that he would not be a threat to society.

Unidentified Justice: And that comes under the Act of Congress.

Mr. Solovy: Yes, it comes under the Act of Congress.

We feel that if the government does not like the way this Act operates, if they want to run the Youth Corrections Act the way they want to run it as against the way Congress said it should be run, if they think that it is proper to mix adult offenders with youthful offenders, then we believe that that question should be put before Congress, and it should not be put before this Court, as this Court stated in Dorszynski.

If the Court should hold that this second sentence somehow revoked Mr. Robinson's youth offender status, then, as we set forth in our brief, you have serious constitutional issues of equal protection, double jeopardy, and due process.

We do not believe that the Act has to be interpreted in a manner which raises those issues.

We believe that the Seventh Circuit was clearly correct that the Third Circuit, which had issued these wonderful decisions in this area up to Thompson versus Carlson, was incorrect in its ultimate premise.

In Thompson versus Carlson, the Third Circuit clearly said to the Bureau of Prisons, you cannot unilaterally revoke this man's status.

You do not have it within your power.

As much as the Bureau of Prisons would like to have that power, they do not have it.

The Courts have uniformly held that, other than the Fourth Circuit's decision in Outing.

That is the only decision, and an early decision in Abernathy, which I do not think adequately addressed the issues, but all the other Courts have said, including Thompson versus Carlson, you do not have that power.

Thompson versus Carlson said, though, that the second Judge in imposing the sentence terminated the first youth corrections sentence, and we believe the Seventh Circuit was clearly correct in holding that that was not the effect of the second sentence.

Indeed, the consecutive adult sentence may have been imposed in Mr. Robinson's case, as the Seventh Circuit pointed out, precisely because he was serving then a youth corrections sentence, and the Court might have imposed a youth corrections sentence otherwise.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Strauss?

ORAL ARGUMENT BY DAVID A. STRAUSS, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Strauss: Mr. Chief Justice, one or two points.

Justice White, the reason that the Judge's sentencing an offender to a concurrent adult sentence doesn't solve the problem is, of course, the Judge might think, as he evidently did in this case, that the offense was sufficiently serious that the additional punishment of a consecutive sentence was necessary.

Unidentified Justice: I understand.

You would rather have an automatic rule than have to convince the Judge.

I can understand that.

Mr. Strauss: Well, the Judge in this case didn't take any convincing.

He thought a consecutive sentence... well, we don't know if he took convincing or not, but in any event he thought a consecutive sentence was necessary.

Unidentified Justice: Well, I know, but if a concurrent sentence automatically terminates a youth offender, all a Judge has to say is, he could say, ten years as an adult, and the sentence to begin immediately, the youth offender status is terminated.

Mr. Strauss: Well, the Judge could--

Unidentified Justice: That is equivalent to a concurrent sentence.

Mr. Strauss: --That's right.

Of course, that would prohibit the Judge from sentencing a consecutive sentence, a consecutive maximum sentence under the--

Unidentified Justice: I agree with you.

But in this case, exactly what did the Judge say?

Your position is that you want an automatic rule to prevent the Judge from putting on a consecutive sentence.

Mr. Strauss: --We think the Judge puts on a consecutive sentence, that it would be grossly--

Unidentified Justice: That the sentence should start right now.

Mr. Strauss: --It should permit the Bureau not to have to treat him as a YCA offender anymore, now that YCA treatment is inappropriate for him.

Unidentified Justice: Exactly what did the second Judge say with respect, if anything, to no benefit?

Mr. Strauss: He said that the offender will not benefit any further under the provisions of the YCA, and sentenced him to an adult term, and also recommended that the offender be transferred from the Federal Youth Center where he had been confined to a more secure institution.

Unidentified Justice: What page is that?

Mr. Strauss: We paraphrased at Page 6 of our, brief.

It is also in the judgment and commitment order which we have lodged with the Court.

Unidentified Justice: Well, that is just practically the same as saying, I hereby terminate the--

Mr. Strauss: Well, we don't rely on the Judge's statements.

What we rely on is the fact that an adult sentence was imposed, and under the Act it now makes no sense to--

Unidentified Justice: --You want an automatic rule.

Mr. Strauss: --as a YCA offender.

Unidentified Justice: May I ask why you don't rely on the Judge's statement?

Mr. Strauss: Well, we think even if the Judge hadn't made the statements that it would make no sense to take an offender who is an adult offender in the contemplation of the YCA and continue to treat him as if he were a YCA offender.

Unidentified Justice: So you want the authority to be put in the Bureau of Prisons--

Mr. Strauss: We think--

Unidentified Justice: --to revoke the YCA status?

Mr. Strauss: --No, it is not... to treat him as an adult offender.

Unidentified Justice: Do you or don't you?

Mr. Strauss: We do want the Bureau to be able to say in cases like this, we are going to treat this person as an adult.

Unidentified Justice: Where do they get that authority to overrule a Judge?

Mr. Strauss: I think that is a misconception that the Respondent has been repeating.

This isn't a matter of--

Unidentified Justice: Well, isn't it true?

Mr. Strauss: --Well, it is not a matter of revoking or overruling or countermanding a sentence.

The question is, what is the sentence.

Unidentified Justice: Well, the Judge says Youth Corrections Act.

Mr. Strauss: That's right.

Unidentified Justice: And the Bureau of Prisons says no more.

Mr. Strauss: After the second adult--

Unidentified Justice: That isn't counteracted?

Mr. Strauss: --That is right, because the question is, what does the Youth Corrections Act--

Unidentified Justice: Well, where do you get that authority?

Mr. Strauss: --The authority is already implicit in the Youth Corrections Act sentence.

It is sour view that Congress never intended a Youth Corrections Act sentence to be so inalienable that even--

Unidentified Justice: Did the Judges know that?

Mr. Strauss: --The first sentencing Judge may very well have known that.

Unidentified Justice: May.

Do they?

Mr. Strauss: We just don't know what the first sentencing Judge thought.

Unidentified Justice: Well, where does the Bureau of Prisons get the right to overrule a Federal District Judge?

Mr. Strauss: The Bureau of Prisons is not overruling a Federal District Judge.

Unidentified Justice: It is just changing it.

Mr. Strauss: It is not even changing it.

The Federal District Judge gave him a YCA sentence.

Our problem is, what does that entail?

Specifically, does it entail continuing to treat him as a YCA offender when it makes no sense, and our view is, it does not entail that.

Unidentified Justice: What you are saying, in effect, is that the second sentencing Judge is the one who has revoked or taken the action which terminates the YCA sentence.

Mr. Strauss: We think the second sentencing Judge's decision was what made it no longer appropriate to treat him as a YCA offender.

Unidentified Justice: I thought you abandoned that.

Mr. Strauss: His decision to sentence him as an adult.

Unidentified Justice: Well, did you abandon it or not?

Mr. Strauss: Did I abandon what, Justice Marshall?

Unidentified Justice: Relying on the Judge's action.

Mr. Strauss: We are relying on the adult sentence, not on the Judge's statements that went with the sentence.

Unidentified Justice: Do you rely on the Judge, the statement that the Youth Corrections Act is no longer in force?

Do you rely on that or not?

Mr. Strauss: The Judge sentenced him to an adult sentence, found that he would not benefit from YCA treatment.

That is--

Unidentified Justice: Do you rely on the Judge's statement?

Mr. Strauss: --The Judge made a statement that the offender would--

Unidentified Justice: Do you rely on it or not?

Mr. Strauss: --We rely on his sentence, on the imposition of the adult sentence.

Unidentified Justice: And what he said.

Mr. Strauss: In order to impose that sentence, he had to make a certain finding.

Unidentified Justice: And you rely on that.

Mr. Strauss: Well, we rely on the sentence which includes the finding, but it is the sentence we rely on, not his extra statements.

Unidentified Justice: I am a little puzzled.

The language you quoted was in 1975 or 1977?

Mr. Strauss: 1975.

Unidentified Justice: 1975.

So you say he did make the equivalent of a no benefit finding in 1975.

Mr. Strauss: Yes, he made a no benefit finding explicitly.

Unidentified Justice: Yes.

Mr. Strauss: The 1977, there is no--

Unidentified Justice: In 1977 he did not do it.

Mr. Strauss: --There is none in the judgment and commitment order, but the Respondent concedes he is no raising that here, so for purposes of this case that has to be regarded as a valid adult sentence.

Unidentified Justice: Can you tell me in 1975 what was the maximum sentence which the Trial Judge could have imposed for the crime he was found guilty of?

Mr. Strauss: Ten years.

Unidentified Justice: So if he had given a concurrent sentence of ten years--

Mr. Strauss: That's right.

Unidentified Justice: --that would have solved the problem.

Mr. Strauss: Well, not quite, I suppose because he had more than four and a half years left on his YCA sentence at that point.

Unidentified Justice: Well, pretty close to solving it.

Mr. Strauss: Pretty close to solving it.

Of course, that would have required the Judge to jiggle around his sentences in order to take care of the problem.

