Cases by Issue - Impartial Decision Maker

Liteky v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:51 +0000

Case:

Liteky v. United States

Media File:

92-6921_19931103-argument.mp3

Related Transcript:

1993_92_6921_argument.xml

Transcript:

Argument of Peter J. Thompson

Chief Justice Rehnquist: We'll hear argument next in Number 92-6921, John Patrick Liteky v. United States.

Mr. Thompson.

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

This case comes before the Court on a writ of certiorari from the Eleventh Circuit Court of Appeals.

There, the Eleventh Circuit held that recusal motions of Federal judges under 28 United States Code section 455(a) have to be considered with the extrajudicial source requirement and therefore the arguments concerning a judge's conduct in the courtroom were improper and they did not need to be considered in terms of such a motion, and therefore affirmed the conviction of my three clients.

In 1983, by way of background as to these convictions and to this motion to recuse, Father Bourgeois, Father Rosebaugh, and Ms. Ventimiglia were arrested and convicted in Georgia of various petty misdemeanors before the Honorable J. Robert Elliott in the Middle District of Georgia.

Unknown Speaker: If they were petty misdemeanors, how did they get into Federal court?

Was it a Federal enclave type of thing?

Mr. Thompson: It was.

It was a Federal reservation on the Fort Benning base.

So because they were petty misdemeanors, Chief Justice, it was a bench trial.

That bench trial obviously generated a transcript.

There were sentences.

There was no appeal from that case.

In 1991, Father Bourgeois, Charles Liteky and Pat Liteky were charged again with regard to activities on the Fort Benning military base, this time with a felony, and as a result of that indictment were brought before Judge Elliott, the same judge who had presided at the 1983 case, and filed a motion to recuse Judge Elliott based largely, in fact almost exclusively, on his conduct in the 1983 case and attached as part of that motion not only argument but a transcript of the 1983 proceeding.

Judge Elliott denied the motion, rejected the motion, citing the leading Fifth Circuit and Eleventh Circuit cases which have an extrajudicial source requirement for 455 Federal recusal motions and indicated because the events that were alleged requiring the recusal arose in the courtroom, that is, part of the judicial proceedings, that judicial conduct need not be considered under 455(a).

The Eleventh Circuit, as I held... as I indicated affirmed that.

After the recusal motion was denied, there was another trial in 1991, this time with a jury.

It was a day-and-a-half trial, and that resulted in convictions and sentences of the defendant.

Unknown Speaker: Mr. Thompson, was there an appeal in the... in the 1983 case, was there any appeal?

Mr. Thompson: There was not in the 1983 case, Your Honor.

Unknown Speaker: Isn't there some concern here that the recusal motion is being used to substitute for, to do service for an appeal objecting to the fairness of the trial in 1983?

Mr. Thompson: Justice Ginsburg, there is not a concern that I've seen raised by the Government in this case concerning that.

There was--

Unknown Speaker: Well, in allowing a litigant to rely on conduct in a prior trial when that judgment wasn't appealed, allow that many years later to come up in the guise of a recusal motion, is... perhaps that's the reason why courts have said they're not going to entertain what might be regarded as a substitute for an appeal in this form.

Mr. Thompson: --Your Honor, I don't think that would be a substitute for the appeal because it would be governed by substantially different standards.

That is, if there had been a direct appeal to the Eleventh Circuit in 1983 on fair trail grounds, it would be judged by abuse of discretion, whereas that appeal conceivably and academically could be lost, and it could still arise under 455(a) to a possibility or a reasonable doubt as to partiality under that statute and require recusal, even though there had been an affirmance in 1983, so I don't think those are exact comparable issues.

The face of--

Unknown Speaker: Now, the challenge here was brought under 455(a), is that correct, not under any of the provisions of 455(b)?

Mr. Thompson: --That's correct, Your Honor.

That's... the petition for this writ of certiorari is limited to 455(a).

Unknown Speaker: And would you think that the facts here as you allege them to be would also be sufficient to amount to something that could be challenged under 455(b)(1), which is the personal bias or prejudice concerning a party?

Mr. Thompson: I do not, Your Honor, because personal bias or prejudice since United States v. Grinnell in 1966 means extrajudicial conduct, and I think that--

Unknown Speaker: And you accept that--

Mr. Thompson: --I accept that.

Unknown Speaker: --requirement under (b)(1)?

Mr. Thompson: I accept that.

Unknown Speaker: So you're trying to fit this under the whether the impartiality might reasonably be questioned standard.

Mr. Thompson: Exactly.

Unknown Speaker: Thank you.

Mr. Thompson: And I think the face of the statute supports exactly that distinction, and that is really, I think, what clearly is to be decided here.

The statute reads,

"Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. "

It doesn't say personal, as 455(b) says.

It doesn't say personal, as to 144 says.

Personal has been held to be the extrajudicial source requirement.

This statute, plainly on its face and for many good policy reasons that are enunciated by this Court in Liljeberg and by Congress to apply to any conduct of the judge.

In other words, the source of the bias, whether it be through judicial conduct or through extrajudicial conduct, is totally irrelevant.

What is important for the court system and the integrity of the judiciary that if there is bias, it need be considered.

Unknown Speaker: Well, what... now, let's find out what kind of bias we're talking about.

Supposing that you're in a many-judge trial court and, as is common, some of those judges have a reputation for being proplaintiff in personal injury cases, and some have a reputation for being prodefendant.

Is that the sort of bias that could be attacked by this section?

Mr. Thompson: Mr. Chief Justice, it is not, in my view.

In other words, those sort of judicial proclivities or philosophies are not bias.

What bias is is not the manner of ruling in a particular case or the judgments in a case.

It is the conduct that a judge engages in which indicates a kind of inclination or favoritism or hostility, or some of those kinds of things, against or for a party which would render a reasonable person to question impartiality.

Unknown Speaker: And not a disfavor or dislike of a particular kind of lawsuit.

Mr. Thompson: Not at all.

In fact--

Unknown Speaker: There is some overlap between the fairness of the trial, because the things that you... if you have a biased judge, certainly you don't have a fair trial, and so you are asking this judge to go over making this decision, the record of an old trial, in somewhat of the manner that a court of appeals would review it to determine if the trial had been fair.

It may... I agree with you that they're not identical, but there is a considerable overlap.

What... you're asking this trial judge to kind of sit in judgment on his own performance, some similarity to what a court of appeals would have done if you had appealed the original conviction and said I didn't get a fair trial.

Mr. Thompson: --Justice Ginsburg, I think there is substantial similarity.

The judge would be looking at the same sort of facts.

The judge would have the transcript in front of him or her.

The differences would be that the judge would not only be looking at the transcript with a view toward whether or not they are biased, or lack impartiality.

That is, they couldn't sit in the next case.

The judge under this standard, and this is what the Congress has said should be done, should look at it from the observation of a reasonable person.

Not from their own standard, viewpoint, as a reasonable person, whether that reasonable person would then harbor a doubt as to their impartiality, and so it makes sense in a way, although difficult for a judge to do it him or herself, because by looking at it, the judge may think that the actions were justifiable but may reflect and may have their recollections so refreshed that they would think perhaps if a reasonable person was sitting it might look as if I shouldn't then sit in this next case.

Unknown Speaker: It would have to be the appearance, because a judge takes an oath to administer justice without respect to persons.

If a judge couldn't do that, the judge would be duty-bound to recuse, so what you're suggesting is, although the judge knows she isn't biased, that he's supposed to read an old transcript to determine whether somebody, some reasonable viewer might think she was.

Mr. Thompson: Exactly, and that's exactly why 455(a) was passed, because at the time it was passed, it was passed to conform with the Code of Judicial Conduct which had just been passed by the American Bar Association, which incorporated for the first time in these statutes an appearance of impropriety standard rather than actual bias.

Unknown Speaker: Is there... let me ask you another question about the kind of bias we're talking about.

Is it limited to the situation where the claim is made that a judge would disfavor the litigant in making the affidavit in a way that he would not disfavor another litigant who had exactly the same sort of legal claim?

Mr. Thompson: Mr. Chief Justice, I don't know if... under 455(a) the affidavit is not required.

That's required under 144.

I think whether or not the person actually makes the recusal motion would go beyond where we are asserting the Court should really draw the line.

In other words, the process itself of filing the motion to recuse for a practicing lawyer certainly would be something not done lightly and be done with great consideration, but what I am saying is that proceedings that occurred before then in court which were judicial in nature should be considered by the judge in passing on the motion.

Unknown Speaker: Well, what I'm... I think what I'm trying to get at is something a little different.

Supposing that you could show that Judge Elliott treated your clients in your view hostilely, and that a reasonable person would think it was, but that it was also... it could also be shown that he treated virtually all people who were arrested for protesting at Fort Benning, if there were a number of them, the same way.

Now, would that be sufficient?

Mr. Thompson: I'm not sure if that would be sufficient.

It would certainly be probative, and if a pattern of conduct could be established that in every case where someone who was in the same position of the defendant in those situations, it would be probative as to bias, but--

Unknown Speaker: Well then, where do you draw the line between that and someone who is not at all friendly to plaintiffs' personal injury suits but treats all plaintiffs, personal injury plaintiffs, with equal "hostility"?

Mr. Thompson: --Where you draw the lines, Your Honor, I think is very difficult.

Unknown Speaker: Certainly the way you're going at it I think it is.

Mr. Thompson: I think... you know, Congress, by passing this statute, a broad statute like this, basically indicated that it may be very difficult to make these determinations.

I don't--

Unknown Speaker: Whether it's difficult in a particular case for a judge to make it, I certainly agree with you, but don't we have to have some uniform definition of bias before we can get at the reasonableness and so forth, which may be very difficult?

Mr. Thompson: --I was reviewing on Sunday afternoon some of the cases and articles, and I wrote out, although I wasn't asked to and it wasn't part of the tasks for the briefs, because I thought this might come up, a definition of bias as I think it would fit into the standards that were applicable in 455(a), and what I came up with was this: circumstances that would lead a reasonable person to question whether the judge's inclination or state of mind toward a party belies favor or aversion of a degree or kind that might affect the judge's impartiality in the case.

I think a more exacting definition of bias or of the standard, or to anticipate all the different ways in which it could come up, such as the Court's hypothetical about protestors at Fort Benning, would be almost impossible, and it needs to, of course, be handled on a case-by-case basis.

Unknown Speaker: The problem... your response to the Chief Justice disclosed this.

The problem... what you're proposing is, it doesn't just open up every prior trial that a particular defendant has had before this judge.

It opens up any prior trial that involved the same kind of issues.

I mean, defense counsel could bring in other trials involving protestors at Fort Benning, or other trials involving personal injury plaintiffs, or whatever.

It really gives enormous scope to disqualification motions, and in criminal cases, especially where there's not much to lose, I worry about the amount of time that judges are going to have to be spending in considering these motions.

It's not just that this particular defendant was tried earlier, it's that this judge has shown that he doesn't like child molesters, or he doesn't like whatever.

Isn't there any way to avoid subjecting the judiciary to that enormous burden?

Justice Scalia, I don't suggest that there be minitrials in every case.

I don't suggest that the hypothetical posed by the Chief Justice be grounds under 455(a).

One response I could make is that the Government in this case said virtually in every case what this is going to cause, open the Pandora's Box and there will be 455(a) motions ad nauseam, and there will be writs of mandamus, and in the one circuit that has clearly rejected the extrajudicial source requirement, the First Circuit, that was done in early 1990.

We cited in our reply brief a Lexis search and there were... if you looked at mandamuses and 455(a) cases for the last 2-1/2 years in the First Circuit, there have been zero, so I don't know if that's a partial answer to the question, but it doesn't appear that the deluge or the problem is one that's going to occur.

The other answer to the question is, the court's very--

--If you're representing a defendant who has been before a stern judge before, a judge that you think you might have a case for saying there was an appearance of bias, wouldn't you be bound, as a defense attorney, to make that recusal motion?

Mr. Thompson: I don't think so, Your Honor.

I've been a criminal defense lawyer for 25 years, and I've never brought a recusal motion before, and I've been before many stern judges.

A filing of a recusal motion in Federal court would be, in most instances, I think... because of some of the dynamics that the Chief Justice has indicated would not be a good idea, because for the very interests of the client, particularly if there weren't very good grounds, because then your client is going to be before that judge, having had your recusal motion denied, for sentencing at a later time.

You'd lose the case.

So I think there are some definite prophylactic things that are built into the standard.

The other answer to Justice Scalia's question is, really, in the system right now, we have the same thing happening, only it's not under 455(a) where it should be.

We have it done under inherent authority of the Federal courts.

In other words, every court of appeal removes judges in cases under their inherent authority for their conduct in the courtroom, whether or not they have adopted extrajudicial source requirement or not.

Unknown Speaker: Why shouldn't it be... haven't you made a point that doesn't work in your favor?

Why shouldn't the authority be at that level, rather than asking trial judges to sit in judgment on themselves and review old transcripts, the kind of authority that you're talking about generally would occur on an appeal, where there's a remand with instructions to have the case retried before another judge?

So I suppose contemporaneous, not 10 years later, and it's by a reviewing authority rather than the judge in the first instance herself.

Mr. Thompson: For two reasons, Your Honor.

Number 1, in many courts of appeal, what they are using is a much stricter standard than this statute requires.

That is a pervasive bias standard, and for the courts to maintain their appearance of impartiality, this more liberal standard should be applied, and number 2, because this is exactly the scheme that Congress set up.

It set it up to do it on this standard, and it set it up to do it under the appearance of impropriety and it set it up so the sitting judge would do it in the first instance.

If there aren't any other questions at this time, I'd like to reserve.

Unknown Speaker: I have one question.

There's some discussion in the briefs about the actual alleged misconduct of the judge in this case.

What, in your view, is the most serious transgression that the trial judge made here indicating a lack of impartiality?

Mr. Thompson: You mean in the 1983 or the 1991 trial?

Unknown Speaker: Well, you take your pick.

The reason I'm asking the question is, I think perhaps if we reached the merits we would not be as offended by the trial judge's conduct as you suggest in you briefs, and I just want to be sure I've focused on what you think the most egregious misconduct of the judge was.

Mr. Thompson: The only misconduct that is specifically alleged on this petition is the failure to look at the whole transcript, so we're clear on that.

I'm not accusing a judge of a particular factual matter, but the factual matters as are set out in 1983, I have summarized ten different events which I think, looked at in the total context of that trial, would raise an appearance of bias.

Unknown Speaker: And my question is, which of the ten do you think is the worst?

Mr. Thompson: In... one of the ten in 1983, and I would say when Judge Elliott... Father Rosebaugh got up to give a closing argument, and Judge Elliott, who was the finder of fact in that case because it was a bench trial, so severely criticized Father Rosebaugh for giving a statement when he hadn't testified at trial that Father Rosebaugh was obviously intimidated and stopped and abandoned his argument, and then--

Unknown Speaker: We might have done the same thing here, if you had given a similar statement.

You know better than to do that.

It seems to me that that was necessary in order to focus the defendant's attention on what was going to be determinative of guilt or innocence.

Mr. Thompson: --It's--

Unknown Speaker: It may be there's a polite and an impolite way to do this, I suppose.

Mr. Thompson: --And I knew that as soon as I gave one out of the ten in '83, or one out of the ten in '91, I could be met with that rejoinder.

That is, it may be perfectly appropriate in any of those given situations.

That's why I think if you look at the totality of the conduct and the post-'91 trial conduct, it's apparent at this point that there is a reasonable ground of bias.

Unknown Speaker: You rely on the principle of synergism.

Mr. Thompson: In part, Your Honor.

Thank you.

Unknown Speaker: Thank you, Mr. Thompson.

Mr. Hungar, we'll hear from you.

Argument of Thomas G. Hungar

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

The question presented in this case is whether 28 U.S.C. section 455(a) was intended to overturn the fundamental principle of recusal law that a judge's unfavorable attitudes towards a party are generally not disqualifying unless they have an extrajudicial source.

Unknown Speaker: Mr. Hungar, you just said, generally.

That's not what the Eleventh Circuit said.

Mr. Hungar: Well, the Eleventh Circuit and every other court of appeals to address the question, Justice Ginsburg, has recognized a pervasive bias exception to the extrajudicial source requirement.

The Eleventh Circuit did that in the McWhorter case, which is cited in our brief, and we cite a number of other decisions for that proposition as well.

Unknown Speaker: You read the sentence in the opinion we're reviewing,

"but matters arising out of the course of judicial proceedings are not a proper basis for recusal. "

as implicitly to contain the qualification, "except in extraordinary cases".

Mr. Hungar: Well, what the Eleventh Circuit did there, Your Honor, is state the general rule.

It didn't refer to the pervasive bias exception, which clearly exists under Eleventh Circuit law and under the law of the other circuits, because petitioners never claimed... never relied on that argument.

All petitioner... the only issue presented to the Eleventh Circuit was this extrajudicial source requirement argument that the extrajudicial source requirement does not exist with respect to claims made under section 455(a).

The Eleventh Circuit implicitly rejected that argument, and since there was no other argument being made by petitioners with respect to the recusal motion, did not address the pervasive bias issue, and of course, for the same reason that issue is not before this Court.

The only question presented by petitioners is whether the extrajudicial source requirement applies under section 455(a), but we certainly believe, and the courts of appeals have indicated, that there is a pervasive bias exception to handle the egregious cases where a reasonable person would believe, based on the judge's actions arising solely out of judicial proceedings, that the judge is pervasively biased against a party and therefore should not--

Unknown Speaker: I take it the answer to my question is yes, you do not read this as an ironclad rule without any exception?

Mr. Hungar: --Correct.

Correct.

The Eleventh Circuit stated the general rule.

It didn't refer to the exceptions, because the exception had not been raised in this case, but the Eleventh Circuit has not applied the extrajudicial source requirement as an ironclad rule, nor has any other court that we're aware of, and we don't believe that it is an ironclad rule.

What the extrajudicial source requirement reflects is the common sense notion that as a general matter it's not reasonable to infer disqualifying bias from the fact that a judge has formed opinions about the parties or the merits of the case based on what the judge has learned in the course of presiding over a case.

Unknown Speaker: And, of course, we could construe subsection (a) entirely consistently with what you have just said--

Mr. Hungar: That's exactly right.

Unknown Speaker: --and still come out your way, I take it.

Mr. Hungar: That's correct, Justice Souter.

We believe that the language of section 455(a), which refers explicitly to a reasonableness requirement, a rule of reason is certainly not inconsistent with the extrajudicial source doctrine as it has developed over the years, because that doctrine, as we indicate, has a pervasive bias exception, but it is simply in keeping with the normal perceptions of a reasonable, fully informed observer, that as a general matter, when a judge makes credibility findings or rules on the merits, or acts in any number of ways that may be perceived as unfair by a party, as long as the judge is doing that based on what the judge views to be the facts and the law as set forth in the case, that's not a proper basis for recusal.

Unknown Speaker: Well--

--Supposing that a judge... take in this 1983 trial, Judge Elliott had made rulings that were beyond challenge at all, and... but commented when the defendant finally was led off to where... you know, I think you're a worthless, mealy-mouthed little tool, and I hope I never see you in this court again.

Now, is that pervasive bias?

Mr. Hungar: Obviously, Mr. Chief Justice, it's difficult to draw precise lines in this area.

That might well rise to the level of pervasive bias.

Unknown Speaker: If that doesn't, what would?

[Laughter]

Mr. Hungar: The Fifth Circuit, for example, in a case cited in petitioner's reply brief, United States v. Holland, found pervasive bias where a defendant invited an error by the trial judge and then obtained reversal on that ground and the case was sent back to the same judge.

The judge then stated on the record that the defendant had betrayed the judge, had broken faith with the judge, and that as a consequence the judge was going to increase his sentence to punish him for doing this and to make sure he didn't waste the Government's money with a future trial, and the court of appeals found that that was pervasive bias, despite the fact that it was judicial and that it didn't involve anything--

Unknown Speaker: Do you define pervasive bias as what a reasonable person would ascertain as being biased?

Mr. Hungar: --I think that the... yes, Justice Kennedy.

Unknown Speaker: I'm not quite sure why your exception doesn't mean that the whole exercise of judicial and extrajudicial sources is just irrelevant.

Mr. Hungar: It's not irrelevant, Justice Kennedy, because in the vast majority of cases, what... the way these cases are actually litigated is that parties tend to dislike rulings by judges, and then they may be able to point to a few stray comments by a judge that imitate... that indicate some irritation, and putting those unfavorable rulings and the few stray comments together, they try and claim that recusal is required, and--

Unknown Speaker: But if you have to go through the exercise of reviewing to see whether there's persuasive bias, why don't we just say that this is insufficient as a showing to disqualify, and the whole dichotomy between judicial and extrajudicial just becomes irrelevant at that point?

I mean, your brief is very candid, in which you say that there this exception when you think it's necessary, but I'm just wondering if the exception doesn't really swallow the rationale for having the distinction to begin with.

Mr. Hungar: --The courts of appeals, Your Honor, have had no difficulty separating the wheat from the chaff in this area.

The vast majority of cases that come up in the courts of appeals can be either dispensed with readily simply by applying the extrajudicial source requirement even if there's no allegation of pervasive bias at all, or it's so clear from the facts that it doesn't rise to that level that they need not conduct the kind of fact-intensive scrutiny of the transcript and the rulings in this trial and in previous trials the petitioners would have the courts conduct in every case.

Unknown Speaker: Well, it is a little hard to real all that into the language of 455(a), isn't it?

Mr. Hungar: The requirement... I believe that that's correct, Justice O'Connor, it is difficult to read into the language of 455(a) the rather awkward and time-consuming procedures that petitioners are suggesting are there, and what's more--

Unknown Speaker: Well, I think it's hard to read into it a pervasiveness requirement.

I mean, the language just speaks of reasonable appearances.

Mr. Hungar: --With respect, Justice O'Connor, I think not, because, of course, the language "reasonableness" necessarily implies some flexibility and Congress obviously intended the courts to have some flexibility in applying that statute.

What I think the extrajudicial source requirement, as it has existed over the past 80 years, reflects, is the common sense notion and determination by this Court and the lower Federal courts that in general it's not reasonable to question... to infer disqualifying bias based on the fact that a judge has developed points of view about a matter based on what the judge has learned in the course of conducting judicial proceedings.

Now, there may be--

Unknown Speaker: So then we're just saying that that's not bias.

Mr. Hungar: --Exactly.

That's correct.

It's not partiality for a judge to develop points of view about the matter based on what the judge has learned in conducting judicial proceedings absent unusual circumstances, so a reasonable person--

Unknown Speaker: But then, I don't think pervasive is quite the right word for the kind of bias you accept.

I wonder if it isn't personal, as opposed to kind of philosophical, as your example from the Fifth Circuit would indicate.

The trial judge was not opposed to any particular class of litigants.

He just didn't like what this particular litigant had done.

Mr. Hungar: --That's correct, Your Honor, and the word 455(a) is leave to the courts a certain degree of discretion in defining the types of judicial conduct that should lead to recusal.

We believe that in so doing Congress did not... certainly did not expressly indicate and did not implicitly indicate any intention to overturn the traditional rules that have governed recusal for bias in this area, and one of those traditional rules that have governed recusal for bias in this area, and one of those traditional rules, of course, is the extrajudicial source requirement which has existed in the Federal courts for as long as there has been such a thing as recusal for bias.

Recusal for bias was not recognized at common law, and it was not available in the Federal courts until 1911, when Congress enacted the predecessor to 28 U.S.C. section 144.

Unknown Speaker: Is your position essentially that the statute is silent, but there is... there was a background jurisprudence, and Congress is taken to have allowed that... to either have incorporated it or allowed it to stay undisturbed, so you don't get it out of the statute, except that the statute doesn't overturn what has been the doctrine?

Mr. Hungar: That's exactly right, Justice Ginsburg.

The statute is not inconsistent with the doctrine.

The doctrine has been the backdrop against which the Federal courts have analyzed claims of recusal for bias for as long as there has been such a thing as recusal for bias, and Congress never evidenced any intention to eliminate that requirement either in the text of the statute, which is not inconsistent with the extrajudicial source requirement, or in the legislative history, which to the extent it addresses the extrajudicial source requirement at all, suggests that that requirement was not expected to be eliminated.

Unknown Speaker: Well, with the exception of the fact that (b)(1) refers to personal bias and (a) does not.

Mr. Hungar: It wouldn't have made any sense for Congress to refer to personal bias in 455(a).

455(a) was aimed primarily at an entirely different issue.

Not at recusal for bias at all, but at--

Unknown Speaker: Well, doesn't that assume the question before us?

You're saying it was aimed at only one issue, and there is a textual argument to the effect... by omitting any reference to personal there's a textual argument that it was aimed at two.

Mr. Hungar: --With respect, Justice Souter, even assuming... and I think it is correct that section 455(a) can, of course, give rise to grounds for recusal for bias, but it wouldn't have made sense for Congress in an all-encompassing provision that is aimed not merely at recusal for bias but at recusal for interest, recusal for relationship, and indeed, from everything we can tell from the legislative history, was adopted specifically with reference to the law of recusal for interest, and not with respect to the law of recusal for bias.

So it wouldn't have made any sense for Congress to include a reference to personal bias in a statute that wasn't aimed exclusively at bias, and indeed was aimed primarily at interest and relationship, which has nothing to do with personal bias.

Congress adopted a general standard in section 455(a).

The legislative history makes clear that the reason Congress adopted that standard, what it hoped to accomplish by doing so, was to change the law of recusal for interest as it had developed under the previous version of section 455.

Prior to 1974, section 455 addressed only recusal for interest and relationship.

It had nothing to do with recusal for bias, and Congress when it amended the statute in 1974 made clear that the purpose of that amendment with respect to section 455(a) was to change two aspects of the law of recusal for interest as it had developed under section 455, namely this.

Unknown Speaker: Well, if that's all it had wanted to do, wouldn't it have been easier to amend 144, because 144 does have a textual basis for the gloss that was put on it, because it refers to personal bias or prejudice, which is a textual basis for the extrajudicial source rule?

Mr. Hungar: This Court has never based... despite what the petitioner claims about this Court's decision in the Grinnell Corporation case, this Court has never identified the word 144 as the basis for the extrajudicial source doctrine.

I think, fairly read, this Court's decisions simply reflect, as I said, the common sense notion that it's generally not reasonable to question a judge's impartiality if the judge is forming opinions based on what the judge hears in the case.

That's what judges are supposed to do.

That's what they do every day, and that's what a reasonable observer would expect them to do.

But if a judge is forming opinions about the parties or the case based on something totally extraneous to the case, something that the judge has read in the newspaper or been told at the country club, then I think a reasonable person would tend to question the judge's impartiality.

Unknown Speaker: Well, once again, you're not saying that if the judge forms his opinion based on what's in the case there's absolutely no basis.

You're just saying, unless that opinion is so strong that it amounts to pervasive bias--

Mr. Hungar: That's correct, Your Honor, because that's how this doctrine that has existed for 80 years has been applied by the courts of appeals, and that's consistent--

Unknown Speaker: --Can you give me a definition of pervasive bias, because I really... I agree with Justice Kennedy, I don't see what's gained by adopting this rule with this exception.

Mr. Hungar: --I'm not sure.

It has to be... it has been fleshed out by the courts of appeals on a case-by-case basis, and obviously it would--

Unknown Speaker: Does it mean anything different than really bad bias?

Is that what it means?

[Laughter]

Mr. Hungar: --That might be as good a way of putting it as any, Justice Scalia.

Unknown Speaker: It may be better than pervasive, because pervasive to me means more than the single comment.

You acknowledged to the Chief Justice that one comment at the end... you know, you are a, whatever it was he said--

Mr. Hungar: That's correct.

Unknown Speaker: --I notice in your brief there was some discomfort that you had with pervasive bias that you get out of a Fifth Circuit decision which you credit for it.

You put that in a footnote.

Your own term is, "except in extreme cases", so maybe instead of trying to define pervasive bias, the term you've used as a synonym is "extreme cases", so could you give us an extreme case?

Mr. Hungar: Well, I think the case I mentioned, the Fifth Circuit case by definition, since that's--

Unknown Speaker: You would have preferred that they characterized it as an extreme case, instead of saying pervasive bias existed.

Mr. Hungar: --Well, it doesn't really matter, Justice Ginsburg, how it's characterized.

I think the point is that this doctrine as it has existed for as long as there has been recusal for bias allows for an exception in egregious cases, pervasive bias cases, whatever you want to call them, and that that approach is not inconsistent with the language of section 455(a), so we cannot infer from the language of section 455(a) any congressional intention to dispense with--

Unknown Speaker: Well, you might have an extreme case that is not one where the bias has been... pervasive has the idea throughout, and you could have an extreme case based on one remark.

Mr. Hungar: --Yes, we agree with that, Justice Ginsburg, and that--

Unknown Speaker: If it was a racial epithet, for example.

Mr. Hungar: --Precisely, and the Justice... and the courts of appeals have not construed the pervasive bias exception to require multiple incidents throughout.

If one statement is sufficiently evidence of bias, then it is disqualified.

Unknown Speaker: Mr. Thompson says that this is an extreme case.

I mean, he said that before.

He said, gee, you know, I've been practicing for how many years, and I've never brought a disqualification motion before.

Mr. Hungar: Well--

Unknown Speaker: Where does it get you to say it has to be an extreme case?

He says this is an extreme case.

Mr. Hungar: --Well, in this case, Justice Scalia, it gets us the judgment, because they never raised the pervasive bias argument, either in the district court, in the court of appeals, or in this Court.

The only question before the Court is whether--

Unknown Speaker: They had to say... he didn't say this is an extreme case below, either?

He didn't say--

Mr. Hungar: --This case has been litigated from the beginning on the ground that petitioners lose if the extrajudicial source requirement survived enactment of section 455(a).

Unknown Speaker: --But it's not as if the pervasive bias exception were set forth in the statute as a kind of affirmative defense.

I mean, it's all part of the interpretation of 455(a), isn't it?

Mr. Hungar: Yes, and part of the interpretation of this doctrine as it has existed.

This case is not about pervasive bias, both because the petitioners haven't alleged it and because I think any fair reading of the claims they asserted in their brief, without getting any further into the transcript and the merits of the judge's ruling, plainly indicates that the judge is not so biased against the defendants that recusal is plainly required, but more to the point, section 455(a) and the language of that statute, as we've indicated, is not inconsistent with the extrajudicial source requirement, including the pervasive bias exception.

Whether, as a matter of first impression, this Court would have adopted precisely the same approach to recusal for bias if faced with the language of section 455(a) and nothing else, is beside the point.

The point is that because the doctrine, which has existed from the beginning of this entire area of the law, is not inconsistent with the language of section 455(a), the conclusion is inescapable that Congress did not indicate any intention to eliminate that doctrine when it enacted section 455(a).

And the legislative history likewise not only doesn't indicate any intention to eliminate that doctrine, but to the extent it addresses that issue at all, suggests that Congress was led to believe that the doctrine would continue to exist.

This Court said, in the Midlantic National Bank case, that if Congress intends to eliminate... excuse me.

If Congress intends to change the interpretation of a judicially created concept, it makes that intent specific.

For that reason, petitioners, not the Government, bear the burden of demonstrating that Congress intended to change the law, intended to eliminate the judicially created extrajudicial source doctrine--

Unknown Speaker: I'm a little puzzled by this, because the... as I understand your argument, the pervasive bias exception is something that developed 80 years ago, so it's an exception to a rule that was superseded by 455(a).

I don't know quite how you can assume that if the rule itself has been changed, that some exception to a different rule would necessarily survive under the statute.

Mr. Hungar: --Well, that assumes the conclusion, Justice Stevens.

We submit that--

Unknown Speaker: 455(a) is a new rule.

Mr. Hungar: --Not with respect to recusal for bias.

That's what this case is about, Justice Stevens.

Unknown Speaker: Well, it's a recusal for appearance of... where it's partiality might reasonably be questioned.

Isn't that an appearance of bias situation?

Mr. Hungar: Well, section 144 also addressed the appearance of bias.

Contrary to what petitioners say, it was not... section 144 did not have and does not have a subjective test.

It's not up to the judge to decide whether in fact he or she is biased.

The question is whether the parties have alleged, (a) that the judge is biased, and (b) have alleged facts that, if true--

Unknown Speaker: But you in your opposition say that the judge didn't abuse his discretion in finding he was not biased.

You said, it's not up to the judge, but your brief argues that he didn't abuse his discretion.

Mr. Hungar: --It's up to the judge to decide the motion, Your Honor.

The question, though, under both section 144 and 455(a) is whether the facts are such as to create, in the language of section 455(a) to cause a reasonable person to question the judge's impartiality, or under 144 and the language of this Court, whether they are such as to fairly support the charge that the judge might be partial.

It doesn't require a finding that the judge actually is biased.

So in both... under both statutes, there's an appearance rather than an actuality focus to the statute, so we think that's one reason why section 455(a) is entirely consistent with the approach followed by this Court and the lower courts under section 144, and why section 455(a) can't be construed to eliminate or to overturn that approach.

Unknown Speaker: In all candor, I haven't read the pervasive bias exception cases.

Are there more than one after the 455(a) was adopted?

Mr. Hungar: I believe so, Your Honor.

The Holland case--

Unknown Speaker: Is there sort of a leading case you can point to on the pervasive bias exception as applied to 455(a)?

Mr. Hungar: --Not that I'm aware of, Your Honor.

The Holland case is the only one that comes to mind.

Certainly the cases we've cited in our brief all recognize the pervasive bias exception.

I'm not sure whether they find it in those cases or not.

But this case... the central focus of our submission is not on the pervasive bias exception at al. It doesn't... even if there were no such thing as the pervasive bias exception, our argument would be the same, because the extrajudicial source requirement, which is what disposes of 99 percent of the cases that come up in this area, is something that has existed for as long as recusal for bias has existed.

Congress didn't evidence any intention that it wanted to change that aspect of the law of recusal... that is, the extrajudicial source requirement and the law of recusal for bias.

What Congress indicated when it enacted section 455 in 1974 was that it wanted to change the law of recusal for interest, because the law of recusal for interest was unsatisfactory if you had a subjective test, and Congress didn't want to have a subjective test.

Unknown Speaker: Are you... let me... I just want to be sure I understand your position.

Would it have been correct procedure for the court of appeals in this case to have looked at the papers and said, everything he alleges is something that happened in either this case or the 1983 case.

We don't have to look at that.

We'll just affirm.

Would that have been a sufficient discharge of the judicial duties of the circuit judges?

Mr. Hungar: If the court of appeals said that there's no indication that anything the judge did in this case or the early case--

Unknown Speaker: No, no--

Mr. Hungar: --had an extrajudicial source.

Unknown Speaker: --That's not my question.

My question is, we don't even have to read it on the basis of the submission here, because it's all in the proceeding, and there's no allegation of pervasive bias.

Mr. Hungar: No.

The extrajudicial source requirement has never been applied so as to permit reference to things that happen in the course of judicial proceedings.

If a judge, in the course of judicial proceedings, says, I'm going to rule against you because you are Hispanic and I don't like Hispanics, that is extrajudicial bias.

The judge has an invidious discriminatory animus towards Hispanics, and that is not a proper basis on which to rule, and the judge should be disqualified, so you have to look at that... depending on the allegations, you might have to look--

Unknown Speaker: What if the judge says to somebody, say a man during a divorce trial, that after hearing what you did in this case, I'm simply appalled, and I can't believe any human being would do that.

Now, is that... the guy comes up in another trial and says, you're biased against me.

Is that extrajudicial source, or not?

Mr. Hungar: --No, it's not, Your Honor, because the judge based that opinion, based on what the judge saw in the course of the trial, on the facts and the--

Unknown Speaker: Well, I don't think it makes good sense, then.

Maybe that doesn't mean it shouldn't be the law.

What we're really talking about here--

[Laughter]

What we're really talking about here is philosophical bias, and that we don't want a judge disqualified for philosophical bias, and usually that will come up... the judge's philosophical approach will come up as a result of rulings during the trial.

But something could come up during the trial, simply poisons the judge's mind in a way that has nothing to do with this philosophical approach, and it seems to me perhaps that is a better example than the kind of other examples of pervasive bias.

Mr. Hungar: --Well, certainly, Your Honor, the law as it existed under section 144 and the extrajudicial source requirement, and as we claim should continue to exist, provides that a judge's philosophical views of the law are not a proper basis for recusal.

We, at least, agree with that.

Unknown Speaker: Mr. Hungar, I guess I really don't understand just what's... did you say that if the judge says that in the course of the trial, I'm going to rule against you because you're Hispanic, that does not come within the extrajudicial source?