Unidentified Justice: Well, the Bureau immediately treated him as an adult.

Mr. Strauss: That's right.

Unidentified Justice: And apparently said, ten years is enough.

Mr. Strauss: Ten years--

Unidentified Justice: As an adult.

Mr. Strauss: --Yes, the Bureau thought that his YCA sentence plus the consecutive sentence--

Unidentified Justice: So it did not solve the problem.

Mr. Strauss: --Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Fare v. Michael C. - Oral Argument

Sun, 20 Jun 2010 20:42:45 +0000

Case:

Fare v. Michael C.

Media File:

78-334_19790227-argument.mp3

Related Transcript:

78-334_19790227-argument.xml

Transcript:

Argument of Mark Alan Hart

Chief Justice Warren E. Burger: We'll hear arguments in Fare against Michael C., beginning at 1 O'clock.

Mr. Hart, you may proceed whenever you're ready.

Mr. Mark Alan Hart: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

I am Mark Alan Hart, Deputy Attorney General of the State of California, appearing as counsel for petitioner.

Miranda versus Arizona opened a new chapter in the law of confessions, a chapter that began with precise rules to guide law enforcement in the conducting of a custodial interrogation but has over the years been read with some different and expanded interpretations.

In the case at bar, the California Supreme Court has applied the strict Miranda rules with one addition, that a juvenile who requests his probation officer per se invokes his Fifth Amendment right to be silent, no less than if he asks for an attorney, and that his statements must be suppressed without regard to whether or not they were in fact involuntary.

The operative facts are brief.

On the evening of January 19, 1976, Robert and Helen Yeager were on their way to their home in the San Fernando Valley section of Los Angeles.

Unbeknownst to them, respondent and two of his friends were following in a pickup truck being driven by respondent.

They were looking for someone to rob.

They were looking for money and they had a gun.

The Yeager's arrived home.

Respondent and his friends approached the house, approached Mr. Yeager and during the course of an attempted robbery, one of the other minors shot Mr. Yeager and killed him.

Respondent was apprehended and brought into the police station for questioning.

He was 16 years old at the time of the offense and he had had prior experience with the juvenile court system including serving some time in a youth camp.

He was given the standard Miranda admonition.

He was told that he had a right to remain silent, was told that anything he said could and would be used against him in a court of law, that he had a right to an attorney, that if he could not afford one, one would be appointed for him at -- without his expense and that he had a right to have the attorney present during all stages of interrogation.

He was asked if he understood his rights and if he wanted to talk to the officers.

He indicated that he did and that he might talk but when asked if he would give up his right to an attorney present, he responded, “Can I have my probation officer here?”

To this, the officers replied, “Well, no.

We can't call your probation officer right now, but you have a right to an attorney.”

And, respondent's response was, “Well, how do I know you guys won't -- pull no police officer in and then tell me he's an attorney?”

And, to this, respondent was re-admonished as to the standard Miranda rights.

He was told, “You can have an attorney.

You don't have to talk to us at all if you don't want to.

If you want to talk to us without an attorney present, you can talk to us.

If you don't want to, you don't have to.

That's your right.

Do you understand that right?”

Respondent indicated that he did understand that right and, when asked if he would talk to him without -- talk to them without an attorney present, respondent replied, “Yeah, I want to talk to you.”

Later during the interview, respondent confessed to having participated in the offense.

Juvenile court proceedings were instituted.

Respondent's confession was admitted into evidence and several other things were established during the proceedings, including the fact that respondent had been on probation that his probation officer had counseled him as to some family problems, but that the probation officer under California law was a peace officer and that respondent was told this.

The trial court made a finding of voluntariness.

Respondent was declared a ward of the court for having committed a murder.

In reversing the judgment, the California Supreme Court has taken the Miranda exclusionary rule and applied the language dealing with request for legal counsel one step further.

They've applied it to probation officers, by statute peace officers, in California.

It is positioner-- petitioner's position, the instant confession was obtained after a fully informed waiver of Fifth Amendment rights, including the right to legal counsel, that the admonitions -- both admonitions given to respondent in his statements, before and after each, indicate a knowing and intelligent waiver and that the statements were properly admitted.

Respondent's request to see his probation officer was at most an ambiguity at the waiver stage.

And it was clarified by the further admonition in the additional waiver obtained that respondent had a clear desire to speak.

Petitioner suggests to this Court the following rule or the following approach to this kind of situation.

That when interrogating officers are faced with an ambiguous response to a Miranda advisement they should be permitted to clarify the statement with further questioning in order to determine whether or not in fact the suspect is expressing an unwillingness to speak or merely making an information or request.

If upon asking those clarification questions it is clear the suspect is not invoking his Fifth Amendment right as is the case here then police should be com -- permitted to begin an interrogation.

There are several things in the instant case, the petitioner submits.

Give this Court an indication of the voluntariness of respondent's statement.

And that we submit is the only permissible goal under the Fifth Amendment whether the statement was voluntary product not obtained by overriding the suspect's free will and based on an informed waiver of rights.

Number one, respondent nowhere alleges that it was an uninformed waiver or that he did not understand his right to an attorney or anything about the Miranda rights was unclear to him.

Justice William H. Rehnquist: Well, you don't suggest, do you, Mr. Hart, that if there had been no Miranda warning, a finding of voluntariness would save the case under Miranda?

Mr. Mark Alan Hart: Well, Mr. Justice Rehnquist, respectfully, while that issue need not be reached in this case, we would suggest that the Miranda warnings are not necessarily applicable to juvenile proceedings.

This Court has noted and respondent has conceded in his briefs on the merits that this Court has never specifically applied the precise Miranda exclusionary rule to juvenile court.

Justice William H. Rehnquist: What if this were an adult proceeding?

Mr. Mark Alan Hart: In an adult proceeding, the Miranda rule is presently the law of the land and the Miranda admonitions would, of course, apply.

They are perhaps --

Justice Thurgood Marshall: He wasn't in the juvenile court when he made this question in his answers, right?

Mr. Mark Alan Hart: Yes, he was.

Justice Thurgood Marshall: This one --

Mr. Mark Alan Hart: This was in --

Justice Thurgood Marshall: -- with the police?

Mr. Mark Alan Hart: When he made the questions and answered the police, he was arrested as a juvenile suspect.

He was --

Justice Thurgood Marshall: Well, was it the same police that arrested other suspects?

Mr. Mark Alan Hart: Yes, it was, Your Honor.

Justice Thurgood Marshall: So, what's the difference about Miranda applying?

It's the same officer.

Mr. Mark Alan Hart: The difference is this.

Justice Thurgood Marshall: (Voice Overlap)

Mr. Mark Alan Hart: Juvenile proceedings, while adversary in nature, are interested in some different societal goals in the adult criminal --

Justice Thurgood Marshall: Including a statement -- confession out of him?

Mr. Mark Alan Hart: Certainly not.

Justice Thurgood Marshall: Right.

Why certainly not?

Mr. Mark Alan Hart: Because the Fifth Amendment prohibits coercion.

Justice Thurgood Marshall: He was different, the juvenile would --

Mr. Mark Alan Hart: Correct.

Justice Thurgood Marshall: The Fifth Amendment does apply to juveniles, right?

Mr. Mark Alan Hart: The Fifth Amendment does apply to juveniles, as this Court said so in, In re Gault.

Justice Thurgood Marshall: I thought so.

Mr. Mark Alan Hart: We would concede the Fifth Amendment applies to juveniles.

Justice Thurgood Marshall: That's what I thought.

Mr. Mark Alan Hart: However, we take the following position by analogy to McKeiver versus Pennsylvania.

What applies to juveniles are the essentials of fairness within the Due Process Clause, not necessarily all of the procedural formalities that would apply in adult court because juvenile proceedings, although adversary in nature, are instituted on behalf of the minor.

The concern of the court is to find what the best disposition is for the minor.

Justice Thurgood Marshall: And you --

Mr. Mark Alan Hart: As such --

Justice Thurgood Marshall: Is that a state matter?

Mr. Mark Alan Hart: Well, that was -- that --

Justice Thurgood Marshall: Is that a state matter?

Mr. Mark Alan Hart: Juvenile proceedings in California, and I believe in most states, are instituted in -- on behalf of the minor.

Justice Thurgood Marshall: Yes, but I mean --

Mr. Mark Alan Hart: This Court --

Justice Thurgood Marshall: The question as to what type of procedure is used for a juvenile is, first of all, a state matter, and this is -- the State Supreme Court passed on that, doesn't it preclude us --

Mr. Mark Alan Hart: Not necessarily.

Justice Thurgood Marshall: -- in that one point?

Mr. Mark Alan Hart: Yes.

Justice Thurgood Marshall: On that one point?

Mr. Mark Alan Hart: Not necessarily Your Honor.

If the court looks at the proceedings in California as adversary in nature but not strictly criminal then based on In re Gault and McKeiver versus Pennsylvania, what the court wants to apply to juveniles is the essentials of fairness.

Now, if we can have a voluntary statement that is the product of an informed knowledgeable waiver but there has been a technical Miranda defect, that doesn't necessarily violate the Fifth Amendment's prescription against compelled confessions.

Particularly the case where we're concerned -- what we're dealing with the system that isn't strictly criminal, we're instituting proceedings on the minor's behalf and we're looking for the best disposition for the minor.

In that case, artificial barriers to the truth seeking process should be eliminated.

We submit that the strict Miranda exclusionary rule is, at times, an artificial barrier.

This case is a perfect example.

The California Supreme Court says, “Per se, a juvenile who asks for his probation officer is invoking his Fifth Amendment right and we don't need to consider whether the statement was in fact voluntary.”

If there is that statement, it must be suppressed.

I submit that is an artificial barrier to voluntariness and it results in an otherwise permissible confession under the traditional Fifth Amendment view, the view -- the pre-Miranda view being excluded.

There is no basis for that kind of application in this case -- to -- in the juvenile court.Of course in this case our position is the minor was fully Mirandized.

He was given the standard Miranda warnings and there's no basis for extending Miranda beyond that.

Chief Justice Warren E. Burger: Do you say the strict Miranda rule as you put it should not be applied to juveniles because they are not exposed to a criminal punishment, is that your --

Mr. Mark Alan Hart: What we say is that we shouldn't have artificial barriers to the truth seeking process.

Chief Justice Warren E. Burger: Well, I was putting the question in another way.

Mr. Mark Alan Hart: Okay.

Chief Justice Warren E. Burger: And you mean?

Mr. Mark Alan Hart: Our position is that while they are in a sense subject to custody, there are other societal values at stake that do not necessarily exist in the adult system.

The disposition in California is supposed to be on the minor's behalf, and the gravity of the offense doesn't necessarily determine what the ultimate disposition of the minor would be.

Now, if a technical Miranda defect bars the court from reaching the true decision as to what's best for the minor, we submit that's wrong and we submit that it isn't justified by the Fifth Amendment.

All we need provide the minors under McKeiver and Gault -- yes, Your Honor?

Justice John Paul Stevens: Is it not correct that what you're arguing is that even if he'd asked for a lawyer, the Miranda should not have applied?

Mr. Mark Alan Hart: Well --

Justice John Paul Stevens: That it's still the same technical obstacle.

Mr. Mark Alan Hart: Certainly, if he conditioned his willingness to talk on the presence of a lawyer.

Justice John Paul Stevens: It was -- instead of -- everything is exactly the same in the transcript, except he says, “I want a lawyer” instead of, “I want a probation officer.”

You'd still say Miranda should not apply because it's a juvenile.

Mr. Mark Alan Hart: I submit that --

Justice John Paul Stevens: That's your submission.

Mr. Mark Alan Hart: A strict Miranda exclusionary rule should not apply.

Justice John Paul Stevens: In other words --

Mr. Mark Alan Hart: If he would -- if he says, “Can I have my lawyer present?”

And they say, “Yes, you can.”

And then he says, “Then, I want him here before you question me,” certainly that's an invocation.

But, if he says, “Can I have my lawyer present?”

And they say, “Yes, you can.”

And he says, “Well, I'll go ahead and talk to you anyway,” that's not an invocation.

But we submit that the strict exclusionary rule which excludes otherwise voluntary statements because the suspect has uttered magic words --

Justice John Paul Stevens: Oh, well, supposing he said, “I want my lawyer present now.”

And they had said, “Well, we're sorry, we can't reach him right now.

Do you mind going ahead with the questioning?”

And he said, “Well, okay, if you can't get him, I'll go ahead with the questioning.”

Mr. Mark Alan Hart: We submit that's permissible.

Justice John Paul Stevens: That would be permissible?

Mr. Mark Alan Hart: That's permissible.

Justice Potter Stewart: But would it --

Mr. Mark Alan Hart: We --

Justice Potter Stewart: -- would it be with an adult under --

Mr. Mark Alan Hart: Each --

Justice Potter Stewart: Okay --

Mr. Mark Alan Hart: -- our position is that --

Justice Potter Stewart: Is that the Miranda case?

Mr. Mark Alan Hart: -- it should be.

Justice Potter Stewart: Well, maybe it should be, but except in the Miranda case, would it be?

Mr. Mark Alan Hart: Alright, except in the Miranda case, I think it that would still be a permissible type of questioning.

Under Miranda, certainly, if the suspect asks for a lawyer and wants him present during interrogation, interrogation has to cease.

But --

Justice Potter Stewart: Doesn't the Miranda say if he asks of a lawyer, interrogation must cease until he gets a lawyer?

Mr. Mark Alan Hart: There is language to that effect, but it isn't necessary to the disposition granted.

Justice Potter Stewart: Well, there's a lot of language that's not necessary to the decision in the Miranda cases.

Mr. Mark Alan Hart: We would submit -- we would offer the following example.

There's a case in California upon which this case built, People versus Randall, which held that any indication which recently -- reasonably appears inconsistent with the present willingness to discuss the case freely is an invocation of the right.

In Randall, the suspect was arrested and Mirandized and asked to call his attorney.

He called his attorney, spoke to his attorney, told his attorney the situation, and the attorney did not advise him to remain silent.

After that the suspect, I believe, was re-Mirandized and agreed to talk to the officers.

Now, there's an indication where the suspect clearly wanted his --

Justice Byron R. White: Is that a new word in law enforcement jargon?

Mirandized, is that it?

Mr. Mark Alan Hart: Excuse the colloquial.

He was admonished per the Miranda opinion as to what his rights were under the Fifth Amendment.

Justice Byron R. White: Well, you certainly did save a lot of wind by saying Mirandized.

Mr. Mark Alan Hart: Thank you Your Honor.

In any case, the suspect in Randall, and by the way that confession was excluded by the California Supreme Court but we submit, it was voluntary under Fifth Amendment standards.

Justice Potter Stewart: Well, that's not the Miranda test though.

Mr. Mark Alan Hart: That's true, that's true and to that extent the Miranda test is a departure from the lauadble goals of the Fifth Amendment and the goals that I think this Court was attempting to pursue in the Miranda opinion.

Chief Justice Warren E. Burger: But it is a step and it has been taken.

Mr. Mark Alan Hart: That's true and certainly the decision in this course -- in this case doesn't turn on whether or not there was a technical Miranda defect because, as far as the admonitions required in the Miranda opinion, those were complied with in this case.

Beyond that, there were a number of other considerations of voluntariness.

Justice Thurgood Marshall: Do I understand you to say that there is a case in California where a lawyer told the guy, under Miranda ruling, “Don't talk?”

Mr. Mark Alan Hart: No.

The lawyer did not --

Justice Thurgood Marshall: Then he told him, “Go ahead and talk,” didn't he?

Mr. Mark Alan Hart: No, he didn't say one thing or another.

Justice Thurgood Marshall: He didn't tell him not to talk, did he?

Mr. Mark Alan Hart: Right.

Justice Thurgood Marshall: So, what happens to all that I -- was been made to read and don't let them talk to the lawyers, but the lawyer automatically tell him to shut up?

What happens to all of that theory we argued here every day?

Mr. Mark Alan Hart: Well, I think the pre --

Justice Thurgood Marshall: I guess it's gone, isn't it?

Mr. Mark Alan Hart: The presence of a lawyer during an interrogation is not necessarily so that the lawyer would --

Justice Thurgood Marshall: When, he said one case that says so --

Mr. Mark Alan Hart: But there may be occasions when it will be to the suspect's advantage to talk particularly if he had a good alibi and the lawyer --

Chief Justice Warren E. Burger: Wasn't that said along before Miranda?

Mr. Mark Alan Hart: Certainly.

Chief Justice Warren E. Burger: I believe Mr. Justice Jackson said any lawyer worth this all who's going to tell the client not to talk until he, the lawyer, knows in private what he's going to say.

Mr. Mark Alan Hart: Well, we submit Your Honor that there might be indications where a lawyer would not make that statement to his client.

Chief Justice Warren E. Burger: Perhaps after he'd had the private conversation.

Mr. Mark Alan Hart: But along those lines Your Honor, returning to this case, certainly a probation officer is not going to be in the same position.

As a matter of fact is, California's Justice Mosk noted in his concurring opinion in this case, the probation officer as a peace officer is probably under an obligation to counsel his charge to cooperate fully with law enforcement officials.

This probation --

Chief Justice Warren E. Burger: You could hardly expect this respondent here to know about that obligation of the probation officer, would you?

Mr. Mark Alan Hart: Well, number one, Your Honor, the record indicates that respondent was aware of the fact that his probation officer was a peace officer.

Number two, the record indicates, and the trial court made a finding, that this respondent had prior experience with the juvenile court system, presumably had an attorney at that prior experience and understood what he was waiving.

Number three, respondent nowhere alleges in any of his briefs that he didn't understand what an attorney was or what an attorney could do for him or that he thought his probation officer could perform the functions of legal counsel.