Mr. Hungar: It would be an extrajudicial source.

Unknown Speaker: It would be an extrajudicial source--

Mr. Hungar: Yes, because--

Unknown Speaker: --even though the statement is made during the trial?

Mr. Hungar: --The question is not where the--

Unknown Speaker: It's the source of the bias, not the source of the statement that counts?

Mr. Hungar: --Precisely.

Precisely, Your Honor.

That's correct, because as we have suggested, this... and the logic of the Court's ruling in this area over the past 80 years is consistent with this.

It's simply not reasonable to--

Unknown Speaker: But he only discovered the man was Hispanic at the trial.

I mean--

Mr. Hungar: --Well, that's right, Your Honor, but--

Unknown Speaker: --he never knew this man before.

Mr. Hungar: --I think we presume that there is some extrajudicial source for that basis, and the courts of appeals have so said.

Justice Kennedy in the United States v.--

Unknown Speaker: Mr. Hungar, the cases speak in terms of in-court conduct.

In-court conduct is what's--

Mr. Hungar: --That's correct, Justice Ginsburg, but if the in-court conduct... if the judge evidences an extrajudicial bias, that is, the reason the judge is doing something in court is because the judge is biased against a particular class, a particular race of defendants, or what have you, the courts of appeals have uniformly said that that is extrajudicial.

Justice Kennedy in the United States v. Conforte case for the Ninth Circuit--

Unknown Speaker: --Yes, but what if the judge said, I've tried 100 narcotics cases involving Hispanic defendants, and they're all liars, I'm convinced of that, and I therefore conclude I don't like Hispanics.

The source of his bias arose in a series of cases.

Do you disqualify him, or not?

Mr. Hungar: --The courts of appeals have applied the... have found that alleged bias is judicial if it's based on what the judge learned about a defendant in the course of conducting trials involving--

Unknown Speaker: He thinks he learned about a characteristic of a class of persons from trying a lot of cases involving members of the class.

Mr. Hungar: --There's no question, Your Honor, that if the judge displays in invidious racial or religious--

Unknown Speaker: Even if the source of it is judicial--

Mr. Hungar: --Well, yes, although that--

Unknown Speaker: --in the judicial proceeding, and that's the only time he ever met a Hispanic, was in the courtroom.

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

That question, of course, has never arisen, and I think is very unlikely to arise, but if it did arise, I think the courts of appeals would say, because they have been so concerned to ferret out class-based animus of that nature, I think they would, and quite properly, require that the judge be recused.

But again, this a doctrine, a judicial--

Unknown Speaker: But it seems to me the inquiry is to the nature and the intensity of the bias, and not its source.

Mr. Hungar: --The source is directly relevant to that inquiry, Justice Kennedy.

If a judge says to a defendant, I find you are not credible because my sister told me so, we are much more concerned than if the judge says to a defendant, I find, based on the way you've testified and your appearance and the kinds of things you say in the course of the trial, that you are not credible, that--

Unknown Speaker: That's not a fair hypothetical, because in one case we know that the bias was proper, and in the other case we know that there's no bias at all.

Mr. Hungar: --That's exactly right, Justice Kennedy.

It's not bias in the second case because the judge is acting based on what the judge is supposed to act--

Unknown Speaker: But so then you've just given us a hypothetical in which it's self-answering, because there's no bias at all in the second hypothetical under any theory.

Mr. Hungar: --That's our submission, Justice Kennedy, that there is no bias within the meaning of section 455, and the doctrine of recusal for bias as a general rule, at least, if a judge forms opinions about the parties based on what the judge has learned in the case.

Unknown Speaker: Of course, you'd also say there's no bias if what the judge said is, I've seen your right eye twitching during this whole trial, and I conclude from that that you are just an incorrigible liar.

That would not be bias either, right, because that's--

Mr. Hungar: Well, again--

Unknown Speaker: --That's a judicial source.

He derived that from, you know... this judge just jumps to quick conclusions on the basis of minor evidence.

Mr. Hungar: --Well, it might be grounds for reversal, Your Honor.

It might be grounds for a finding of pervasive bias.

It's not clear how the courts of appeals would respond to that type of hypothetical.

Obviously, at the margin there are always going to be difficult cases, but in reality--

Unknown Speaker: That is not an extrajudicial source.

You would acknowledge that that's a judicial source.

Mr. Hungar: --I wouldn't acknowledge that.

I'm not sure, Your Honor.

It depends on the facts.

If the judge... I mean, it's a--

Unknown Speaker: Wait... now wait.

Mr. Hungar: --fairly ridiculous hypothetical, but--

Unknown Speaker: If he says, on the basis of what you said, I conclude you're an incorrigible liar.

You say, well, that's a judicial source, but if he says, on the basis of my watching your eye twitch you're an incorrigible liar, it suddenly becomes an extrajudicial source?

Mr. Hungar: --No.

I think if that's the only thing he says it's probably judicial.

It depends, though.

If the judge says something suggesting a class-based animus towards eye-twitchers, I don't know.

That might--

Unknown Speaker: Could he have read a book out of court about eye-twitchers?

Mr. Hungar: --That might constitute an extrajudicial source.

Unknown Speaker: Is there an easy way to get where we all seem to be agreeing we should end up, simply to say that subsection (a) does not contain the limitation that you say it contains, and construe it simply to require a very serious, a very bad degree of bias before it comes into play?

Your way of getting to the point where everybody seems to say we should get is to say that there is an extratextual exception to a requirement which is itself not textual in subsection (a).

Why isn't it easier to say that yes, subsection (a) can by its terms include the judicially derived bias, but it's got to be very serious?

Mr. Hungar: It may or may not be easier, Justice Souter, but it would not be consistent with this Court's cases defining the appropriate approach to statutory construction.

I think what I hear members of the Court saying is that the extrajudicial source requirement as we define it is consistent with the language of section 455, but that it might be equally appropriate to define... to interpret the language of section 455(a) to adopt a rule that's phrased differently but the results are the same.

That being the case, the extrajudicial source requirement is consistent with the language of the statute, so Congress cannot be deemed to have eliminated that requirement.

Thank you.

Unknown Speaker: Thank you, Mr. Hungar.

Mr. Thompson, you have 7 minutes remaining.

Rebuttal of Peter J. Thompson

Mr. Thompson: Thank you, Your Honor.

May it please the Court:

There is no pervasive bias exception to 455(a).

The pervasive bias exception only comes up when the circuit courts of appeal have used their inherent authority to remove a judge.

The perfect example of this is, 1) if you look at the language that has just been used, the language in the statute is "might", that is, whether there's an appearance of bias.

The language in the statute is not 455(a).

As further proof of the--

Unknown Speaker: It's not just "might".

It says, "might reasonably".

Mr. Thompson: --"Might reasonably", but--

Unknown Speaker: And that's where they say the pervasive comes from... "might reasonably"... and unless it's a pervasive bias, they say, it would not reasonably.

Mr. Thompson: --But if it's only "might", Your Honor, what it would... what "might" means is an appearance of bias, not a pervasive bias, so the standards are totally different.

455(a) doesn't even require bias, it requires an appearance of bias, and if you have pervasive bias, it's beyond bias.

I mean, it's an extremely egregious situation.

Unknown Speaker: Oh, I think what they're saying is, look, when you've just sat through 3 days of trial in an odious torture and homicide case, one would expect you to come out of it with a fairly... assuming the person's convicted, with a fairly poor opinion of this person, and that has to... and that would be expected to be shown in the judge's comments at sentencing and perhaps during trial, but that's okay.

Mr. Thompson: I agree.

Unknown Speaker: That is not... that is not unreasonable, but it's only when it becomes unreasonable.

I mean, he flies into a towering rage, or something.

Then, at that point, it doesn't come within 455(a).

Why isn't that a perfectly valid interpretation of the language?

Mr. Thompson: It's not a valid interpretation of the language, and you can see it in the Jacobs case in the Ninth Circuit.

In that case, the judge was supposedly guilty of pervasive bias.

They dismissed an indictment against the Government and did some other things.

It went up to the Ninth Circuit.

The Ninth Circuit candidly admitted, if this case were here under 455(a), we couldn't remove the judge because of our extrajudicial source requirement.

The judge did all of this in the courtroom, just as the hypotheticals we've been talking about this morning.

Therefore, since 455(a) wouldn't require removal, we can do it, however, under our inherent authority of the court, and that's where pervasive bias comes in.

It doesn't have anything to do with 455(a).

It comes in out of Offutt and the other cases from this Court and from the circuit courts of appeal, where they have said, if things get so out of control, we can remove a judge, just as Judge Elliott was removed a few months ago by the Eleventh Circuit.

They don't have the 455(a) determination about in-court conduct, and they removed him for harsh language back toward the Eleventh Circuit in Clark v. Coats & Clark.

They are two totally separate things, and there's no pervasive bias exception.

Unknown Speaker: That was on direct appeal?

Mr. Thompson: That was on direct... that was on a third appeal.

Unknown Speaker: Harsh language toward the judges of the Eleventh Circuit?

Yes, your honor.

[Laughter]

Mr. Thompson: The second... Mr. Hungar says it's only common sense, this argument he makes about what is in court and what is out of court, and how we should judge judges.

It seems to me what common sense is is the extrajudicial source requirement makes no sense, because the way we know our judges is in the courtroom and by their judging, not by their off-bench conduct, so what makes common sense is to apply the statute the way it is written.

Thirdly, he said in 1974 there has been no change in the law, and therefore, since we want to drop the extrajudicial source requirement under 455(a), we have the burden.

455(a), may it please the Court, was an entirely new proposition in 1974.

Before that 455(a) only talked about conflicts of interest.

455(b) expanded that, and then 455(a) was a completely new proposition of law, which set up for the first time appearance of bias as the proper standard.

Unknown Speaker: Counsel, does that apply to this Court as well, the members of this Court?

Mr. Thompson: It does.

It does, because it says

"any justice, judge, or magistrate. "

Next, there was a question... I think it was by Justice O'Connor.

The Eleventh Circuit, based on their decision, and Judge Elliott based on his decision, never read the transcript and never had to look at 1983.

That's what's fundamentally unfair about the extrajudicial source requirement, because the confidence in the judiciary is going to be diminished if someone makes allegations, whether they're right or wrong, about what happened in '83 and the judges say, we are going to hide behind extrajudicial source requirement, we are going to dodge the allegations, and we don't have to read the transcript.

That--

Unknown Speaker: Wouldn't they have to read the transcript as long as the doctrine comes with the exception for extreme cases, read the transcript to see if this is an extreme case?

Mr. Thompson: --Given the pervasive bias argument he made, only the '91 transcript, Your Honor, because the '83 conviction wasn't on appeal.

Finally, I think--

Unknown Speaker: That comment--

Mr. Thompson: --Excuse me.

Unknown Speaker: --I don't understand at all, because I thought one of the reasons... one of the ways you were establishing that this judge gave at least the appearance of bias was based on the encounters at the 1983 trial.

Mr. Thompson: That's precisely correct, Your Honor, and no one has ever read that transcript.

Finally, I think Justice Kennedy's--

Unknown Speaker: But they say... I think they say that they would have read it if you had said this was really bad.

Mr. Thompson: --If it's--

[Laughter]

Unknown Speaker: I think that's the Government's position.

They would have read it if... you just didn't say it was really bad.

Mr. Thompson: If I had said it was really bad--

Unknown Speaker: Did you not say it was really bad?

Mr. Thompson: --I said verbally it was really bad, but 455(a) doesn't say that I should say it's really bad.

[Laughter]

Chief Justice Rehnquist: Thank you, Mr. Thompson.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Liljeberg v. Health Services Acquisition Corp. - Oral Argument

Wed, 13 Apr 2011 20:12:09 +0000

Case:

Liljeberg v. Health Services Acquisition Corp.

Media File:

86-957_19871209-argument.mp3

Related Transcript:

86-957_19871209-argument.xml

Transcript:

ORAL ARGUMENT BY H. BARTOW FARR, III, ESQ., ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We will hear argument, now, on 86-957, John Liljeberg v. Health Services Acquisition Corp. Mr. Farr, you may proceed whenever you are ready.

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

May it please the Court:

At issue in this case is a decision of the Fifth Circuit holding that a litigant can undo all prior rulings of a judge, even final judgments, merely by showing after the fact an appearance of impropriety.

Our disagreement with this broad rule rests upon two principal points.

First, and foremost, we think that the drastic remedy of retroactive relief simply should not be awarded for claims based on appearances of impropriety.

An appearance of impropriety justifies prospective relief under the statute, but not the invalidation of prior orders.

Second, and more specifically, we think that retroactive relief is particular inappropriate in the case where the judge did not know of the grounds for possible recusal at the time of his rulings.

In such a case, there is no possibility of actual prejudice infecting the judgment.

Now, before turning to these points in more detail, I would like to note briefly the precise grounds on which the court below invalidated the judgment.

The Court of Appeals accepted the fact that Judge Collins, who is a trustee of Loyola University, did not know when he ruled that Petitioner was one of several possible purchasers of Loyola University land.

By the way, I should point out that in Judge Collins' opinion on the merits, there is a discussion at some length of a parcel of land for building a hospital.

That is not the land owned by Loyola University.

That particular land was not mentioned at all in the case.

The appearance in this case, therefore, was based wholly on the notion that Judge Collins should have known about this because the matter had come up several times at Loyola Board meetings.

Unidentified Justice: He testified that he did not know; didn't he, at the time?

Mr. Farr: He did.

He testified under oath, Justice Blackmun.

Unidentified Justice: How could that be?

Mr. Farr: That he would not know about this particular parcel?

Unidentified Justice: Yes.

Mr. Farr: I think that is actually not so surprising, Your Honor.

As he testified, he had something like four boxes full of minutes of Loyola Board meetings and this is a matter that came up a few times at the Board meetings.

The most extended discussion, really, the only extended discussion was in January of 1980.

And, for a year and a half after that, there was no discussion about this whatsoever.

This was not an area in which he took any particular interest, as he testified.

And, indeed, Cannon Five of the Code of Judicial Ethics, which was not enacted into the statute, affirmatively prohibits a judge from giving investment advice to a University or a charitable institution or a religious organization.

Unidentified Justice: Mr. Farr, how large is the Board of Trustees?

Mr. Farr: It is quite substantial.

If you look at the membership, I don't know the exact number, but I think it is 30-35 members or something like that.

Unidentified Justice: And is it divided into small committees with particular responsibilities?

Mr. Farr: Typically for operations, Your Honor, that's what happens.

Unidentified Justice: And what sort of committee handled this piece of real estate?

Mr. Farr: There was a real estate committee which handled matters like this and Judge Collins was not on the real estate committee.

He was on a student affairs committee.

He was on a presidential search committee.

But he was not on a committee that had anything to do with the University and its investments.

Unidentified Justice: And how often did the committee report to the full Board?

Mr. Farr: I believe it just reported as it had need to.

In the minutes that are reproduced in the appendix, Your Honor, there are indications of certain reports that they had made.

And you might note, we didn't reproduce the entire minutes in there, but there are usually one or two paragraphs out of 10 or 11 pages worth of minutes.

Unidentified Justice: What is the difference that he didn't remember the actual occurrence when he was on the Board.

He knew he was on the Board.

Mr. Farr: He knew he was on the Board.

Unidentified Justice: And he knew that the case he was trying was a case against an organization that he was a member of the Board of Trustees.

Mr. Farr: Let me clarify that.

Unidentified Justice: He knew that; didn't he?

Mr. Farr: Let me clarify.

The case was not against Loyola University.

Loyola University was--

Unidentified Justice: Well, was it involved in it?

Mr. Farr: --It was not in any way a party to the case.

Unidentified Justice: In the discovery?

Mr. Farr: No.

There was no discovery involving Loyola University whatsoever.

It was never mentioned in the case.

So, there was nothing about the case, itself, that would have alerted Judge Collins to any possible grounds for recusal, unless he remembered the discussions that accompanied these Board minutes.

Unidentified Justice: Well, I am sure... I just can't understand how he didn't remember.

Mr. Farr: Well, I think that that is a finding that Judge Schwartz made, looking at the particular history of the minutes, looking at his role, he said that he accepted Judge Collins' testimony which, of course, he made under oath, that he did not know about this particular interest.

Unidentified Justice: But he did know that he was on the Board.

Mr. Farr: Oh, of course, he knew he was on the Board, Your Honor.

Unidentified Justice: And he did know that the Board was involved in the case.

Mr. Farr: No.

That he did not know, Your Honor.

That is the point I am trying to make.

In this particular case, there was nothing--

Unidentified Justice: It wasn't prepared... nobody... there wasn't discovery.

You said they had discovery.

And they didn't find out that the Board was involved?

Mr. Farr: --Justice Marshall, the underlying case was about ownership of a corporation.

Unidentified Justice: But in all of the argument, I just want to warn you, that it appears that what you are saying is that he didn't know about it.

Mr. Farr: That's correct.

Unidentified Justice: And he couldn't have known about it and he shouldn't have known about it.

Mr. Farr: I am saying that he did not know about it.

There was nothing about the case, itself, that would have alerted it to us.

Unidentified Justice: Well, then, it wasn't important to the case; was it?

Mr. Farr: In the particular situation--

Unidentified Justice: It was or it wasn't?

Mr. Farr: --The Court of Appeals found that this was an interest of Loyola's that would have been... that Loyola had an interest that would have been affected by the outcome of the case.

But there was nothing about the case, itself, that would have alerted the presiding judge, which was Judge Collins, to that fact.

The piece of information he needed to alert him to possible grounds for recusal had come out of Board meetings.

Some of which he had attended and some of which he hadn't and from the minutes of those Board meetings.

And Judge Schwartz, a separate district judge in Louisiana made an express finding that he accepted that Judge Collins did not actually know at the time he was presiding in this case and making his rulings that Loyola had any interest whatsoever.

What the Court of Appeals did then was to say,

"We accept the finding that he had no knowledge. "

"But because he could have had knowledge, we are going to set the judgment aside anyway. "

Unidentified Justice: And should have.

Mr. Farr: And should have in that particular case.

That's correct.

Unidentified Justice: It certainly is hard for a colleague to sit on this kind of a case involving another colleague's word; isn't it?

Mr. Farr: Justice Blackmun, I think it obviously is an awkward matter.

But let me point out several things.

First of all, there is nothing uncommon about judges passing on the actual conduct of another judge.

Unidentified Justice: Of a colleague?

Mr. Farr: Excuse me?

Unidentified Justice: Of a colleague?

Mr. Farr: Of course.

Under Section 372 of Title 28, Congress has set up a process for investigating disciplinary complaints against judges.

And that precisely depends... the complaints are referred to the chief judge of the district.

They are reviewed by judges in the circuit of that district.

So, Congress clearly has an expectation through that statute, if none other, that when it is necessary, judges can and should pass on the conduct of their colleagues.

And in this particular case, I might just point out there are seven different judges who have said that they accepted Judge Collins' explanation as being true.

Unidentified Justice: Well, Mr. Farr, did the judgment below rest on the premise that he could have known and should have known or on the premise that in any event, there was an appearance of bias.

Mr. Farr: Well, in a sense, it rests on both, Justice Brennan.

What he said, what the Court of Appeals' rationale is, as I understand it, is that because he should have known, someone looking at the case from outside and no knowing or not accepting that he didn't remember would have expected that he would remember.

So, the two are in some sense linked, I think in the Court of Appeals.

Unidentified Justice: Well, I think they are essential; aren't they?

The only reason the appearance would have been the case, is if he should have known.

Mr. Farr: Well, in fact, my belief, Justice White, is the only way there is an appearance is actually if he did know.

Unidentified Justice: I know that is your position.

Mr. Farr: But, at least, if the Court of Appeals' decision, by its own terms, does at least involve the idea that he should have known that there is at least negligence involved here.

Unidentified Justice: May I ask: How is the property described?

I can imagine my sitting in a case that involves the real estate that my house is on.

If it is only described by meets and bounds or something, I have no idea what the meets and bounds are.

Mr. Farr: It was described as the Monroe tract.

That is the term that is used.

Unidentified Justice: So, it is something well enough known in the community that he would know what the Monroe tract was?

Mr. Farr: Well, I don't think it is a household word, Justice Scalia.

I think it is just something that that was the term that was used.

This is not property, I should point out, that is connected to Loyola University.

This is just property like a lot of universities have that was given to the university.

Unidentified Justice: What I am suggesting is that there are two elements involved in the "should have known" part of the inquiry.

Element 1 is that he should have known that the University had an interest in this particular trace.

And Element 2 is that he should have known that that tract which the University had an interest in was also the tract that was under discussion in the case.

Is it conceded that the identification of the two is self-evident.

And that anybody who had sat in on the University proceedings would know that this is the same tract?

Mr. Farr: I think from that question I have failed to make one thing clear.

The tract that was discussed in the case was not the tract that Loyola University owned.

And the only thing that came up in the case that would have triggered the memory of Judge Collins would have been the mention of St. Jude Corporation, which was one of the potential buyers of the Monroe tract.

But at the time that the case was going on, the tract that was being discussed in the case was some other tract that was bought by Hospital Corporation of American.

It had nothing to do with Loyola University at all.

So, there is nothing about that tract or the discussion of that in the case that would give him any hint that Loyola University--

Unidentified Justice: How did the other tract come into this?

Mr. Farr: --What essentially happened, as a practical matter, is that Liljeberg, the Petitioner, thought he was going to have an agreement with HCA.

And HCA had bought a tract, not the Loyola tract, a tract having nothing to do with Loyola.

When that agreement fell apart, when HCA said,

"We're not going to enter into any agreement with you, then Liljeberg resumed negotiations with Loyola looking to some other tract. "

"But that had nothing to do with what was in front of Judge Collins. "

Unidentified Justice: Well, how, again, did the lower courts reason that he should have disqualified himself in this case?

Mr. Farr: Well, in fact, there is no way that he could have, as a practical matter, disqualified himself because of something he didn't know about.

So, what they are really saying is that he should have known about it because St. Jude Corporation had been mentioned a couple of times at Board meetings at Loyola University as one of several possible purchasers of a Loyola tract of land.

And, also, Mr. Liljeberg had been mentioned once several years before.

What they are saying is: That should have essentially put him on notice that when a corporation named St. Jude appeared in front of him and there was a debate over ownership of this corporation and who would have the rights to construct a hospital pursuant to a certificate of need, that should have triggered in his mind the memories of what happened at the Board meeting so that then he would have recognized it and recused himself.

And Judge Collins said,

"If I had remembered this, if anything had triggered in my mind, I would have recused myself. "

But that just simply didn't happen.

Unidentified Justice: Because of this, he should not have sat in a case in which St. Jude was a litigant.

Is that the idea?

Mr. Farr: He said that had he known that St. Jude... had made the connection between the St. Jude that was a litigant or the corporation that was in the case and the potential purchaser of land from Loyola and, since he wanted to build a hospital on it, winning the case was something that had an effect on whether he bought the land from Loyola.

If he had made that connection, which he simply didn't, he would have recused himself.

And that is what he testified to.

Unidentified Justice: Well, Mr. Farr, what effect does Section 455(c) have here, if indeed this is something that the judge properly should have informed himself about?

If we get that far, if it fits, what effect does that sub-section have?

Mr. Farr: Well, I think there are two questions about that, Justice O'Connor.

First of all, if a judge... if, in fact, this is an interest that a judge had an absolute obligation to know about under sub-section (c)--

Unidentified Justice: If he is covered by sub-section (c) here.

Mr. Farr: --Just assuming that for moment, which I don't think is true, as I will explain in a second, then the question would be: Is retroactive relief still is that a proper remedy essentially to enforce his failure to know something that he should have known?

Is that a proper punishment essentially for his negligence, facing the fact that it doesn't really fall on Judge Collins.

It falls on the litigant who has prevailed in the case.

Unidentified Justice: But in the long run, do you think it conceivably would be better for judges to have a "should have known" rule applied to them than to go into the actuality of their knowledge and have it tried in each instance?

That's kind of tough.

Mr. Farr: That brings me to the second point which is that, to some extent, this is exactly what Congress faced and the Ethics Committee faced in drafting the code and the rules.

And there are a couple of things.

First of all, they didn't put (b)(4), where they specifically used the term, (b)(5) where they could have very easily said, "knows" or "should know" and they didn't do it.

So, to some extent, it is Congress that has put knowledge into play at least in the cases arising before.

Unidentified Justice: But they also enacted sub-section (c).

Mr. Farr: But sub-section (c), even if read at its strictest, would only impose a duty of absolute knowledge in a couple of instances: personal financial interest and fiduciary financial interest.

It has only a reasonable efforts clause, for example, regarding the interests of a spouse, a reasonable efforts clause regarding the interests of a minor child and doesn't have any requirement for anybody else.

Unidentified Justice: Well, is this a fiduciary financial interest; do you think?

Mr. Farr: It is not as the code intends it.

And think this is what is important.

Unidentified Justice: Why?

Mr. Farr: If you look at Section 5 of the Judicial Code, which is not incorporated in the statute, to begin with, that has a specific section which is headed, "Fiduciary Interest", and speaks of the very strict limitations on a sitting judge serving as a private fiduciary.

And you can only be a fiduciary of a family trust.

You cannot be a fiduciary of a trust for any of your close friends, for example, or anything like that.

Cannon Five also makes distinctions between private trusts and charitable organizations, universities, religious organizations.

And it is specifically intended and I think the statute pulls this in at least in part in sub-section (d) to try to give judges broader latitude to serve as public trustees.

It simply does not fit that scheme.

Unidentified Justice: Well, you think we are not bound by the language of Section 455 in defining financial interests, then?

Mr. Farr: No.

I mean I think that you are bound to interpret the language in 455.

I am not suggesting that it is irrelevant.

All I am saying is that it should be read in context with section (b)(4) which talks of specific kinds of interest on which you are automatically recused in connection with the legislative history and in connection with the Cannon.

Unidentified Justice: Well, doesn't an interest in real estate qualify as something other than securities, for example?

Mr. Farr: Well, I think it is not... this is something that, unfortunately, the legislative history is not entirely clear on.

There are financial interests and then there are economic interests that aren't financial interests.

I think it is quite clear if you take it all together that investments other than, let's say, a very narrow definition of securities, stocks and bonds, which are owned by a university are not in any way the kinds of things that Congress intended that a judge have to keep track of--

Unidentified Justice: No, but maybe real estate is.

Mr. Farr: --Well, that is a subject that is not specifically spoken to.

I would point out that many universities own literally hundreds of parcels of real estate that are left to them in wills, that are given to them by donors, and to say that a judge who sat on a case had to know every single real estate holding of a university and how it would be effected, and that would be the absolute duty under Section 455(c), because that basically says you have to know.

It doesn't say you should know or anything like that.

It says you have to.

If that was true, then judges simply would not realistically be able to sit as trustees of those organizations and that is exactly the reverse of what Congress and the drafters of the code had in mind.

They wanted to permit great latitude for judges to be able to sit as trustees of those institutions.

Unidentified Justice: Well, I think that is maybe overstating it.

It seemed to me when they used the language that they don't have to... the judge doesn't have to be concerned about the ownership of a such an institution in securities, that we have to think that it did, then, include other interests.

Mr. Farr: Justice O'Connor, I agree that there is a way that you can, like Rubic's Cube, work all the way through the statute to come out to put the pieces together that way.

But in all honesty, that result has nothing to do with what I think it was clear at least the drafters of the code were trying to get at.

The idea that they had was that for private trustees, your interests, if you were a private trustee for a family member, essentially that interest is the same interest as if you had a personal interest.

You are expected to know about it.

And you are supposed to act in the same way to disqualify yourself as if you owned it, yourself.

That is not what they intended for trustees of public universities.

If the construction that we are talking about right now was actually the right construction, it would mean that a judge who was a trustee of a university or a religious organization would have to know more about the holdings of that organization and he would have to know about those of his or her spouse.

That just doesn't make any sense, quite frankly, in the statutory scheme.

If Congress was totally silent about public trustees, or if the drafters had been, it would be perhaps a reasonable reading.

But under the circumstances, I submit it really is not.

Unidentified Justice: Mr. Farr, can I ask you a question about your basic position in the case?

Mr. Farr: Yes, Your Honor.

Unidentified Justice: If we assume for the moment that there is a violation of 455(a), and I know you even argue that may not be justified, but assume that is so.

Is it your position that there is never a case in which this would be a permissible remedy?

No matter how strong the basis for believing his impartiality might be questioned?

Because the statute, itself, doesn't address the question of remedy.

And I guess we are primarily concerned with remedy here.

Mr. Farr: That's right.

That, of course, is the rule the 7th Circuit appears to have adopted.

Unidentified Justice: Well, that is reading that case rather broadly.

Mr. Farr: In several other cases, I just might add, since then they have said if you raise... in a couple of cases where there have been claims raised under sub-section (b) on appeal, they have considered those.

And, then they've said,

"Now, we turn the ones under (a) and we don't review them under appeal, because we don't give retroactive relief. "

Unidentified Justice: But I am really asking your position.

Your position is that although the Congress didn't say so that we, in effect, should read in an absolute prohibition against retroactive relief in 455(a)?

Mr. Farr: It seems to me... I naturally hesitate to proclaim something quite that absolutely.

I think that clearly should be the general rule.

Whether there is some case where the involvement of the judge in whatever it is is so serious that it raises the same concerns that you would have under due process or perhaps under (b), I suppose there might be latitude for that.

Unidentified Justice: For example, would there be latitude if, say, the day after he released his findings, they discovered the alleged conflict... the disqualifying fact.

And they had gone in right away on a motion for a new trial and motion to disqualify and have another judge taken another look?

Would you take the same view that it is just simply too late?

Mr. Farr: The view to me is not that it is too late.

It is simply that that is not enough to invalidate everything that went before.

I mean it is not a timeliness argument so much as it is those particular grounds.

There is simply no justification--

Unidentified Justice: I was asking the other way around.

If it were much more timely so that it would be perhaps less of an upsetting of something.

Mr. Farr: --But what I am saying is that the timeliness doesn't make any difference to me.

Unidentified Justice: It doesn't enter into it.

Mr. Farr: What I am saying is that when you have a judgment, you have had all the proceedings, you have had all the judge's rulings, and the trial for all it could be could take five years.

In this particular case, it didn't; but it could.

That even the day after when somebody comes in and says,

"Well, I've just now uncovered an appearance of impropriety that I didn't know about the day before you ruled against me. "

"I would like to set everything aside. "

I don't think it ought to be set aside unless it rises to a level of much more.

Unidentified Justice: Mr. Farr, in this case, what do you do with that statement by the judge that had he known, he would have disqualified himself?

Mr. Farr: Well, that is exactly the distinction I am trying to make, Justice Marshall.

Between prospective recusal and retroactive recusal.

I think there are certain grounds, the grounds set out in 455 as a whole, (a) and (b), are sufficient to justify prospective recusal.

When you simply say,

"I'm not going to sit on the case. "

"The case is going to be reassigned to another judge in this same building. "

There is not much of an effect in doing that.

And that is what Congress wanted to encourage.

And the supporters of the bill said,

"There are plenty of Federal judges. "

"What is the point of having a judge sit on a case when he knows of grounds to recuse himself? "

Unidentified Justice: Mr. Farr, what about this as a limiting principle for what you are urging in front of us?

The statute doesn't really talk about appearance of impropriety.

It talks about when impartiality might reasonably be questioned.

Now, had this judge died before this matter came to light and had it been impossible to make the inquiry as to whether he actually knew, you could say... you could reasonably question his impartiality.

But, here, you had a proceeding.

He testified.

The court found that he did not know.

There is now no basis on which you could say his impartiality could reasonably be questioned.

He didn't even know of the real estate.

So, you would come out with a different result where the proceeding continued to have an infection to it.

Where even after all the hearings were done, you really didn't know whether this judge was impartial or not.

Wouldn't you allow it to be set aside, then?

Mr. Farr: I'm sorry.

Unidentified Justice: If he had died.

If he had died, because then you would still... you have a judgment that you don't really know it was an impartial judgment.

Here you are telling us we do know it was an impartial judgment because we know that he didn't even know about this connection.

Mr. Farr: Let me say two things, Justice Scalia.

First of all, I think that the first point of what you said really comes out of the appearances test, which is a person knowing all the circumstances.

Unidentified Justice: It isn't an appearances test.

That is exactly the point I am trying to make to you.

It is whether his impartiality can reasonably be questioned.

Mr. Farr: Well, the name they do give it generally is--

Unidentified Justice: I know.

I am suggesting that is misleading.

Mr. Farr: --All I am saying is that if you accept the finding in this case, his impartiality cannot reasonably be questioned.

Now, if there was a situation where you were unable to hear his side of the story for some reason so that you just had the allegation, quite frankly, I am not sure that I would automatically throw out a judgment based on mere allegations.

I think it would depend on the credibility and so on and so forth.

Unidentified Justice: But assume the court said he should have known that and the fellow was dead, you would probably say that he probably did know it.

Mr. Farr: I think that is possibly right.

If you simply, at that stage, cut off the inquiry.

But what I am suggesting and I think Justice Scalia makes a good point in this is that you don't cut off the inquiry at that point.

And it is not just a question of knowledge.

You could have an allegation, for example, somebody could come forward with a third-party affidavit saying,

"I gave a bribe to the judge on behalf of this person's opponent. "

And he says,

"I would like to have the judgment thrown out on that basis. "

Well, if in fact the allegation is true, the judgment should be thrown out.

But if the allegation isn't true, then simply you would be setting aside a judgment based on somebody's charge that something might have happened or something as in this case when you move it over into knowledge, something should have happened.

Unidentified Justice: Isn't it possible, Mr. Farr, that even if we were to decide that a judgment should perhaps be effected retroactively, we would need to consider Rule 60(a) and (b) to see how long afterwards it could be effected retroactively.

Mr. Farr: Well, I do think that's right.

I mean there are questions at what particular point this is raised.

Certainly, our argument, quite frankly, is that whenever this had been raised, had it been the day after or had it been during appeal or, as it was here, a year and a half after the judgment, itself, that the rules should be the same.

But I think it is even more so the later the time is and the more unsettling the effects.

I mean this trial was six years ago.

The hospital has been built since then and those are exactly the principles of finality that have been recognized in civil and criminal cases which do, in fact, help public confidence in the judicial systems, not to have things being constantly relitigated.

If I could, I would like to just save my remaining few minutes for rebuttal.

Chief Justice William H. Rehnquist: Very well, Mr. Farr.

We will hear now from you, Mr. Lucas.

ORAL ARGUMENT BY WILLIAM M. LUCAS, JR., ESQ., ON BEHALF OF RESPONDENT

Mr. Lucas: Mr. Chief Justice, and may it please the Court: First, I would like to clear up one thing.

Judge Collins was found by both lower courts to have had knowledge.

He did have knowledge.

He had knowledge on January 24, 1980.

He had knowledge on September 25, 1981 and, more importantly, he had knowledge on December 12, 1981, which was 18 days before the complaint was filed--

Unidentified Justice: How does that bear on Judge Schwartz's finding, Mr. Lucas?

Mr. Lucas: --He found knowledge and said that Judge Collins forgot.

In other words, he said he had the knowledge.

Unidentified Justice: So, when you say, "knowledge", you don't mean the same thing as actually was thinking about it at the time.

Mr. Lucas: That's correct.

Unidentified Justice: You mean a kind of constructive thing.

Mr. Lucas: No.

Actual.

Unidentified Justice: Actual knowledge of what?

Mr. Lucas: At the time, he had actual knowledge of the fact that Loyola University was negotiating with Mr. Liljeberg and the St. Jude interest to sell them a piece of land--

Unidentified Justice: But he did forget at the time.

There was a finding that he had forgotten when he sat on the case.

Mr. Lucas: --Yes, Justice White.

Unidentified Justice: Do you accept that?

Mr. Lucas: Do I accept that?

Unidentified Justice: Yes.

Mr. Lucas: I think first, if I may answer you in this way, first, I don't think it is a question of whether I accept.

It is whether the people sitting in this courtroom and the public at large accept it based on appearances.

Unidentified Justice: Now, do you think people sitting in a courtroom ought to be, should be able to say,

"Well, we just don't believe him. "

And think the judge who found that he had forgotten just was wrong.

Mr. Lucas: Let me answer you this way.

I think that the Fifth Circuit laid down a very narrow test for the invalidation of a judgment in a case such as this.

And that test was one of whether the reasonable person would firmly expect... I think the key words are, "firmly expect", that the judge had knowledge of the impropriety.

And that there was, thus, an appearance of impartiality, a lack of partiality.

Unidentified Justice: There is a finding to the contrary.