But, number four, there is no justification for the per se rule adopted by the California Supreme Court below.

It cannot be said that any juvenile who asks for the presence of his probation officer is invoking the legal counsel language of Miranda.

And it's interesting, the California Supreme Court in the opinion below, distinguished or attempted to distinguish this kind of request from a request say for a clergyman or a football coach, and said that since the probation officer is someone who has a legally recognized relationship with the minor, request for a probation officer would be reasonably interpreted as a request for counsel within the meaning of Miranda.

Petitioner submits that that conclusion does not follow from their analysis.

The clergyman, for example, also in California, has a legally recognized relationship with a particular penitent.

There is a penitent privilege.

Chief Justice Warren E. Burger: Yes, but the clergyman would surely be bound by confidence with respect to anything imparted to him, whereas the probation officer would be in a contrary position, would he not?

He'd be bound to report this to the courts --

Mr. Mark Alan Hart: Exactly, which -- by statute in California, the probation officer investigates -- alleges a -- allegations against minors, brings the -- sources those investigations to the District Attorney or to the local prosecuting authority.

At the time this instant case began in the juvenile court the probation officer by statute actually filed the petition alleging that the minor was a ward of the court and had committed a certain offense.

Chief Justice Warren E. Burger: Would you hazard a guess or you don't have to if you don't want to, as to what the Supreme Court of California might have done if the probation officer had indeed come in response to a call and privately advised the respondent to tell everything and then it came to the California Supreme Court in that posture.

Mr. Mark Alan Hart: Okay, two responses to that without making a guess.

Chief Justice Warren E. Burger: Would it not be the State of California advising the man to surrender his rights?

Mr. Mark Alan Hart: It would be, certainly.

First of all under California law --

Chief Justice Warren E. Burger: Do you think -- when you say “certainly,” do you mean that's probably what the Supreme Court of California would decide?

Mr. Mark Alan Hart: Well, I'm not sure what they would decide.

I would say, first, under California --

Chief Justice Warren E. Burger: That's a dangerous guess anyway.

Mr. Mark Alan Hart: Okay, let me inform the court of the premise for my guess.

First, under California law, the probation officer would have to advice the minor of his constitutional rights himself as a peace officer.

Number two, again referring to Justice Mosk's opinion, he speculates as to just that problem and talks about the Mutt-and-Jeff situation that this Court referred to in Miranda where you have a friendly peace officer and an adversary peace officer working at odds with each other, and he says “the case is going to come to us and surely, when it does, I don't know what we're going to do with it.”

Now, with that premise in mind, my guess would be that the California Supreme Court would find that by statute the probation officer is a peace officer and that in that kind of situation the advice the minor receive from the probation officer was not the advice of counsel and did not comply with the requirements of Miranda.

And that it would be just what the Court suggested that it would be a peace officer or the State of California advising the minor to cooperate.

That's the prob --

Justice John Paul Stevens: Another aspect of it, he was suspicious that the person the police might bring in might not in fact be a lawyer.

Mr. Mark Alan Hart: That's true.

Justice John Paul Stevens: If the probation officer had assured him that this third party was in fact a lawyer perhaps he wouldn't have had that concern because presumably he trusted his probation officer.

Mr. Mark Alan Hart: Well, that's a possibility except, I think the fact that he was re-admonished after he made that suspicion and told that he didn't have to talk at all, that was his right.

Justice John Paul Stevens: Why do you suppose he asked for a probation officer?

What do you suppose motivated it?

Mr. Mark Alan Hart: Personally, Your Honor, I think it was just an informational question.

(Voice Overlap) --

Justice John Paul Stevens: You know, I followed his statement, I don't think I could trust whoever you'd bring in, that I -- did -- isn't it fair to infer that he thought he could trust --

Mr. Mark Alan Hart: Well, there's some indication in the record Your Honor that he had been told by the probation officer to contact the probation officer whenever he had law enforcement contact.

And certainly any offense that he might have committed would've potentially been a violation of the conditions of his probation and the probation officer would've wanted to know about it.

So that perhaps is the reason although I really can't speculate.

Justice Thurgood Marshall: Perhaps he really trusted the probation officer.

Mr. Mark Alan Hart: I think there's some indications he trusted the probation officer and I think that the trust would've been misplaced if he felt that -- if he wanted the probation officer to act as counsel.

Justice Thurgood Marshall: Well, he might have wanted to -- the police -- the probation officer to tell him whether he was a counsel.

Mr. Mark Alan Hart: True.

Justice Thurgood Marshall: Or whether this guy was a phony.

Mr. Mark Alan Hart: True.

Petitioner doesn't suggest that looking at all of the minor's statements and the totality of the circumstances and his prior experience with the law enforcement officials that the trier of fact could not have found, based on the totality of the circumstances, that this minor was invoking his right to silence.

But the rule is, in California, that any minor who asks for his probation officer per se invokes his right to silence under Miranda.

But if he asks for any other confidant, a clergyman or a football coach the court will look at the totality of the circumstances.

The Fifth Amendment and Miranda do not justify that kind of approach.

Moreover, the --

Justice William H. Rehnquist: In form -- the question was, as you say, just a request for information, “Can I have my probation officer here?”

Mr. Mark Alan Hart: Yes, and he was told he couldn't.

Justice Potter Stewart: And that -- formally at least, was not a request, it was just a --

Mr. Mark Alan Hart: That's correct.

Justice Potter Stewart: To have the probation officer there was just a request for information, “can I?”

Mr. Mark Alan Hart: That's correct, Mr. Justice Stewart.

Justice Potter Stewart: But you don't quarrel with the Supreme Court's equating that with a request for the probation officer, do you?

Mr. Mark Alan Hart: Well, if it was a request --

Justice Potter Stewart: “May I” or “I would like to have my probation officer here.”

Mr. Mark Alan Hart: He certainly didn't condition his willingness to talk on the presence of a probation officer.

Justice Potter Stewart: But you don't quarrel with their equating that with, “I request that my probation officer be here.”

Mr. Mark Alan Hart: Well, we do quarrel with it.

We quarreled with it below.

We claimed that it was an information or request.

Justice Potter Stewart: Do you here too?

Mr. Mark Alan Hart: And we do here, too.

We don't believe that this --

Justice Potter Stewart: So, you think there should perhaps be one rule if he just says, “Can I have my probation officer here?”

And another rule, “I request that my probation officer be here”?

Mr. Mark Alan Hart: Not unless --

Justice Potter Stewart: Then why do you quarrel with it?

Mr. Mark Alan Hart: Well, we quarrel with it because --

Justice Potter Stewart: If you think there are two different cases?

Mr. Mark Alan Hart: If he said --

Justice Potter Stewart: I mean, if you think he's not speaking --

Mr. Mark Alan Hart: If he says, “Can I have my probation officer here and I'm conditioning my acceptance to speak on the presence of the probation officer.”

That's one thing.

Other than that there isn't any distinction and we wouldn't quarrel with it.

Chief Justice Warren E. Burger: Do you think this fellow in this posture would be inclined to have all these nuisances that a lawyer or a law student might put in?

Mr. Mark Alan Hart: Perhaps not, nor would an adult criminal offender necessarily have all of the nuisances, but --

Justice Thurgood Marshall: Mr. Attorney General, in order he says, “Can I have my probation officer here?”

“Well, I can't get a hold of your probation officer right now.

You have the right to have an attorney.”

And then, he said, “How will I know you guys won't pull no police officer in and tell me he's an attorney?”

He tells you why he wants a probation officer there, to make sure you don't pull a phony on him.

He said so right here, doesn't he?

Mr. Mark Alan Hart: Then, in that case, Mr. Justice Marshall --

Justice Thurgood Marshall: Doesn't he say right in the next sentence?

Mr. Mark Alan Hart: That's correct, and we submit that --

Justice Thurgood Marshall: That's what he was talking about.

Mr. Mark Alan Hart: His further waiver in agreement to talk is all the more voluntary because he fully understood.

Justice Thurgood Marshall: (Voice Overlap) “We will get you your probation officer."

Mr. Mark Alan Hart: Our position is at most --

Justice Thurgood Marshall: Didn't he say that, they would get it?

Mr. Mark Alan Hart: He was told that he could not have the probation office there.

Justice Thurgood Marshall: “Well, I'm not going to call Mr. Christiansen tonight.

There's a good chance we could talk to him later.”

So, they gave him a good little idea that the events that they would -- they dangled it in front of him, didn't they?

Mr. Mark Alan Hart: Following that, Mr. Justice Marshall, he was told, “Look, you don't have to talk to us at all if you don't want to.”

Justice Thurgood Marshall: (Voice Overlap) to show over and over again, which constantly is --

Mr. Mark Alan Hart: At most, the request for --

Justice Thurgood Marshall: -- doing what Miranda said, “don't do.”

Mr. Mark Alan Hart: At most, that was an ambiguous statement which police sought to clarify.