There is a finding by Judge Schwartz... Justice White asked you a few minutes ago whether or not you accepted it.

I don't think you have yet answered that question.

Mr. Lucas: I cannot rationalize in my own mind why a man as bright... and I don't say that he wasn't telling the truth, if that is what you are asking.

Unidentified Justice: The Fifth Circuit didn't set that finding aside as clearly erroneous.

Mr. Lucas: No, it did not.

Unidentified Justice: So, we have to accept here; do we not?

Did you even claim it was clearly erroneous in the Court of Appeals?

Mr. Lucas: No, sir, I did not.

I did not.

I think the truth of the matter is that there is no way that the lower courts, there is no way that this honorable Court, there's no way of anyone other than Judge Collins being able to decide what Judge Collins knew, when he knew it, when he forgot, what he forgot and when he remembered, again.

Unidentified Justice: Those questions are involved in many, many kinds of law suits dealing with fraud, notice.

And, traditionally, those things are set for trial before a judge, like Judge Schwartz who makes findings.

Judge Schwartz made a finding here.

It was not challenged in the Fifth Circuit.

It seems to me we have to accept that.

Mr. Lucas: I think it is a question, I think that is one factor in the overall picture.

Unidentified Justice: No.

It is a central factor.

The trouble, Mr. Lucas, is if you accept it, then you have accepted the proposition that his impartiality could not reasonably be questioned unless, unless you assert that it is reasonable to think that the judge who made that finding was lying.

Or you have to assert the proposition that you can reasonably just either lying or erroneous... that you can reasonably disbelieve the judgment of a court.

You have a court who said, "This man did not know".

Now, he may have been negligent before, but he was impartial when he decided the case.

That is the finding we have and that is what sub-section (a) requires: his impartiality might reasonably be questioned.

Now, how could his impartiality in light of all that has happened since reasonably be questioned unless you choose not to believe the court's judgment.

Mr. Lucas: For two reasons.

First, he had knowledge.

Let's begin with that proposition, if we may, Justice Scalia.

Unidentified Justice: At one time.

Mr. Lucas: At one time.

Knowledge held to have been forgotten.

Now, I would like to refer the Court as we did in our brief--

Unidentified Justice: I am not too sure of that.

I understand that there is a good possibility that these things came up and he never even heard about it, while he was on the Board.

Mr. Lucas: --I think the facts belie that, Justice Marshall.

Unidentified Justice: Is there anything that said he was at a Board meeting where this matter was discussed?

Mr. Lucas: Yes, Your Honor.

Unidentified Justice: At a particular Board meeting?

Mr. Lucas: Three particular Board meetings.

Unidentified Justice: Now, those are the ones you are talking about that shows--

Mr. Lucas: Yes, sir.

Unidentified Justice: --He might have been asleep.

Mr. Lucas: His testimony at his deposition was that it was his habit to read the minutes of the previous Board meeting and the agenda for the upcoming Board meeting, both of which were mailed to him in advance of the coming Board meeting.

And on December 11th, 29 days from the date that he attended a Board meeting at which it was unanimously passed a resolution was unanimously passed, which means Judge Collins presumably voted for it, to authorize the Vice President of Business and Finance of Loyola University to continue negotiations.

Twenty-nine days later at page 1 of the joint appendix, you will note that the judge entered an order, all attorneys were present in his chambers where he denied an injunction that the defendants had filed.

That was 29 days from the time he attended the Board meeting and voted on November the 12th concerning St. Jude and Liljeberg.

The case was a declaratory judgment action.

It did not involve property, per se.

It involved who owned a particular corporation which had been granted this certification of need, which we call an 1122 certificate in Louisiana.

Now, there is another factor present, too, in terms of knowledge that I don't think we can ignore.

And that is the whole doctrine of the fact that perceptions are important.

Justice Frankfort identified this in Public Utilities Commission v. Pollack.

In Pepsico v. McMillen, which is a 7th Circuit case which was decided in 1985, they spoke of some unconscious level.

In other words, the idea being,

"Once we acquire knowledge, who is to say to what extent that unconscious state has an effect on our judgments, on our decisions? "

In other words, these are perceptions that knowledge creates once we have acquired it.

And I think that is a significant factor, certainly.

Unidentified Justice: Was your motion to reopen here, was that under 60(a) or 60(b)?

Mr. Lucas: Yes, Mr. Chief Justice, it's under 60(b).

Unidentified Justice: And for what time limit would you say governed that motion?

Mr. Lucas: As we all know, the Congress didn't set a time limit, which I think throws us into a situation where our procedural vehicle is 60(b).

60.

And, of course, there it is based upon reasonableness.

Now, we know from other cases, we know that in the U.S. v. Brown case, a judgment was vacated six years after it was rendered.

Roberts v. Bailar, four years.

Unidentified Justice: What courts were those decided in?

Mr. Lucas: I know that Brown was the Fifth Circuit.

Roberts v. Bailar was 6th.

Unidentified Justice: Do you know anything from this Court since the Ackermann and Clapraw cases?

Well, supposing a year or so after the case had become final, you had decided there had been a very erroneous jury instruction given in that case, do you think you could then come in under Rule 60(b) and say,

"You know, let's have a new trial because this instruction was clearly wrong. "

Mr. Lucas: No.

I think you are dealing with a much larger purpose here.

You are dealing with the question of how do we, as judges and lawyers and justices, how do we want the public to perceive our judicial system if there is even an appearance of impropriety.

Unidentified Justice: Well, supposing I come in and make the kind of motion and I say,

"Well, certainly we don't want the public perceiving our system is one which gives flatly wrong jury instructions on major points in the case. "

I suppose my opponent would argue,

"There comes a time when a judgment has to become final. "

"And why shouldn't that apply in this case, too? "

Mr. Lucas: Because this is governed purely by 455(a).

There is no 455(a) applying in the case of the jury.

Unidentified Justice: No, but 455(a) does not say what should be done.

You agree that 60(a) and 60(b) govern requests for relief of this sort.

Mr. Lucas: Yes.

That's the vehicle to do it, yes.

Now, one other fact I would like to mention.

In the deposition of Mr. Steeg, who was Chairman of the Board of Loyola University, he testified that in his opinion there wasn't a single member of the Board of Loyola who wasn't aware of the Liljeberg offer.

He is the Chairman of the Board of Trustees.

The Monroe tract: I believe Justice Scalia was asking counsel for Petitioner about the Monroe tract.

The Monroe tract is an extremely tract.

It is well known in the area outside of New Orleans, owned by Loyola University.

I dare say I don't know how many hundreds or thousands it is, but in this case, alone, the hospital was built on an 81-acre site and the area that was going to be rezoned was 115-acre site and there are many more hundreds of acres, if not thousands.

It is a significant tract.

It is not the kind of thing that if you were sitting on the Board of Trustees, like you are selling a lot on the corner in the middle of a block.

It is not that kind of thing.

It is very large.

Unidentified Justice: But is it correct, as Mr. Farr told us, that this is a different tract from the one that was the subject matter of the litigation?

Mr. Lucas: Let me clarify that because it gets a bit confusing.

First of all, it was Hospital Affiliates International, not HCA, that was involved in the purchase of another tract of land that was approved by the Department of the State that issues these approvals for the building of a hospital.

Then the certificate issued.

And the certificate came out in the name of St. Jude Hospital of Kenna, LA.

, Inc. Without bothering the Court with all the documents involved, the issue then was: Who owned that hospital?

I mean who owned that corporation which in turn owned the certificate?

The court ruled that Mr. Liljeberg owned it and Mr. Liljeberg needed a place to put his hospital because the piece of property we had was in a different location.

And, therefore, he bought a second piece of the land that was not involved in this litigation directly.

Unidentified Justice: What you are saying, I gather, is that if he had lost the litigation instead of winning it, then he would not have been an eligible purchaser for the Loyola property.

Mr. Lucas: That is correct.

Unidentified Justice: So, it did actually effect Loyola's ability to make the transaction they ultimately made with them.

Mr. Lucas: That's correct.

Had Mr. Liljeberg lost that law suit, more importantly, Loyola would not have been able to gain an increment of $9 million in the value of their surrounding property which Mr. Liljeberg was obligated to rezone in order to acquire the property on which to build his hospital.

Very significant.

Hospital Affiliates International merged into HCA after that.

I might add that the merger and the issuance of the certificate of need came down the same day.

I don't think there is any significance to that, though.

I think that if we look at what Petitioner is saying, well, first let me direct my remarks to Petitioner's argument about prospective knowledge.

I mean knowledge and then prospective recusal.

I would direct the Court's attention and say that we fully agree with petitioner to page 26 of his original brief when he says,

"We think that the earliest point should be when the judge actually knows of the facts requiring recusal. "

We submit that that date was January 24, 1980, long before... long before this case.

Unidentified Justice: The section really, construed that way, the section means that if you ever know anything, you are not entitled to forget it.

Mr. Lucas: No, Justice White.

Unidentified Justice: Well, for purposes of application of the section.

Mr. Lucas: Again, the public has to firmly expect that the judge would have forgotten.

For instance, that--

Unidentified Justice: Well, then your answer should be, yes.

You construe the statute as meaning that even if you have forgotten it is irrelevant because people are entitled to believe that you didn't.

Mr. Lucas: --No, sir.

I'm not for an invalidation of a judgment.

I think there is a distinction between invalidation of a judgment and recusal.

I think the cases seem to indicate that if a reasonable man harbors doubts, there is possibility of recusal for an appearance of impropriety, but not for an invalidation of judgment.

For an invalidation of a judgment, as I read the Fifth Circuit opinion, the reasonable person, the objective observer must firmly expect... not speculate... they say that specifically.

Not speculate.

Firmly expect that the judge, because in January 1980, he had knowledge, firmly expect that he wouldn't forget it.

I don't want to limit this to January 24, 1980 in this case, because this was a continuous.

Unidentified Justice: Yes, but that is when you say that's the date.

Mr. Lucas: That's when he first acquired it.

Petitioner says when he first acquired knowledge.

And I am saying to the Court that when Judge Collins first acquired knowledge, it was January 24, 1980.

There were repeated instances of meetings, communications which he read after that time.

This is a continuous thing.

Not an isolated one.

Unidentified Justice: This strikes me as really quite unrealistic.

The Chief Justice is by statute the Chancellor of the Smithsonian, a trustee of the National Gallery.

I attend numerous Board meetings, just speaking from my own experience.

And the idea that you carry around in your mind after you leave those meetings everything on the agenda certainly doesn't square with my experience.

Mr. Lucas: I agree, Mr. Chief Justice.

I agree, Mr. Chief Justice.

And we are not suggesting that.

We are certainly not suggesting.

Unidentified Justice: Well, then, what do you mean when you say it is a continuous thing?

Mr. Lucas: Perhaps I didn't express myself well.

There were continuous meetings that Judge Collins attended.

There were continuous meetings that Judge Collins received.

Continuous in the sense that it wasn't just January.

It wasn't just December 24, 1980.

Unidentified Justice: Yes, but your submission is that even if when he judged the case, he had absolutely forgotten it.

Absolutely, which people do; nevertheless, you win the case.

Mr. Lucas: If the average--

Unidentified Justice: Well, that is your position.

Mr. Lucas: --Yes, it is, Justice White.

If the average reasonable person, and this is what the court meant--

Unidentified Justice: Wouldn't believe that he had forgotten it.

Mr. Lucas: --That's correct.

Unidentified Justice: Despite what a judge has found?

Mr. Lucas: That's correct.

That is correct.

Based on the facts of this case, if you please.

Not just any case, but based on the strong compelling facts of this case.

This is what the courts found.

Unidentified Justice: Your are willing to accept as eliminating your right to get the case set aside, just a belief by the public, the generality of belief by the public that he might have forgotten it or that he would have forgotten it, but you are not willing to accept for the same purpose a finding by a Federal judge that he in fact forgot it.

Mr. Lucas: I think that is what the statute says, Justice Scalia.

All we are doing is interpreting this statute.

Unidentified Justice: Well, in a case like this, then, knowledge or not, it is just what you should try out is: What would a reasonable person in the community have believed.

And I am not sure that that would even be a triable issue.

The judge just ought to rule on it, like the Court of Appeals or the Fifth Circuit did.

Mr. Lucas: Well, let's accept one fact to begin with.

This was a rare occurrence, because most judges do recuse themselves.

Most judges say, "I have a conflict here".

Most judges... when Judge Collins had actual knowledge by his own admission on the 24th--

Unidentified Justice: He recused himself.

Sure, he did.

Mr. Lucas: --No, sir.

On January 24th, when he had actual knowledge--

Unidentified Justice: Yes, but he felt there wasn't any longer any conflict then.

Mr. Lucas: --The case was still--

Unidentified Justice: He was wrong.

Mr. Lucas: --The case was still under his control because it was two days before the judgment was entered.

I'm sorry.

It's March 24th.

Unidentified Justice: And this wasn't in the discovery?

Mr. Lucas: Discovery didn't take place until after we learned of this fact and then filed the motions to vacate.

Yes.

Unidentified Justice: No discovery before that?

Mr. Lucas: No reason to discover because we didn't know it until 10 months after the Court of Appeals decision was filed.

Unidentified Justice: Well, that is the reason for discovery is to discovery.

Mr. Lucas: That's right.

We had no reason to believe that Judge... we didn't know that Judge Collins was on the Board of Loyola.

Unidentified Justice: Were you interested in what transactions went on about your property?

Mr. Lucas: Justice Marshall, the property was not involved in this case.

All that was involved was the ownership of a corporation.

We had no knowledge that Judge Collins was a member of the Board of Trustees or that Loyola was involved.

Unidentified Justice: I didn't say that.

But weren't you looking up... there was nothing involved in minutes that required you to read the minutes?

Mr. Lucas: I had never seen the minutes.

We didn't even know about Loyola.

Because at the time, you understand, the tract involved was a different tract, not the Loyola tract.

It was a tract that HAI had acquired prior to its merger with HCA.

Unidentified Justice: You didn't find out until after you lost?

Mr. Lucas: That's correct.

Ten months after we lost.

Unidentified Justice: One little detail about the case I am puzzled about.

The judge who tried the question of whether Judge Collins knew the facts.

He tried it on the basis of deposition; didn't he?

Mr. Lucas: Yes.

Unidentified Justice: Or did the judge actually testify in front of the other judge?

Mr. Lucas: We agreed to submit it on depositions, yes.

Judge Collins' deposition, Mr. Steeg's deposition and the deposition of the Chairman, Vice President in Charge of Business and Finance for Loyola University.

Those three.

Unidentified Justice: I see.

Mr. Lucas, I take it that you are satisfied that we address only Section 455(a) as governing this case?

Mr. Lucas: Justice O'Connor, I was interested in the question you addressed to Mr. Farr with regard to 455(b)(4).

It is our opinion, the first court on remand... the first Fifth Circuit panel on remand, cited (d)(4)ii, saying that this was securities.

I don't think it is securities.

And if it is not securities, then there would have been... then it would apply.

It is real estate, not securities.

Unidentified Justice: What you have argued this afternoon is a 455(a).

Mr. Lucas: That's our main point, Justice O'Connor.

That's our main point; but I am not prepared to say that that wouldn't apply and we would certainly urge it on the theory that real estate is not securities.

Securities referring to stocks, bonds, notes.

Unidentified Justice: Mr. Lucas, although rule 60(b) doesn't set any time limit for sub-part (6) which reads:

"Any other reason justifying relief from the judgment. "

It does for (1), (2) and (3).

(3) for example, includes fraud.

But even if the judgment had been obtained by fraud, and it does set a time limit for that, which is one year.

Can you think of any reason why there should be more than one year for... why just a year for fraud?

And then the other things, (4), (5) and (6), the judgment is void.

There is no time limit for that, but a void judgment is a void judgment anyway.

It could be attacked collaterally.

So, there is no reason to set a time limit on that.

The judgment has been satisfied, relieved or discharged.

Likewise, it is just inoperative once it has been satisfied.

So, why should we set more than a year for this, although for fraud by one of the parties, we would only allow it to be challenged within a year afterwards.

Mr. Lucas: Justice Scalia, I can only answer you in this fashion.

We all know that the Justice Department suggested to Congress that a time limit be put in.

Congress, in its wisdom, legislated without a time limit.

It is impossible to say why they did it, but they did it.

No time limit was affixed to 455(a).

That is the only answer I can really, truthfully give you.

Unidentified Justice: Well, 455(a) also doesn't say anything about setting aside judgments.

It wasn't addressing the subject of setting aside judgments.

Mr. Lucas: Well, that, of course, is a procedural matter, the setting aside of the judgment.

Unidentified Justice: It is not a procedural, it has to do with what Congress was addressing.

There is no reason to expect a time limit to be set forth in 455 because it is not addressing the setting aside of judgments.

I thought you agreed that your effort to set aside a judgment was made under rule 60(a) and (b).

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

Unidentified Justice: May I ask you just the opposite of the question I asked Mr. Farr.

He wouldn't say... he wasn't quite prepared to say you could never set aside a judgment under 455(a).

Do you take the position that we should always set aside a judgment when there is a violation of 455?

Mr. Lucas: When there is a violation of 455(a)?

Unidentified Justice: Yes.

Mr. Lucas: Yes.

I take the position that the judgment is not void, but voidable.

Unidentified Justice: And every such judgment, no matter how trivial.

Say, the judge forgot he owned two shares of stock.

Mr. Lucas: Oh, no.

No, Justice Stevens.

Absolutely not.

The key words are "firmly expect".

Whether a "reasonable person would firmly expect" that the judge lacked impartiality.

They have got to firmly expect it.

It is going to take a strong set of facts.

I think we cited in our brief to you, we found 38 cases in 10 years in the whole Fifth Circuit: four cases a year.

Unidentified Justice: Where does the phrase, "firmly expect", come from?

Mr. Lucas: It comes form the interpretation... it comes from Hall v. SBA, the Fifth Circuit decision.

Unidentified Justice: It is not in the statute, then?

Mr. Lucas: No.

It is not in the statute.

Hall v. SBA, which was followed in Liljeberg and I don't recall.

It may have also been in Patacia.

But I think Hall was the one.

Unidentified Justice: But, of course at the time this case was going on here and at the time the judgment was rendered, the public wouldn't have firmly expected that there was any impropriety because the public knew no more than you did about the connection to Loyola; right?

So, what you are saying is now would the public firmly expect?

You want to apply it retroactively; right?

Mr. Lucas: Right.

Unidentified Justice: But if you apply it retroactively, then it seems to me only fair to take into account that we now have a determination by a Federal judge who says, "The man didn't know about".

And with that, you say even with that judgment, the public would firmly expect that he wasn't impartial.

I mean it seems to me you have to be retroactive or not retroactive, but don't suck back part of what we later know and not all of what later know.

Mr. Lucas: Let me answer you question in this manner.

First of all, you keep talking about the judge didn't know.

The judge did know.

He did know.

Unidentified Justice: I understand that.

Mr. Lucas: The court found that he knew.

Now, that was a finding of fact of the court.

He knew.

He knew, but he forgot.

Unidentified Justice: He had known.

Let's keep our tenses correct.

He had known.

Mr. Lucas: All right.

He had known, but he forgot.

Unidentified Justice: All right.

Mr. Lucas: He had known, but he forgot.

Now, in terms of the evidence an important part of this statute is objectively ascertainable facts.

In other words, if the public, given objectively ascertainable facts, which are what?

Which are that Judge Collins was in attendance at a number of Board meetings, three in a very short period of time, that he attended one Board meeting that was held in close proximity to the time he first ruled in this case.

Not his judgment in this case, not the trial of this case.

But he denied an injunction.

The second entry on page 1 of the joint appendix.

A very short period of time.

Then he read all of these things.

And Mr. Steeg said that every member of the Board of Trustees... these are all facts, which if presented to the public, to the average reasonable person, to the objective observer, would make them believe, firmly expect... not just believe, not just speculate: firmly expect that that judge was impartial.

Unidentified Justice: Had they known all of this, which they didn't.

Mr. Lucas, there is one other thing.

You keep emphasizing the prior knowledge and saying he had known.

As I read Judge Clark's opinion, I didn't notice this before, he seems to hold that they had constructive knowledge.

Mr. Lucas: They did.

Unidentified Justice: He calls this the constructive knowledge rule.

Mr. Lucas: Yes.

Unidentified Justice: And so that as a matter of law the case should be treated as though he had actual knowledge.

Mr. Lucas: That's correct.

Unidentified Justice: Because the facts tending to indicate knowledge are so strong that most people would disbelieve the judge.

And rather than trying to actually decide whether the judge was entirely candid or not, it would be better to adopt a constructive knowledge rule.

Judge Clark doesn't make the same concession that you make.

Mr. Lucas: I think, though, Justice Stevens, Judge Clark did not speak in terms of a general type of constructive knowledge.

A very limited type of constructive knowledge.

Unidentified Justice: But your firmly expect language is the test for determining whether there are enough facts to justify a finding of constructive knowledge which he, in effect, seems to make.

Mr. Lucas: That is correct.

And he knew he had knowledge before the judgment was final and did not make it known to the attorneys.

That was on the 24th of March 1982 and the case was under his control until the 26th of March 1982.

Had he made it known, the motion to vacate could have been filed then.

I mean the motion for recusal could have been filed then.

Or it could have been raised on appeal.

It wouldn't have reached this stage.

In summation, I would simply like to say that the facts of this case exude an aroma of the appearance of impropriety.

We feel that 455(a) was intended to cover factual situations such as this case presents.

And, accordingly, we respectfully request that the judgment of the United States Court of Appeals for the Fifth Circuit be affirmed.

Chief Justice William H. Rehnquist: Thank you, Mr. Lucas.

Mr. Farr, you have two minutes remaining.

ORAL ARGUMENT BY H. BARTOW FARR, III, ESQ., ON BEHALF OF PETITIONER -- REBUTTAL

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

Just very briefly: I would like to just address the question of exactly what the fact findings in this case are.

On page 28-A of the Petition for Certiorari, this is the District Court finding by Judge Schwartz.

It says,

"Judge Collins did not have actual knowledge of Loyola's potential interest in the HSA-Liljeberg controversy until March 24, 1982. "

On page 30, he then discusses that previous to that time at several of the Board meetings that there was available to the judge information and that would be sufficient to charge him with constructive knowledge.

But the only finding of actual knowledge made by Judge Schwartz is on page 28-A and it says that he had that at March 24, 1982, after all of his rulings in the case had been made.

The very rulings that Respondent wants to set aside.

Unidentified Justice: But I suppose you would be making the same argument if it were perfectly clear that he at one time knew it, but had just forgotten.

Mr. Farr: If, indeed there had been a finding, we would be making the same argument.

But I just think it is important for the record to point out that there was no such finding of actual knowledge at that time.

It was simply that he was present at Board meetings and had access to minutes from which he could have gotten knowledge, but no finding that he actually had that knowledge.

Now, the one other point I would just very briefly like to address is the (b)(4) point which was referred to by counsel.

(b)(4), as I said before, specifically... regardless of the question of the definition of securities under (b)(3) specifically requires knowledge.

And it seems to me that on the face of that provision that there is no constructive knowledge standard there.

What is being done here is to take that specific language that Congress included in (b)(4) and try in (a) to make a negligence standard out of it, to say that even if you didn't know, but should have known, we still would be entitled to the same relief.

It has nothing to do, I should point out, with prospective recusals.

There is no way in the world a judge can actually step aside and let another judge handle the case, which is really what Congress was aiming at, if he doesn't know of any grounds to do so.

Chief Justice William H. Rehnquist: Thank you, Mr. Farr.

The case is submitted.

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Liljeberg v. Health Services Acquisition Corp. - Oral Reargument

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Case:

Liljeberg v. Health Services Acquisition Corp.

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86-957_19880425-reargument.mp3

Related Transcript:

86-957_19880425-reargument.xml

Transcript:

ORAL ARGUMENT OF H. BARTOW FARR, III, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: Mr. Farr, you may proceed whenever you are ready.

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

Our disagreement with the Fifth Circuit decision in this case rests upon two basic grounds.

First, we think that final judgments should not be set aside because of after the fact recusal motions, unless there is a showing of actual judicial impropriety.

Second, we think that such relief is particularly inappropriate when at the time of judgment that the district judge did not even know of possible grounds for recusal.

Because a judge without knowledge cannot possibly favor one side or the other, it is in fact is more unfair in this case to throw out the judgment than it is to give it effect.

Now I would like to just spend a few minutes at the outset on the facts of the case.

The findings made by a separate district judge showed that at the time that he rendered his judgment and at the relevant time that the case was before him, that Judge Collins had no recollection of and no knowledge of any discussions between Petitioner and Loyola University regarding the possible purchase of some Loyola land.

The judge found that there were numerous individuals who had been discussing the possible purchase with Loyola, and that Judge Collins did not have any recollection that Petitioner was among them.

Now the Court will recall that this case did not involve Loyola University in any way.

Loyola was not a party to the case.

Its land was never mentioned in the case, and its interest was never mentioned in the case.

There was some discussion of land in the opinion, but that is completely different land that has nothing to do with Loyola University.

Judge Collins was said to have known at an earlier time, because he was present at some board meetings where the matter was discussed and after his judgment, but the specific finding is that at the time of his judgment that he did not know.

Now I should take this opportunity to correct a statement that I did make at the first argument, which is that he did not have earlier knowledge either.

The Court did find that he had had earlier knowledge, but said that at the time that the case was before him that he did not have any knowledge of these discussions.

Unidentified Justice: Was the finding that he did not know or that he did not remember?

Mr. Farr: I am sorry.

Unidentified Justice: Was the finding that he did not know or that he did not remember?

Mr. Farr: Well, I think both.

I think that the specific finding actually is stated in terms of knowledge.

But I think that it is implicit in that that he would not have remembered any earlier information that he might have had by virtue of having attended the board meetings.

Now the Fifth Circuit did not reverse its finding.

In fact, it reaffirmed that Judge Collins did not know at the time of his judgment about the discussions.

What it held was simply that the judgment had to be set aside, because in effect he should have known.

Now in discussing this decision, I would like to begin with what I think is an obvious but important point.

That the question here is not simply one of getting another judge at the beginning of the case, which is what Section 455 is basically aimed at.

The question here is one of setting aside a final judgment based on a motion that was made after the judgment was entered.

Now usually, this Court has set a high threshold for claims raised for the first time after judgment.

There are, of course, plain error rules on appeal and things like that.

And for Rule 60(b)(6), which is the rule under which this particular motion has been made, usually the Court has required a showing of exceptional circumstances before it would find a basis for a judgment being set aside.

Unidentified Justice: Mr. Farr, can I interrupt you.

If you draw the line at when the judgment was entered.

Can you refresh my recollection, what was the date on which this judgment was entered?

Mr. Farr: The judge signed the judgment on the 12th of March, and the judgment was entered formally on the 16th.

Unidentified Justice: And what was the date when he found out about the possible appearance of impropriety arising?

Mr. Farr: The date that the Court is using is the 24th of March, perhaps the 25th, but I think the 24th.

Unidentified Justice: And my question is what in your view was the Trial Judge's duty under the statute at that point in time?

Mr. Farr: I do not think that the judge in the case after the judgment essentially had been entered had any specific duty under the statute.

I think, frankly, that it would have been better practice, since it was so close to the time of judgment, if he had informed the parties, but it would not make any difference to our position in this case even if he had.

Unidentified Justice: And what would you say if a motion had been made on say the 26th or 27th of March, whatever the dates were?

Mr. Farr: We would take exactly the same position, Justice Stevens.

Unidentified Justice: That it was too late?

Mr. Farr: That is right.

I mean what we are talking about here is essentially a situation where he enters a judgment and he decides a case, and he has no reason to favor one party or the other.

And although, as I say, that I think that it would have been better practice had he made that clear eight days later, it would not have made any difference to the decision.

Unidentified Justice: And if he had happened to open his mail three of four days earlier.

I guess that there were just a couple of days before he got those letters.

And that would have been a critical difference too, I guess.

Mr. Farr: Your Honor, I am not sure that it would have.

I guess that it depends whether we are talking a couple of days meaning before he had entered judgment.

I think in that case, because the case would have still have been before him, that he would have not entered a judgment.

I think that at that point that he might well have had a duty to step aside and let another judge take over at that point.

Unidentified Justice: I mean "might well", he would have knowledge, would he not?

Mr. Farr: That is right.

That would be my understanding of the statute.

The only reason in fact that I used the phrase "might well" is that there is the unusual circumstance in this case that he did announce his ruling from the bench.

Unidentified Justice: Well, then he had no authority on the 60(b) motion, did he, or the new trial motion?

Mr. Farr: What happened in fact when the Rule 60(b) motion was filed and it was filed approximately a year and a half after the time that we are talking about now, he sought to reassign it to another judge for decision.

However, they sent it back to him.

At that time, he was no longer a trustee of Loyola University.

Unidentified Justice: But as of March 24th, he was mandatorily disqualified from this case under any view, was he not?

Mr. Farr: That is correct.

Unidentified Justice: And he had no authority to make any further rulings in the case.

Mr. Farr: As long as he was a trustee of Loyola University, that is correct.

At the time that the motion was made, the Rule 60(b) motion, in fact he was no longer a trustee of Loyola University.

So for example, if the case had been filed the first time at that point, then he might well not have had an obligation to recuse himself.

Unidentified Justice: Suppose that he did not remember the fact that his wife owned this property.

Let us just assume that his wife owned the adjoining property.

And as a result of his judgment, his wife is greatly enriched.

Is that grounds for recusal, mandatory recusal?

Mr. Farr: If there was a finding that he did not know about his wife's interest, Your Honor, I do not think that there would be grounds for recusal.

Unidentified Justice: The same case?

Mr. Farr: The same case.

The specific statutory provision that we would be dealing with in terms of the wife's interest in Section (b)(4), which specifically requires that he know of the interest before he is disqualified.

Now the question then would be if he did not in fact know, if he sat in perfect good faith in ignorance of this interest that his wife had, and that was part of the factual findings of the case, would that then have been a disqualifying interest.

I think not.

Unidentified Justice: Suppose that you add the fact that he was negligent in not knowing, is there any difference?

Mr. Farr: No.

I think that the point that we are making here is that the remedy of throwing out a final judgment for something which is merely negligence is too strong a remedy.

That there is no indication that in a situation like that that Congress intended that at any time that a judge inadvertently did not know about something that could be grounds for recusal if he had known about it, that the judgments automatically ought to be thrown out.

Unidentified Justice: Well, does the court below have discretion to set aside the judgment; did the Fifth Circuit say that this was automatic, that it had no choice?

Mr. Farr: Well, it accepted the finding, and then said that it found that there was an appearance of impropriety.

Our position certainly is that we do not see how there is an appearance of impropriety; if a judge is sitting without knowledge of a possible disqualifying interest.

Under those circumstances, what possible ground would he have to favor one side or the other.

In that particular case, there is not the kind of temptation, which in the words that the Court has used, which would lead him to hold the balance other than straight and true.

It is only if he has knowledge.

Unidentified Justice: Again the same argument if he is negligent?

Mr. Farr: That is correct, that is correct.

And we think that Congress in fact specifically framed Subsection (b) in terms of knowledge for just that reason.

Because if you say that as long as you can show that a judge should have known of something, just to take the negligence standard.

Unidentified Justice: You are not ignoring appearances, are you?

Mr. Farr: Your Honor, I am not ignoring appearances.

What I am saying is that here you have a specific finding that he did not know.

And I think that that is a very important aspect of the question of how this appears.

Unidentified Justice: Everybody but him.

Mr. Farr: He understood that he was a trustee.

What he did not know that there was any interest in the case before.

Unidentified Justice: I know, but it seems to me that appearances are there.

Mr. Farr: Well, Your Honor, what I am submitting here is that when you are talking about a situation where he in fact did not have knowledge, you can only create the appearance essentially by doubting the fact that he did not have knowledge.

Unidentified Justice: Mr. Farr, is that not the very point of the appearance of impropriety, that the public really does not know exactly what the judge's state of mind was, or whether he remembered, or deliberately forgot or what.

And the appearance concept is designed to take care of in part of public perceptions of act when you do not in fact until months later have a finding of fact that he did not actually know.

Mr. Farr: Can I make two points about that, Justice Stevens.

First of all, of course, the appearance standard is something which is supposed to be used on going forward basis.

That is the normal intent of it.

And the expectation is--

Unidentified Justice: On a what kind of standard?

I did not understand.

Mr. Farr: --On a going forward basis, on a prospective basis.

That the facts will be known, and that essentially will be a guideline for a judge to use in deciding whether to sit or in fact to transfer the case to another judge.

And I think that the question here is a somewhat more difficult one, which is in a situation where he did not know, would we just apply the same rule.

Unidentified Justice: Would you say that 455(a), which I think is the relevant provision here, can never be violated if the judge is not aware of a disqualifying fact.

Judges do this.

They have portfolios of stock, and they forget that they own a hundred shares of some stock, but the newspapers check this up.

Would you say that there was no violation of that section, if the judge has honestly forgot about it, if there was no appearance of impropriety?

Mr. Farr: I would say so in the example that you have given me, Justice Stevens.

I have not been able to think of an example in which I think if a judge honestly did not know of any reason to be partial, that that would legitimately create an appearance of partiality.

Unidentified Justice: Wait a minute.

Let us suppose in this case that he is a big booster for Loyola and has been, and everybody in town knows that he is a trustee of Loyola.

And this is a big case and the caption is Loyola versus somebody else.

And he for some very strange reason forgets that he is a trustee, and he continues to sit in that case.

Do you not think that that would create an appearance of impropriety.

The only reason that I thought that you could argue that there was not one here is that the impropriety did not at all consist about the fact, that is was very hidden, even the other side did not realize that this land or that this company had a bid in on land, and if the company went under that the land would not be bought by that company, and that the land belonged to Loyola.

I can understand that that is no appearance of impropriety, because the public at large would not know that.

But the other example that I just gave you, would that not be an appearance of impropriety?

Mr. Farr: But of course, in that case, Justice Scalia, I cannot imagine that there would be a determination that he did not about it.

To begin with, just to give you a technical answer.

Unidentified Justice: It is my hypothetical.

I mean there is a determination that he did not know about it.

Mr. Farr: And that finding is made on the basis of a record as accepted by the Court of Appeals.

Unidentified Justice: Then there is no appearance of impropriety?

Mr. Farr: I think that in a situation where he does not know about the particular grounds to give rise to recusal that the appearance can only be achieved essentially by not accepting the finding.

But the problem is that while that may be a situation that happens in lots of cases where people looking at it say here is a particular finding that a judge has made and I personally do not accept it, if you follow that course with Section 455(a) or even 455(b), you are going to open up all sorts of situations where the findings are controlling.

Unidentified Justice: Yes.

But under your view, as I understand you, you really will not know whether there was an appearance of impropriety until you have had a finding of fact on the judge's state of knowledge.

Mr. Farr: Well, Justice Stevens, I think that that occurs in lots of cases, whether it is something that the judge knew, or whether it is something that the judge did, or something that the judge said.

Unidentified Justice: Well, I am not disagreeing with you that that is not true, but that is a little different from one's normal concept of what an appearance of impropriety is.

It seems to me that the appearance either exists or it does not exist, and sometimes there is a wholly innocent explanation for it.

But it seems to me that that does not really affect the public perception.

The public sometimes is suspicious of us, even though they really should not be.

Mr. Farr: Except, I think, that 455(a) talks in terms of reasonable suspicion.

Now I suppose that the public may be suspicious, even after a judge has said that there is no basis here for believing that this judge did anything wrong.

The public looks at it and says, gee, if we had been the judge, we think that something looks worse than that, we are troubled about that.

Unidentified Justice: Mr. Farr, how does Subsection (c) enter into this.

It says that the judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort, and so forth.

Does that enter into the picture at all?

Mr. Farr: I do not think that it enters into this picture, Justice O'Connor, and let me try to explain why.

At the first argument, I indicated why I thought that that particular section did not really apply here.

Because Section (b)(4) says knows, not should know.

And there is nothing in (c) about a conclusive presumption.

But I would like to supplement that answer by pointing to the particular language of Subsection (c).

Because I think that under any reading of Subsection (c) that the knowledge that we are talking about here is not the kind of knowledge that he would be conclusively presumed to know under (c), even if it does have the conclusive presumption.

What Judge Collins is said not to have known in this case is the names of possible purchasers of land from Loyola University.

And if you look at what he is required to know under (c) or what he is required to inform himself about are fiduciary financial interests.

And financial interests are defined in terms of ownership of a legal or an equitable interest.