The interrogation -- the process of interrogation had not begun at that point.

The police were seeking to clarify whether this minor was invoking his right to silence.

Justice Thurgood Marshall: Question, “Will you talk to us without an attorney present?”

That's -- there's nothing ambiguous about that, is there?

Mr. Mark Alan Hart: The question is not ambiguous.

Justice Thurgood Marshall: That's right, because they had led him up to it.

They told him they'll get his probation officer later on.

Mr. Mark Alan Hart: And they told him he didn't have to talk right then at all.

Justice Thurgood Marshall: And after they told him they would get the probation officer.

Mr. Mark Alan Hart: Right.

Justice Thurgood Marshall: After.

Mr. Mark Alan Hart: And -- I submit the minor fully understood and the trial court found that he fully understood that he didn't have to talk to them then if he didn't want to without the presence of the probation officer, and he agreed to talk to them at that time and the trial court found that that was a complete waiver.

We submit that the laudable goals of this Court in Miranda protecting against compelled confessions and insuring that a suspect who waives his Fifth Amendment rights is fully informed as to what he's doing.

Those goals were fulfilled in the instant case.

This confession was absolutely voluntary and there is no justification for the per se rule that any minor who asks for his probation officer is asking for counsel within the meaning of Miranda.

We will reserve the balance of our time for rebuttal.

Thank you Your Honor.

Argument of Albert J. Menaster

Chief Justice Warren E. Burger: Very well.

Mr. Menaster, you may proceed.

Mr. Albert J. Menaster: Mr. Chief Justice and may it please the Court.

Albert Menaster, Public Defender's Office, County of Los Angeles, for the minor, Michael C., respondent in this Court.

I'd like to start out by telling this Court about another youngster, this one named Joseph.

Joseph said, “I want to be an adult.

Treat me like an adult.

Use the Miranda rules that apply to adults.

Use every rule that applies to adults, please.

In every way I want to be an adult.

I don't want to be protected.

I don't want things done on my behalf.

I want to be treated just like an adult.”

And Joseph prosecuted his case through every layer of court and one day reached this Court and this Court decided Joseph's case by saying, “You don't get to be an adult, Joseph.

You don't get your jury trial.”

And the case was McKeiver versus Pennsylvania.

This Court said in McKeiver that there was something different about juveniles, something that is not the same as to an adult.

And that difference justified denying Joseph a right every adult in this country has and that's the right to a jury.

Michael comes to this Court any -- and on his behalf I read briefs by the petitioner and I have trouble with those briefs.

I can't find the word “minor” in those briefs.

I keep hearing about defendants and suspects and what the rules ought to be, and it's all very interesting and --

Chief Justice Warren E. Burger: Well, what difference does it make whether they used the term or not, counsel?

Mr. Albert J. Menaster: Well, the difference is that, beyond not using the term, petitioner never focuses on --

Chief Justice Warren E. Burger: We all know he's a minor.

There's no dispute about that.

Mr. Albert J. Menaster: Well, the problem is that petitioner fails to argue the application of the Miranda rules to juveniles.

They go off on their theories of ambiguity and their theories of totality of circumstances always focusing on the suspect, never addressing the reality that a juvenile is involved in this case.

Now, the importance -- I'm glad the court asked the question, the importance is the Supreme Court of California has recognized that when a juvenile is involved, a 16-year-old as in this case, a 14-year-old, a 10-year-old, is a 10-year-old going to hire an attorney, “Oh, call up Mr. Bailey, I'd like to have him as my attorney now.”

That's not realistic.

That does not take into account the reality of minority.

Justice Potter Stewart: What if he'd ask, “Can I have my teddy bear?”

Mr. Albert J. Menaster: Well, I guess it depends on whether it's a live teddy bear, but I think that the answer --

Justice Potter Stewart: Well, why -- why should it?

He's a juvenile by definition.

Mr. Albert J. Menaster: Okay.

Justice Potter Stewart: Let's say this is a nine-year-old juvenile.

Mr. Albert J. Menaster: The answer is that a request for a teddy bear would be one of the totality of circumstances that -- where the court should take into account in ascertaining whether or not that youngster was really voluntarily waiving his rights or not.

Justice Potter Stewart: Do you think a request in other words is the equivalent of saying, “I refuse to answer relying upon my right under the Fifth and Fourteenth Amendment.”

Mr. Albert J. Menaster: Well, not for the teddy bear request.

That would be one of the totality factors.

As to request for a probation officer, that's quite different.

Justice Potter Stewart: The court -- the California Supreme Court has held that a request by a juvenile to have his probation officer or more accurately in this case, a request of whether he could have his probation officer here was the equivalent of saying, “I refuse to answer your questions based upon my rights under the Fifth and Fourteenth Amendments.”

Mr. Albert J. Menaster: That's correct, and that --

Justice Potter Stewart: Per se?

Mr. Albert J. Menaster: Yes, that is --

Justice Potter Stewart: Not just one of the circumstances --

Mr. Albert J. Menaster: That's right.

Justice Potter Stewart: -- in the totality?

Mr. Albert J. Menaster: And the reason for that decision, the California Supreme Court is very careful to note and distinguish.

They distinguished music teachers, clergymen and if they thought of it they would've distinguished teddy bears, I guarantee you.

Justice Potter Stewart: And dentists, I suppose and doctors and --

Mr. Albert J. Menaster: Yes.

I think that the line the Supreme Court is drawing is a very clear line.

Justice Potter Stewart: Older brothers and sisters?

Mr. Albert J. Menaster: Older brothers and sisters.

Parents, however, would be different because the California Supreme Court in People versus Burton held --

Justice Thurgood Marshall: Who was he to ask for a prosecutor?

Mr. Albert J. Menaster: Well, if he got this prosecutor, he'd be in trouble, but I think that if he'd ask for a prosecutor, he would not be invoking what Miranda talks about and affirm the --

Justice Thurgood Marshall: What's the difference between a prosecutor and a probation officer?

Mr. Albert J. Menaster: A big difference, the world of difference, and I'd like to take issue with the statement at hand --

Justice Thurgood Marshall: They're both paid by the same people.

Mr. Albert J. Menaster: It's not true.

It is not true.

Justice Potter Stewart: Of course, you're paid by the same people too, aren't you?

Mr. Albert J. Menaster: Yes, we all are paid by the same people.

Justice Thurgood Marshall: What?

Where do you get the --

Mr. Albert J. Menaster: I suppose everybody here is paid by the same people.

Justice Thurgood Marshall: Where do you get --

Mr. Albert J. Menaster: That is the people.

Justice Thurgood Marshall: The one point that I'm interested in right now is why is a probation officer singled out as the only person?

Suppose the guy had said, “I'd like to talk to the magistrate” or “I'd like to talk to a judge” or “I'd like to talk to a professor of law.”

Why the probation officer?

Mr. Albert J. Menaster: Well, professor of law would be an attorney.

If he wants an attorney, that's Miranda.

Chief Justice Warren E. Burger: You mean (Voice Overlap) --

Mr. Albert J. Menaster: There is something --

Justice Thurgood Marshall: There are some professors of law that are members of the Bar of this Court.

Mr. Albert J. Menaster: Well, the California Supreme Court answered that question by very carefully delineating what it was about the probation officer that made a request for that person a natural Miranda invocation.

Justice Thurgood Marshall: That was only Judge Mosk's opinion, wasn't it?

Mr. Albert J. Menaster: No, no, I'm talking about the majority opinion at pages 476 and 477.

The court recited --

Justice Thurgood Marshall: Well, give me your idea of it.

Mr. Albert J. Menaster: I'd be glad to and it can happen -- the match up with the California Supreme Court's idea.

The probation officer in California plays a unique role.

Probation officer has a statutory duty on behalf of the minor “to act in the interests of the minor.”

It's clearly a parens patriae attempt on the part of California to take away from parents who failed and give control to a probation officer who becomes a substitute parent in every sense of the parens patriae concept.

And, it's that fact that distinct --

Justice Thurgood Marshall: It takes the place of the parents?

Mr. Albert J. Menaster: Yes, it's that distinctive feature of the probation officer in California in this case that made the California Supreme Court draw that line.

Justice Thurgood Marshall: So that -- this case wouldn't be present in any place than California?

Mr. Albert J. Menaster: Well, I agree with that.

I -- in fact --

Justice Thurgood Marshall: Do you agree with that?

Mr. Albert J. Menaster: -- it's only (Voice Overlap) three years ago in California of the statutes there.

Justice Thurgood Marshall: Look, do you agree with that or not?

Mr. Albert J. Menaster: It cannot be more than precedent in California.

In fact, it's only dicta as to California.

Justice Potter Stewart: Did this --

Mr. Albert J. Menaster: Because the statute as to the role of the probation office has changed since this case.

Justice Potter Stewart: Did your client have -- was he an orphan?

Mr. Albert J. Menaster: I don't believe so.

I don't think it's in the record but I think that --

Justice Potter Stewart: He did have a mother.

Mr. Albert J. Menaster: I think there were parents.

Justice Potter Stewart: Did he have a mother and a father?

Mr. Albert J. Menaster: Yes.

Justice Potter Stewart: Then why was there any occasion of a in loco parentis?

Mr. Albert J. Menaster: Well --

Justice Potter Stewart: If there were true parents?

Mr. Albert J. Menaster: When the court -- the juvenile court takes control over a minor in California and I can't speak for the rest of the country.

The juvenile court makes a specific finding and the court can find those findings in Welfare Institutions Code Sections in California 726 through 731 removing the care, custody, and control of the minor from the parent and placing it in the probation officer.

And the court tells the minor “the probation officer is now going to be in charge of you.”

Justice Potter Stewart: I see.

Mr. Albert J. Menaster: Sometimes, that means -- sometimes that removal from the home.

Justice Potter Stewart: I see.

Mr. Albert J. Menaster: Sometimes it doesn't.

Justice Thurgood Marshall: Well, did --

Mr. Albert J. Menaster: But that probation officer is in charge.

Justice Thurgood Marshall: Didn't it in this case it said -- all such papers in this record?

Mr. Albert J. Menaster: It is clear that the minor was on probation.

Justice Thurgood Marshall: Are there such papers in this record?

Mr. Albert J. Menaster: Your Honor it is clear that the minor was on probation and 726 through 731 of the Code requires that you can't be put on probation unless that finding were made.

So that has to be true in this case.

Justice Thurgood Marshall: It has to?

Mr. Albert J. Menaster: It has to be true.

The findings had to be made for the minor to be placed on probation in this case.

Justice Thurgood Marshall: You say this -- in California he'd be all that but we have great difficulty -- I have great difficulty in assuming that.

Mr. Albert J. Menaster: Well, again it -- the code sections that I've referred to clearly delineate the required findings that a court must make in order to place a minor on probation.

Justice Thurgood Marshall: Well, when was this -- when was this done in his case?

Mr. Albert J. Menaster: Well, I don't think the record is clear as to that.

All we know is that he wasn't --

Justice Thurgood Marshall: Well, (Voice Overlap) what am I suppose to understand?

You don't even know when.

Mr. Albert J. Menaster: Your Honor, it's not in the record.

Justice Thurgood Marshall: You don't know where, when, where or why.

Mr. Albert J. Menaster: Your Honor, it's not in the record.

Justice Thurgood Marshall: Is that right?

Mr. Albert J. Menaster: Yes, it is.

However the minor was on probation.

That is uncontested in this case and he can't be in probation unless one of those findings was made.

He had to be removed from the care, custody and control of his parent and the probation officer had to be a substitute parent or he couldn't be on probation.

That is required in the State of California and reading of the code sections that I've mentioned will clarify that.

I'd like to indicate that the petitioner in this case has managed in his summary of facts to leave out what I think is a critical fact.

It's interesting because it's not left out in the briefs.

It was left out in oral argument and that is this probation officer was not some artificial probation officer that the minor simply inquired of because he couldn't think of anything else to do.

This probation officer had told Michael.

“When you get arrested, you call me up.

You demand that you be allowed to call me.”

And he was asked, oddly by the District Attorney, he was asked why he said that, what reasons were they.

And the answer was, “So I could advice Michael of his rights and make sure he understood his rights.”

The request for the probation officer in this case wasn't an academic request.

He was complying with an order of his probation officer.

Chief Justice Warren E. Burger: Do you suggest that this record does not show that he was advised of his rights by an officer of California?

Mr. Albert J. Menaster: The record does show an advisement by police officers in California of a number of Michael's rights.

I think that it's --

Chief Justice Warren E. Burger: Well, aren't they the -- you say a number, do you exclude from that the critical advice that we're here talking about?

Mr. Albert J. Menaster: There's no question that a complete Miranda advisement was given in this case, I'm not arguing that.

But of course, an advisement from the police doesn't mean an understanding on the part of the recipient of that advice.

Chief Justice Warren E. Burger: So, you're going to apply that generally or just to this juvenile?

Mr. Albert J. Menaster: Well, if there's no question that this Court has said over and over again that it must be a knowing, intelligent, and voluntary waiver of the suspect, not of the police.

The police understand the rights perfectly well.

It's the waiver that has to be voluntary and knowing and intelligent.

Chief Justice Warren E. Burger: (Voice Overlap) much use on your theory, there isn't much use in giving the warning.

It's a -- it's just redirect.

Mr. Albert J. Menaster: No, it's not redirect.

It would -- the facts of this case clearly showed that Michael was given an advisement of his rights and in response to that he did not say, “Yes, I'd like to give up my rights.”

He said -- he asked some questions about it.

He showed his fear.

He showed that he wasn't sure what he was getting into.

I think the record is clear on that point and therefore, in this case what Michael was doing was asking for help to get a further understanding of what he was getting into so he wouldn't get tricked which is exactly what he said to the police.

And a page later they say, “Well, we don't always play fair, do we?”

Certainly, not something that's not going to make Michael feel confident.

Justice Thurgood Marshall: Well, what do you do with, “Okay, will you talk to us without an attorney?”

Answer, “Yes.”

Mr. Albert J. Menaster: Well, eventually -- well, Michael says a lot of things in this record.

At one point, he says, “Yes, I want to talk to you.”

He also says, “I want my probation officer.”

He also says, “I don't know if -- how do I know you won't bring in a police officer and tell me he's an attorney?”

He eventually -- he first -- initially, when he was first asked to wait --

Justice Thurgood Marshall: And, at the end, he says, “Yes.”

Mr. Albert J. Menaster: Well, I don't think that's the end.

After he says, “Yes,” there are three -- situations -- there are three occasions after that before he makes an admission where he says, “no” in response to the question, “Do you want to talk to us?”

He finally only talks after being threatened and promised and crying and breaking down in this case.

I suggest that there are no fewer than eight indications of Michael's intention in this record.

One of which is an equivocal waiver, but the other seven aren't and in fact, several of those are unequivocal assertions in the Fifth Amendment.

Justice Thurgood Marshall: Well, do you take the position that the state could've done one of two things till they give him a probation officer or a lawyer?

Mr. Albert J. Menaster: Well, the police --

Justice Thurgood Marshall: Or did he had to get a probation officer or nothing?

Mr. Albert J. Menaster: Well, I think that they could've given him a lawyer.

However, I think --

Justice Thurgood Marshall: Would that been alright?

Mr. Albert J. Menaster: -- we'd -- might be mistaken.

He wouldn't have trusted that lawyer very much.

I don't think that would've complied with the spirit of Miranda.

I think they had to bring his probation officer.

Justice Thurgood Marshall: So, the lawyer wouldn't have been satisfactory?

Mr. Albert J. Menaster: Well, if the lawyer talked with the minor, and the minor then is --

Justice Thurgood Marshall: Well, what are you going to do with Miranda now?

Miranda said lawyer.

Mr. Albert J. Menaster: Yes.

Justice Thurgood Marshall: Now, you're going to substitute probation officer for the lawyer and rewrite Miranda.

Mr. Albert J. Menaster: No, I don't want to rewrite Miranda.

Justice Thurgood Marshall: Please don't.

Mr. Albert J. Menaster: I vote not to rewrite Miranda.

However, Miranda has never been applied to a juvenile, and that's the point I made at the outset.

If we're going to say that only if a juvenile uses certain words, “attorney,” a word that adults would use, does the Fifth Amendment become invoked?

Then we are ignoring the reality that Michael wasn't an adult.

He was a juvenile.

Juveniles aren't expected, I don't expect juveniles, to ask for attorneys and let alone understand their rights sufficiently to be able to assert them.

And therefore, this Court has to decide one of two things.

Either, we ignore the fact that Michael is a juvenile and require him to comply with adult standards.

In which case I guess you got to give us a jury because that's only fair.

Either Michael is an adult or he's not.

Justice Potter Stewart: Also, the state would be free to put him in the gas chamber and kill him too on conviction --

Mr. Albert J. Menaster: That's right.

Justice Potter Stewart: -- if he was an adult.

Mr. Albert J. Menaster: That's right.

Fair is fair.

Either we get the rights or we don't.

Either Miranda applies differently to juveniles or it doesn't.

Justice William H. Rehnquist: Doesn't Miranda say that the police must advice him of his right to an attorney, not that he -- they can question him only if he raises it on his own motion, so to speak?

Mr. Albert J. Menaster: Yes.

Justice William H. Rehnquist: So, it isn't a question of the juvenile having to think up a right to an attorney.

The police have to tell him that.

Mr. Albert J. Menaster: Yes, but the reality -- it's not a question of the minor understanding that he has a right to an attorney.

It -- some 10-year-old is going to get on the phone and call up an attorney and say, “I hereby hire you.”

That's just not realistic.

Justice William H. Rehnquist: Well, Michael --

Mr. Albert J. Menaster: Who's going to get the attorney?