Unidentified Justice: Well, then what about the hypothetical that you were asked about the spouse owning shares of stock, I mean he deals with a case involving that company, do you not think that (c) suggests that he should know that his wife owns the stock?

Mr. Farr: Let me say that (c), of course, in the hypothetical of his wife, that there is a reasonable efforts clause under (c), not a specific knowledge clause.

The legislative history gives an example which Justice Traynor gave of the difficulty of asking one's spouse about his or her investments, and indicates that they particularly had a lower threshold in that situation.

But anyway to answer your question, Justice O'Connor, I think that there might be a possible reading under (c) which says that the way that we are going to enforce the provisions of Subsection (c) is to assume that a judge knows at least about what he is required to inform himself about, and perhaps what he is supposed to make reasonable efforts about.

But even if that were so, that still would not mean that he would have to know not just what he owned, what his wife owned, what any private trust that he served as a trustee owned or any university, but also anybody who might buy that.

Unidentified Justice: But in the case of other than this one then, do you concede that (c) affects (a) in the sense at least to the extent that the judge is supposed to inform himself about his own personal interests?

Mr. Farr: I guess that I think that it is possible, Justice O'Connor.

I do not believe that I need to win those cases, so I think that the easy thing to do would be just to say yes.

But I am quite honestly not sure that even in that situation that the remedy of invalidating a final judgment of all prior rulings would be proper, just because he did not carry out the duty under (c).

It is in the Code of Judicial Ethics.

Unidentified Justice: Was there a finding that he did comport with his duties under (c) in this case?

Mr. Farr: Your Honor, there was no specific finding about that at all.

Unidentified Justice: It seems to me that there could not very well have been.

He is a fiduciary, and he has an obligation to make sure of what his beneficiaries' interests are.

And this was not a small potatoes deal, as I understood it.

Did not Loyola stand to have its adjacent land increase tremendously in value if this hospital went through?

Mr. Farr: That was the finding of the Court, that this was an important interest to Loyola.

But let me explain again the situation.

Unidentified Justice: And does not the judge have the duty to inquire as a fiduciary into all of the interests of Loyola, just to make sure that this does not happen?

Mr. Farr: Well, what I would like to point out here is that even if the judge had carried out that duty to its fullest degree, at least that I think is contemplated by (c), had learned everything that Loyola owned, that still would not have been enough to put him on notice necessarily about the case that was in front of him.

I mean obviously if Loyola University had been a party or its land had been mentioned in the case, then you could say, well, he is supposed to know that they owned the land, and then he should recognize when it was mentioned.

But what we are talking about here is a series of board meetings.

We are really talking about I guess three board meetings over a period of several years, in which the name of the petitioner and the corporation that he owns are mentioned on a couple of occasions.

Unidentified Justice: But not only that, but the hospital project.

You would think that that would stick in his mind.

Mr. Farr: Well, except that was one of numerous things that they were talking about doing with this particular piece of land.

I think that to some extent that you have to put yourself in the position that a trustee is in in these board meetings, where you are talking about numerous items that come up, for example.

And any report by the real estate committee, for example, is one of ten, a dozen, or twenty things that are discussed at a meeting.

And even then, the idea of using this as a hospital was one idea.

The idea of using it as a shopping center was another idea.

There is a part in the minutes about somebody wanting to use it for parking.

Unidentified Justice: That was what I was going to mention.

There were minutes of all of these meetings.

Mr. Farr: There were minutes.

Unidentified Justice: Which he was supposed to have read.

Mr. Farr: He said that what he did is that he scanned the minutes.

Unidentified Justice: Anybody in the public assumes that a trustee reads the minutes.

Mr. Farr: He said that he scans the minutes of the meeting, but that he took no particular interest in these financial dealings.

And one of the things that I think is important to note--

Unidentified Justice: How can you convince the public of that, that a judge does not understand what he is reading?

Mr. Farr: --Well, the public has to understand the position that a judge is in, particularly as a fiduciary of an institution like a university.

The Code of Judicial Ethics in fact prohibits a judge from taking an active interest in the financial affairs of Loyola University.

He is not allowed to do that ethically.

He can a trustee for certain kinds of private trusts, and he can serve in a fiduciary capability for a public institution, but he cannot take an active role in the financing.

Unidentified Justice: Well, did he in this case make his position clear?

Mr. Farr: He did not take an active role in Loyola's finances.

In fact, that is precisely what he said.

Unidentified Justice: Did he make that clear to the public, did he make that clear to the public or anybody else?

Mr. Farr: He testified under oath to that effect; yes, he did.

Unidentified Justice: He made it clear to whom?

Mr. Farr: When a Rule 60 motion was filed a year and a half afterwards.

Unidentified Justice: That is not what I am talking about.

You said that under the law that he has to do this.

But did he do that, did he make it clear that he was not interested in the fiduciary doings of that place, did he?

Mr. Farr: Your Honor, I am not sure that I understand your question quite honestly.

Unidentified Justice: Did he say that I pursuant to the laws of the State of California am not allowed to participate in the fiduciary business of this corporation?

Mr. Farr: Your Honor, I do not know that he did that.

But I do know that he did not serve on the real estate committee, that he did not serve on the investment committee, that he did not serve on the executive committee.

Unidentified Justice: Did he disqualify himself from every vote on every financial transaction that came before the board of trustees?

Mr. Farr: The Code of Ethics allows you to vote as a general trustee on financial matters.

What it does not allow you to do, however, is to actually participate in making the financial decisions.

And I think that what is happening is that in a sense that we are looking to impose.

Unidentified Justice: Do you think that it is appropriate for a judge to vote on a financial matter which is also appearing before his court?

Mr. Farr: Do I think that it is appropriate?

Unidentified Justice: Do you think that it is appropriate for a judge to vote on a financial matter and financial transaction that is being reviewed in his court?

Mr. Farr: No, I do not.

I think that if he knows that there is a financial matter either at the board meeting or in his court, that he should not vote on it if it is in his court, or that he should recuse himself if the matter is before him in his courtroom.

But those are cases, of course, where we are talking about knowledge.

And what we are talking about here is a situation where Judge Collins could not reasonably have had any reason to favor one party or another.

And the question really then is is it appropriate--

Unidentified Justice: Was that finding made by the lower court?

Mr. Farr: --Pardon me.

Unidentified Justice: Was that finding made by the lower court?

Mr. Farr: Not that specific finding.

But the finding that he had no knowledge, it seems to me, that it follows naturally from that that if you do not know about any reason to be partial, that there is no reason that you would favor one party over the other.

And the court below accepted his testimony to the effect that he did not know at the time that he sat on the case.

Now I would just like to make one brief point, and then save the remainder of my time, if I may.

The type of thing that we are talking about, the issue of allegations about a judge and what is determined, and then what the public believes, does come up in several different kinds of cases.

And in response to Justice Stevens' question, I wanted to say that there are cases, for example, where there is an allegation made that a judge made an out of court statement to a third party which indicates some sort of bias or prejudice.

And in each of those cases, there is then a question as to whether in fact the judge made the statement.

And there have been fact findings.

There is a case in the Seventh Circuit, Balastrue; the Ninth Circuit, Conford; and the Fifth Circuit, Brown, which are examples of this.

Sometimes the fact finding is not favorable to the judge.

That was the situation in the Brown case.

And sometimes it is.

But it is that finding, whether he said it or what he said, that is then used as the basis for application of the statutory provision.

Unidentified Justice: Yes, but Mr. Farr, the facts that give rise to the violation of 455(a), if there was a violation of 455(a), would exist before the finding occurred.

Whereas the ones that you described depend on whether the statement was made, which is an objective fact yes or no.

What you in effect are saying is that later on you want to know the subjective state of mind of the judge here to determine whether there is an appearance.

And I would suggest that the appearance might well have existed, even though he did not realize that there was a disqualifying fact.

Mr. Farr: Well, I guess that I do at some point part company on that.

Unidentified Justice: Is it your position that 455(a) was not violated, or that the vacation of a judgment is an impermissible remedy for a violation of 455(a)?

Mr. Farr: It is both.

Unidentified Justice: It is both.

Mr. Farr: Our initial position, as I meant to indicate, was that this is not a permissible remedy or not an acceptable remedy, simply for an appearance of impropriety, when you are talking about a motion filed after the fact.

That is what the Seventh Circuit's rule is.

What I am saying in addition though is that because of the finding of lack of knowledge, I think that if you credit that, there is not even an appearance of partiality in this case.

Thank you.

I will reserve my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Farr.

We will hear now from you, Mr. Lucas.

ORAL ARGUMENT OF WILLIAM M. LUCAS, JR., ESQ. ON BEHALF OF RESPONDENT

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

We submit to Your Honors that the single most important finding of fact by the Fifth Circuit was its finding that the public would not believe the Judge Collins forgot.

If the public would not believe that Judge Collins forgot, it would therefore believe that his impartiality might reasonably be questioned.

And it would therefore believe that the judgment was tainted.

And the requirements of 455(a) would then have been met.

And that was basically, I believe, the foundation of the Fifth Circuit's holding.

The Fifth Circuit also said that the judge erred in failing to recuse himself.

Unidentified Justice: Excuse me.

That would show that he should disqualify himself in any proceeding in which his impartiality might reasonably have been questioned.

And this says might reasonably be questioned.

The proceeding was over.

At the time that it was conducted, there was no reason for the public to question his impartiality.

What you are saying is that the public will not believe that his colleagues' finding that he did not know about it was true later.

Mr. Lucas: At the time of the hearing, I believe that the public would question his impartiality, yes.

If the public knew that he was a member of the board then.

Unidentified Justice: The public did not know.

But the public did not know.

At the time of the proceeding, even the parties did not know, who were much more familiar with all of the land involved in the case and all of that.

It is hard to believe that the public would have known.

Mr. Lucas: The public, I believe, for purposes of 455(a) is presumed to know objective facts.

The objective facts were that before that hearing and during that trial, this man, this judge, was a member of the board of trustees of Loyola University.

At that time, the public is expected to know that, yes.

I do not think that it matters when he learned it, Justice Scalia.

Unidentified Justice: The public is deemed to know every little detail, even though he is unaware of those details, and even though he has no obligation to inform himself of those details?

Mr. Lucas: No, I do not think that the public is deemed to know every little detail, and that is where the importance comes in.

I think that the public is to know that if Loyola owns a 530 acre tract of land, which is what this is, the equivalent of about seventeen square city blocks, that if it is going to sell a piece of that land and it is going to have rezoned 115 acres around it which will increase the value by $9 million, I think those facts that the public would expect to be important and would know.

Unidentified Justice: The public did not know the connection between this company and that land any more than the judge here did.

Do you seriously contend that at the time that the judgment was rendered that there was an appearance of impropriety?

Mr. Lucas: Yes.

Unidentified Justice: There was.

To whom was this appearance manifest, since your client did not find out about it until how much later?

Maybe you are guilty of laches then.

Mr. Lucas: Well, then, too, maybe the court is guilty of not having revealed it, as it is required to do and mandated to do.

When it knew it, it did not tell the parties.

It did not tell the attorneys.

I do not think that under those circumstances that we should look back and say.

In other words, it seems to me, Justice Scalia, that if a judge could just keep to himself some interest that would require his recusal under 455(a), if he could just keep it to himself under after the judgment is rendered, all is well.

Unidentified Justice: Because then he would come under another provision where he has personal bias or prejudice, or where he actually knows of a financial interest.

But here, you are just saying that he did not know of it.

I mean that is quite different.

Here you are saying that this judgment was bad, because it appeared that he was biased.

And I find it hard to say that at the time of the judgment that there was any appearance of impropriety.

Mr. Lucas: Justice Scalia, we do not say that he did not know.

The judge himself said that he did not remember.

He knew on January 24, 1980.

The court found that as a finding of fact.

He knew on September 25, 1981.

He knew on November 12, 1981, and that is an important date.

Because on that date, he attended a meeting, and he voted on a motion that was passed unanimously or presumably he voted.

He was there, and the motion passed unanimously, to resume negotiations with Mr. Liljeberg.

Eighteen days later, the suit was filed.

And twenty-nine days later, he denied a TRO and refused a stay and injunction that suit, twenty-nine days after that meeting.

Unidentified Justice: You tried this and lost, did you not?

Mr. Lucas: Sir?

Unidentified Justice: Did you not argue this to the District Court?

Mr. Lucas: And lost on the merits.

Unidentified Justice: And lost on the merits.

Mr. Lucas: Yes, sir.

Unidentified Justice: We do not want to try that again here.

Do we not have to accept the fact that he did not know, is that not the posture in which this case is going forward?

Mr. Lucas: No, I do not think.

I think that what is before the Court is the Fifth Circuit, Judge Collins particularly saying that he did not remember.

I think that there is a difference between he did not remember and he did not know.

He did know initially.

Now we are in the area of did he know and then forget.

That is really what we are saying.

Unidentified Justice: When did you or your client find out that he was on the board?

Mr. Lucas: We found out, sir, ten months after the judgment was rendered by the Fifth Circuit Court of Appeals.

Unidentified Justice: You mean that you tried that case against the corporation, and you never examined its minutes; did you ever examine the minutes of Loyola?

Mr. Lucas: Loyola was not a party to the suit, Your Honor.

Unidentified Justice: I know, but it was involved.

Mr. Lucas: No, it was not involved.

It was not involved in the suit.

The suit was over the ownership of a corporation, which in turn owned a certificate of need to build a hospital, a hospital which was going to be built if Mr. Liljeberg was successful on Loyola property.

Unidentified Justice: But was it property of Loyola?

Mr. Lucas: On which it would be built; yes, sir.

Unidentified Justice: And you did not look at the minutes?

Mr. Lucas: Did not even know of any connection between Loyola and Mr. Liljeberg.

Unidentified Justice: Wait a minute, do not say that you did not even know that there were minutes.

Mr. Lucas: No, sir.

Did not know of any connection between Mr. Liljeberg and Loyola.

Unidentified Justice: But you never looked at the minutes, you said.

I just think that it is strange.

If you had looked at the minutes, you would have known that he was a trustee, would you not?

Mr. Lucas: Well, sir, I am perhaps not making myself clear.

I had no reason to look at Loyola's minutes.

Because Loyola was not a party to the suit, and I have no idea at that time that a hospital would be built on Loyola's property.

It could have been built anywhere.

So there was no reason to suspect.

Loyola played no part in this case.

Unidentified Justice: You no more than the general public had any reason to believe that there was any impropriety.

I mean that seems to me very telling.

And yet you assert that there was an appearance of impropriety, although you did not see any.

Mr. Lucas: I can see impropriety in the fact that the judge knew on March 24th, two days before he lost jurisdiction of this case, and did not inform anyone and did not tell anyone.

He had a mandatory duty to recuse himself at that point.

Unidentified Justice: That might be actual bias or actual impropriety, but it would not be an appearance of impropriety, which is what I thought that we were talking about.

The discovery did not disclose that St. Jude was negotiating with Loyola as a prospective seller of the land?

Mr. Lucas: No, sir, it did not.

The discovery on the merits of the case, you mean?

Unidentified Justice: Yes.

Mr. Lucas: No, sir, it did not.

Unidentified Justice: You just assumed that a hospital would be built somewhere?

Mr. Lucas: Where the hospital was going to be built was really of no concern.

You see, this was a contest between HSAC, which is a subsidiary of Hospital Corporation of America, and Mr. Liljeberg, who was negotiating with other companies.

HSAC had land on which to build the hospital, and which the state had approved the site for the hospital.

So where the hospital was going to be built was really of no concern to us, even if Mr. Liljeberg won.

We were concerned with him not winning.

Unidentified Justice: When the judge failed to disclose his interest on March 24th, how did that prejudice you.

I take it that counsel for the Petitioner and Appellant argues that it really did not make any difference at that point, that the trial was over anyway.

Mr. Lucas: Well, again, looking back on it, a number of things could have happened.

Number one, the judge on his own motion under Rule 59 could have declared a new trial right then and there.

On the night of March 25th, the last date, on March 25th of 1982, the last date that it was still under Judge Collins' jurisdiction, he attended a meeting at which the details, the details of this land transaction were discussed.

Those minutes are before Your Honors.

No phone calls, certainly not to me, and certainly not to anyone else that I know about, to say, even on March 26th, 27th, or 28th, hey, I hear you are appealing this case, I think that you ought to know.

And the onus is not on the lawyers, Your Honors, as I read the statute and jurisprudence.

The onus is on the judge.

Unidentified Justice: What conclusion do we draw from that, (a) that it would have been easier to make your motion, but does it tell anything about what the substantive ruling on the motion would have been.

We are back in the same box that we are in now, that is to say that the trial is over.

Mr. Lucas: No.

Except, of course, one of the arguments that is raised is the question, the opposing counsel's question is timeliness.

And of course, it is directly involved there.

We were in a position where it was ten months after the court ruled.

Unidentified Justice: What about the merits?

Mr. Lucas: The merits?

Unidentified Justice: The merits about the recusal motion or the new trial motion.

Those are the same, are they not, on March 24th or ten months later, or are they?

Mr. Lucas: Yes, I think that they are, sir.

I think so, sir.

Now one of the points that this Court, of course, is well aware of is that a judge should not act as a judge in his own case.

And this Court in Aetna v. Lavoie established that principle.

Also the law does not look at just actual bias, but it looks at the question of the appearance of bias or the appearance of impropriety.

And this was an important holding by the Court in the Commonwealth Coatings case back in 1968.

In fact, it was that case that was used as a source of 455(a) in the Senate and House hearings.

Therefore, in the absence of a designation of a remedy in Section 455, the remedy applied by this Court in Commonwealth Coatings is reasonable.

I was asked before at the earlier hearing as to the basis for any remedy under 455.

And I think that the basis for that remedy is the Commonwealth Coatings case.

I do not think that I or anyone else will ever know what is only known to Judge Collins.

I think that a terrible situation would face this Court and this nation under this statute if we ever got into a position where a judge stands in the position of the person being tried.

And I would cite the Court to U.S. v. Brown in the purview of a fair trial, that it is the judge himself who is on trial.

If we ever get to a situation where the judge can say I forgot or I do not remember and completely exculpate himself from any finding of impartiality, then I think that we would do violence under those circumstances to the congressional intent of 455(a).

I think that the cases have clearly established that we must rely upon on objectively ascertainable evidence rather than the judge's memory or the judge's professing of not remembering.

Unidentified Justice: Mr. Lucas, such a holding would not stretch as far as you are suggesting.

I mean if the thing that he claims not to have remembered is something obvious to all of the public and he is the only one in the world who did not remember, then you could say whether he remembered it or not, that there was an appearance of impropriety, because the whole public knew that this land was involved in litigation and that he was a trustee of Loyola.

But it is a much narrower situation when you say that it is a little thing that the public would not know about, and that it is that he claims not to remember.

What is so bad about letting that be adjudged by a separate court.

And if the court is persuaded that he did not remember it, there has neither been an appearance of impropriety nor any actual impropriety.

Mr. Lucas: Well, Justice Scalia, I think that we get back to the question of is it a little thing or is it a big thing.

Here, it was a big thing.

Here, it was a case of a judge who attended three meetings where this matter was discussed apparently in detail.

And the suggestion has made that he only heard it one, or two, or three times.

Unidentified Justice: Well, you are mistaking what I mean by a little or big thing.

I mean a thing that is evident at the time of the trial.

This was not evident at the time of the trial.

Your client did not pick it up.

It was a very remote connection.

Now maybe he should have remembered it, but he did not, or at least it was found that he did not.

Mr. Lucas: But I believe that it is presumed that the public knew whatever the facts were at that time, not later.

Whether the public finds out later or not is inconsequential.

So we look at the facts at that time.

The facts at that time were that he had any number of meetings and he got any number of minutes.

Unidentified Justice: I think that is the essence of what we are debating about here.

Whether you use what the public reasonably knew at the time, or what ever detail of the fact was at the time.

I think that you are right that if you say that that is the basis on which you do it, then there was an appearance of impropriety.

Mr. Lucas: I think that is it.

Unidentified Justice: Were there findings on when both parties knew, when Liljeberg knew?

Mr. Lucas: I am sorry.

Unidentified Justice: Were there any findings as to when Liljeberg knew of the judge's trustee position?

Mr. Lucas: That never entered the case, and that is another point.

Presumably, he was negotiating for quite awhile, as later developed at depositions taken after the motion to vacate was filed, yes.

That was never revealed to us.

He was negotiating the whole time.

Unidentified Justice: May I ask you along that line, Mr. Lucas, something that has always puzzled me.

In the minutes of the January 22nd meeting.

What was the date of the trial, it was right at about the time?

Mr. Lucas: The trial was January 21 and 22; yes, sir.

Unidentified Justice: The minutes of the real estate committee on January 22 refer to the negotiations with St. Jude Hospital Corporation, and that Mr. Eckholdt report that the Federal Courts have determined that the certificate of need will be awarded to the St. Jude Corporation.

That quite obviously refers to the judge's oral rule from the bench in this case.

But is there anything in the record that tells us how the Loyola trustees came to be aware of that fact?

Mr. Lucas: No, sir, I do not know.

Unidentified Justice: Or whether they perhaps warned the judge that he should not be sitting in a case like this or anything like that?

Mr. Lucas: No, I do not know.

Unidentified Justice: That did not come out in discovery?

Mr. Lucas: I do not know.

Obviously, they were keeping track of the case.

Unidentified Justice: The Loyola people were keeping track of the case?

Mr. Lucas: Yes.

But again, I must stress the fact that we did not know.

When I say we, HSAC did not know of Loyola's connection with this proceeding until ten months after the Court of Appeals, the U.S. Fifth Circuit.

I would also like to point out one thing that I think also is very worthy of consideration.

And that is that 455 applies to criminal cases as well as applying to civil cases.

I think that if we were to give the interpretation that Petitioners wish to give to 455, then in U.S. v. Brown, the Defendant would still be in jail, or at least he would have served out his sentence.

Because despite the fact that there was a great impropriety in that case, the judgment had already been rendered.

It was some time eight years later between the time that the man was tried and the time of the reversal.

He would still be in jail.

Because it was not a case of actual bias, he could not proceed that way.

It was a remark that the judge made that did not come to light until after the trial, four years I believe it was after the trial was over.

So if we give the construction to this statute that once judgment is rendered that that is it, or once an appeal is exhausted that that is it, then I submit to Your Honors that an injustice in the criminal field as well as the civil could well take place.

Unidentified Justice: Do you think that if you apply a preponderance of the evidence standard in a criminal case to determine whether the judge in fact knew of the biasing factor, do you not think that you would have to apply a beyond a reasonable doubt standard?

Mr. Lucas: I do not know, Your Honor.

I confess that I am out of my field when we are talking about criminal law.

Unidentified Justice: If there is more than a fifty percent chance that the judge was not biased, we are going to let the person go to jail.

I doubt that.

Mr. Lucas: This judge in effect acted as a judge in his own case, once simply by saying I do not remember or I forget is taken as the basis for saying that he would not be responsible under 455(a).

To the contrary, the Fifth Circuit finding that the public would not believe that he was impartial said that he because of constructive knowledge, things that he should have known, that he had a duty to inquire into, Justice O'Connor, under (c), requires that he be found to have had the requisite knowledge to indicate his impartiality under 455(a).

The record clearly establishes that Justice Collins attended board meetings on these three occasions that I mentioned.

Again I wish to particularly stress the November 21, 1981 board meeting, twenty-nine days before he ruled on a preliminary matter in this case, which you will find on page one of the joint appendix, within twenty-nine days.

We, and when I say we, the members of the public have to ask ourselves if we were on a board of trustees that was getting ready to sell a piece of property that had discussed at a number of meetings that we attended, that was one of the principal assets of this institution that we serve, and the surrounding land was going to be increased in value by $9 million, and we voted on the motion to renew the negotiations with these people, Liljeberg and St. Jude, would be twenty-nine days later remember that.

I think that we would.

And I think that under that construction, that the court properly found that the public would not believe Judge Collins forgot.

Thus, it is not a question really of whether he knew or he did not know, or whether he forgot or he did not forget.

It is a question of whether the public would find that based upon the relevant objective facts that it appeared that the judge was not impartial.

From the beginning, this Court has said that justice must satisfy the appearance of justice.

And that the imprimatur must be placed on a sound judicial system that has the support of the people.

And I believe that that was the purpose of 455(a).

455(a) is not to be applied in a speculative manner, not just any situation.

Not just something, Justice Scalia, that it seems to me involves something quite minor should be used to try to set aside a judgment.

I certainly do not think that that was the meaning that was ever intended to be given to it.

But in a situation of extreme facts, strong facts, compelling facts, as we have in this case, that is the only vehicle by which we can preserve our right to a fair trial, if you will, a fair trial in a fair tribunal, which after all is the purpose of the statute.

Thank you for your attention.

Chief Justice William H. Rehnquist: Thank you, Mr. Lucas.

Mr. Farr, you have three minutes remaining.

ORAL ARGUMENT OF H. BARTOW FARR, ESQ. ON BEHALF OF PETITIONER -- REBUTTAL

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

Counsel talked briefly about Aetna Life Insurance v. Lavoie.

And I think that the decision of this Court in that case points out what I think is a very important part of this case, which is that there is a difference between a judge who sits knowing of a possible interest and a judge who sits when he does not know it.

In Lavoie, the Court did hold that one of the Justices of the Alabama Supreme Court should be disqualified, because he sat knowing of an interest.

The Court was also asked, however, to disqualify all of the other judges of the Court because they were class members.

And in discussing that claim, this Court pointed out that they were not even aware of any interest in the case when they sat on it up until the time of the rehearing.

And the Court assumed, and I think correctly, that they could not have had any reason to be biased, at least up to the time that they knew about it.

I think that what this case really is coming down to from the gist of Respondent's argument is the question as to whether you believe Judge Collins or not, and he says that reasonable people in this case will not believe him.

And if in fact he did something wrong, certainly the judgment should be thrown out.

But the question is what facts do you have to follow through on in order to reach that conclusion.

You have to assume, first of all, that Judge Collins sat in a case violating his judicial oath, knowing that a university that he served as a trustee had an interest, and yet sat to favor that interest.

When it was called to his attention eighteen months later in a motion, he falsely denied that he knew about it.

Unidentified Justice: Yes, but it was called to his attention very much more promptly than eighteen months.

Mr. Farr: It was called to his attention.

But at that time, as he testified, he said that the case was disposed of.

Unidentified Justice: Do you not agree at that point that he had a duty to do something more than he did?

Mr. Farr: I agree at that time that it would have been better practice.

Unidentified Justice: Do you not think that he had a duty to do something more than he did?

Mr. Farr: I do not agree, Justice Stevens.

Unidentified Justice: You do not think that he had a duty to disclose to the parties what the true facts were?

Mr. Farr: As the Fifth Circuit said in addressing that issue, it would have been better had he done so.

Unidentified Justice: I understand that everybody knows that it would have been better.

If it just would have been better, then you are saying that he had no duty to disclose at that point?

Mr. Farr: At that point, I do not believe that he had a duty to do so.

But let me return.

Even if he did, I think at that point that it just would have been a matter of recusing himself from any motions, and there were none made at that time.

But let me again go back to these facts.

The motion was made to Judge Collins.

Judge Collins said I did not know about it.

His deposition is taken under oath, and he says I did not know about it.

Judge Schwartz makes a finding that says that he did not know about it.

And three judges on the Fifth Circuit say we accept that finding, we do not believe that Judge Collins knew about it either.

Unidentified Justice: And in each of those instances, you can substitute the word "remember" for the word "know"?

Mr. Farr: That is correct, that is correct.

Unidentified Justice: It is rather for one Federal Judge to call another one a liar, is it not?

Mr. Farr: Well, as I have indicated before, Your Honor, there is a procedure set up for disciplining judges, which Congress set up six years after it amended 455 that depends on judges taking responsibility for the conduct of other judges.

Chief Justice William H. Rehnquist: Thank you, Mr. Farr.

The case is submitted.

Attribution:

The Oyez Project

Aetna Life Insurance Co. v. Lavoie - Oral Argument

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

Case:

Aetna Life Insurance Co. v. Lavoie

Media File:

84-1601_19851204-argument.mp3

Related Transcript:

1985_84_1601_argument.xml

Transcript:

ORAL ARGUMENT OF THEODORE B. OLSON, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: Mr. Olson, I think you may proceed whenever you are ready.

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

This is an appeal under 28 U.S.C. Section 1257(2) from a judgment of the Alabama Supreme Court upholding the constitutionality of an Alabama law which imposes a 10 percent penalty on an unsuccessful money judgment.

Underneath the dispute with respect to jurisdiction, there is a well-established Alabama practice which we believe and we have discussed, in the briefs resolves the questions which have been raised about jurisdiction both with respect to the 10 percent appeal penalty under the Alabama law, and with respect to the other issues which are brought to this court with this appeal.

There is a well-established Alabama practice of considering issues which have been raised on rehearing or in other postjudgment motions.

We cited to the Court 17 cases in our briefs in which Section 12-22-72 of the Alabama Code was raised in a postjudgment petition for rehearing context.

Unidentified Justice: The Respondent points out its view for differing with you on a number of those cases and suggests the few remaining ones don't establish a practice.

Mr. Olson: We respectfully, of course, disagree, Mr. Justice Rehnquist.

Those, the cases... the Appellees have attempted to narrow down those cases, but in their efforts to narrow down them present a distinction without a difference.

The fact is that questions of construction or the questions of the application of that particular statute have been raised in that postjudgment rehearing context.

In addition, as we set out in our brief, we presented over two dozen cases, and in fact, we pointed out to the fact that a number of the cases raised by Appellees themselves involve situations where the courts of Alabama discussed a rule but then went on to rule on the merits.

The fact is that to the extent that there is an articulation from time to time of a rule that issues cannot be raised at that posture of the proceeding, the court has gone on to do so in a regular basis.

There is no strict or regularly followed rule which would preclude raising the issues at the time that they were raised in this case.

Before moving on to some of the issues in this case, I would like to briefly just emphasize, and because the facts are somewhat complicated, I will not have an opportunity with the time available to discuss all of the facts, we accept as we must the facts which are set forth in the record before this Court and as articulated by the Alabama Supreme Court.

I simply wanted, unless the Court would prefer a longer discussion of the facts, to recite or call to the Court's attention two particular aspects of the facts as set forth in the Alabama Supreme Court.

First of all, those facts as set forth by the Alabama Supreme Court opinion were edited, selected and set to music, as it were, by Justice Embry, the Justice of the Alabama Supreme Court whose conduct is called into question here so that while we do not dispute, as we cannot, the facts in that case, the emphasis, the characterization of the facts, is due to the fact or must be considered in light of the circumstances that was written by Justice Embry.

Unidentified Justice: Well, of course, other people joined his opinion.

Mr. Olson: That is correct, and we are not disputing the fact that other people joined his opinion with respect to the holding of the Alabama Supreme Court, but that the characterization of those facts in that case must be understood in the context that they were written by the Justice who, as we have demonstrated, had a very strong interest in the outcome of the case.

Unidentified Justice: Well, you don't really know.

He may have... he may have started out with a completely different opinion and other people said please change it and we'll join it.

Mr. Olson: Well, as a matter of fact, Justice White, he testified at his deposition, which is a part of the material before the Court--

Unidentified Justice: That that didn't happen.

Mr. Olson: --That... well, he started out to write a dissenting opinion.

Unidentified Justice: I know.

Mr. Olson: And then sometime shortly before the final decision, that opinion became the majority opinion of the Court.

Unidentified Justice: Well, it may have because he changed it.

Mr. Olson: I suppose that inference is possible.

The inference which is quite strong from reading that transcript of the deposition is that that is not what happened.

Another aspect of that facts--

Unidentified Justice: In any event, it was five to four, wasn't it?

Mr. Olson: --The decision was five to four, yes, Justice Blackmun.

The other aspect of the facts of the case which it seems to me are important for the Court to understand as it considers this case is that while the Alabama Supreme Court, the jury in Alabama and the Alabama Supreme Court reached a conclusion that there had been a bad faith failure to pay an insurance claim in this case, it was not the policies of Appellant that brought about that conclusion; it was deviation, unauthorized deviations from those policies that led to the conclusion that there had been bad faith failure to pay an insurance claim.

I would like to speak--

Unidentified Justice: Well, was this the first case in which, the Alabama Supreme Court had laid down the principle it followed here?

Mr. Olson: --Well, that question is complicated because there are several principles that are articulated here, Justice Brennan The Alabama Supreme Court had first accepted the doctrine that there could be a tort claim and a claim for punitive damages for bad faith in 1981.

We stress in our brief, and we stress in our argument that that was four years after the conduct here.

The decision in this case follows the precedents established in 1981 in Alabama, but there were changes in the law, we contend, and we have discussed those in detail in our briefs, in the decision of the Alabama Supreme Court in this case.

As the Court is aware, the major issue in this case is the question of punitive damages and the extent to which this Court under the Constitution of the United States has the power to limit under the Eighth Amendment particularly, and also under the due process clause of the Fourteenth Amendment the power to limit punitive damages.

Before I discuss the constitutional application particularly in the context of the Eighth Amendment to punitive damage, I would like to go over some of the characteristics of punitive damages which have been pointed out and, I believe, agreed to by his Court in various opinions of this Court virtually without dissent.

One of the characteristics of punitive damages which is most important to this discussion is that... and this is in the words of Justice Marshall in dissenting in the Rosenbloom v. Metromedia case, but the same language has been picked up by other... in other opinions of this Court, particularly in the Gertz case and in the Faust case, punitive damages serve the same function as criminal penalties and are in effect private fines.

That phrase "private fines" particularly has been approved by this Court in several different ways in several opinions of this Court.

There is really no question that the purpose for punitive damages are to... is to punish and deter.

The purpose again of punitive damage is to prevent or deter or punish perceived antisocial behavior through fines.

Secondly, punitive damages are windfalls.

They are entirely extracompensatory.

In a sense, they are like a lottery.

Three, punitive damages are awarded virtually without standards.

This again... these are propositions which have been articulated by this Court.

There are no legislative guidelines, or virtually seldom are legislative guidelines.

There are no restraints built into the system on the passion or prejudice of the jury.

In fact, as this Court has noted, punitive damages may be used to punish unpopular defendants.

It is the one area of the law in which passion and prejudice seems almost to be encouraged by the process.

Unidentified Justice: Doesn't the very term carry that with it?

Mr. Olson: It certainly does, and as we have seen, the fact that the punitive damages themselves are for the purpose of punishment and deterrence, and that the juries are instructed that they virtually have no discretion, if the jury is angry at the defendant, or if the jury is angry at the defendant irrespective of the conduct that may have occurred in the case, this is an opportunity for them to punish the jury... punish that defendant.

Unidentified Justice: Well, was that the substance of the charge to the jury in this case?

Mr. Olson: The substance of the charge to the jury in this case... and there's a reference in our reply brief to the page at which that appears in the record... is that punitive damages were for the purpose of punishment and deterrence.

The trial court went on to say that punitive damages are primarily in the discretion of the jury and then concluded that very brief statement by saying it is up to the jury to reach a judgment with respect to how much the punitive damages ought to be, bearing in mind the consideration of punishment and deterrence.

Unidentified Justice: Was there any analytical treatment or discussion in connection with the efforts to reduce the punitive damage in the trial court?

Mr. Olson: There was an application to reduce the punitive damages in the trial court.

The trial court, of course, already had been of the view that punitive damages were primarily in the discretion of the jury.

Again when the subject came up in the Alabama Supreme Court, the subject was quite fleeting and reflected, it seems to me, the very point that I made and that has been made by this Court.

There are very few, if any, standards.

Those standards, if they exist, are totally discretionary.

Another characteristic of punitive damages which has been mentioned by this Court is that while they serve the criminal law function.

they are awarded in amounts generally far higher than crimes for comparable criminal conduct, and I might add that the English courts have particularly made this point and focused on it as well that while we decide that certain conduct is sufficiently reprehensible that it must be subject to standards adopted by the legislature and punishments adopted by the legislature, in the area of punitive damages without the benefit of legislative standards and without the benefit of clear standards with respect to the amount of the award, the punitive damages, and for less reprehensible conduct, at least inferentially because the legislature hasn't decided to punish that conduct, the awards themselves are much higher and we award punitive damages without any of the protections which we afford to the more reprehensible crimes that we treat in our courts.

The fifth characteristic... I've mentioned four that are generally applicable to punitive damages across the board.

The fifth characteristic is that here there is peculiar to this case, although not necessarily exclusive to this case, it is here that the punitive damages were awarded for violating a standard not created until four years after the conduct which was being judged by the punitive damages.

It is contrary to the traditional notions of due process to punish conduct which does not violate a known standard, and yet in this case punitive damages were awarded for a standard which was not known at the time of the conduct engaged in.

Unidentified Justice: Mr. Olson, none of these arguments were made before the petitions for rehearing, is that right?

Mr. Olson: That is correct, with respect to the discussion generally of the characteristic of punitive damages and discussion of the quality of excessiveness in this case, of course, were.

We are... and these arguments are not so much in the form of arguments but statements of the characteristic of punitive damages which have been accepted and adopted by this Court.

The argument that we are making that they are governed by the limitations of the Eighth Amendment was not made prior to the petition for rehearing--

Unidentified Justice: And of course, we do have to look at what this Court said in Exxon Corporation v. Eagerton about the general rule of the Alabama courts.

Mr. Olson: --I think that that can be... yes, of course.

I think that that footnote in that Exxon case can be explained by the fact that the preemption issue, which was the issue which was being considered in connection with that footnote, was something which had not been briefed and fully developed in the record in the Alabama courts below, so there is a separate prudential reason for this Court not to consider it.

And we looked through the briefs in that case to see whether the litigants had actually briefed the Alabama practice prior to the decision in that case that generated that footnote, and we found that they had not.

We have brought to this Court's attention somewhere between 35 and 40 cases which establish a difference in the Alabama practice which is not fully reflected in that footnote.

Unidentified Justice: Are you relying significantly on the disqualification aspect?

Mr. Olson: With respect to--

Unidentified Justice: Of Justice Embry?

Mr. Olson: --Before this Court, we certainly are.

Unidentified Justice: Well, you haven't, you haven't gone into that yet.

Mr. Olson: I haven't addressed that.

I would like to address the question of the application of the Eighth Amendment to punitive damages, but I certainly--

Unidentified Justice: Now, also tell us how we reach that sort of a question in a state court.

Mr. Olson: --The Eighth Amendment question, Mr. Chief Justice,--

Unidentified Justice: Well--

Mr. Olson: --or the application of the disqualification?

Unidentified Justice: --Judge Embry's participation.

This is... if this were a federal district judge or a Court of Appeals judge, we would have quite a different question, wouldn't we?

Mr. Olson: Yes, except that I think that under the circumstances here, the Court has the same power that it might have in the federal courts.

We think that--

Unidentified Justice: Supervisory power?

Mr. Olson: --No, that this... under the due process clause of the Fourteenth Amendment, as this Court has pointed out, the justice, the appearance of justice is absolutely necessary to justice itself.

We have a situation here which regrettably involves conduct which is far beyond the standards that this Court can tolerate, and due process requires a fair hearing before a fair tribunal.

Appellant in this case did not have a fair hearing before a fair tribunal because one of the justices in the tribunal which judged him, in fact a very influential justice because he was the one that wrote the Court's opinion below, and it was a five to four opinion, was at the same time, this case was under submission before the Court and being argued before the Court, bringing his own personal action for bad faith punitive damages against another... a group insurance company in Alabama.

Furthermore, he was a fiduciary, it was a class action.

He was bringing that action on behalf of all public employees covered by the Blue Cross program in Alabama, and in fact, as it turns out, as we suspected, we don't know all of the facts; we presume that the other Justices in the Alabama Supreme Court were members of the putative class.

All we know is that two members, including the Chief Justice of the Alabama Supreme Court, as soon as this fact was brought to its attention, the Chief Justice of the Alabama Supreme Court and one other Justice immediately indicated that they would withdraw from the putative class.

Unidentified Justice: Well what precisely is your claim that Judge Embry should have disqualified himself, not under Alabama law but under some constitutional principle?

Mr. Olson: Yes.

The constitutional principle that a litigant is entitled to a fair hearing in a fair tribunal, that the appearance of justice is essential to the provision of justice itself.

Unidentified Justice: Well, okay, but what was unfair about Justice Embry's participation in this case?

Mr. Olson: Well, he had a direct interest in another case in which the same legal issues were being raised, for one.

Number two, he was bringing a class action based upon the same cause of action in the Alabama courts where he was representing other public employees, including--

Unidentified Justice: And your theory is that because he was a Justice of the Supreme Court of Alabama, which has a lot to say about different branches of the law in Alabama, he shouldn't have sat in any case involving an area of the law in which he himself had a lawsuit pending?

Mr. Olson: --Well, particular... well, I don't know whether I would go quite that far, Justice Rehnquist, but this--

Unidentified Justice: If that's the principle, no state supreme court justice can ever file a suit on his own behalf.

Mr. Olson: --This was a case involving important and new and obviously hotly contested legal issues in the Alabama Supreme Court.

The prior... the highest prior affirmed judgment in a bad faith insurance context case in Alabama was $100,000.

This case changed the stakes in Alabama by a factor of 35 times.

He was not just a litigant; he was a class action litigant.

He was representing all public employees of the State of Alabama, including his colleagues on the Court.

He had direct stake in the legal issues that were being decided by the Alabama Court, and the amount of the judgment which he was affirming, plus, as indicted by, his deposition... and you can't, cannot read his deposition, I submit, without seeing an overwhelming sense of hostility and bad... bias towards insurance companies and bad faith--

Unidentified Justice: I just don't read that deposition that way.

Certainly he expressed tremendous dissatisfaction with Blue Cross in Dis own case, but it seems to me the deposition gives the impression that he was going to treat insurance companies on the basis of how they treated him, that he would be, you know, as a claimant, if the company treated him well, he wasn't a litigant, litigation prone person.

Mr. Olson: --Well, he filed two bad faith actions in... while the Lavoie case was pending before him, he field two actions, one of which was a class action.

He had indicated in his deposition that several other times he had considered or threatened suing insurance companies, and it seems to me that irrespective of your... you may read that deposition differently than I do.

It seems to me that it's very clear that he had very strong feelings about insurance companies, but even if he didn't, even read another way--

Unidentified Justice: Now, certainly the fact that a Justice of a state Supreme Court has strong feelings about insurance companies cannot possibly disqualify him from sitting in insurance cases in the Supreme Court, can it?

Mr. Olson: --No, I think that they were... I would not go that far, Justice Rehnquist.

Unidentified Justice: I would hope you wouldn't.

Mr. Olson: These opinions were much more clearly focused on bad faith claims, punitive damages--

Unidentified Justice: Well, Mr. Olson wasn't Judge Embry in a position where his decision here was going to have a bearing on whether he got money in his pocket in the cases that he had brought?

Mr. Olson: --Absolutely, Justice Brennan.

His decision in this--

Unidentified Justice: Incidentally, Monroeville was a state court, wasn't it?

Mr. Olson: --It was Jefferson--

Unidentified Justice: What--

Mr. Olson: --It was Jefferson County where his class--

Unidentified Justice: --No, no, I am talking about our decision on Ward v. Monroeville.

Didn't that involve a state judge?

Mr. Olson: --I believe it did, I believe it did.

Unidentified Justice: And wasn't that... didn't that go off on a due process analysis?

Mr. Olson: Oh, yes it did.

This is a very unfortunate situation because, as I say, the decision in this case affirmed, a $3.5 million punitive damage judgment.

The highest previous award had been $100,000.

that does, if... for anyone who has handled class action cases, it changes the takes enormously.

Furthermore, the complaint in his Blue Cross case was... involved the same issue of whether partial payment would be a defense, which was a hotly contested issue in the Alabama Supreme Court in the Lavoie case.

It also involved questions of delays in payment and whether that alone would cause... create bad faith.

The due process standard--

Unidentified Justice: Well, were these issues on which the Supreme Court of Alabama divided in this particular case?

Did the dissenting Justices disagree with Judge Embry's interpretation of Alabama law?

Mr. Olson: --The... yes and no.

The issues that divided the Court both covered that and didn't cover... did not cover that.

The issues are somewhat refined, and it's very difficult to extract that since they weren't focusing on specifically tvin, it in with his case.

I submit that the test has been, as articulated by Justice Black in the Murchison case, whether the appearance of justice is being served, and that is what we have to talk about in connection with the due process issue, and the test there is whether an objective person, aware of all the facts, would have legitimate doubts, serious doubts, significant doubts about whether or not the litigant before that tribunal would have a fair hearing.

I submit that there really can't be any doubt in this case.

I would like to return to the issue of the Eighth Amendment.

It is not an issue that has been--

Unidentified Justice: Before you leave the due process issue, assume we found merit in that and nothing else, just to get my question on the table.

What would the appropriate relief be?

Mr. Olson: --The appropriate relief would be to remand this case to the Alabama court system with an instruct--

Unidentified Justice: Well, which part of the Alabama court system?

Mr. Olson: --It would have to go back to the Alabama Supreme Court, I submit.

There is a statute in Alabama which would allow the Governor to replace members of the Alabama Supreme Court, and it is a statute which has been used before, Justice Stevens, to replace... when there's been disqualifications, the statute specifically refers to the question of disqualification to allow the Governor to replace members of the Alabama Supreme Court, to bring the number up to seven.

We are challenging not just Justice Embry, who is not any longer a member of the Alabama Supreme Court, but the other justices who did not do what the Alabama Chief Justice did while the case was pending before them, and when they found out that they were apparently members of a class, did not act to withdraw themselves from the class.

While they went on to decide the issues in this case, we think that the due process issue requires a court which is not so stigmatized.

Unidentified Justice: But does the... is your conclusion on the due process issue that the judgment of the Alabama Supreme Court is void?

Mr. Olson: Yes.

Unidentified Justice: Then is not the effect of that to allow the district court judgment to stand, which would affirm?

Mr. Olson: It wasn't... there was not district court judgment... well, there was a trial court judgment.

Unidentified Justice: A trial court judgment, yes.

Mr. Olson: No, I think that Alabama law entitles these litigants to an appeal, and--

Unidentified Justice: Does federal law entitle you to an appeal?

Mr. Olson: --The Alabama law entitles--

Unidentified Justice: I'm saying does federal law?

Do we have any power to command that you be given a right of appeal?

Mr. Olson: --I'm not sure that I can answer that, but the state law does provide an avenue for appeal.

The appeal process which afforded to the Appellant was tainted here.

The appeal process is still available, and there is a statute which would allow the Court to be recomposed in a way which would not have the problems presented by the due process clause as they exist today.

Unidentified Justice: Do we have any authority to enforce that statute?

Mr. Olson: You can remand the case to the Alabama Supreme Court--

Unidentified Justice: You're willing to take your risk if you get the judgment vacated.

Mr. Olson: --Well, we feel very strongly that the Court should go on and decide the other constitutional issues which are here and are properly before the Court.

The Eighth Amendment issue particularly is extremely important.

We have demonstrated in our briefs that punitive damages--

Unidentified Justice: But should we decide these issues before they've been decided by a properly constituted Alabama Supreme Court?

Mr. Olson: --We believe that in this... in this circumstance, as we discussed at some length in our brief, this is an appropriate case in which to do that, particularly--

Unidentified Justice: On an appeal from a void judgment.

It seems to me you... we either have a judgment that we can review or we don't, and your suggestion on the due process argument is that there really is nothing worthy of review.

Mr. Olson: --There's a, there's a, there's an appropriate, there's an appeal because the tribunal which the Appellant was before did not provide the Appellant with the proper due process to which the Appellant is entitled, and therefore, the decision of that court must be reversed.

I do not think that means that the other issues that come with the appeal are... all of a sudden disappear.

They are appropriately here before this Court.

Unidentified Justice: Well, the court didn't give you a fair hearing on those other issues?

Mr. Olson: Yes, those are... these are--

Unidentified Justice: Those are the only other issues there are.

Mr. Olson: --I... we concur with that.

On the other hand, these are appropriate issues, and the prudential considerations?

which--

Unidentified Justice: Well, then, it shouldn't... if you want to submit them, you shouldn't have brought your due process question here.

Mr. Olson: --It was... it was extremely important, of course, Justice White, for us to present all of these issues to this Court because they all involved a denial to this, especially in the cumulative effect, a denial to this Appellant over not fair opportunity not only to be heard by the Court, but the substantive, denial of federal constitutional rights in connection with the Eighth Amendment area and the contract clause area particularly.

Unidentified Justice: Plus, we didn't limit our note either, did we?

Mr. Olson: No, you didn't.

Unidentified Justice: Mr. Olson, is there any evidence in the record that any of the other Justices know about the class action before issuing the opinion on the merits in this case?

Mr. Olson: There is no evidence.

Unidentified Justice: They had to know about it.

Mr. Olson: The only... we can only draw inference from the fact that we brought this issue to the attention of the Alabama Supreme Court--

Unidentified Justice: After the opinion issued.

Mr. Olson: --After the initial opinion because--

Unidentified Justice: Yes.

Mr. Olson: --my client, the Appellant, didn't know it either.

When we did bring that to the Alabama Supreme Court's attention, two of the Justices in the opinion which is before you indicated an intention to withdraw from Justice Embry's class.

The other six Justices did not.

I do not know... I would think it would be unfair to draw any inferences.

I think that some factual investigation would have to be undertaken.

We pointed out in our briefs that the language of the Eighth Amendment does not preclude its application in a case such as this.

This Court has itself referred many times, as I have stated, to punitive damages as private fines.

The legislative history, as we pointed out, indicates that the Eighth Amendment was discussed and debated immediately after the Fifth Amendment where concern over the possible application of the self-incrimination provision of the Fifth Amendment was raised and in order to limit it to criminal cases, the word "criminal" was put in the Fifth Amendment for that purpose.

We have demonstrated, because of the underlying purposes of punitive damages, that by any purposive analysis, the Eighth Amendment ought to apply to punitive damages, and we have demonstrated historically that under... there is almost a direct lineal tracing of the Eighth Amendment excessive fine clause back to Magna Carta, the English Bill of Rights, the Virginia Declaration of Rights, and that Plackstone in his discussion of these... of punitive double and treble damage cases talked about both the civil fines and the criminal fines in similar contexts.

I think it is important to me, before I stop, to discuss what we think is an important consideration, what standard the Court would have to apply in terms of determining proportion... what was excessive.

The Eighth Amendment speaks in terms of excessive fines.

That word, as this Court has suggested, and I think is obvious, connotes proportionality, particularly when we are talking about the excessive fine provision as opposed to the language used in the cruel and unusual punishment provision, the word excessive obviously connotes proportionality.

We submit, and as I mentioned before, the Eighth courts have considered this, that there must be... our whole entire criminal system is based upon the supposition that the punishment must fit the crime.

That which we use to punish must be in some way proportional to the damage which is done.

So it is a fundamental consideration that in determining what is excessive, that the amount of the damage be done, be considered.

The common law and legislative standards of treble damages and double damages is of long standing.

Here we have something that is 700 times greater than treble damages.

We submit that is completely out of proportion.

To the extent that it is appropriate, as we think it is, in determining what might be excessive, to look at the criminal law... criminal law analogue in Alabama or in other states, if there is no analogue in Alabama, the punishment for the conduct here would have been $3000.

And finally, and most importantly, in 1981, in the same year that the Alabama Supreme Court was recognizing the bad faith punitive damage cause of action, the Alabama legislature itself passed a statute which is mentioned in our briefs and discussed which recognizes the right of an individual to recover against an insurance company one and one half percent per month for failure to pay an insurance claim.

Those three standards, double and treble damages under the common law and under legislative in Alabama and elsewhere, the criminal law analogue, and the actual Alabama legislative judgment in this case that one and one half per month is an appropriate penalty we submit is a paper standard for excessiveness.

If it please the Court, I would like to reserve the balance of my time for rebuttal.

Chief Justice Burger: Mr. Goodman.

ORAL ARGUMENT OF JACK N. GOODMAN, ESQ. ON BEHALF OF THE APPELLEES

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

What I believe is particularly important in understanding this case and which Appellant generally ignores are the egregious Facts on which it is based.

The record does not disclose a mere failure to honor a claim by a lower level person at the Aetna office in Alabama, but instead shows a pattern of misconduct not only the officials in its Alabama office, but also senior officials in its home office and its medical department, and this misconduct continued on for years and extended not only through the period before this suit was filed, but also continued on and resulted in the filing by Aetna of several affidavits which proved to be false in an effort to obtain summary judgment from the Alabama trial court.

And Aetna recognizes, this Court must accept all those findings as fact, and indeed, in response to a question, no Justice disputed the characterization of the majority opinion of the Alabama Supreme Court, and in fact, Chief Justice Torbert's dissenting opinion specifically agreed with the characterization of the facts in the majority opinion.

The Alabama courts gave very long and very careful consideration of the issues that arise here, both in this case and in earlier cases, and as this Court held in Martinez v. California, the interest of state in defining their own tort law is paramount and is not a matter of constitutional dimension.

This suit was filed in 1978, and over the next six years reached the Supreme Court of Alabama three times.

At no time during that a period was there ever a mention of any federal issues.

The first mention of any federal issues came at the very end of the Alabama litigation, and even then it was not timely raised, for Aetna's application for rehearing raised no constitutional issue, and the first constitutional issues were raised only a week later in a brief supposedly in support of that application.

And while Aetna now claims that it need not have a brief which hews to that application in Alabama, it did file, attempt to file an amendment to its application to raise the issues.

Further, when it did raise them, it did not raise them in compliance with Alabama procedure, for the Alabama courts have long held that they will not consider allegations, particularly constitutional arguments, which are not supported by case authority, and an examination of the brief of Aetna in support of their applications for rehearing will show that absolutely no cases were asserted, that it was a mere generalized allegation that the punitive damages award and the Alabama affirmant statute were unconstitutional.

Unidentified Justice: What if your claim is so novel there aren't any cases to support it?

How do you comply with that rule?

Mr. Goodman: Well, in this case, Justice Rehnquist, they seem, at this level, in this Court, to have found a number of cases which they claim support it, so you might... in a completely novel argument in which there were no relevant cases, you might have an argument, but it appears that that would not apply here.

Unidentified Justice: Has there ever been a case in any court in the United States, state or federal, presenting this kind of disparity between the actual injury and the punitive damage award?

Mr. Goodman: Chief Justice Burger, we do not agree with the characterization of the disparity between the punitive damages award--

Unidentified Justice: Isn't there a disparity between there two figures?

Mr. Goodman: --That is only if you accept the $1650 a the sole damages in the case, but you have to remember this was a tort case, and tort damages are not limited by contract amount, and there are other damages which are included, and they are for mental anguish and economic dislocation, and those, as the Alabama Supreme Court found in the Gulf Life, case are included within the general punitive damages amount, and indeed, the charge here which was not accepted to by the--

Unidentified Justice: And your position is that--

Mr. Goodman: --By the appellate--

Unidentified Justice: --Your position is there can be no limit on that kind of a punitive award, though.

Mr. Goodman: --There is no direct constitutional limit which sets a particular number one way or another--

Unidentified Justice: What if it was $30 million instead of $3 million?

Mr. Goodman: --Chief Justice Burger, if there were a case in which there was an absolute absence of protections below, in other words, of there seemed a... if the evidence showed that all the trial courts in the state and the Supreme Court in the state were bent on destruction of a company and the amount was completely out of line with amounts for any similar action anywhere in the United States, presumably due process would apply.

But none of that is true here.

This amount is not entirely unusual, given the size of awards in other courts for the sort of conduct that has occurred, and you also have to remember the particularly egregious conduct.

The Alabama Court has only found, has only affirmed a judgment of bad faith in four cases of the almost 40 that they have considered since this Court--

Unidentified Justice: Any of them anywhere near like this one?

Mr. Goodman: --The next largest one I believe was $1 1/4 million.

None were quite this high, but as even several of the Justice indicated, none has had quite this level of misconduct.

To return briefly to the jurisdiction issue, as Justice O'Connor mentioned, in Exxon v. Eagerton, the Court recognized that the Alabama practice is not to consider issues first raised on a rehearing.

And the cases which Appellant cites do not show a different practice.

To take one example, in Kirkland v. Kirkland, which we cited for the proposition that Alabama courts will not consider arguments first raised on appeal, that is precisely what the Court said there.

Now, they did go on to consider the issues, and found, and would have found in favor, indicated that their judgment would have been in favor of the applicant for rehearing but did not apply it in that case.

It was mere dicta, and suggested if the case came up again, that would be the view the Court held.

Similarly, in Lovett v.... in Stover, I'm sorry, the Court also said that it was their very clear policy that they would not hear cases that... hear issues that were first raised on rehearing, and while no doubt there are some cases in which they have done so, that is certainly appropriate that it is within the Alabama Court's power to hear the case, to hear an issue first raised on hearing, based on their general power to amend their judgments sua sponte during the term of Court in which they are issued, but that does not indicate an obligation on their part to hear issues which are untimely raised, nor does it indicate that these few cases exist in the absence of established practice, which is what they sat they have, to not hear cases raised.

In fact, in the Orr case this Court recognized specifically that while the Alabama Court had considered an untimely argument there, the Court was free in another case to not consider that argument, and the Court strongly suggested there that that would preclude this Court's jurisdiction.

It has been held consistently by this Court for almost 200 years that failure to timely raise a federal issue in state proceedings precludes this Court's jurisdiction.

And that conclusion should be applied here, and we submit that this case should be dismissed.

Turning to the arguments concerning Justice Embry, the practice of this Court, which is the same practice as has been endorsed by the ABA for appellate courts in the states, is to generally entrust the decision on disqualification of a judge in an appellate court to that judge, and that is the practice which the Alabama court followed here, so that the Court itself did not consider that federal issues were raised.

Unidentified Justice: Yes, but there must be a limit to that.

There certainly is on the federal side in the canons of federal judges.

Mr. Goodman: Well, there are canons, and the canons... the canons of judicial conduct do apply in Alabama, but the ADA, Justice Blackmun, in considering the proper procedure, concluded that the best practice, particularly given the controls that were available from the fact that they were collegial courts and there were other justices or other judges, would be to leave the matter to the individual judge.

I would suppose, and we would not disagree, that there may be a case of a complete abuse of discretion where this Court could step in and apply constitutional standards and indicates that there had been a complete absence of the exercise of discretion.

Unidentified Justice: Of course, the opposition will say that this is that case.

Mr. Goodman: Well, we would argue that it is not because--

Unidentified Justice: Did Justice Embry accept payment in settlement of his cases?

Mr. Goodman: --It appears now, Your Honor, that he did, that there was a payment of $30,000 which Blue Cross indicated their belief was to compensate him for his legal fees in bringing the case.

Unidentified Justice: So that he did not personally, you say, realize a penny.

Mr. Goodman: The record is unclear, intelligence.

Unidentified Justice: Well, what is the fact?

What is the fact, do you know?

Mr. Goodman: The fact is he received $30,000.

The facts are that Blue Cross... the internal Blue Cross documents indicate that they believe that payment was in compensation for his legal expenses.

Whether that was so or not, I don't know, Your Honor, and I believe the record indicates.

Unidentified Justice: When was it settled?

Mr. Goodman: The case was settled in late April of this year.

Unidentified Justice: So that at the time this case was litigated, at least he was asking for more.

Mr. Goodman: Yes, that's correct.

He was... he was asking on behalf of a class for considerably more money.

Unidentified Justice: Is Justice Embry still sitting as a member of the Court?

Mr. Goodman: No, Your Honor, he is not.

He is retired, and I understand that was for health reasons.

Unidentified Justice: Do you know his age?

Mr. Goodman: I believe he's in his mid to late 60s, Your Honor.

As counsel for Appellant stated, the interest that Justice Embry had here was not an interest in this case, but--

Unidentified Justice: Before you go on, let me interrupt you to ask another question.

You indicated, I thought, that at some point, a reaction on a punitive damage might get to the point where it would, whether shock the conscience or what.

What point would that be in something over $3 1/2 million here?

Mr. Goodman: --Your Honor, we would not suggest that it is a question of the amount of the damages, but--

Unidentified Justice: Well, I thought you had.

Mr. Goodman: --No, I believe, Your Honor, it was a question of if the characterization of the entire procedure below was such that it was an absence of due process, that it seemed a campaign of harassment or destruction, we would agree that an egregious amount would... an amount, say, for example, which would destroy a company or destroy an individual, might raise a due process issue.

But we have nothing like that either in terms of the absence of careful procedure here or in terms of the size of the judgment given the size of the defendant in the case.

Unidentified Justice: Well, was there any evidence introduced in this case showing what would be the impact on the insurer here?

Mr. Goodman: I don't believe there was, Your Honor.

Unidentified Justice: Well, then, that isn't really a factor, is it?

Mr. Goodman: No, Your Honor, but I believe it would be a question for this Court in order for it to determine that there had been, we would suggest this sort of campaign of harassment.

Unidentified Justice: Let me test, let me test that out, if I may.

Suppose this award had been not $3 1/2 million or $30 million but $350 million.

Does that get to the point where some shock factor comes in and a federal court could intervene when it couldn't at a lower figure?

Mr. Goodman: We would again argue that the mere dollar size in itself could not be enough, but we would also suggest that an amount that was that high would indicate that there were... there was an absence of other procedures, an absence of the sort of care and consideration which properly was given.

Unidentified Justice: An absence of rationality.

Mr. Goodman: That's correct, and in that case, even in Martinez, although the Court suggested in Martinez that the state's interest in its tort law is paramount, and we hold to that very carefully, it indicated that in a case where there was a completely irrational judgment, invading the rights of a person, that the Court might step in.

But that would be a very limited instance.

And this case did not present such an instance.

The point about Justice Embry is that he was not sitting in his own case.

He... the federal disqualification statute which need be considered stricter than the federal--

Unidentified Justice: Well, tell me, Mr. Goodman, you say he was not sitting in his own case.

Did not the principle he laid down in this case help suits he had brought against Blue Cross?

Mr. Goodman: --No, Justice Brennan, it did not because he laid down no principle in this case.

In this case the opinion of the Court is replete with statements that he is relying on the unique facts of this case and saying in this case, the two particular aspects which--

Unidentified Justice: Well, what about, what about... I thought that... I think it's been suggested that the first time this tort was recognized by the Alabama Supreme Court, at least, was in 1981?

Mr. Goodman: --That is correct.

Unidentified Justice: But that was applied here.

Mr. Goodman: That is correct.

Unidentified Justice: But by a vote of five to four.

Mr. Goodman: That is also correct.

Unidentified Justice: And would that not help his own suit against the--

Mr. Goodman: Not in any direct sense.

Unidentified Justice: --Direct or indirect, wouldn't it help it?

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

It, the mere fact that there was a judgment in one case on one set of facts which particularly rests on those unique facts and the unique pattern of misconduct has no direct bearing on the question in another case of whether there will be a judgment.

Unidentified Justice: Well, if it did help his case to the extent of putting money in his pocket, then did he not have a personal interest in this case?

Mr. Goodman: The general holding on disqualification cases has been that the mere establishment of a pattern of law, in other words, the setting up of the law which might later benefit the judge in another case is not disqualifying, but the judge's interest must be direct and immediate in the case at bar and not in some other case, and not in the development of a law in a way which might ultimately benefit him.

Unidentified Justice: I have... go ahead and finish.

Mr. Goodman: For example, in the Department of... in the case in the Temporary Emergency Court of Appeals, DOE v. Bremmer, which we argue in our brief, there the evidence was very clear that the judge in question owned stock in oil companies which had investments identical to the ones in front of him, and that his decision would affect the value of those companies one way or the other, and the Court held, applying federal statutory standards again, that that was an interest that was too remote and too speculative, and that the interest under the federal statute, and again, a stricter standard than the Constitution applies, had to be direct and in the case at bar.

Unidentified Justice: You referred to... at least I got the impression you said that there was no principle laid down by the Court in establishing or affirming this $3 1/2 million penalty.

What principle would you say that the proposition rests on?

Mr. Goodman: Your Honor--

Unidentified Justice: What is the principal basis of the Court's holding?

Mr. Goodman: --Chief Justice Burger, the Court applied the principle it had established in the Chavers case and thereafter which indicated that a bad faith denial of claims by an insurance company will give rise to a tort action which may result in punitive damages.

The two issues this Aetna has argued were... in which Alabama law were changed were a statement in earlier cases that as a general matter, a partial payment of an insurance claim would preclude a finding of bad faith, and second, that in order for bad faith to be shown, the plaintiff must establish that on the contract claim he would be entitled to a directed verdict.

And in both of... and in both of those instances, the Court previously had not established an absolute rule but merely a general presumption, rebuttable on showing of specific facts, and that characterization of the previous cases is not one only of the majority opinion, but was the unanimous holding of the Court here for both dissents agreed with the majority opinion on both those issues which were the two ones which Aetna has argued would have benefitted Justice Embry in his case.

Unidentified Justice: Now, in criminal cases I suppose you would agree in Alabama, judges must instruct particularly on a capital case on the factors which must be taken into account, that this Court has laid down, is that not true?

Mr. Goodman: Yes.

Unidentified Justice: Was there any limiting principle given by way of instruction here?

Mr. Goodman: In the Court's opinion or in the trial--

Unidentified Justice: In the trial court.

Mr. Goodman: --In the trial court.

As far as the punitive damages, they were charged, in addition to the matters in which Mr. Olson described, they were also charged with respect to the Gulf Life standard, which indicated that they should take into consideration the economic dislocation and the mental anguish which the Lavoies had suffered.

There was substantial evidence in the record that the Lavoies had been pursued rather mercilessly by the hospital in order to make this payment and were unable to do so.

Finally, with respect to Justice Embry, his voting record in other bad faith cases shows that he was not acting out of his own interest for in the vast majority of cases that he sat on during the time when his suit was being prosecuted, he voted in favor of the insurer, including three times on the identical directed verdict standard which the Appellant argues he had set out to change.

And so there is little reason to believe on this very scanty record that he had any interest and he was doing anything improper.

But where, but to the contrary, where Blue Cross was a party before him, i.e., the party against whom he was suing, he very carefully recused himself, and that occurred only two weeks after the decision in the case at bar.

Unidentified Justice: In any of the three cases in which he voted against the insurance company, would his vote have made a difference?

Mr. Goodman: I'm not certain, Justice Stevens.

Unidentified Justice: But in this case he did throw his weight around.

Mr. Goodman: Well, he did write--

Unidentified Justice: He started out with a dissenting opinion and ended up with a majority.

Mr. Goodman: --That is correct.

Unidentified Justice: That shows some movement.

Mr. Goodman: Well, that's true, but of course, it also shows that he convinced four other justices, and as I have said, Justice Marshall, the dissenting justices did not... two of the dissenting justices did not disagree with the characterization of the case at all, and the other two... and that remains only two, and they basically indicated that they had a dispute as to the weight of the facts.

But the legal judgments that he reached were not disputed by any of the justices of the Alabama Supreme Court.

So that is... that simply did not occur.

Turning to the Eighth Amendment and the punitive damages issue, the Eighth Amendment argument which Appellant raises is squarely rejected by this Court's holding in Ingraham, and in that case the Court carefully mined the history of the Right Amendment and found, for example, that the English Bill of Rights, which Appellant relies on, that it was clearly intended to apply only to criminal cases and that the conjunction of fines, excessive bail and cruel and unusual punishment indicated an intent to restrict the applicability of the amendment to criminal cases.

And this Court has held that in the absence of the criminal process and the indicia of the criminal process, there is no application of the Eighth Amendment, and there is no such indicia here.

This case was a purely civil case and handled in a purely civil manner.

It is clear, therefore, that all punishments are not within the scope of the amendment, and this punishment is not one of them.

Nor did this award offend due process in any manner.

Contrary to Aetna's argument that it had no notice of the substantive conduct which it was expected to adhere to, Alabama has held for many, many years that insurers have a fiduciary duty with respect to their insured, so that substantive conduct, good faith towards towards the insured was already a duty.

The only thing that was added in 1981 was a tort action to recover for breach of that duty, that the Court had long held that a... that insurer's did have that fiduciary duty, and there is no construction of Alabama law which would have supported the type of misconduct which fills the record in this case, the repeated lying to claimants and failure to follow internal company procedures.

Aetna's arguments here were head by the trial judge on motions for new trial and remittitur, and by the Supreme Court of Alabama, and that is the court which is most able to and properly should under our constitutional scheme determine what the standard for--

Unidentified Justice: Wasn't that the one in which there was a big remittitur of $1 million?

Mr. Goodman: --There was a previous award which was reduced from, I believe, $1 million to $100,000, but there has been one of, I believe, $1 1/4 million.

Unidentified Justice: Since this case.

Since this one, is that what it is?

Mr. Goodman: Since this case, I believe... well, I believe that decision came out shortly after this case.

Unidentified Justice: But at the time of this decision there had been none over $100,000?

Mr. Goodman: None which the Court had affirmed for over $100, 000, that's correct.

Of course, in other states there have been awards not substantially different from this, and of course, many of these awards are reduced in appropriate circumstances by remittitur or on appeal and that is the protection which is generally afforded to litigants.

The rule proposed by Aetna would essentially vitiate the development of the common law process in the states because it would suggest that there could be no new common law duty attached except prospectively, which would essentially preclude anyone from seeking a new remedy because it could not benefit them.

It would also, the rule that they propose which would allow this Court to freely consider the amount of punitive damages as a constitutional matter, would flood this Court with new litigation, for there is, and Aetna has suggested none, no federal standard which is different from the excessiveness standard which is already applied by every state court.

So we believe that this case should be... the issues in this case were properly handled by the Supreme Court of Alabama, and they are properly left to the discretion of the state courts.

If there are no further questions, thank you.

Chief Justice Burger: Do you have anything further, Mr. Olson?

ARGUMENT OF THEODORE P. OLSON, ESQ.

ON BEHALF OF THE APPELLANT... Rebuttal--

Mr. Olson: Just a couple of brief points, if I have the time, if it please the Court.

In the first place, Mr. Goodman suggested that the jury was instructed differently than the jury was instructed.

The instructions on punitive damages begin on R-588 and go over to R-599.

There is an instruction available in Alabama for compensatory damages, aggravation, humiliation, whatever it might have been.

This jury was instructed that punitive damages were for the purpose of punishment and deterrence.

That was the instruction given the appellant.

Justice Embry called these punitive damages.

He refers to the amount of $3.5 million as punitive damages, not compensatory damages, in the first page of his opinion for the Court.

The Appellees in their brief refer on the very first page of their brief to $1650 in compensatory damages and $3.

5 million in punitive damages.

So there should not be any question with respect to whether this is a punitive damage award.

It is a punitive damage award.

As this Court has noted, and as even reflected in the Justice Embry opinion, the damages were for punishment and deterrence and not for compensation.

With respect to the $30,000 which was paid to settle Justice Embry's case, it is in the record that we have provided with and cited to this Court.

It is also in the record in the Nationwide case v. Clay, which is also before this Court, that that check was given to Justice Embry's attorney, and Justice Embry's attorney deposited that $30, 000 check in a trustee account and then remitted that $30,000 to Justice Embry.

We have been... it's been suggested that the Appellant did not comply with Alabama procedure.

That is not what was bond by the Alabama courts.

The Alabama Courts, in response to the petition for rehearing, uttered the word "overruled", a phrase which is uses when it has in fact addressed the issues.

I have nothing further to add except to say that the denial of due process in his case, Mr. Chief Justice and this Court, was rather massive.

A standard was set after the conduct; punitive damages in a higher amount ever, 35 times greater than ever awarded, was imposed upon conduct which, for which the standard was set retroactively.

There was a tribunal in which one Justice had a very strong interest in the case, and then on top of everything else, there's a 10 percent appeal penalty, a penalty upon punitive damages in this case for having filed an appeal and having lost, notwithstanding the fact that no one could conceivably argue that this was a frivolous appeal.

Thank you.

Chief Justice Burger: --Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Schweiker v. Mcclure - Oral Argument

Thu, 19 Feb 2009 07:43:22 +0000

Case:

Schweiker v. Mcclure

Media File:

81-212_19820301-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: We will hear arguments next in Schweiker against McClure.

We will just wait for a little bit of clearance here.

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

Mr. Geller: Thank you, Mr. Chief Justice, and may it please the Court, this case and United States against Erika, the following case, involve challenges to the procedures established by Congress for determining medical reimbursement claims under Part B of the Medicare program.

The Medicare program is divided into two parts.

Part A provides insurance for hospital and related post-hospital services, and is fully funded by payroll taxes paid to the federal government through the social security system.

Part B, which is involved here, provides a voluntary program of supplementary medical insurance covering in general 80 percent of the reasonable charges for certain other services, primarily physicians' services and such items as medical supplier, laboratory tests, and ex-rays.

Benefits under Part B are financed in part by direct federal government contributions and in part by monthly premiums paid by people who are 65 years of age or older or disabled and who choose voluntarily to enroll in the Part B program.

Under the Medicare statute, the Secretary of Health and Human Services determines whether an individual is eligible to enroll in the Part B program.