Justice William H. Rehnquist: Michael wasn't a 10-year-old, was he?

Mr. Albert J. Menaster: He was a 16-year-old who's on probation and afraid the police were going to trick him and they sure did, didn't they?

Justice William H. Rehnquist: I don't think they did.

Mr. Albert J. Menaster: Well, they told him he was going to be better off.

He's sitting in custody in California right now and he doesn't think he got the best into that deal.

First, who fired the gun is still on the streets, but that's another point.

The point is that the fact of the matter of advising the minor as an attorney doesn't satisfy the requirement.

The youngster doesn't know how to get an attorney.

We don't expect 16-year-olds, 10-year-olds to know attorneys off the top of their heads, let alone even to know about public defender systems.

Justice William H. Rehnquist: Well, how does a 22-year-old necessarily know how to get an attorney?

Mr. Albert J. Menaster: Well, we draw a line somewhere, I admit.

And, I think that the rules of the system in California drawing a line at 18 between juveniles and adult is a recognition that with majority comes maturity and certain requirements are -- we assume are going to be applicable to a person who's an adult.

To a person who's a juvenile, it is unrealistic.

As the Supreme Court of California said in Burton, it is unrealistic to expect that a youngster is going to ask for an attorney and be able to get one.

He's going to get his parents to get him an attorney or as in this case a probation officer to with was suggested earlier, ensure that the attorney that's brought in is a bona fide attorney and not a sham.

I think that's quite clear from this record.

I would like to stress one further point and that is, we have heard over and over again about how this probation officer was a peace officer.

The California Supreme Court expressly relied on the California statute, Welfare and Institutions Code Section 280, which says that the minor -- that the probation officer is required to act in the interests of the minor.

That's statutory duty, that is mandated by a California Code Section, was construed by the court in California as the reason why a request for a probation officer in this case invoked Miranda.

And I want to disagree with something else the petitioner has said.

Petitioner said, “any request by a minor for any probation officer invokes Miranda per se, according to the California Supreme Court.

That is not true.”

It is clear from the California Supreme Court's language.

They were saying, “Michael's request in California for a probation officer in this case, remember the background, the probation officer advising the minor to call him so he could advice him of his rights and help him understand the rights, obviously help him ensure the trustworthiness to make sure that an attorney was reliable and not a sham artist, that was what the California Supreme Court relied on.

Chief Justice Warren E. Burger: What would you say counsel if the probation officer had come, had a private conversation with the young man for a half hour or an hour then came in and said, “I've advised my client or my -- whatever they call him, patient or my charge to tell you the whole story.

I think in the long run that's going to be the best thing for him.”

And then he told the whole story.

What would you say about that?

Mr. Albert J. Menaster: Well, let me point out that this Court doesn't have to reach that issue but I would like to answer it.

Chief Justice Warren E. Burger: Well, no.

We ask a lot of hypothetical questions.

Mr. Albert J. Menaster: I'd be glad to answer it.

I think that a statement under those circumstances would not be admissible because the minor asking for the probation officer, asking for that person prescribed by the Court to act on his behalf.

He thinks he's getting somebody acting on his behalf.

If the probation officer comes in and plays the role of prosecutor, becomes an agent of the prosecution just like the sham attorney.

Chief Justice Warren E. Burger: Do you think a lawyer who advises his client to tell the truth and throw himself on the mercy of the court is acting like a prosecutor in every case?

Mr. Albert J. Menaster: No.

No and I think the difference is that the attorney has a duty on behalf of the youngster.

If a probation officer fulfills that duty on behalf of the youngster and the result is the minor should make a statement, that's one thing.

But if he acts as a prosecutor and enhances the ability of the prosecution to get a statement from the minor when the minor doesn't really want to make a statement then he's contradicting that role.

Then he's been duped.

Then he has the equivalent of a sham attorney that Michael was so worried about.

Justice William H. Rehnquist: Mr. Menaster, a moment ago I thought you said that the California's Supreme Court's decision turned on the facts of this case.

Perhaps I misunderstood you.

I want to ask you about the language at page 25 of the petition for writ of certiorari where they say, “Here, however, we face conduct which regardless of considerations of capacity, coercion, or voluntariness, per se, invokes he privilege against self-incrimination.

Thus, our question turns not on whether the defendant had the ability and capacity or willingness to give a knowledgeable waiver and henceforth he acted voluntarily but whether when he called for his probation officer he exercised his Fifth Amendment privilege.”

That sounds to me like a per se rule not under these particular facts of this particular --

Mr. Albert J. Menaster: Oh, I don't agree.

The first word in that sentence is the crucial word and it's the word “here.”

The California Supreme Court discussed the dynamic of this relationship, the extraordinary unique facts involving this case in fashioned rule that I submit is a very narrow rule.

Now, I would be glad to have this Court of the California Supreme Court fashion it really broadly, but all that the California Supreme Court did in its writ -- read the opinion over and over again.

They say, “Michael's request in this case was for his probation officer invoked his right.”

They repeatedly used that phrase.

Chief Justice Warren E. Burger: You have emphasized that under this California statute the probation officer must act in loco parentis in every situation.

Suppose you had a 16-year-old was -- not on probation, no prior criminal record, in the same posture and he said, “I want to talk to my father first and my mother.”

And the father and mother are brought in.

They spend an hour talking alone and I'm sure you can find many cases on record precisely to this effect, and then they come out and the father says, “We have decided to tell Joseph to tell everything.

We think that's in his best interest.”

And then he tells everything.

Mr. Albert J. Menaster: Well, the critical --

Chief Justice Warren E. Burger: Is suppressible?

Mr. Albert J. Menaster: The critical question is exactly what role the parents played.

There is a case in California involving --

Chief Justice Warren E. Burger: Well, they played the role that I've just described.

Mr. Albert J. Menaster: There's a case in California involving an attorney who talks to a suspect because the police asked him to and the police say, “Listen, if you get this suspect over here to make a statement, we'll let your client out.”

Attorney says, "Oh, goody," goes in and gets the person to make a state --

Chief Justice Warren E. Burger: That's another case.

I --

Mr. Albert J. Menaster: No, but the point is --

Chief Justice Warren E. Burger: Would you care to address my question?

Mr. Albert J. Menaster: The point is that the role the attorney -- the parents play is the critical question.

If the parents advise a minor of his rights, assist him in understanding his rights, in other words, assist what Miranda is trying to get at that understanding a waiver of rights, there's nothing wrong with it.

The parents act on behalf of the police to get a statement out of the minor, analogous to the attorney example I just gave then it's not a valid waiver because he's been duped.

That's the critical difference.

Justice Thurgood Marshall: Mr. Menaster, suppose the -- a very simple case, hypothetical and I hope, suppose the probation officer dropped dead.

He couldn't question him, right?

Mr. Albert J. Menaster: Right.

Justice Thurgood Marshall: He couldn't question him.

Mr. Albert J. Menaster: Right.

Justice Thurgood Marshall: Where in the world can you get support for that?

Mr. Albert J. Menaster: Well, it's just a hypothetical.

It seems to me that the logic of what the re -- the significance of the minor's request is what we're focusing on.

And if the minor shows that he doesn't trust the police.

He's not sure he's going to get the advice and the cooperation that he needs to really make a waiver that whatever else happens doesn't matter.

That minor has asserted his rights under the Fifth Amendment.

Justice Thurgood Marshall: So, you can't -- nothing he says can be used against him.

Mr. Albert J. Menaster: That's right.

Justice Thurgood Marshall: Forever?

Mr. Albert J. Menaster: Well, perhaps in the next crime.

I don't know.

The --

Justice Thurgood Marshall: Oh, no, the probation officer is still dead.

Mr. Albert J. Menaster: Well, he's going to get another one eventually, I suppose.

Justice Thurgood Marshall: Yes, but I mean, he could go out there and commit three more crimes.

He could be convicted of anything in your book.

Mr. Albert J. Menaster: That would -- that same rule would be true.

Justice Thurgood Marshall: Until the probation officer was reincarnated.

Mr. Albert J. Menaster: The same rule would be true of course, if the defendant said, “I want Mr. Bailey as my attorney.”

In fact Mr. Bailey was his attorney and Mr. Bailey dropped dead.

If he's -- he keeps asking for his attorney, the police can't say, “Well, he's dead, therefore, we get to question you.”

I think that's a clear violation of Miranda and that's the same question.

Justice Thurgood Marshall: Are you saying the probation officer (Inaudible) the moment he's dead.

Mr. Albert J. Menaster: I don't.

Justice Thurgood Marshall: They are two different animals.

Mr. Albert J. Menaster: California Supreme Court has held --

Justice Thurgood Marshall: The California's -- well, is the probation officer member of the bar?

Mr. Albert J. Menaster: No.

Well, some are, but I presume that this one wasn't.

Justice Thurgood Marshall: Well, there's a difference between members of the bar and lawyers.

Mr. Albert J. Menaster: Right.

Justice Thurgood Marshall: Do you recognize that difference?