If the Secretary determines that an applicant is not eligible, the applicant has an opportunity for a hearing before an administrative law judge, and if necessary, to judicial review of that determination.

Now, in contrast to these eligibility determinations, the individual benefit reimbursement determinations under the Part B program are not handled directly by the Secretary.

The day to day administration of the Part B program requires a determination of a vast number of individual claims for reimbursement submitted by or on behalf of some 27 million beneficiaries.

In 1980 alone, more than 150 million medical reimbursement claims were processed.

When it enacted the Medicare Act in 1965, Congress concluded that a reimbursement program of this magnitude and complexity could be administered most efficiently and conveniently by private insurance carriers, because these carriers, in conducting their own insurance business, had acquired considerable experience and expertise in determining whether, for example, physicians' services are medically necessary and in calculating the reasonable charge for a variety of medical services in their particular community.

Accordingly, Congress in the Medicare Act authorized the Secretary to enter into contracts with private insurance carriers under which the carriers would determine and pay Part B benefits on a reimbursible non-profit basis.

Under these contracts, the carriers receive advances of funds which they then pay to claimants in reimbursement for medical services that are found by the carriers to be covered by Part B, medically necessary, and reasonable in amount.

The contracts also provide for the government to pay the carriers' necessary and proper costs of administering the Part B system.

In all of these functions, the carriers act as agents of the Secretary.

Now, the challenge in this case is to the procedures provided under Part B when a claimant is dissatisfied with a carrier's reimbursement decision.

Under regulations promulgated by the Secretary, if a claimant does not agree with the carrier's initial decision regarding the amount of reimbursement for particular services, the claimant may require a review of that initial determination.

A review of the entire file is then conducted by an employee of the carrier other than the employee who made the initial determination, and the claimant may submit additional evidence or legal or factual argument in support of the claim at issue.

If after that review determination the claimant is still not satisfied with the carrier's decision, the Medicare Act requires the carrier to hold a 100 in controversy.

Now, this fair hearing is conducted by a hearing officer appointed by the carrier who cannot have participated personally at any prior stage of the claim.

The hearing officer is empowered to inquire fully into the claim at issue.

He may examine witnesses and call for additional evidence at the hearing, and the claimant is also entitled to submit additional documents or evidence, examine witnesses, and present argument.

Unidentified Justice: Mr. Geller, does either the hearing officer or the carrier have any financial or pecuniary interest in the outcome of the determination by the hearing officer?

Mr. Geller: No.

I hope to develop that point in a little while.

The answer is that if a claim is found to be meritorious, it is paid out of funds that are submitted to the carrier by the Secretary.

It doesn't come out of the carrier's own pocket, and the hearing officer's salary is not affected in any way by the decision he reaches at these fair hearings.

Unidentified Justice: You used the term "salary".

Are these people salaried?

Mr. Geller: Well, some people... some of these people are, I understand, full-time employees of the carrier.

Most of them are simply independent contractors who are paid on a hearing by hearing basis, although some of them work so often that it approaches a full-time position with the... with the carrier.

Unidentified Justice: So their only interest... your opponent argues that they have an interest in getting re-employed over and over again.

They are not permanently... they don't have any kind of tenure.

Mr. Geller: That's... that's correct, and I assume, and we don't dispute the fact that some of these people may well have that interest.

What we dispute is this notion that they increase their chances of being hired and rehired by denying meritorious claims.

Unidentified Justice: Well, Mr. Geller, what is the source of their compensation?

Is it the carrier or the government?

Mr. Geller: Well, they are employed by contracts with the carrier, but what is paid to them by the carrier is considered a necessary administrative expense--

Unidentified Justice: And the--

Mr. Geller: --and the carrier is reimbursed by the Secretary.

Unidentified Justice: --By the government.

Mr. Geller: That's right.

Unidentified Justice: Does that run into considerable... does that run into much money?

Mr. Geller: Not really.

There are only about 100 or 150 hearing officers for the whole country.

We are talking about a Medicare program that... Part B involves more than ten million--

Unidentified Justice: Are there other expenses in addition to the compensation to the hearing officers?

Mr. Geller: --Oh, of course.

I mean, the hearing officers are an insignificant expense of the total of the entire--

Unidentified Justice: But I mean, for this procedure.

I mean, does the carrier get compensated, for example, for--

Mr. Geller: --Yes.

Unidentified Justice: --the rent of hearing rooms and things like that?

Mr. Geller: Yes, I mean, they... well, normally they would be held, for example, at the attorney's office.

Many of these people are attorneys.

Let me put into perspective what we are talking about here.

There are 158 or in 1980 there were 158 million Medicare claims submitted.

As... Out of that figure, only about two million went beyond the stage of the initial determination by the carrier and went to the review determination stage, and out of that two million, there are only about 26,000 that went to the fair hearing stage.

So the administrative expenses of the carriers would be figured on processing 158 or whatever it is million claims, and the hearing officer would only be compensated for conducting a very, very minor percentage of the total Medicare picture, so the administrative expenses that are attributable to the carrier are very, very small.

Unidentified Justice: Mr. Geller, if a person has the job of being a hearing examiner in one of these, what body of law does he look to to decide reasonableness?

Is there a body in the private sector of interpreting the same contractual provisions and so forth?

Mr. Geller: Well, the... this is all laid out with... in great detail in the regulations that the Secretary has promulgated and that are published in CFR.

The hearing officer has to follow the statute, obviously.

Unidentified Justice: Right.

Mr. Geller: Those regulations.

In addition, the Secretary publishes a carriers' manual and the hearing officer handbook, portions of which, by the way, are reprinted in the Joint Appendix, and to which I would ask the Court to turn.

And all of those sources explain in great detail to these hearing officers how they are to go about computing the reasonable charge, and frequently it is a... it is a mathematical computation.

They have to take into account things such as the--

Unidentified Justice: Do they take into account the same kind of things they would take into account if it were simply a private--

Mr. Geller: --Yes, well, one of the things... Yes.

One of the things that the hearing officer has to take into account is the carrier's particular charge in his own... in its own private insurance--

Unidentified Justice: --Well, then, doesn't the carrier have an interest because of its possible impact on its private operations in how certain contractual provisions are construed, or how certain reasonable determinations are made?

Mr. Geller: --Well, the carrier's private business serves as a ceiling beyond which a Medicare payment cannot be made, so there is no reason to think that... it is not a floor.

There is no reason to think that the carrier in its private business would be hindered or in any way encouraged to do anything--

Unidentified Justice: Yes, but wouldn't it be interested in having precedents establish the fair and reasonableness of the ceilings it has used in its private business?

Mr. Geller: --No, the hearing officer has to take into account in determining the reasonable charge the same sorts of things that the carrier takes into account in his private business.

Unidentified Justice: Right.

Mr. Geller: For example, the physicians' customary charge, the prevailing charge in the community.

Now, after the hearing officer has done all of that, the fact is, he still under the statute cannot pay anything more than the carrier itself would pay for the same sort of claim in its private insurance business.

I think there is an important point to be made here.

We can't lose sight of what the district court found to be the due process violation, and what the district court advanced as the remedy for that due process violation.

How reasonable charge is figured, including the fact that the reasonable charge can't be more than what the carrier pays in its private insurance business, is in the statute and in the regulations.

The administrative law judge that the district court has ordered appointed in all of these cases would have to follow those exact same procedures in figuring out what the reasonable charge is, so there is no reason to think that because the hearing officer is appointed by the carrier, that that introduces an institutional bias into the system.

The... how reasonable charge is computated is not something that the carrier decides.

It is in the statute and it is in the Secretary's regulations.

Now, this care is a nationwide class action brought on behalf of persons whose claim for reimbursement under Part B was denied in whole or in part by a carrier hearing officer.

The district court agreed with the plaintiffs that the Part B hearing procedures established by Congress violate the due process clause of the Fifth Amendment.

In the district court's view, Part B beneficiaries are entitled under the Constitution to have final determinations with respect to their claims for reimbursement of medical expenses made by hearing officers who are totally independent of the carriers that administer the Part B program, and the district court gave essentially two reasons for suspecting that the carriers' hearing officers were not and could not be impartial.

One was this notion that Justice O'Connor alluded to earlier, that perhaps the hearing officers have some financial interest in the decisions that they make, and the second reason that the district court gave was what the district court termed the hearing officer's "vicarious involvement in the claim".

By that the district court meant that the hearing officer works for the carrier that has twice before denied the claim, and the notion is that the hearing officer might be reluctant to overturn a decision made at two previous levels of the carrier.

What the... Based on these conclusions, the court struck down the review provisions of the Part B Medicare program, and ordered that the Secretary afford the right to a de novo hearing before an administrative law judge in the Department of Health and Human Service to every person whose Part B claim was denied in whole or in part by a carrier hearing officer after May 1, 1980, provided that the amount remaining in issue is at least $100.

Now, the government has taken a direct appeal to this Court under 28 USC 1252 to challenge this extraordinary holding of the district court.

The district court has declared unconstitutional the specific procedural mechanism devised by Congress to deal with a massive insurance program involving, as I said, some 27 million beneficiaries, nearly 200 million in this fiscal year, individual claims for reimbursement, $10.5 billion worth of benefits, and in its place, the district court has ordered the Secretary to establish an administrative review system within the Department of Health and Human Services that Congress expressly considered and rejected.

Now, in reviewing this decision, we believe it is important for the Court to keep in mind that the district court in finding a violation of the due process clause did not point to anything in the Medicare statute or the Secretary's regulations to suggest that the fair hearings offered to Part B claimants by the carriers denied claimants a meaningful opportunity to be heard.

Moreover, the district court did not point to any evidence drawn from the accumulated experience of carrier-conducted hearings in scores of thousands of cases over the last 16 years to demonstrate that Congress and the Secretary were wrong in believing that carriers could be relied upon to conduct appropriate hearings on these very small claims.

Unidentified Justice: Tell me, Mr. Geller, are there any other models of this type of thing?

Mr. Geller: Models?

Unidentified Justice: This... letting this sort of thing be done by private judges?

Mr. Geller: I don't... there may not be any models, but I am not sure there are any models for the Part B Medicare program to begin with.

Unidentified Justice: Yes, I know.

Mr. Geller: I think what Congress had in mind was to sort of parallel and to create as minor an inconvenience as it could for the health care industry when it set up the Part B program, and therefore it assumed that the best way to process these millions and millions of claims was to delegate that authority--

Unidentified Justice: So in that sense, this is an original, isn't it, this kind of procedure?

Mr. Geller: --Yes, it is, but... but my point is that it is not simply the review procedures that are unique.

The whole Part B Medicare program is unique, and I think that the review procedures have to be viewed in the context of what Congress was trying to do in setting up in 1965 this entirely new and unique program.

Unidentified Justice: To what extent is it significant that you have two problems here?

One is the carriers appointing the hearing officers, and secondly, no right of review thereafter, judicial review or other type review.

Is that significant, that you have both alleged problems?

Mr. Geller: The... Well, in this case, there is only one alleged problem.

The plaintiffs have not challenged the absence of judicial review under the statute.

Unidentified Justice: But do we have to look at that and focus on that in weighing the validity of this--

Mr. Geller: I think... I think the Court, in considering this case and in considering the Erika case, has to, in adjudicating the plaintiffs's claims in each of those cases, consider the entire program, and I think that it would be appropriate in considering whether procedural fairness has been met here, to consider the fact that Congress has not allowed for judicial review, but I think it is important to keep in mind that the Court has to find that the administrative process violates due process.

It is not simply enough to sort of merge everything together and say, well, it probably is procedurally proper, but it is close to the line, and since there isn't judicial review, we are somehow going to restructure the administrative process.

I don't think that the courts have any power to restructure the system that Congress has devised unless they find that the system in some specifically articulated way violates elementary due process, denying the claimant the meaningful opportunity to be heard, or not an impartial decision-maker.

I don't think that the Court will be able to identify any aspect of the Part B hearing system in this case that falls below minimal standards of due process.

It is important to emphasize, as Justice O'Connor asked me earlier, that neither the carriers nor the hearing officer have any direct or indirect pecuniary interest in the outcome of the case.

The carriers administer the Part B program in their particular locality on a non-profit basis.

Unidentified Justice: --Why do they do it, Mr. Geller?

Mr. Geller: Well, there was testimony as to that in the record, and one of the people who is, I think, an officer of the Occidental Life Insurance Company, testified that they do it essentially for two reasons.

One is, it is very good public relations, because millions and millions of benefit checks are sent out with the insurance company's name on them.

And the second reason that was given, a more substantive one, is that it helps the insurance companies achieve economies of scale, because they can integrate their private insurance business for... I assume for purposes of computerization, for example.

They can rent a larger computer, and they can achieve economies of scale.

I am not sure it is... I think... we don't... we don't deny the fact that carriers, insurance carriers would like to be part of the Part B program, but if any inference can be drawn from that, it is not the inference, I think, that the plaintiffs draw, which is that they would seek at every turn to deny meritorious claims.

I think if any inference can be drawn from the fact that carriers would like to be part of the Part B program and would like to have their contracts renewed by the Secretary--

Unidentified Justice: Well, isn't it possible... I don't know if this is true or not... to infer that they may want to be sure that the decisions are consistent with the way their private business operates, that they do have an interest in consistency, not in outcome in any particular case?

Mr. Geller: --Well, I think the--

Unidentified Justice: That they always treat claims for... we have dialysis in the next case.

They want those always resolved according to the same standards.

Mr. Geller: --Well, except that they are obliged by the contract they sign to follow the standards that Congress and the Secretary--

Unidentified Justice: But which in turn refer back to the ones they use themselves, as I understand it.

Mr. Geller: --Well, on reasonable charge, but not, for example, on what, for example, is covered by the Part B program, or what is a medically necessary--

Unidentified Justice: But aren't most of these questions reasonable charge questions?

Mr. Geller: --Yes.

Yes, but still, it doesn't seem to us there is any incentive on the part of any carrier to deny a meritorious claim.

It would seem that if they want to continue to be part of the Part B program, if they wanted to have good public relations, they would be scrupulously fair.

In fact, if any, as I was saying, if any inference can be drawn from this desire to maintain... to be part of the program, it might be that they would... they would grant benefits in non-meritorious claims, in order to have the benefit checks go out with their name captioned on them.

Unidentified Justice: Well, but then they would have to grant non-meritorious claims in their private business, too, to be consistent.

Mr. Geller: Not necessarily.

I mean, many of these cases are very, very fact-bound, and there is no record kept.

They are not precedents in which they could go back and look and see what they did in a similar situation in 1978.

Even the plaintiffs have not alleged, and believe me, the plaintiffs have conjured up every conceivable, imaginable way in which the carriers or the hearing officers might violate their solemn duties.

Even the plaintiffs have not suggested that the carriers might do that.

Now, the district court acknowledged that the hearing officer's fee in connection with a given case is unaffected by the decision he reaches in that case, but the court speculated that the hearing officer has a pecuniary interest in "currying the carrier's favor" by ruling against the claimant, because the hearing officer's future income might somehow be affected by how often the carrier decides to call upon his services.

This concern again strikes us as totally unrealistic and fanciful, and certainly... this is an important point... is an insufficient reason to strike down a federal statute.

First, as I noted earlier, the carrier has no financial personal interest in how a claim is decided.

In addition, and perhaps more important, there was no evidence in the record that a carrier had ever engaged in conduct so improper as to terminate or substantially alter its relationship with a hearing officer based upon how that hearing officer was deciding particular claims in favor of Part B claimants.

In fact, the HHS official who is responsible for monitoring the Part B hearing process testified that he didn't know of any instance in which such conduct had ever occurred or even been alleged.

In fact, there was no evidence in the record that a hearing officer had ever been fired by a carrier for any reason.

Quite apart from the lack of factual support for the district court's conclusion, we submit there is no support for it in logic.

To the extent that a carrier wishes to ingratiate himself... itself with the Secretary in order to maintain its Medicare contract, or to the extent that a hearing officer wishes, to use the district court's terms, to "curry favor with a carrier", we submit that they would have an exceedingly strong incentive to correctly determine the amount of every Part B claim, and to pay every meritorious claim to the full extent required by statute.

That, of course, is the carrier's contractual obligation, and the Secretary could terminate the contract of any carrier that failed to satisfy that obligation.

In fact, the Secretary carefully monitors the performance of the hearing officers and the carriers in general in at least four different ways, perhaps the most important of which is that every three months, the carriers must send to the Secretary 10 percent of their hearing decisions, determined on some random basis based on the claimant's social security number, so that every... and they must send at least one hearing decision from every single hearing officer, so that allows the Secretary to determine how the process is actually working and how each hearing officer is adhering to the carriers' handbook and the hearing officers' manual.

Unidentified Justice: But doesn't the record reveal that is a pretty cursory review, Mr. Geller?

Mr. Geller: I don't believe that the record reveals that, Justice Blackmun, and that is only one of four ways in which the... the hearing officers' and the carriers' carrying out of their contractual obligations are monitored.

There is also an on-site representative at every one of these carriers, and he frequently will monitor a hearing officer... a hearing being conducted by a hearing officer.

In addition, there is an annual contractual review system whereby the Secretary sends a fairly lengthy, and the record contains at least one of these, a fairly lengthy critique of how the carrier is doing during that year, and will often have suggestions.

And finally, there is evidence in the record that even on individual cases, in response to a particular complaint, the Secretary will review a hearing officer's decision.

Unidentified Justice: Mr. Geller, while I have you interrupted, this went out for summary judgment against the government?

Mr. Geller: Yes.

Unidentified Justice: Is it your position that you are entitled to summary judgment--

Mr. Geller: Yes.

Unidentified Justice: --or do you merely want it to go back for--

Mr. Geller: No.

It is our position that we are entitled to summary judgment, because there is nothing on the face of the statute and the plaintiffs have not suggested any lines of factual inquiry that could lead a judge to conclude that the Part B system violates due process.

I might add that there... there were a great amount of evidentiary materials submitted here, both depositions and answers to interrogatories, that were submitted to the district court both in favor of and in opposition to the plaintiffs' motion for summary judgment.

Unidentified Justice: --Well, in the mind of the district court, would a right to appeal to the Secretary cure the entire problem?

Mr. Geller: Yes, and that is what the district court has ordered, which is--

Unidentified Justice: That would cure all the possible bias in the case?

Mr. Geller: --Apparently, that is what the district court thought, although there is a line of cases in this Court, such as Ward versus Village of Monroeville, which seems to suggest that if there is a bias at some sort of adjudicatory level, it is not cured by having a de novo level of review on top of that.

Unidentified Justice: Even judicial review?

Mr. Geller: Even judicial review.

That's right.

That is what was involved in a case like Ward, but the district court here thought that that would solve the problem, which I think comes back, once again, to the fact that the district court simply had some vague unease about how... the way the system was working, but he could not really point to any evidence of any particular unfairness.

In fact, he went out of his way in the district judge's opinion to praise the actual conduct of the hearing officers.

Unidentified Justice: Well, the district court didn't suggest that if there were some review by the Secretary, then the Secretary's review in turn was subject to judicial review, did it?

Mr. Geller: No.

No.

In fact, the district court, as I recall, pointed out that no one had challenged the judicial preclusion provisions of the Part B Medicare Act.

Therefore, I don't think there is any reason to believe that a carrier would jeopardize its relationship with the Medicare program by exerting influence on a hearing officer to deny an otherwise meritorious claim, or that a hearing officer would act in that unseemly fashion on his own in the belief that it would somehow place... please the carrier and make it more likely that he would be hired as a hearing officer in the future.

Exactly the opposite is the case.

The hearing officer and the carrier have every incentive to be scrupulously fair.

If the Court has no further questions, I would like to reserve the balance of my time.

Chief Justice Burger: Mr. Sohnen.

ORAL ARGUMENT OF HARVEY SOHNEN, ESQ., ON BEHALF OF THE APPELLEES

Mr. Sohnen: Mr. Chief Justice, and may it please the Court, this case presents two issues.

The first issue is whether the due process rights of Medicare claimants are violated when the hearing officers who make final, unreviewable decisions on claims appeals serve at the pleasure of the insurance companies that have denied the claims.

The second issue is one of the remedy, whether the appeal ordered by the district court to the Secretary is the appropriate remedy.

Counsel has made a number of comments about evidence in this case, and I think it is important to understand that the standard that this Court has recognized about the requirement of a fair tribunal is that our system of justice seeks to avoid the possibility and even the appearance of bias, and thus the standard is one of whether the circumstances presented pose to the average man sitting as a judge a possible temptation not to decide fairly.

It is important, therefore, that we grasp the critical facts of this complex program to understand why in fact carriers do have a direct financial interest in the outcome of Medicare claims, and why it is not an extraordinary exercise of the imagination, as counsel has stated, to so find.

As Justice Stevens commented, there is a very close connection between policy decisions that are made with respect to the private carriers' own claims and to their functions as Medicare contractors.

In fact, whether they are holding a Medicare contract or administering their own private plans, they have the same dual mission.

First, they are to protect the funds of their policyholders, or in the case of Medicare, federal funds, and secondly, they are to honor the claims benefit... the claims decisions... excuse me, the claims that are submitted to them under a prudent and cautious interpretation of their policies.

If the carrier treats federal funds less cautiously than its own, its own financial interest is jeopardized, as the Secretary has the option not to renew a carrier's contract, which is only for a one-year term, without a showing of cause.

Thus, the statute mandates carriers to treat Medicare claims in essentially the same manner as if it were their own money being spend.

In addition, it is important to understand that there is a very straightforward way in which carriers have a direct financial stake in the outcome of Medicare claims decisions.

This is through supplemental private policies for the elderly, commonly known as Medigap insurance.

These supplemental policies have become more needed as medical care costs have gone up and as the differences between actual costs of care and Medicare reimbursement have increased.

Medicare carriers, as counsel has indicated, have the name recognition that accompanies their names going out on thousands of checks to the beneficiaries.

This name recognition gives them a competitive advantage in obtaining business under the Medigap programs.

Thus, and in fact, the Secretary's relationship with the carriers does not deny the existence of the Medigap programs, but in fact in Article 24 of the contract, which appears in the record, the carrier specifically authorizes the... the carrier is specifically authorized to integrate its Medicare and Medigap claims processing.

This leads to an inevitable financial stake for carriers in the outcome of Medicare claims, since when the carrier pays less on a Medicare claim, the result is that there is less paid on the Medigap claim.

This happens because Medicare does not pay the actual charges for covered services, but only what a carrier determines to be an allowed charge.

Assuming a deductible when a claim has been met, Medicare pays 80 percent of an allowed charge, and Medigap pays 20 percent.

The supplemental plan, or Medigap plan, is not liable for the difference between the allowed charge and the actual charge, which is ordinarily picked up by the beneficiary.

Thus, and similarly, when a carrier is holding a Medigap policy and the issue is one of medical necessity, if there is a determination that the procedure is not medically necessary under Medicare, that also means that the Medigap policy does not... does not cover the claim.

Moreover--

Unidentified Justice: Mr. Sohnen--

Mr. Sohnen: --Yes.

Unidentified Justice: --the other side of that coin, I suppose, is that the individual has a remedy in court for the 20 percent claim, doesn't he?

Mr. Sohnen: Well, the way the contracts are written, the Medigap contracts simply refer to what Medicare has decided, so that ordinarily under a private plan which had no connection with Medicare, there would be the right of review by arbitration or the courts, but here, the Medigap plans simply refer to the level that is set by Medicare.

Unidentified Justice: I see.

By its terms, it is measured by what is allowed as reasonable under Medicare?

Mr. Sohnen: That's right.

Unidentified Justice: I see.

Mr. Sohnen: And this is... this is the problem that is at the heart of this system, because in their private operations, the carriers do not have to make the final review of their own claims.

If they are striking... if they make an error in striking the balance between the interests of their stockholders on the one hand and the interests of the policyholders, these questions are referred to arbitration and the courts for independent review, yet under the Medicare statute, there is no independent review, and the carriers are essentially required to police themselves in this manner, notwithstanding the fact that they have no experience in conducting hearings that comes from the normal course of their business outside of Medicare.

Unidentified Justice: Well, they have had... How many years of it have they had now?

Mr. Sohnen: Well, Your Honor, there are new... there are new carriers being contracted all the time.

There are some carriers that--

Unidentified Justice: Well, what about an old one?

Mr. Sohnen: --Well, the... I would... I would agree that the experience of the carriers varies.

However, they cannot draw on their private business--

Unidentified Justice: Well, what about this one?

Mr. Sohnen: --Well, this is... this is a nationwide class action, so this concerns all, all the carriers.

Blue Shield of California, which was a named defendant, has been with the Medicare program since its inception, and I think that the... the facts pertaining to Blue Shield show that just having a long experience with the Medicare program does not provide independent review.

Of the seven hearing officers who work for Blue Shield, four of them are retired Blue Shield employees, one of them has a current... a current consulting contract, and one of them there was no information about.

So, we... we think that the facts of the relationships between the hearing officers and the carriers presented an extreme picture.

Unidentified Justice: What remedy did you ask for in this case?

Mr. Sohnen: The remedy we asked for... we presented one remedy, Actually, we... Our position was that there were two alternative remedies that would satisfy constitutional standards.

The one that the court chose, and one that might have been--

Unidentified Justice: Why is review by the Secretary going to cure the bias?

I mean, this... Why is that?

Mr. Sohnen: --Well, because it will be de novo review.

If--

Unidentified Justice: You mean, a new hearing?

Mr. Sohnen: --Yes.

Our concern is that anything short of de novo review would not provide protection from biased findings of these hearing officers.

Unidentified Justice: Is that what... Is that what the district court, you think, granted you?

Mr. Sohnen: Yes.

The judgement specifically refers to a de novo hearing to be provided by the Social Security Administration.

Unidentified Justice: Was there any consideration given to the added cost that the district court's judgment would impose on this structure?

Mr. Sohnen: Well, we take... we take the position that a fair hearing costs no more than an unfair hearing, because what we are... what we are questioning in this case is not the whole procedures of the Medicare program, or even the whole procedures of the appeals process, but simply the identity of these hearing officers who cannot provide independent review, and the remedy that... one of the remedies that we proposed--

Unidentified Justice: But in Goldberg against Kelly--

Mr. Sohnen: --Yes.

Unidentified Justice: --the Court said, some ten or twelve years ago, that just so another person was having a look at it was sufficient to satisfy due process.

Mr. Sohnen: Hearing officers in the Medicare program are not simply reviewing the decisions of other employees who have clerically processed the claim at the initial stage.

They are reviewing all decisions of the carrier, including decisions of management as to policy matters, as to claim... as to how claims are handled generally, so this is not a situation where we simply have... we can solve the problem by making sure there has been no personal involvement.

The carriers are connected with the hearing officers by the way that the selection, training, and employment relationship works, and I think it is important to understand the critical facts about why independent review is impossible in connection with the hearing officers and the... and the carriers.

First of all, the carriers have complete control over the selection of hearing officers.

The Secretary does not review the selection decisions for these positions, and in fact its role is limited to issuance of general guidelines which are lacking in specific criteria for these positions.

Thirdly, the carriers are free to recruit hearing officers in any manner they please, such as by word of mouth, with the result that many hearing officers, such as in the case of Blue Shield of California, are current or retired employees of the insurance company.

Hearing officers, as was noted, are generally appointed on a hearing by hearing basis, and have no tenure whatsoever in their jobs, or any guarantees that they will be called in for a future hearing.

Thus, the carriers can sever their relationships with the hearing officers without stating cause, and it is implicit in this relationship that hearing officers have no real protection against retaliation.

Unidentified Justice: Counsel--

Mr. Sohnen: Yes.

Unidentified Justice: --was there any evidence, though, that there was actual bias involved on the part of the hearing officers?

Mr. Sohnen: It is our position that we don't... we don't identify actual bias in the record.

It is our position that--

Unidentified Justice: And there was no evidence of it?

Your answer is no?

Mr. Sohnen: --Yes.

In our position, the standard of this Court is whether there is a possible temptation for... for biased decision-making.

Unidentified Justice: Was there any evidence in the record to explain why an administrative law judge employed by the Secretary would make fewer presumably erroneous decisions than the hearing officers?

Mr. Sohnen: Yes.

First of all, I... I want to focus that the constitutional issue presented in this case is not whether a lawyer has to be the final decision-maker in a case, but it is whether independent review is necessary, and there was substantial evidence in the record that there were erroneous decisions that were not being corrected.

In one of the annual contractor reviews that appeared in the record, there were notations indicating that the Secretary was finding a higher degree of mistakes than the carrier was in its own reviews.

And I think that given the complexity of the Medicare program, and the wide range of issues, the fact that there were no selection criteria in any meaningful sense except for what the carriers wanted, I think it must be assumed that some... some review by a body which has some knowledge of the law would decrease the risk of erroneous deprivation.

Unidentified Justice: But you are asking us to decide that, or the district court decided it on the basis of assumptions rather than evidence?

Mr. Sohnen: No, there was... there was... the evidence in the record showed... some of which has been included in our Joint Appendix, showed an extremely high error rate of processing claims in the Medicare program.

Unidentified Justice: Well, it showed, did it not, that perhaps the hearing officers were granting as many as 50 percent of the claims that came before them?

Mr. Sohnen: There was... there was that evidence, but there was also evidence indicating that the Secretary's own staff viewed those statistics as being distorted.

There was evidence that these statistics fluctuated according to technical variations in the carriers' policy as to when they conducted a... when they resolved matters at the review stage as opposed to the hearing stage.

More importantly, these statistics mix corrections of computer type errors, which abound, with substantive decisions where the carrier's policy was at stake.

And finally, any modification whatsoever in the amount of the claim, whether for 50 cents or some other small amount, would be counted as a reversal under the way the statistics were kept.

Unidentified Justice: Mr. Sohnen?

Mr. Sohnen: Yes.

Unidentified Justice: In responding to Justice O'Connor's question, it seems to me you are arguing as though you had prevailed after trial and gotten a judgment or a verdict below, and simply saying there is evidence to support the verdict, but as I understand, it went off on summary judgment, so that any point of disputed evidence would be resolved against you.

Mr. Sohnen: We think that the... the constitutional issue in this case is whether there is a right of independent review, and the relationships that prevent an independent review are undisputed, and appear in the face of the statute essentially as I have described.

The training, the selection, lack of job security, lack of review, all those factors were undisputed in the factual record.

There may have been certain facts that were subject to different interpretations, but--

Unidentified Justice: Mr. Sohnen, in the--

Mr. Sohnen: --but in terms of the... yes.

Unidentified Justice: --In the next case--

Mr. Sohnen: Yes.

Unidentified Justice: --concerning the court of claims jurisdiction, if this Court should rule there that there is jurisdiction in the court of claims, are your concerns alleviated?

Mr. Sohnen: No, they will not be, Your Honor.

Unidentified Justice: Why?

Mr. Sohnen: As I indicated in response to Justice White's question before, something short of de novo review does not cure the problem of biased decision-making.

The court of claims has indicated that if its... as it sees its jurisdiction under the Tucker Act, it would be for a review of an extremely narrow scope.

Unidentified Justice: On the record.

Mr. Sohnen: Well, even narrower than that.

Unidentified Justice: Oh, really?

Mr. Sohnen: I believe that it would be... it would be limited to questions of constitutionality and questions of statutory interpretation.

Thus, erroneous findings of fact and applications of the law to the facts would not be reviewable, and these are so many of the cases that we have before us.

For example, Mr. McClure's case involved... Mr. McClure was a resident of a remote community in northern California.

He suffered a heart attack.

His physician in that community felt that immediate surgical intervention was necessary to save his life.

He therefore concluded that a facility in San Francisco was the nearest appropriate place for him... for him to be treated, and he went... he was sent to San Francisco.

His life was saved.

But when he submitted his claim for an air ambulance under Medicare, despite the fact that there was no evidence indicating that his doctor's physician... his physician's testimony... his physician's opinion was incorrect, the Medicare hearing officer decided that there was a closer appropriate facility.

Now, that is the type of case that would never be reviewable in the court of claims under the jurisdiction that they have asserted.

Unidentified Justice: I am trying to sort out to what extent you are claiming bias taints this result, or whether it is just general incompetence, just the general chance of arriving at unsound conclusions.

Mr. Sohnen: I think that... I think the gravest concern about this system is the fact that no independent review is available, and the fact that--

Unidentified Justice: Well, I know, but--

Mr. Sohnen: --Yes.

Unidentified Justice: --that doesn't answer my question.

Mr. Sohnen: Well, I think I can respond to your question with a follow-up to that, which is that the fact that the competence of these hearing officers is determined as part of this close relationship between the hearing officer... between the carrier and the hearing officers aggravates the fact that there is a concern about bias.

Unidentified Justice: Well, if all the insurance carriers involved in this program together created a pool of hearing officers who didn't work for any of them and never had, gave them some... the same amount of training that they have gotten now, and drew them by lot, would you be here or not?

Mr. Sohnen: Well, the question that poses is what would be necessary to ensure independent review.

Unidentified Justice: Well, would independent review be required in that... on those facts?

If it is, it must be your objection is basically that this is just an unsound way of deciding cases.

Mr. Sohnen: I think that the... if a system as you have described assured that a hearing officer was insulated from the carrier whose decision he was reviewing, both in terms of the selection process, which now leaves--

Unidentified Justice: Yes.

Mr. Sohnen: --there is an extremely close connection, and the job security aspects--

Unidentified Justice: Well, suppose it was.

Mr. Sohnen: --Yes.

And with... with some input from the Secretary about qualification, I... I think that that would be of the nature of independent review.

It is hard to assess such a plan without facts, but I think the essence of independent review turns on the--

Unidentified Justice: That would eliminate a good deal of the so-called bias.

Mr. Sohnen: --Yes, if... if the... if the individual policies of carriers was... did not affect the ability of the hearing officers to make decisions, that would be the type of remedy that would reduce the risk of bias.

Unidentified Justice: Mr. Sohnen, what are you arguing other than the possibility of bias?

Mr. Sohnen: Well, we also... the other issue--

Chief Justice Burger: You can ponder on that.

We will take it up at 1:00 o'clock.

You may continue, Mr. Sohnen.

ORAL ARGUMENT OF HARVEY SOHNEN, ESQ., ON BEHALF OF THE APPELLEES -- CONTINUED

Mr. Sohnen: Yes.

May it please the Court, in answer to Justice Marshall's question prior to the break, what this case poses is not simply the issue of the possibility of bias, but the extent of the constitutional requirement for a competent and independent review of Medicare claims to protect the integrity of that program, and for that reason I would like to elaborate on my answer to Justice White's hypothetical.

If carriers are given the ultimate responsibility for making decisions on Medicare claims, we still have the problem of the interweaving financial interests between the carrier's own policies and the Medicare program, and in addition, any... any new program of that nature would certainly involve costs that are... that are not currently involved.

In our... It is our position that a fair hearing in the first instance is possible in the Medicare program at no extra cost.

There was evidence in the record that the cost of administrative law judge hearings is essentially the same as the cost of these hearings conducted by insurance company appointees that we have been challenging.

Unidentified Justice: Mr. Sohnen--

Mr. Sohnen: Yes.

Unidentified Justice: --may I interrupt with a question on cost?

Does the record tell us how big... what the dollar amount involved in the typical claim is of this type?

Mr. Sohnen: Yes.

The record indicates that the... the average is approximately $600.

About two years ago is the latest statistic.

Of course, these... the amounts range from the minimum of $100 to the costs of major surgery.

So, it would be our position that rather than creating a new structure that is still in the hands of the carriers, the fairest, most economical method would be simply to replace the current system with--

Unidentified Justice: Well, if you are right, if you are right, why, it seems to me that you really ought to move all of the processing out of the private hands, because an awful lot of people don't request hearings, do they?

Mr. Sohnen: --That's true.

Unidentified Justice: The great bulk of them.

Mr. Sohnen: Yes.

Unidentified Justice: And you must... you must... if hearing officers are biased, I would think the... the prehearing officer processing is even more biased.

Mr. Sohnen: Well, I would respectfully disagree.

The--

Unidentified Justice: Well, why... Why would--

Mr. Sohnen: --Yes.

Unidentified Justice: --Why should people sit still for that?

Mr. Sohnen: We are not objecting to the expertise of the private sector in processing these claims--

Unidentified Justice: Or their non-bias?

Is that it?

Mr. Sohnen: We... we do... we do feel that there is a financial interest, as we have stated, that prevents fair decision-making.

The issue here is not--

Unidentified Justice: Well, then, with respect to... I would think you would say with respect to people who don't request hearings, too.

Mr. Sohnen: --We don't think that the Constitution requires that people have to demand a hearing.

If they are not asking for a hearing, perhaps the matter has been resolved satisfactorily.

Unidentified Justice: Do I correctly remember that you said there were 158 million claims a year?

Mr. Sohnen: That's correct.

Unidentified Justice: So then how many of them go to hearing?

Mr. Sohnen: About 26,000.

So the issue in this case is much narrower than the... than the Congressional judgment--

Unidentified Justice: How about all those other people?

Mr. Sohnen: --Yes.

Unidentified Justice: I would think you would think they had been treated even worse, the ones who accept their... the way the claim is disposed of by the carrier.

Mr. Sohnen: I think that we have to draw a distinction between the choice of Congress to... to place the administration of a massive system of this nature in the hands of the private sector and this very original characteristic of this program whereby the final decisions are also placed in the private sector, and it was this originality that I believe Justice Brennan referred to--

Unidentified Justice: Well, there are an awful lot of people with an average claim of $600 who think they are being jobbed but who can't possibly afford to contest it.

Mr. Sohnen: --Yes, and--

Unidentified Justice: Why don't you urge... The whole thing ought to go under the government, shouldn't it?

If you are making really any sense?

Mr. Sohnen: --I think that there is... in our... in the history of governmental operations, there has been a great deal of experience with using the competence of the private sector.

What distinguishes this case is that the final say is in the private sector.

This is what is so distinctive about the case, and in fact, it is not just the district court that has noted this, but also the National Commission on Social Security reviewing this Act, as it is charged to do by Congress, the American Bar Association, in its amicus brief--

Unidentified Justice: Mr. Sohnen--

Mr. Sohnen: --Yes.

Unidentified Justice: --you would take the same position, I take it, if there were no appeal procedure at all.

You would say that would be equally unconstitutional?

Mr. Sohnen: Well, that issue isn't presented in this case, because there is a statutory right to appeal.

Unidentified Justice: Well, there is a statutory right to have the carrier take a second look at the problem.

I mean, it is not like... there is no statutory right to appeal to an independent... to an independent decision-maker, though.

Mr. Sohnen: Well, the statute does say, a fair hearing, and we would--

Unidentified Justice: Well, then, Congress knew exactly what it meant by a fair hearing.

It is the fair hearing prescribed by statute.

And could it not be reasonably said that out of the 158 million claims, 157,900 of them apparently were satisfied with the result.

Mr. Sohnen: --Well, in fact, I think--

Unidentified Justice: At least that is arguable, is it not?

Mr. Sohnen: --I think that there was evidence in the record that indicates that there are many reasons why people don't appeal.

In fact, a study was done of beneficiary appeals which appears in the Joint Appendix which indicates that the low appeal rate reflects the age and infirmity of the Medicare claimant.

So, I think that... and also the dollar amounts that were involved.

Unidentified Justice: Well, is it unreasonable... is it unreasonable to... for someone to argue that this suggests that this practical solution is working out pretty well, as Congress anticipated that it would and said that it should?

Mr. Sohnen: I think that in any system there is a mix of different kinds of cases, different... and different concerns.

The Medicare system is distinguished by the wide range of issues that are covered, and so... and it also... and it is also important to note that the 27 million individuals in this system are elderly for the most part, or disabled, and that the kinds of claims in their very nature often don't lead to extensive litigation.

As I was indicating before in my response pertaining to the Erika decision and the idea of review in the court of claims, there are certain... there are some kinds of cases that simply don't generate massive litigation, but to... but to draw the inference that a system is completely fair because... because it is not used is, I think, a not completely wise position.

I think, if I could continue with the... the statement... my concerns about the originality of this system, the experience of our system with private boards, private operations of this kind has always allowed a wide scope of review.

The Medicare system, which allows no review from the insurance companies, is to be contrasted with private occupational licensing boards, where there is extensive judicial review.

For example, in the case of Gibson versus Berryhill, which was the Alabama Optometry Board, that is a case in which there were bias concerns about the tribunal, and the tribunal was struck down notwithstanding the fact that there was extensive judicial review.

So, in a system, as here, where we have given the carriers not only the first say, but the last say in deciding claims, grave constitutional problems arise.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Geller?

ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF THE APPELLANT -- REBUTTAL

Mr. Geller: Just a few things, Mr. Chief Justice.

First, the statistics show that approximately 50 percent of the claims that are submitted to the hearing officer are reversed, and that statistic, contrary to the suggestion of the plaintiffs this morning, we do not for a minute suggest that those statistics, which have held fairly constant over several years, are in any way distorted or don't reflect realities.

They also don't reflect computer coding errors, which is what the plaintiffs suggested this morning.

Most of those sorts of errors are caught at the review stage, which is the second stage of the review.

And finally, they don't reflect reversals where only about 50 cents is involved, which is another statement that the plaintiffs made this morning.

The statistics in the record, which are printed in the Joint Appendix, show that the average amount at issue, the average amount that is reversed at these hearings is about $200, which is a very substantial amount when, as my opponent just answered in response to Justice Stevens' question, the amount at issue in any of these hearings total is about $600, and even that overstates the actual amount of each claim, because claims can be aggregated over a six-month period.

So, we think that these statistics don't show any timidity, on the part of hearing officers to reverse when they think that the claim is meritorious.

Unidentified Justice: Mr. Geller, does the record tell us how much these hearings cost, how much they pay the hearing examiners?

Mr. Geller: Yes, well, the record does.

I think it varies.

There are various estimates, because of the manner of allocating, but it was several hundred dollars.

In fact, that is one of the reasons why Congress in 1972 put in... put in this provision only requiring a fair hearing when more than $100 is involved, because there was evidence that the hearings xx down face to face with the claimant and perhaps his physician and actually understand why a particular charge was made.

So, it is not at all peculiar that at this level of review there would frequently be a different--

Unidentified Justice: What would you mean, say reverse... you mean reversal, or you mean just there is a different decision?

Mr. Geller: --A different... a different decision.

Unidentified Justice: It might have increased it by $10.

Mr. Geller: Well, the average reversal, as I just said, was about $200.

Now, I hate to get into this whole Medigap business, but--

Unidentified Justice: It also occurs to me, if the physician is normally a necessary witness at these hearings, as to the reasonableness issue, that probably explains why there are an awful lot of cases that are not appealed, because doctors do not come that inexpensively.

Mr. Geller: --Well, the physician is not always a necessary witness, and in fact the record shows that there is never any problem in getting the physician to show up when he is requested to show up.

In fact, a lot of these cases are assignment cases in which it is the physician that is actually taking the appeal, and not the beneficiary.

Now, if I could just for a minute talk about this Medigap question that the plaintiffs raised, because once again it raises the specter which seems to pervade their entire presentation that there is some sort of sinister force at work here, while it is true that some Medicare beneficiaries have so-called Medigap coverage, the record doesn't show that they have that coverage, for example, with the insurance company that happens to be the carrier, the Medicare carrier for that area.

Unless they have the coverage with the insurance company that was also the Medicare carrier, even the plaintiffs' argument on its own terms doesn't make any sense, because that carrier, the insurance carrier would have no reason to vary depending upon whether the claimant had Medigap coverage.

In fact, the record in this case shows that the Occidental Life Insurance Company, which is one of the two carriers in the case, didn't even offer Medigap coverage.

And finally, there is no suggestion that the hearing officer, who after all is the person that the plaintiffs are claiming is biased, is ever told whether the claimant has Medigap coverage or not.

So once again, we think it is another example of the totally unsubstantiated speculation that pervades the plaintiffs' argument.

Unidentified Justice: Mr. Geller, if the Act didn't provide for any so-called fair hearing at all, what would be the basis for... what would be the... would you think there would be a reasonable attack on it on due process?

Mr. Geller: I think that would raise a much more difficult question, since due process requires, if it requires anything, some sort of a meaningful opportunity to be heard before property is taken away, but here there is no question--

Unidentified Justice: And the property is the... is the reasonable anticipation of getting reimbursed, according to the statute?

Mr. Geller: --Yes, right, after having paid your premium and submitted a claim.

I think the point is... I would like to leave the Court just with this last point... we don't think there is any due process problem in the Part B hearing appeal system, obviously, but if the Court disagrees, if they think, for example, as the Plaintiffs allege, that there is too close a connection between the carrier and the hearing officer, then it seems to us that the proper remedy is simply to ask the Secretary to take a closer look and pre-screen who are selected as hearing officers, and not to judicially legislate and superimpose an entire ALJ system on top of the Part B hearing system.

Unidentified Justice: Just try to get rid of the bias.

Mr. Geller: Get rid of the bias, exactly, if there is in fact bias.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Smith v. Phillips - Oral Argument

Fri, 09 Jan 2009 14:47:35 +0000

Case:

Smith v. Phillips

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80-1082_19811109-argument.mp3

Related Transcript:

transcript.xml

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Featured:

Marshall v. Jerrico, Inc. - Oral Argument

Thu, 13 Sep 2012 22:03:55 +0000

Case:

Marshall v. Jerrico, Inc.

Media File:

79-253_19800319-argument

Related Transcript:

79-253_19800319-argument

Transcript:

Argument of Kenneth S. Geller

Chief Justice Warren E. Burger: We'll hear arguments first this morning in Number 79-253, Marshall, the Secretary of Labor against Jerrico, Incorporated.

Mr. Geller, I think you may proceed whenever you are ready.

Mr. Kenneth S. Geller: Thank you, Mr. Chief Justice.

May it please the Court.

This case is here on direct appeal from the District Court here in the District of Columbia because a single judge of that Court has declared unconstitutional and enjoined the Secretary of Labor from enforcing the civil penalty provisions of the child labor statute.

Specifically, Judge Gasch found that the Due Process Clause of the Fifth Amendment is violated by the last sentence of Section 16 (e) of the child labor statute, which provides that the sums collected by the Secretary as civil penalties may be applied towards reimbursement of the cost of determining child labor violations.

The facts of this case may be briefly stated.

Appellee runs a chain of restaurants in the southeastern United States.

In 1969, 1973 and again in 1974, Department of Labor compliance officers found that appellee had employed a number of busboys and waitresses in violation of the federal child labor laws.

When two more such instances came to light in March 1975, the Department ordered an investigation into the hiring practices in all of appellee's restaurants.

Thereafter, the Assistant Regional Administrator of the Employment Standards Administration, which is the part of the Department of Labor that enforces the child labor laws, cited appellee for 169 separate child labor violations and assessed the civil penalty of $103,000.

This sum represented a penalty of $300 each for unlawfully implying -- employing seven persons under the age of 14, plus a penalty of $100 each for unlawfully employing 162 persons under the age of 16.

In addition, the Assistant Regional Administrator assessed the penalty of $500 for each of the 169 children, or a total of $84,500, because he believed that the history of child labor violations in appellee's restaurants stretching back to 1969, showed that appellee had been aware of the child labor violations but had done nothing to correct them.

Now, appellee filed an exception to this citation.

And after a hearing, the Administrative Law Judge found that the existence of the child labor violations was clearly established, but he disagreed with the Assistant Regional Administrator on whether these violations were willful.

The Administrative Law Judge therefore struck the $84,500 assessment and reduced the civil penalty to $18,500.

Now, appellee did not seek judicial review of this decision.

Instead, several months later, it began these lawsuits seeking a declaratory judgment that Section 16 (e) is unconstitutional and an injunction prohibiting its enforcement.

Chief Justice Warren E. Burger: Is there any reason why he couldn't raise that on a -- at an earlier stage in -- within the framework of this case?

Mr. Kenneth S. Geller: Appellee could, we believe, have sought judicial review of the Administrative Law Judge's assessment of the $18,500 and raised this constitutional objection as well as any other objections --

Chief Justice Warren E. Burger: Without having raised it before the Administrative Law Judge.

Mr. Kenneth S. Geller: It -- it was raised -- I don't believe it was raised before the Administrative Law Judge, although the Administrative Law Judge could not have given relief on that ground, so I'm not sure that that precludes raising it.

Chief Justice Warren E. Burger: For the first time, he could've raised, it would've been on --

Mr. Kenneth S. Geller: On --

Chief Justice Warren E. Burger: -- review in an Article III court?

Mr. Kenneth S. Geller: That -- well, that's -- he could've raised it earlier, but I think the first time he could have had -- it could have had any expectation of relief was in an Article III court.

That's -- that's right.

Now, as I mentioned a moment ago, the District Court agreed with appellee's contentions, relying on a line of cases beginning with Tumey against Ohio.

Judge Gasch held that the reimbursement provision of Section 16 (e), and I quote, “Creates a situation in which bias may creep into the decisions of the regional office -- officials who impose civil penalties, that the statute is therefore invalid under the Due Process Clause.”

Now, it's the Government's position that the injunction entered by the District Court is erroneous for three separate reasons.

First, we submit that the due process standards established in cases such as Tumey and Ward versus Village of Monroeville, are applicable with full force only to officials exercising judicial or quasi-judicial functions.

Second, even assuming that those standards do apply to the situation in this case, we contend that the court below erred in concluding that the child labor civil penalty scheme creates a significant risk of personal or institutional bias.

And finally, even if the reimbursement provision of Section 16 (e) does violate due process, the court below should have enjoined only the enforcement of that provision.

It should've left the remainder of the civil penalty statute enforced.

Acceptance of any of these three arguments would require reversal of the judgment below.

I'd like to turn first to our broadest contention, which is that the principles recognized in cases such as Tumey and Ward are inapplicable here because the Assistant Regional Administrator in citing an employer for violation of the child labor laws and assessing a proposed penalty is acting as a plaintiff for a prosecutor and not as a judge.

The basic notion that underlies Tumey and Ward is that a litigant is entitled to have his case adjudicated by someone who is free of any substantial likelihood of personal or institutional bias.

The Court in those cases struck down statutory schemes that in the court's words, “Offered a possible temptation to the average men as judge, to forget the burden of proof required to convict the defendant, or which might lead and not to hold the balance nice, clear and true between the State and the accused.”

Now, we certainly have no quarrel with these principles.

But they cannot be easily transferred, we think, to situations such as this one involving governmental officials exercising prosecutor of rather than adjudicative functions.

Justice Potter Stewart: Mr. Geller, let's assume on mine run prosecutor, just an ordinary prosecutor and -- and let's say that his compensation depended entirely upon the fines assessed against people, he was able to get a court to convict.

Would there be any constitutional problem there?

I don't know of any case.

Mr. Kenneth S. Geller: I don't -- well, there is a case in fact, because Tumey against Ohio and there was another aspect of Tumey which involved that and was not challenged by anyone.

In fact, this Court had language in its opinion which I hope to quote to the Court which said that that would be all right.

I don't see any due process from there.

It might be an unwise piece of legislation.

But I -- defendants entitled as a matter of due process to a fair and impartial judge.

I don't know of any case that holds any decision of this Court.

Certainly, that holds that is a matter of due process, he's entitled to a neutral and impartial prosecutor.

Justice Potter Stewart: Well, we -- we have a great deal of prosecutorial discretion as --

Mr. Kenneth S. Geller: That's right.

Justice Potter Stewart: -- also on our system and -- but if that discretion were distorted by --

Mr. Kenneth S. Geller: Well, I --

Justice Potter Stewart: -- economic motive, one wonders.

Mr. Kenneth S. Geller: I think that in light of the traditional deference which courts have given to decisions by the executive branch of who to prosecute and what to prosecute for, that there would -- there would not be a prophylactic or pro se rule -- per se rule such as the Court imposed on judges in cases like Tumey.

I think it would be up to an individual defendant, if he wanted to get the charges against him dismissed to show that his particular prosecution was somehow motivated by some improper or invidious reason.

Appellees never made that -- that charge in this case.

Chief Justice Warren E. Burger: In this case, could any individual anywhere in the chain of command in the labor departments have profited personally?

Mr. Kenneth S. Geller: No.

There's absolutely no evidence or any personal property.

Chief Justice Warren E. Burger: If this -- this apparently, is a means of -- of getting some funds without having them appropriated by Congress directly.

Is that the case?

Mr. Kenneth S. Geller: Well, the -- one of the unfortunate aspects of this case is that there's nothing in the legislative history to explain why the reimbursement provision worked its way into the statute, but I think that that is a very reasonable speculation.

That's correct.

We're not dealing with very large sums of moneys here as I tend to get to in a moment in terms of ESA, the Employment Standard Administration's total budget.

But I think that you're right, Mr. Chief Justice, that in part, it was a desire by Congress to place some of the costs of investigating and prosecuting child labor violations on the perpetuators of those violations.

Now, in our view, the appropriate standard of judicial review should be different when scrutinizing factors that arguably influence the institution, rather than the adjudication of civil or criminal proceedings.

And as I say, I think that's treated well to the traditional -- judicial deference to prosecutorial discretion in bringing cases.

In fact, the Court recognized this crucial distinction of the Tumey case itself, because Tumey involved an Ohio liquor control ordinance which provided that the town mayor who sat as a judge in prosecutions under the ordinance, would receive fees in addition to his salary, if he convicted the defendant, but not if he acquitted the -- the defendant.

The Court found this provision to be unconstitutional.

There is another part of the very same ordinance that was involved in Tumey which provided that 50% of the fines collected were to be placed in a so-called secret service fund, for the purpose of enforcing the prohibition laws and the ordinance specifically provided that 15% of any fine was to go to the deputy marshals, 10% of the fine was to go to the prosecutor, and 15% was to go to the town detectives as compensation for their services in enforcing the liquor laws.

And no one challenged of the legitimacy of these latter provisions of the ordinance in Tumey, involving law enforcement officers rather than adjudicative officers.

The fact the Court expressly stated at the ends of -- end of its opinion that in contrast to the situation with judges, the legislature and I quote, “May and often ought to stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting and the interest of the State and the people.”

We think this proposition should govern the case here.

Now, appellee's answer to this argument is essentially to assert that ESA Assistant Regional Administrators function much like judges.

But there's simply nothing in the child labor statute or the accompanying regulations to support that assertion.

Regional Administrators don't preside over hearings or make findings of fact based upon evidence presented in an adversary context.

In issuing a notice of violation or assessing a proposed penalty, they act just like in Assistant United States Attorney, in determining what charges to bring or what relief to seek as in a civil complaint.

And most importantly, perhaps, if the employer disagrees with the Assistant Regional Administrator's determination, either of that, there is a violation or what the penalty should be.

It may seek review and it's entitled to de novo review before the Administrative Law Judge who's unquestionably neutral.

And the Administrative Law Judge's ruling is then subject to judicial review in an Article III court.

It's clear then that an Assistant Regional Administrator in imposing a civil -- a child labor violation and assessing a proposed penalty, does not act as a judge.

And that the standards developed in Tumey and Ward for assuring the neutrality of judges, do not apply.

Our system contains a number of incentives both direct and indirect, to motivate executive branch officials to do their job diligently.

And Section 16 (e) is one such incentive because it stimulates child labor enforcement which Congress prior to the 1974 amendments thought was an area that had been sort of neglected it.

We submit that Congress's efforts to achieve this beneficial result, and as I said, to impose some of the causes of ferreting out child labor violations on those who perpetrate the violations, it's not inconsistent with any notions of fundamental fairness embodied in the Due Process Clause.

Now, if the Court disagrees with this contention and holds that the Assistant Regional Administrator's assessment of civil penalties for child labor violations is subject to the due process standards of Tumey and Ward, we believe that the judgment below must still be reversed because any possibility of bias resulting from the reimbursement provision is wholly insubstantial and remote.

This Court stated in Tumey and indeed Judge Gasch acknowledged that due process does not prohibit the exercise even of judicial power.

When the judicial officer's personal interest is so remote, trifling or insignificant that it may fairly be -- supposed to be incapable of affecting his judgment.

And that describes the situation in this case.First, as I said in response to the Chief Justice's question, unlike in Tumey, here, no labor department official stands to benefit even by $1 personally from any civil penalty assessment.

Justice Harry A. Blackmun: Maybe not personally, but it -- it can get into the regional office in a way, can't it?

Mr. Kenneth S. Geller: It can, but that is dependent upon a number of other things happening over which the Assistant Regional Administrator has no control.

If this case is in some way similar to Ward, I assume, because in Ward, the mayor there also had no personal interest in the fines, but the fines would go into the town treasurers and the mayor was dependent upon the revenues in the town treasury.

But -- but here --

Justice Harry A. Blackmun: This -- this whole argument is based on the assumption that the -- the Administrator is the decision maker.

Mr. Kenneth S. Geller: I think --

Justice Harry A. Blackmun: And --

Mr. Kenneth S. Geller: -- that's right.

I don't think the Court has to reach this portion of our argument if it agrees with us in our initial assertion which is that the District Court erred in relying cases on cases like Tumey and Ward.

But if Tumey and Ward are applicable, we still think that the judgment should be reversed, because the interest here is so insignificant that it couldn't possibly have affected the decision making of the Assistant Regional Administrator.

Unlike in Ward, where the moneys went right to the town treasury, here, all the moneys go to ESA's national office which may or may not decide to distribute the money back to the regional officials.

It doesn't have to.

And the statute is clear that even when ESA's national office decides to distribute the moneys to the -- to the regional officials, it does it on the basis of costs actually incurred by the regional official and not in amount of penalties that are assessed.

Justice Harry A. Blackmun: Nevertheless, you're -- you're speaking of fairly large sums.

Mr. Kenneth S. Geller: Well, I don't think we're talking of fairly large sum -- sums in comparison to ESA's total budget.

In --

Justice Harry A. Blackmun: Where (Voice Overlap) --

Mr. Kenneth S. Geller: -- in Tumey and Ward, the fines --

Justice Harry A. Blackmun: Even though the total budget to create bias.

Mr. Kenneth S. Geller: Well, in Tumey and Ward, the amounts that were involved represent that almost half of the town's budget is quite substantial and there was direct evidence in each of those cases that the mayor was quite concerned about the possible loss of that revenue source.

Now, here by contrast, the evidence shows that the sums collected as civil penalties represent less than 1% of ESA's total budget and that far from being fiscally dependent on these moneys, ESA in each of the year since this reimbursement provision was enacted, has turned back to the Treasury as unused funds, an amount far greater than was even collected as civil penalties.

So it's quite difficult to imagine how any Assistant Regional Administrator would be influenced to even the slightest extent by the possibility that some of the moneys collected as civil penalties which child labor violations might be returned to his office at some later point.

We've set forth at some length in our brief, the series of increasingly improbable assumptions that the Court would have to indulge in, in order to conclude that there's any real possibility of prejudice from the reimbursement scheme.

Justice Thurgood Marshall: What happens if the Washington office notifies all the regional officers that you haven't reported any money in the last year and we need money?

Mr. Kenneth S. Geller: I assume that would be a -- why, I don't know that any such communication would -- would go out.

I think it would be a proper communication for the national office to say to the Atlanta regional office, “You have uncovered X percent of -- of the total nation's child labor violation.”

Justice Thurgood Marshall: No.

Where did you happen to -- you haven't -- and by us is (Inaudible)

Mr. Kenneth S. Geller: I think that would be a proper communication.

And I think that these -- these regional offices --

Justice Thurgood Marshall: When they urged him --

Mr. Kenneth S. Geller: -- has crossed to fair it out, child labor violations.

Justice Thurgood Marshall: When they urged him to sort of bend somebody's arm.

Mr. Kenneth S. Geller: No.

Because the amount of that -- that the --

Justice Thurgood Marshall: I'm not saying that surely it would happen.

Mr. Kenneth S. Geller: Well, I'm sure it wouldn't happen, but even if it did --

Justice Thurgood Marshall: I beg your pardon --

Mr. Kenneth S. Geller: -- it wouldn't have the influence that Judge Gasch attributed to it.

Because the amounts that the Assistant Regional Administrator's assess are really irrelevant.

It's the amounts that are collected and anyone who challenges the assessment gets de novo review before the Administrative Law Judge who can reduce the amount of the penalty to zero or any figure between zero and the amount initially assessed.

Now, I'd like to turn briefly in -- few minutes remaining to an issue that the Court need not reach unless it agrees with Judge Gasch that the reimbursement provision, Section 16 (e) renders the civil penalty statute unconstitutional.

That's the question of the proper remedy.

District Court struck down the entire civil penalty statute.

It's our position that that remedy is overbroad and totally unwarranted.

That at most, the District Court should've severed the last sentence of Section 16 (e) providing for the reimbursement of civil penalty funds that are actually collected.

Question of severance, of course, is essentially one of legislative intent.

In this case, there's strong proof that Congress would have wanted to have a civil penalty statute without any reimbursement provision rather than have no civil penalty remedy for child labor violations at all.

First, the statute contains a broad severability clause.

And second, the legislative history of Section 16 (e) shows that Congress' overriding concern was to provide the Department of Labor with a new tool to strengthen child labor enforcement, because the injunctive and criminal provisions of the prior law were found to be totally ineffective.

This congressional objective would obviously be frustrated if the entire civil penalty statute were struck down.

The last and best piece of evidence perhaps that Congress would have wanted the reimbursement provision severed, if it were found unconstitutional, is that in a number of similar civil penalty statutes, Congress has provided that the funds collected as civil penalty shall go into the United States Treasury.

And that's the result that would occur here if the last sentence of Section 16 (e) were severed from the rest of the statute.

So, for all these reasons, we believe that the District Court erred in declaring the civil penalty statute under the child labor laws unconstitutional and in enjoining its enforcement.

And we believe that the judgment below should be reversed.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Geller.

Mr. Power.

Argument of Thomas W. Power

Mr. Thomas W. Power: Mr. Chief Justice and may it please the Court.

Our differences with the arguments of the Solicitor General can be summarized in, I believe, four very brief statements.

First, the most significant issue here in our judgment, is not actual bias, but rather and far more importantly, the potential for bias and the appearance of bias.

It does not matter how much money was actually collected or how much money was distributed to a given regional office.

The potential is here for these moneys to be used to increase salaries and to substantially increase the appropriation of the various offices involved.

Secondly, the Administrator and his assistant acting under Section 16 (e), are judges under the clear statutory language under Section 16 (e) and they cannot be likened to prosecutors.

Third, potential for bias and actual bias under Section 16 (e) is very substantial and not remote.

And finally, severance of the reimbursement provisions will not cure the potential for bias or the appearance of bias.I've made --

Justice William H. Rehnquist: Mr. -- Mr. Power, don't -- don't you concede that there's a good deal of attenuation here?

Mr. Thomas W. Power: I'm sorry Justice, I dont think --

Justice William H. Rehnquist: Don't -- don't you concede that there's a good deal of attenuation here between what in fact happens and what might be a genuinely undesirable and perhaps unconstitutional situation?

Mr. Thomas W. Power: Well, Your Honor, I think that what in fact actually happened was an unconstitutional situation and in fact, you had actual bias in this particular case.

But nevertheless, I see the potential as the far greater evil in here in this particular Section 16 (e) of the Fair Labor Standards Act, which is entirely unique in any civil money penalty section now in United States, but to the best of my knowledge in the country.

I cannot find anything anywhere near a life is in -- in any statute.

Justice William H. Rehnquist: Well, admittedly, it's unique, but a -- an entire series of steps would have to occur before the actual bias could be reached, wouldn't it?

Mr. Thomas W. Power: Well, the statute provides for example, Your Honor, that the fund shall be used to reimburse the assessor of the fines.

And those funds go directly to the salary and expense budget of the various offices involved.

Chief Justice Warren E. Burger: But do the particular individuals aren't going to get more money because they levy more funds?

Mr. Thomas W. Power: I think that that's entirely possible, if not likely.

If you read the statutory language, that is precisely what is provided.I think that's discretionary with the Secretary of Labor.And maybe --

Chief Justice Warren E. Burger: They'll get a raise -- you mean they'll get a raise in pay?

Mr. Thomas W. Power: I think that's entirely possible.

I think it's discretionary to the Secretary of Labor to give them that money, but why not?

The Act provides that they get the money and that it shall be used in the discretion of the -- of the Secretary of Labor to reimburse them for the ordinary expenses.

It further provides that the funds maybe used notwithstanding any other provision of the law to hire individuals as cited in United States Government, to effectuate the purposes of -- of this Act.

So I think moreover, the funds can be quite substantial as related to an individual office of -- of the assessor.

And frankly, I see no prohibition in the statutory language from the funds going directly to the so-called Administrative Law Judge.

That is in the office of the Department of Labor.

And although it's argued by the Solicitor General that we're entitled to a fair and impartial judgment at that level, we do not see it because we think that the ALJ or the Administrative Law Judge, rightly under the statute, not only could have, but the Secretary of Labor was required and mandated under the statute to reimburse the Administrative Law Judge for his expenses as well.

Now, I don't think they ever got around to it, because we raised the issue right at the outset at the administrative level and I guess this was really the first case that came up on the civil money penalties.

This was adopted in 1974 and regulations were issued more like 1975 and this was the first case that really become before the Administrative Law Judge.

And he never really did any works that would gain him a share of the split on the moneys that had been raised earlier.

But the statute provides that he shall receive the funds that he got.

He's responsible for determining the funds, he's part of the process and he should have got a proportionate share.

Chief Justice Warren E. Burger: Are you suggesting that the Secretary exercising this discretion could provide that annually, he would give awards of $1000 each to every Administrative Law Judge that sustained a fine?

Mr. Thomas W. Power: Pardon, Mr. -- Mr. Chief Justice, did you say could or he would?

Chief Justice Warren E. Burger: No.

Could.

Mr. Thomas W. Power: Could.

I -- because -- yes, I think he clearly could.

And there's nothing in the statutory language to prevent him and the statutory language says, “Notwithstanding any other provision of the law.”

So unless there's some subsequent law that would prohibit that kind of action from, I don't see why not and I believe he'd violate the Constitution.

But I think even the potential for that violates the Constitution.

Justice Thurgood Marshall: He could give it and he could be fired too, could --

Mr. Thomas W. Power: I would say that by virtue of Section 6 --

Justice Thurgood Marshall: He could be fired for doing it.

Mr. Thomas W. Power: That the -- the Secretary of Labor could be fined.

Justice Thurgood Marshall: Yes.

Mr. Thomas W. Power: Justice Marshall --

Justice Thurgood Marshall: That would stop him from doing, it would --

Mr. Thomas W. Power: It -- it --

Justice Thurgood Marshall: -- slow him down.

Mr. Thomas W. Power: Although I think that would be -- that would be sufficient to hold that he couldn't do it, if he was going to be subject to a fine.

But it seems to me --

Justice Thurgood Marshall: I say fired --

Mr. Thomas W. Power: I beg your pardon?

Justice Thurgood Marshall: -- discharged --

Mr. Thomas W. Power: Oh, he could be fired.

Justice Thurgood Marshall: -- permitted to resign.

Mr. Thomas W. Power: I'm sorry.

I thought you said, fine --

Justice Thurgood Marshall: Submitted to resign.

Mr. Thomas W. Power: Yes, he could but that would be -- that would be political consideration.

He could be -- he could be fired and I'm not suggesting that he would do it, but in this country we have had men in position that could take that kind of action.

It could be a very lucrative rewarding proposition.

Several millions of dollars could be raised.

In the instant case, the -- the respondent, the appellee had some 8000 minors in his employer over a period of two years and they found 169 to be in violation and assessed a fine of $103,000.

Now, you could multiply that into the billions in -- in United States.

So the potential is there.

We believe that the greatest issue of 16 (e) mandates that kind of --

Justice William J. Brennan: Excuse me, Mr. Power.

Mr. Thomas W. Power: Yes, Justice.

Justice William J. Brennan: Which is the provision of 9 (a), I guess it's 9 (a), but --

Mr. Thomas W. Power: I think both in --

Justice William J. Brennan: -- but you -- but which is it that covers the Administrative Law Judge?

Mr. Thomas W. Power: The Administrative Law Judge?

Justice William J. Brennan: Yes.

Mr. Thomas W. Power: The -- the Section 16 (e) of which 9 (a) is --

Justice William J. Brennan: Yes.

Mr. Thomas W. Power: -- a part.

And it provides that the funds shall be used to be -- to reimburse.

Justice William J. Brennan: Well, it says, “For the ordinary expenses of the agency and or to secure the special services of persons who are neither officers nor employees of the United States.”

But I don't see -- what is the language that covers the Administrative Law Judge?

Mr. Thomas W. Power: Well, the language that says that the money shall be credited to the appropriation of the office, let me see, this one of (Inaudible).

Justice William J. Brennan: Well, I'll read in 16 (e), “Sums collected shall be applied toward reimbursement of the cost of determining in violations -- violations in assessing, collecting such penalties.”

That's not it, isn't it?

Mr. Thomas W. Power: No, Justice, I -- I'm referring to the -- the language that says on this -- under --

Justice William J. Brennan: 29 (a)?

Mr. Thomas W. Power: -- 29 U.S. 9 (a), “All moneys --

Justice William J. Brennan: Oh, yes.

Mr. Thomas W. Power: -- here and after received by the Department of Labor in payment of the cost of such work and this would be the work of collecting the -- determining and assessing the fines shall, not may, shall be deposited to the credit of the appropriation of that bureau, service, office division or the agency of the Department of Labor.”

Of course, the Administrative Law Judge is an office of the Department of Labor, which supervise such work.

And then it goes on further and says, “Maybe used in the discretion of the Secretary of Labor and notwithstanding any other provision of law for the ordinary expenses of such agency.”

And as Judge Gasch found, those expenses including salary and include the other overhead items.

The ordinary expenses of such agency or to secure the special services of persons who are neither officers nor employees of the United States, so the Secretary of Labor could --

Justice William J. Brennan: Well, in any event, the Administrative Law Judge says within that language “Bureau, service, office, division or other agencies.”

Is that it?

Mr. Thomas W. Power: Yes, it would be.

Justice Byron R. White: But how -- how would he benefit from the collection of fines?

Mr. Thomas W. Power: Well, he would increase -- he would be reimbursed -- he would be reimbursed from --

Justice Byron R. White: Well, his salary is set, isn't it?

Mr. Thomas W. Power: Well, again, he -- his salary and the amount of work or the expenses of his office are definitely restricted by the budgets under which he operates both as recommended by the President and as approved by Congress.

Justice Byron R. White: Well --

Mr. Thomas W. Power: Now, he could substantially increase --

Justice Byron R. White: Don't all Administrative Law Judges get the same?

Or are they from bureau to bureau?

Mr. Thomas W. Power: I am not certain with that, Justice White.

Justice Byron R. White: Well, don't you have to be sure to the answer of that question?

Mr. Thomas W. Power: I beg your pardon?

Justice Byron R. White: Don't you have to be sure to the -- of the answer to that question?

Mr. Thomas W. Power: Well, when you -- when you get it --

Justice Byron R. White: Even if -- if what Administrative Law Judges get is set by statute.

Mr. Thomas W. Power: Yes.

Justice Byron R. White: And regardless to how many cases they hear or what the fines are collected.

Well, what's it -- what does it -- how does he benefit or not?

Mr. Thomas W. Power: Well, I think he expands his overall operation.

Justice Byron R. White: Well, how do you --

Mr. Thomas W. Power: It gets --

Justice Byron R. White: -- how do you -- just explain that.

Mr. Thomas W. Power: He gets an increased appropriation, if you will.

Let's assume --

Justice Byron R. White: How -- how do you know that?

Mr. Thomas W. Power: Well, I'm -- I'm sorry, Justice White.

I am suggesting that it's entirely potential with a knowing what is Section 16 (e), of the Fair Labor Standards Act.

Justice Byron R. White: It just -- it just goes into the -- it just goes into the -- into the -- into the entire -- it just goes to defray the overall budgetary expenses.

Mr. Thomas W. Power: If he went into the Treasury, I would not dispute.

Justice Byron R. White: No, no.

No, it goes to defray the budgetary expenses of the agency or whatever it is, but all it means is -- all it means is that maybe that agency will give back to the -- to the United States some of its budget.

Mr. Thomas W. Power: That's only a potential.

Maybe they will not.

Justice Byron R. White: Well, maybe they will not.

Mr. Thomas W. Power: But --

Justice William J. Brennan: Well, you must be saying Mr. Power that this authorizes something in the way of a -- of a bonus to the Administrative Law Judge.

Mr. Thomas W. Power: Yes.

It permits a bonus.

In other words, it permits the -- let's assume that the --

Justice Byron R. White: Well, surely you don't suggest that it's going to get -- increases his income for that year.

Mr. Thomas W. Power: I am suggesting very definite of that, Your Honor.

I think that is mandated that his income or at least his budget authorization is increased for that year and it should be in proportion to the --

Justice Byron R. White: The Administrative Law Judge's --

Mr. Thomas W. Power: Yes.

Justice Byron R. White: -- her own salary?

Mr. Thomas W. Power: Oh, I'm -- I'm sorry.