Mr. Albert J. Menaster: Yes.

Justice Thurgood Marshall: Alright.

Is he a lawyer?

Mr. Albert J. Menaster: I assume not.

Justice Thurgood Marshall: Right.

Mr. Albert J. Menaster: But of course that's not the point.

Justice Thurgood Marshall: But he has --

Mr. Albert J. Menaster: Neither is the parent and the California Supreme Court has said that if a you -- if a youngster --

Justice Thurgood Marshall: I'm not interested in any question from you.

When you answer my question, please answer it and don't ask me another one.

Mr. Albert J. Menaster: I wasn't asking a question.

Justice Thurgood Marshall: Because I don't get paid to answer your question.

Mr. Albert J. Menaster: Well, I hope I get paid to answer them.

And my answer is that the same would be true if a youngster asks for an -- for his parent instead for an attorney.

If a youngster shows in a way that a youngster would that that youngster wants help in understanding his rights, then that's an invocation of the Fifth Amendment.

It's not fair to juveniles.

It misses the point of McKeiver to say that the youngster can only assert his rights by using an adult formulation.

The reality is that youngsters are young persons, and young persons ask for things in a different way.

It would be like making up a special word, a long word that had to be said and youngsters couldn't say the word.

Youngster could -- knows that he has a right to an attorney, but he also knows that he can't hire an attorney.

That's what he has to have a parent or probation officer for.

He knows that if they bring an attorney, he's never heard of him, he doesn't know whether he's going to be tricked or not.

In fact the police are threatening this minor.

I think it's quite clear that Michael was terrified of the police.

He wants somebody to give him a guarantee that that attorney is on the up and up, and that's why he's asking for his probation officer in this particular case.

I'd like to turn to another point, which I think has not been stressed nearly sufficiently in this case and that is that beyond the technical Miranda issue in this case there is a further issue.

An issue not referred to at all in petitioner's opening argument and that is that independent of the Miranda grounds there is a second issue here concerning the voluntariness of the confession apart from the request for the probation officer.

Michael repeatedly is asked, in fact he's asked within half a page of this supposed waiver, “Do you want to tell us about the murder?”

Answer, “No.”

Petitioner says that's ambiguous, I've been figuring -- trying to figure out how that could possibly be ambiguous and I still can't figure it out.

Perhaps petitioner will tell us.

Three or four pages later, he's asked, “Do you want to tell us what happened?”

He says, “No.”

Three to four pages after that, they said, “Do you want to tell us what happened?”

He says, “Can't.”

Finally, after 10 pages of exchange in which Michael makes no admission, no confession of any kind, it wouldn't be usable worth a wit in any proceeding before he makes any kind of statement, the police finally say, “Okay, that's it.

Somebody is going to come out of this pretty good and the one who tells us what happen is the one who's not going to get hassled.”

Michael then -- there's been a pause in the recording and, during that pause described by both trial counsel and the trial court, that's characterized as crying.

So, Michael's threatened.

He cries.

He breaks down and then he immediately makes the statement.

That's the form -- forms the basis for this confession.

Now, I find it hard to believe that that's not an involuntary statement forgetting Miranda.

Just on the standard voluntariness totality of circumstances test.

It seems to me, the petitioner has not dealt with that problem and that petitioner needs to.

Let me go back then to the critical issue that I think applies to this case.

This Court has to decide whether juveniles are going to be treated like juveniles when it comes to jury trials perhaps bail.

But, when it comes to Miranda, we're going to make juveniles be adults and use adult words in order to invoke a right when they clearly are terrified, they're being threatened, they're asking for help.

I find it amazing, amazing that petitioner characterizes this as simply an informational inquiry.

I suppose Michael -- the theories that Michael would like to come before this Court and go to the police station and say, “Well, I have an academic question.

I'm writing kind of a thesis on constitutional rights.

Could you just tell me what you think the Supreme Court will decide and whether I have the right to a probation officer or not?”

I think that that's an incredible reading of this record, unbelievable reading of this record.

And I think that a fair reading of this record is that Michael wanted help because he wanted to make sure he wasn't going to be tricked.

In fact, he got tricked I contend.

The point is that Michael ought to be treated as a juvenile because he was a juvenile at the time of this case.

He was treated as a juvenile and it is artificial and unrealistic to expect that only a request in adult terms is sufficient to satisfy what Miranda was talking about when it was talking about protections.

Incidentally, I would like to disagree with petitioner on one further point and that is I think Miranda applies to juveniles.

We have yet a further extension by petitioner in this case.

Petitioner wants this Court to treat juveniles like juveniles when it comes to jury trials but don't treat them like adults even if they ask for attorneys, a request which would invoke Miranda in any adult case.

It's an incredible position, a position not mentioned in the briefs incidentally and one which I think this Court should summarily reject.

This Court has to decide in this case how to apply Miranda to juveniles.

This is not an extension of Miranda.

It is an application of Miranda.

This Court will choose either to apply Miranda in such a way as to make it artificial and require juveniles to be adults when they're not required anywhere else to be adults where it will recognize the realities of a juvenile situation.

And it will conclude that where a juvenile shows that that juvenile wants help, that it is not fair, it is a violation of the Fifth Amendment for the police to continue to interrogate him.

I'd like to close with just two thoughts.

First of all, the incredible argument by petitioner that there was an equivocal waiver in this case and true, once Michael says, “yes,” sandwiched in between all of these no's and what about being tricked and that sort of thing reminds me of a wizard of a cartoon where the king says to the lawyer, “Your client confessed,” and the lawyer says, “How do I know it was voluntary?”

And the king says, “Because look, there's your client's signature right there underneath the bloodstains.”

It seems to me that in this situation Michael made an equivocal waiver but he did everything else he could possible think of to say he didn't want to waive.

He showed fear.

He showed anxiety.

He asserted his rights under the old involuntariness test, I submit, that Michael clearly asserted his rights sufficiently to invoke the Fifth Amendment, apart from any Miranda consideration.

I think that the bottom line of this case is that petitioner in this case is arguing that because of the technical nature of Miranda we have to be very cautious in analyzing what kinds of things we're going to technically invoke.

It reminds me of a quotation from Justice Wisdom who said that if police efficiency were the only important thing then the rack would be alright.

There are things more important than police efficiency, and they happen to be listed in the Bill of Rights.

I charge this Court with deciding whether juveniles are juveniles.

Whether Miranda applies to juveniles and recognizes the reality of juveniles or whether this Court will hide its head in the sand, pretend juveniles are adults, deny them rights when that argument is made, but deny them rights when they assert what are juvenile rights in the same context.

And I would ask the Court to carefully consider the decision in this case for the impact it will have on probation systems on juvenile systems throughout this nation.

Rebuttal of Mark Alan Hart

Chief Justice Warren E. Burger: Do you have anything further, counsel?

Mr. Mark Alan Hart: The problem with the magic words approach adopted by the California Supreme Court that a request for a probation officer is per se a Fifth Amendment invocation is that it does not necessarily bear any relationship to the Fifth Amendment.

We submit that this approach of attempting to determine or predict the subjective intent of any minor who asks for his probation officer takes away the traditional role of the trier of fact to determine if in a given instance a minor is making a voluntary statement.

The critical factor in Miranda was whether a suspect wanted to speak.

This Court found that a request for an attorney is reasonably an indication that a suspect doesn't want to speak.

There is no basis for the same reasonable per -- the same conclusion and the same per se rule with respect to probation officers.

This Court noted that in, In re Gault when the State of Arizona attempted to argue that they didn't have to provide the minor with counsel because the probation officer could provide him all of the services of the attorney and this Court rejected that.

Noted that probation officers in the Arizona scheme were also peace officers and that they initiate proceedings involving the minor and they could not provide the same assistance.

If a probation officer cannot fulfill the traditional goals of legal counsel then a rule which said any minor per se invokes his Fifth Amendment right by asking for his probation officer bears no relation to the goals of the Miranda Court and bears no relation to the Fifth Amendment.

I'd like to talk just briefly about the other contention of respondent that indications in the record, apart from the request of the probation officer, indicate that the minor was invoking his rights.

Respondent isolates all of those statements from the context of the record, and I think we've discussed it pretty well in our brief.

For example, the first one that respondent mentioned where he was asked about the murder and he says, “No.”

What he said was, “No, I don't know anything about it.”

Now, it seems to me that in the course of any interrogation or any conversation there are going to be times when there's a hesitation.

There are going to be times when a suspect may deny participation in an offense but each one of those is not a separate invocation of the Fifth Amendment.

It's something for the trier of fact to look at.

The trier of fact in this case and the California Court of Appeals and the California Supreme Court, all found that none of those were indications of the Fifth Amendment invocation.

The sole issue in this case is whether the request for the probation officer was such an invocation.

We submit that it was not.

We submit that the standard with respect to juveniles should be voluntariness based on the totality of the circumstances, a standard employed by the trial court in the instant case.

And we would submit the matter if there are no more questions from the bench.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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