I don't know how the Secretary of Labor would handle it or -- but in the discretion, I think that's entirely permissible, because it says notwithstanding any other provision of the law.

Justice William J. Brennan: You don't suggest the Secretary has ever given at that interpretation, do you?

Mr. Thomas W. Power: No, sir.

No, sir.

Justice William J. Brennan: And you're just suggesting --

Mr. Thomas W. Power: But I am -- but I am --

Justice William J. Brennan: -- that that might happen under this language.

Mr. Thomas W. Power: That's -- that's correct.

Justice Thurgood Marshall: Are you --

Are you reading that the Secretary give it to himself?

Mr. Thomas W. Power: I -- I -- again, with the language, this is notwithstanding any other provision of law on discretion of the Secretary, can use it for -- to meet the ordinary expenses, I think perhaps he could.

Justice Thurgood Marshall: And he would then raise his salary above that of Congress?

I wouldn't like to see what would happen to him.

Mr. Thomas W. Power: Well, again, that's a -- that's a political consideration, but I don't know whether he'd be in --

Justice Thurgood Marshall: Well, you maybe he's talking about this broad -- that language, because you say, it's so broad.

It was broad enough to give the money to the judge, it's broad enough to give the money to himself.

Mr. Thomas W. Power: That's correct.

Justice Thurgood Marshall: And do you know of any statute that has ever been passed like that?

Mr. Thomas W. Power: No, sir.

No, Your Honor.

Justice Thurgood Marshall: And do you think Congress meant to do that?

Mr. Thomas W. Power: No, Your Honor.

I do not.

I think -- I think Congress has a bill pending right now to change the proposition.

But I don't think Congress really intended it at all.

I think it -- it -- because of the way the language was drafted, Congress never realized what the impact was.

I know myself I was working on the legislation at the time and I had no idea of the significance of it.

It comes from a very unique provision in the law where they -- the Department of Labor has a -- a division that gathers statistics called the Bureau of Employment or statistics I believe and labor statistics.

And under that -- under that provision of the law, it is permissible for the Secretary of Labor to have outside sources fund statistical research work.

In other words, while they're conducting one survey, they might pick up certain amount of money from a company to gather additional information that they're more efficient at gathering and can do more economically.

And in the process, they add to their appropriation.

But in this instance, as for example with respect to Administrative Law Judge, let's assume that Administrative Law Judge has an appropriation of one million dollars.

If he spends enough --

Chief Justice Warren E. Burger: Well, wait a minute.

An Administrative Law Judge has an appropriation?

Mr. Thomas W. Power: The office of the Administrative Law Judge.

Well --

Chief Justice Warren E. Burger: An Administrative Law Judge doesn't have an appropriation anymore than a law clerk that this Court has.

Mr. Thomas W. Power: I'm sorry.

He has -- he has a budget within the Department of Labor though.

Justice Thurgood Marshall: He has a line item.

Mr. Thomas W. Power: He has a line item.

Justice Harry A. Blackmun: Mr. Power, on your -- going back to the detail concerning the Administrative Law Judge, it would seem so have exercise some of the brother and up here, Judge Gasch was not with you on this point, was he?

Mr. Thomas W. Power: I think that Judge Gasch was responding to a --

Justice Harry A. Blackmun: Well, let me read to you -- this is from his findings.

“Thus, the interest of an Administrative Law Judge in assessing nor affirming the imposition of penalties is too remote to warrant the conclusion that due process requirements are not met at the Administrative Law Judge alone.”

Mr. Thomas W. Power: Well --

Justice Harry A. Blackmun: That seems to me to cut directly against your argument as to detail on his salary.

Mr. Thomas W. Power: Again, I -- I agree with you although I do not think that it was necessary for Judge Gasch in that proceeding to consider that question.

He reached -- he reached his decision based on the potential for bias at the lower level.

And he reached it on the motion for summary judgment.

Justice Harry A. Blackmun: That maybe true, but you're -- you're certainly arguing here.

Mr. Thomas W. Power: That -- that is correct.

And the argument has been made that he -- that -- that it's clear that he did -- that he is not potential for bias and I do not believe that issue was addressed by the Solicitor General so that is conceded and I do not agree that it was conceded at the lower level.

Justice William H. Rehnquist: Do you say that each Administrative Law Judge assigned to the Labor Department has a line item appropriation for his salary?

Mr. Thomas W. Power: Not for his individual salary.

I believe it's to the entire office.

I believe the salaries are -- are set.

Chief Justice Warren E. Burger: If they have a 150 Administrative Law Judges, there's a lump sum in the budget which is a line item compensation, but no Administrative Law Judge has any budget or any part of any budget allocated to him.

Mr. Thomas W. Power: That --

Chief Justice Warren E. Burger: More than any other branch of the Government.

Mr. Thomas W. Power: That -- that, I understand.

Again, on the question of the -- of the actual right to appeal to Administrative Law Judge, the argument being made that a -- a -- the Administrator or the Assistant Regional Administrator can be likened to a prosecutor rather than -- than to a judge.

We disagree with this contention.

First, the argument is made that we're entitled to de novo review by the Administrative Law Judge.

We do not believe the statutory language permits the Administrative Law Judge to give us a -- a judicial review or de novo review.

The language of the statute permits a party who is -- has been assessed to fine -- an employer assessed to fine with the right to a hearing only under very limited conditions, expressly limited to an objection by the employer to the determination that the violations actually occurred.

So for example, if an employer was charged with 169 violations of the child labor laws and in fact those violations occurred, he could not obtain a hearing before an Administrative Law Judge, as to the reasonableness of the penalty.

And this -- that is the clear and unequivocal reading of the language.

It is our contention that this is -- as was the argument that was made by the Department of Labor in this particular case before Judge Gasch, and it is our contention that it was made in other cases by -- by the Department of Labor.

And there is one specific Administrative Law Judge that did in fact, hold that in light of the fact of the employer only objected to the reasonableness of the penalties assessed, rather than the fact that the violations actually occurred, that he could not give him an administrative hearing.

And consequently, we -- we assert that we -- that the administrative -- the Administrator of the Fair Labor Standards Act and the Assistant Administrator is in fact a judge and under Section 16 (e) and not can -- not be likened to a prosecutor.

Also, I'd like to make the point that in the instance of -- unlike a prosecutor in this instance, the Assistant Regional Administrator sets the penalties.

He has the discretion and the mandate on the Congress to determine what -- how much of this $1000 fine should be set.

The prosecutor doesn't set the penalty.

The prosecutor moreover, doesn't get to keep the penalty.

The penalty goes to the Treasury of United States.

It doesn't go back to the office to reimburse the prosecutor for his expenses.

Again, as we see no reason why the prosecutor -- the prosecutor (Inaudible) could get the increase of salary.

I also like to make the point that -- that in -- in truth in fact, that it is not so much the Assistant Regional Administrator who assesses these fines, who raise the first charge in the first instance.

It really is the Employment Standards Administration of Washington D.C.

They approve all of these individual fines.

They negotiate or approve individual settlements and they get the benefits of the penalties that are actually assessed.

The argument was made --

Chief Justice Warren E. Burger: Is this the same -- is this the same pattern of assessing fines as under the Mine Safety Act, if -- if you know.

Mr. Thomas W. Power: No.

I -- I know not, Your Honor, because on -- for example, the OSHA Act with which I am familiar, the -- the fines assessed go directly to the Treasury of United States.

This is the only area where the fines go back to the assessor or the fines to reimburse him for his cost of assessment.

So this is unique.

Justice Byron R. White: Well, we had a case argued here last session two or three weeks ago in which they were not criminal fines, but they were as -- as here --

Mr. Thomas W. Power: Civil money (Voice Overlap) --

Justice Byron R. White: -- penalties.

And those went toward enforcement of that statutory scheme which was antipollution scheme.

Mr. Thomas W. Power: If it's an antipollution, I don't -- Your Honor, I don't believe they went back to the assessor of the fines.

I believe that act provides that the fine -- and I question the constitutionality of -- myself, but I think this is far more serious in this case.

Those -- those fines I believe were used to -- to provide a fund to clean up waters.But they didn't go back to reimburse --

Justice Potter Stewart: Of course not, it was (Voice Overlap) --

Mr. Thomas W. Power: -- the assessor of the fines.

That's about the closest --

Justice Potter Stewart: And that's not an issue in that case.

Mr. Thomas W. Power: I see.

Justice Potter Stewart: The question was whether there were civil penalties or criminal fines.

Mr. Thomas W. Power: I question the constitutionality even of that provision.

Oh, I think this is far more serious, because I think assessor of fines in the environmental protection agency is probably highly motivated for assuring adequate funds to clean waters and I think he could be readily biased by -- by his desire to increase the coffers to clean waters and I think that's properly a function of Congress.

But nevertheless, the fines in that instance do not go back to the -- to the party assessing the fines.

The argument was made that -- by the Solicitor General that the potential for bias and actual bias is not substantial and it's too remote.

We believe that this argument cannot be properly made.

The reimbursement of the actual cost including salaries and expenses go directly to the assessor, to the Administrator, to the Assistant Regional Administrator.

And I emphasize that this was the finding of Judge Gasch in his opinion.

Whether the fines were in fact used to increase salaries or not, they can be used under the clear statutory language.

In the instant case, $39,200 went to the Atlanta office.

That was two and a half times, what any other office got from fines collected that year.

Justice William H. Rehnquist: Mr. Power, are you suggesting that of that $39,000, the Regional Administrator in Atlanta could simply decide to put it in his own private bank account?

Mr. Thomas W. Power: No, I am not, Justice Rehnquist.

I -- I think that he would not have the discretion, but I do think that the Secretary of Labor has that kind of discretion under the Act.

Justice William H. Rehnquist: The -- the Secretary of Labor could --

Mr. Thomas W. Power: Could use the money.

Justice William H. Rehnquist: -- so the Regional Administrator in Atlanta.

You have collected so many fines this year that I'm going to give all of them to you.

Mr. Thomas W. Power: I -- it -- it appears to me, unless -- since the Act has such broad language and says notwithstanding any other provisional law that he has this kind of discretion.

Justice William J. Brennan: And did you suggest he could put it in his own pocket?

Mr. Thomas W. Power: The Secretary of Labor could --

Justice William J. Brennan: Yes.

Mr. Thomas W. Power: -- put it in his own pocket?

Justice William J. Brennan: Yes.

Mr. Thomas W. Power: I -- I think it's -- it's permissible either directly or indirectly, yes.

Chief Justice Warren E. Burger: Well, I suppose the Secretary of Labor could take all the furniture out of his office and take it home and -- and try to keep it, but he might run into some other problems (Voice Overlap) --

Mr. Thomas W. Power: Yes, I think that would be in violation.

I think that he would have to relay any enumeration to himself, to reimbursement for the cost of doing work in connection with child labor enforcement.

But, I think the -- the more significant thing is for example in the Atlanta regional office, if -- is the question -- is the Administrator or the Assistant Regional Administrator potential -- is or potential bias here.

And if the man has a budget -- let's assume of a $100,000 a year, to operate his office to employ his secretaries for travel and expense budget, and he can increase that budget by really slapping at two employers in -- by way of civil money penalty fines and increase that budget from $100,000 a year to operate it and get to $200,000, then I think he's got real potential for bias, without even looking into the question whether or not he can increase his salary.

Finally, the -- the question of severance, I would like to touch upon in my remaining couple of minutes.

Actual -- if -- if you were to sever -- if this Court were to sever the reimbursement provision of Section 16 (e) alone, we do not believe we would cure the potential for bias or appearance for bias.

Because severance of an unconstitutional section of or the language of 16 (e) would not, in fact, give actual notice to investigators of the Department of Labor or to Assistant Regional Administrators or to Administrators or for that matter of Administrator Law Judges or employers, the language would still read as it -- as it presently reads that the moneys shall be used to reimburse the assessor of the fine.

Also, severance who ignores the fact that all regulations currently adopted and schedule of fines and instructions to assistants at the Department of Labor in determining the amount of the fines, are predicated on the assumption that the home office, the Washington office, will get its share.

So what we are suggesting is that even the -- that we'd be back here in the Supreme Court, if you severed the -- the reimbursement provision because we would challenge the constitutionality of the regular -- regulations themselves because they were based on assumption that the Department of Labor was going to get its share of the funds.

And that they did not need the responsibility to set fines on the basis of the gravity of the offenses instructed by Congress.

And finally, we do not believe that severance would accomplish congressional intent.

Congress directed these moneys should be use to reimburse the Department of Labor and be used for child enforcement purposes.

If a speculation is going to be made that they'd be just as satisfied to have the moneys go into the Treasury of United States, we question that.

We think they might well have not intended that the existing child labor regulations be enforced.

They might well have intended that these funds be used to revise what we consider to be an unequated and -- and grossly inadequate set of child labor laws which are the primary responsibility in our judgment for the teenage and minor unemployment we have in United States today.

And it's our feeling that those -- that Congress as is actually the case, there is a bill pending in Congress right now that -- that would not only require that the civil money penalty is set and go to the Treasury of United States, but in -- in addition to and as part of the same piece of legislation, would require the Secretary of Labor to completely review existing child labor regulations so as to assure justice in -- in enforcement of this particular statute by having a -- a logical and reasonable set of child labor regulations.

Thank you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you, Mr. Power.

Mr. Geller, do you --

Rebuttal of Kenneth S. Geller

Mr. Kenneth S. Geller: Just a few --

Chief Justice Warren E. Burger: -- have anything further?

Mr. Kenneth S. Geller: -- just a few short points, Mr. Chief Justice.

First, I'd like to lie to rest this notion that Administrative Law Judges might be entitled to reimbursement under Section 16 (e).

There's absolutely nothing in the statute to backup that statement.

The Secretary of Labor has never construed the statute that way and as Mr. Justice Blackmun noted, Judge Gasch rejected that argument.

Section 16 (e) allows reimbursement only to those officers that have supervised the work of assessing and collecting civil penalties.

The office in the Department of Labor that supervises the enforcement of the child labor laws is the Employment Standards Administration.

The Administrative Law Judges are not part of the Employment Standards Administration.

Moreover, it would raise problems, I think, not only under the Fifth Amendment, but under the Administrative Procedure Act to construe the statutes so that any moneys went to the Administrative Law Judges.

And I think it would be a sort of bizarre form of statutory construction to construe a statute so as to make it unconstitutional.

Now, as to this notion that the Secretary --

Justice Potter Stewart: Administrative Law Judges get salaries, set salaries.

Mr. Kenneth S. Geller: They get set salaries set by law, can't be varied.

Justice Potter Stewart: And are they -- do they all get the same or does it (Voice Overlap) --

Mr. Kenneth S. Geller: I'm not -- I don't know but they --

Justice Potter Stewart: They get increases with seniority or --

Mr. Kenneth S. Geller: I assume they do just -- and once they hit the ceiling, they may not be able to get any --

Justice Potter Stewart: Article III judges don't.

Mr. Kenneth S. Geller: Excuse me.

Article III judges, well, that is an issue that maybe up in this Court soon.

The Sec -- the Secretary or the Assistant Regional Administrator cannot put the money in his pocket.

The statute is quite clear that the sums collected must be applied towards reimbursement of the costs of determining child labor violations.

And finally, as to appellee's point that de novo review is not available before the Administrative Law Judge solely on the question of the reasonableness of the penalty, this very case shows that that's false because appellee never challenged the violations in this case, conceded that it had violated the child labor laws before the Administrative Law Judge.

The Administrative Law Judge still reduced the penalty from $103,000 to $18,500.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in United --

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Argument of Betty R. Brown

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1573, Withrow against Larkin.

Ms. Brown you may proceed.

Ms Betty R. Brown: Mr. Chief Justice, May it please the Court.

This is an appeal from the judgment of the United States District Court for the Eastern District of Wisconsin in which that Court declared Section 448.18 (7) of the Wisconsin statutes unconstitutional and preliminarily enjoined all utilization of that subsection of the statute.

This preliminary injunctive relief was granted in an action brought in the District Court under the Civil Rights Act by the appellee whose name is Dr. Larkin against the appellants who are the members of the Wisconsin Medical Examining Board.

There are three questions in this case.

The first question is whether a District Court in granting a mere motion for a preliminary injunction can declare a state statute unconstitutional and preliminarily enjoin all utilization of that statute.

Justice Potter Stewart: Ms. Brown, I certainly -- it's not my purpose to disturb the planned order of your argument but I trust that sometime during the course of your argument you will get to the point that the three judge Court order has now been amended and no longer does declare a statute unconstitutional?

Ms Betty R. Brown: That's right.

Over six months after this appeal was taken and jurisdiction was noted and the briefs were submitted.

There was a modification of the judgment and so we also have that situation presently existing, in which the Court instead of saying as an orally declared and as included in its decision and judgment that the statute was unconstitutional, it now in the modified judgment said there is a likelihood of success and it also without any evidence to support this modified the judgment to assert that there is irreparable harm.

Justice Potter Stewart: Right.

Ms Betty R. Brown: So there has been --

Justice Potter Stewart: So then that -- is that were the only judgment that we have from the beginning, it would be very clear that this Court would be without jurisdiction of this appeal, would it?

Ms Betty R. Brown: No, I don't believe so Your Honor.

Justice Potter Stewart: But just looking at the language of the now existing judgment which appears on page 20 of the suggestion of mootness filed here on September 3.

It doesn't declare anything unconstitutional but just enjoins the applications of these statutes against the plaintiff Duane Larkin M.D. on the grounds that he would suffer irreparable injury, if the statute were to be applied against him and that the plaintiff's challenged to the constitutionally of said statute has a high likelihood of success.

You don't -- we don't have -- we wouldn't have direct appellate jurisdiction of any such order as that, would we?

Ms Betty R. Brown: We wouldn't be here Your Honor if that was the initial order.

But we --

Justice Potter Stewart: You could be - you could be here, could you?

Ms Betty R. Brown: Right, but we would have been here because of the content of the decision which would be followed by a final injunctive order and it came to same conclusions which we believe are completely erroneous.

Namely, that there's a violation of Due Process by the per se possession of investigative and adjudicative powers by an administrate agency.

So that if the modified judgment had been entered initially, we couldn't be here but when the final judgment was entered we would've been.

Justice Potter Stewart: So when as or if some final judgments were entered declaring this statute unconstitutional, but the --

Ms Betty R. Brown: Well, I doubt that there would be any and or if primarily because of the content of their decision Your Honor -- they had made up their minds.

Justice Byron R. White: Well the -- this maybe of that the injunction may have been amended but the Court had already declared the statute unconstitutional?

Ms Betty R. Brown: Yes, Your Honor.

Justice Byron R. White: Did they -- they withdraw that declaration?

Ms Betty R. Brown: No, the decision is still in effect, it's being cited and it's being followed.

Justice Potter Stewart: Well, they did amend their judgment of January 31, 1974, didn't they?

That's what this says on the top of page 20.

Ms Betty R. Brown: Yes, Your Honor.

Justice Potter Stewart: Well, to that extent they did change the original --

Justice William H. Rehnquist: Let me read you a sentence from 28 USC Section 1253 in order to call my brother Stewart's attention to it and, “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying after a notice in hearing and interlocutory or permanent injunction”.

Now I take it that you meet the -- even if you take it that the amended judgment as before and it's an amended judgment.

It's an interlocutory injunction and then it goes on to say “Required to be heard by a Court of three judges”.

Now, if it meets that test, it certainly wasn't interlocutory injunction?

Ms Betty R. Brown: Yes, yes it was Your Honor.

So that there was this modification but there is also of course other questions here which in any shape or form will arise again and do need resolution.

And this of course is the real question on the merits here and that is whether the per se by itself possession and exercised by an administrative agency uphold statutory powers to investigate and statutory powers to adjudicate is a violation of the Due Process Clause of the Fourteenth Amendment.

Chief Justice Warren E. Burger: Suppose if it is that might have -- I think you're suggesting your briefs on the impact on the federal communications commissions for example.

Ms Betty R. Brown: I think it would have an impact Your Honor on all administrative agencies, state, federal, local, I think that it has an impact.

I think that under the broad holding in this case the Federal Administrative Procedure Act is unconstitutional because it does recognize that these various functions which are the basic nature of administrative agencies can exist and be exercised by such agencies.

There is also a third question here which I think is a very important one and that is whether under the circumstances of this case, the District Court had any discretion, any power to grant a motion for a preliminary injunction and if it had any discretion whether it abused that discretion in this case.

The fact situation somewhat briefly I hope is this.

Chief Justice Warren E. Burger: Would you tell us to what evidence was taken on this subject or did the Court act solely on the pleadings?

Ms Betty R. Brown: There was absolutely no evidence in any shape or form which, either showed the availability of injunctive relief in this type of case or established grounds for the granting of the motion.

There was nothing, no evidence in the form of testimony, in the form of affidavits, in any shapes or form, which established that there was no adequate remedy at law, that there had been exhaustion of administrative remedies if applicable, that there would be irreparable harm if the requested relief was not granted, that there was a reasonable likelihood of success on the merits and that granting the relief would not do or undo harm to the public interest, which of course I think Your Honors is a big and important concern when we are dealing with state statutes which are aimed at protecting the welfare of the citizens of the state.

There was no evidence at any of these in any shape or form.

The facts are briefly this, Dr. Larkin who was the appellee here is a resident of the state of Michigan.

He applied to the appellant's, the Wisconsin Medical Examining Board for a license to practice medicine in the state of Wisconsin.

He was granted that license in August 1971 on the basis of the reciprocity provisions between the Wisconsin and Michigan.

The Medical Examining Board is a state administrative agency.

It's the agency which issues license to practice medicine and surgery.

It is an agency also which has the statutory duty to investigate practices and amicable to public health and if it finds such practices to either warn or reprimand the licensee or if necessary refer the matter to the District Attorney for either criminal prosecution or civil revocation of a license.

The board itself has no power to suspend other than temporarily or revoke the medical license of a doctor.

This has to be --

Justice Potter Stewart: Was it from the Gibson v. Berryhill?

Ms Betty R. Brown: Yes.

Now, this is one of the unique situations in which a professional license can be revoked or suspended other than temporarily only by a Court and not by the administrative agency itself.

The only power that the board has is under the statute which the Court here declared unconstitutional, Section 448.18 (7) and this statute allows the board to temporarily suspend the license of a licensee for not more than three months upon a determination that he is engaged in practices which are immoral or unprofessional in nature.

They also have power to extend this for another three months but that's a maximum of their suspension powers.

Well, Dr. Larkin did get his license on the basis of reciprocity, he very promptly went to Milwaukee Wisconsin and he rented offices and he did so under an alias, he used name Glenn Johnson instead of his own name in renting these offices and he began performing abortions.

He performed this every weekend.

He flew in from Detroit to Milwaukee and on Friday, Saturday and Sunday's, he performed abortions and then he returned to the state of Michigan.

It appears that by February of 1973, in other words, about a year-and-half after he started, he himself was coming to Milwaukee and only very infrequent occasions and evidence indicated that he was there once between February of 1973 and the date of this Federal Court activity in the latter of part of 1973.

Chief Justice Warren E. Burger: You say the evidence that the information that the board acquired in its investigatory process, is that it?

Ms Betty R. Brown: Right sir.

The only evidence in this record is in the form of affidavits.

Attached to some of the affidavits are various notices and there is also attached the board's findings of facts, conclusions of law and decision which it arrived at, at the conclusion of its investigative hearing.

And it's in that material which is part of the record attached to affidavits that this material has revealed.

So that he was flying in and performing these abortions over weekends but since February of 1953, his abortion business was being carried on primarily by others with a financial arrangement between a Dr. Larkin and another doctor.

In June of 1973, the board issued and it mailed to Dr. Larkin a notice of investigative hearing.

It was about to perform its duty under Section 448.17 of the statutes to investigate practices inamicable to public health.

It sent this notice Dr. Larkin, told him the subject -- it included the subject of the investigation, it invited Dr. Larkin with or without counsel to attend although the investigation was ex parte in character.

Chief Justice Warren E. Burger: I don't know whether it's relevant here in this ground at issue but as you know often, would it be a violation of a Wisconsin statute of some kind to have a license under one name and carry on to practice of medicine under another name?

Ms Betty R. Brown: Yes sir, it's a violation of the criminal law and it --

Chief Justice Warren E. Burger: Apart from the medical problem?

Ms Betty R. Brown: Right.

There is a statute which makes it a misdemeanor for a medical licensee under certain circumstances to use a name other than the name under which he was licensed.

There are ifs, ands, and buts in the statute but that's the sense of it, and in addition of course that is a practice inamicable to public health because the patient has no idea whom he's dealing with.

It's a sure guarantee against malpractice suits among other things which have become increasingly popular when you don't even know who the individual is who performing services on you.

Chief Justice Warren E. Burger: It may not be of sure guarantee but it might be a big help.

Ms Betty R. Brown: Well, it's a hindrance anyway.

So the board sent out this notice of investigative hearing and upon received of that notice, Dr. Larkin immediately followed -- filed a civil rights action in the Federal District Court.

In this action, he sought initially only injunctive relief.

He sought a temporary restraining order of preliminary injunction and a permanent injunction aimed at stopping the investigative hearing.

The District Court Judge denied the motion for the temporary restraining order and Larkin very promptly, that is six days later filed an unverified amended complaint, an innocent amended complain.

He sought not only injunctive relief but he also sought declaratory relief.

He sought the declaration that the Wisconsin statutes Section 448.17 and 448.18 (7) were unconstitutional and he asked for the convening of a three-judge court.

There was in the interim some more motions and various affidavits filed but the District Court refused to enjoin the investigative hearing and that hearing was held as scheduled on July 12 and 13, 1973.

Chief Justice Warren E. Burger: Was that the same three-judge court?

Have you been before the same three-Judges all the time in this proceeding?

Ms Betty R. Brown: Yes, that is the three-judge court was not formed at the time that I'm referring to right now, they were formed shortly afterwards.

The investigative hearing by the board was allowed to proceed.

It was not until the board sent notice of a contested hearing and those words contested hearing under Wisconsin Law have a great deal of significance because there is a whole array of procedural rights that are attached at that point.

But the board did operating under another statute, not the one giving them a duty to investigate but operating under 448.18 (7), which gives them power, limited power to temporarily suspend the license.

They did send to Dr. Larkin a notice of contested hearing on the subject of whether his license should be temporarily suspended.

That notice is set forth at length in the brief and as you will note, it very carefully sets forth the issues at the proposed contested hearing.

Chief Justice Warren E. Burger: That was in effect in order to show cause functionality?

Ms Betty R. Brown: Well, it really was more than that, it was really bringing, starting up a whole contested proceeding in which the person had a right to be present, to testify, to have counsel, to cross examine witnesses, to a written statement of the issues, to the burden of proof on his opponent, a whole list which I have set forth with statutory reference in one of the footnotes to my brief, but it was a whole complicated procedure in which there was very careful guarding of procedural rights of a licensee.

But at the point where he got this notice of a contested hearing, Dr. Larkin's attorney again went into Court and again sought a temporary restraining order, preliminary injunction, et cetera.

Not of the investigative which was the sole subject of the pleading's in this case but of the proposed contested hearing on whether his license should be revoked.

In getting this material the District Court without any hearing whatsoever did enter a temporary restraining order and did grant the motion for a three-judge court.

So a three-judge court was then convened and the three-judge court held a none evidently hearing on the motion for preliminary injunction.

No evidence whatsoever in any shape or form which went to the question of whether a preliminary injunction should issue.

There also was no evidence whatsoever presented and quite properly so, on the subject of the constitutionality of the presumptively constitutional Wisconsin statutes.

So that the hearing before the three-judge court was oral argument period, without even a pleading based for the relief being sought.

Chief Justice Warren E. Burger: In the affidavits that you've described that were before the board in the investigation stage, was there any denial by Dr. Larkin of his -- of these allegation about practicing -- holding out practice under another name?

Ms Betty R. Brown: No.

Before the board Your Honor there weren't affidavits, there was actual sworn testimony by witnesses before the board.

Chief Justice Warren E. Burger: But did he deny it that --

Ms Betty R. Brown: He was invited to attend and he was also invited to come before the board and to inform it of any explanation or any material he wish to present to the board during their investigative hearing and he declined to do so.

His counsel sat through the entire investigative hearing and his counsel did address the board but Dr. Larkin himself never appeared and never informed the board despite its invitation of any material which would cast doubt upon or reflection upon the sworn testimony and other evidence that the board itself took during its investigation.

But the three-judge court during this argument on preliminary injunction, off the bench, declares the statute unconstitutional and it also enjoins the use of the statute not only against Dr. Larkin but against everybody.

It came down with the decision that -- and here I'm quoting them for the board temporarily to suspend Dr. Larkin's license which of course the board hadn't done, at its own contested hearing on charges evolving from its own investigation would constitute a denial to him of rights to procedural Due Process.

Insofar as the statute authorizes a procedure where in a physician stands to lose his liberty or property, absent the intervention of an independent neutral and detached decision maker, we conclude that it is unconstitutional and enforceable.

So, in response to the motion for preliminary injunction, they did enter a decision declaring the statute unconstitutional, banning all utilization of the statute against everybody and then subsequently they came down with their judgment.

Originally, they did this orally, then they wrote a decision, then they entered a judgment and in all of these they declared the statute unconstitutional and enjoined all utilization.

From the judgment so declaring the appellant's appeal to this Court, this Court noted probable jurisdiction, my brief was submitted, the other side's brief was submitted and the board found itself with this order banning all utilization of the statute so crippling that the interest of the citizens of the state of Wisconsin were being harmed.

So the board did go to the three-judge court and asked for a modification so that the injunction would only protect Dr. Larkin and not prohibit the board from utilizing the statute against everybody.

Chief Justice Warren E. Burger: Was there any claim made in the oral argument before the three judge court that this was a class action?

Ms Betty R. Brown: No, no, no, there is no class action aspect to this at all.

The --

Chief Justice Warren E. Burger: Of course, if the statute were in fact and law, unconstitutionally it would apply to everyone whether it had a class action or not, I assume?

Ms Betty R. Brown: Yes sir, yes sir.

So that we did ask this modification of the judgment in order to make the preliminary injunctions, they should properly have been run only against Dr. Larkin.

Well, the Court then took an opportunity to change its judgment in a more, much more broader way.

They did what we asked.

In other words, allowing the board to proceed against others but they also came up with this fiction about irreparable harm to Dr. Larkin in which there was absolutely no evidence and there was not even an allegation that he would suffer irreparable harm if the preliminary injunction was not granted.

Justice Thurgood Marshall: You mean to suspend the man from practicing medicine for six months is not irreparable harm?

Ms Betty R. Brown: I would submit to you -- well, in the first place, we don't know whether he was going to be suspended at all.

Justice Thurgood Marshall: But he could be?

Ms Betty R. Brown: He could be, right.

But we have in this situation --

Justice Thurgood Marshall: Would that be irreparable harm?

Ms Betty R. Brown: It could be an irreparable harm and some situations but I would submit to you Justice Marshall that we have some unique facts in this case and that is --

Justice Thurgood Marshall: You said there were no facts?

Ms Betty R. Brown: There are some facts -- there are no facts establishing a base for the issuance of a preliminary injunction.

There are facts otherwise and one of the facts is that Dr. Larkin is a resident of the state of Michigan.

He is licensed to practice --

Justice Thurgood Marshall: Was that before the Court?

Ms Betty R. Brown: Yes, Your Honor.

Justice Thurgood Marshall: The three-judge court?

Ms Betty R. Brown: Sure.

Justice Thurgood Marshall: So they did have some facts?

Ms Betty R. Brown: In the form of the proceedings and notices of the board which were attached to affidavits filed with the pleadings and with some other affidavits.

But what I am saying --

Justice Thurgood Marshall: But when you made the statement, there was no evidence you meant there was no oral evidence, there were affidavits?

Ms Betty R. Brown: There were affidavits Your Honor but my point is that they did not relate in any way to whether or not a preliminary injunction could issue in this case.

Justice Thurgood Marshall: If the bar association took away your license to practice law for six months, would you consider that to be irreparable harm?

Ms Betty R. Brown: I certainly would --

Justice Thurgood Marshall: What's the difference to --

Ms Betty R. Brown: -- if the bar association of Wisconsin did and I was practicing in Wisconsin.

If I was a member of the Michigan bar and I flew into Wisconsin once in six months, I don't know that the injury would be so great.

Justice Thurgood Marshall: These are just the facts of this particular case.

Ms Betty R. Brown: Well, the facts are Your Honor that Dr. Larkin had a license to practice medicine in Michigan.

At the time of these hearings, he was not coming to Wisconsin, other than on very infrequent occasions.

His operation in Milwaukee was being run by others with whom he shared the fees.

He was not personally in the day to day business of sitting in an office and having patients come to him for medical service and he was practicing medicine in the state of Michigan where he was physically present on all but very few occasions.

So that under these circumstances Your Honor, I doubt that they could establish have they attempted to do so which they did not do but I doubt that they could have established the type of irreparable harm which this Court has recently talked about in all cases such as Sampson versus Murray.

There is no way I believe that they could have established that but the point is Your Honor, they didn't even try.

Chief Justice Warren E. Burger: I suppose his probability of success would depend upon his denial and refuting the information that was before the medical board.

Could the Court make any evaluation of his probability of success on what it had before it without any denial from him?

Could the three-judge court make any judgment?

Ms Betty R. Brown: The only thing in this of course is another very important point.

The only thing the three-judge court did was to issue the decision, there were no findings of fact, there were no conclusions of law as are required by rule 52.

Now of course, that rule requires finding of facts and conclusions of law but it gives an alternative that is instead of being in that form it can be in the form of the judgment or the decision.

But the decision in this case which of course is in the jurisdictional statement appendix contains no findings of facts or conclusions of law as required by the federal rules of civil procedure.

Justice Thurgood Marshall: The preliminary injunction?

Ms Betty R. Brown: Yes Your Honor. Rule 52 does provide that whether it's a permanent --

Justice Thurgood Marshall: Did you ask for it?

Ms Betty R. Brown: I'm sorry.

Justice Thurgood Marshall: Did you ask for a finding?

Ms Betty R. Brown: I don't think it's a matter of asking, it's a matter of mandatory duty on the Courts Your Honor.

Justice Thurgood Marshall: I mean after they didn't do it, did you raise the point with them or did you just come up here and get us -- did you give them a chance to correct that?

Ms Betty R. Brown: I was not trial counsel Your Honor.

Justice Thurgood Marshall: Alright.

Ms Betty R. Brown: I'm informed that the state, on behalf of the appellants there was a motion for judgment made and it was not.

In fact we had to make the motion for judgment in order to have compliance with the federal rules about entry of judgment to start the appeal time running.

And it was in response to our motion for a judgment that a judgment was finally entered in December.

Before that they just issued their decision and that was it.

Chief Justice Warren E. Burger: Just the TRO?

Ms Betty R. Brown: Well, preliminary injunction.

Chief Justice Warren E. Burger: Preliminary injunction.

Ms Betty R. Brown: Declaring the statute unconstitutional and enjoining all the utilization.

I believe my time is up Your Honor and I thank you for your attention.

Chief Justice Warren E. Burger: Mr. Friebert, at some point will you touch on the Mayo against the Canning Company and tell us what you think that has to do with this case?

Argument of Robert H. Friebert

Mr. Robert H. Friebert: Mayo against the Canning Company?

Chief Justice Warren E. Burger: Yes.

Mr. Robert H. Friebert: Is that in my brief Your Honor?

I'm not sure.

Chief Justice Warren E. Burger: I don't know if it's in your brief but it's in this case.

Relies on this very heavily and so, among other things, while in this Court the celibacy is not binding in the state of Ohio.

There's a statement that it is of the highest importance to a proper review in the granting or refusing of the preliminary injunction.

Every explicit findings of fact --

Mr. Robert H. Friebert: Oh yes.

Chief Justice Warren E. Burger: -- in rule 528 was bound which we're just talking about.

Mr. Robert H. Friebert: Yes I'd be happy to comment on immediately Mr. Chief Justice.

The Court is not required to make explicit findings of fact, if it takes care of that matter within a written opinion and I believe that the Court has taken care of that matter in its written opinion.

The Federal rule civil procedures says it can go either way and that's the way they went, they made a specific finding --

Chief Justice Warren E. Burger: When did they do that?

Mr. Robert H. Friebert: Well, I believe that the three-judge court did make an error in its original statement by not saying that there was irreparable injury.

Although, I think that they were saying that without using the magic words.

They indicated he would lose his license to practice and they also indicated he would have a loss of liberty due to the notoriety of having been a person who lost his license citing appropriate cases from this Court.

So they without using the magic words, they did make the appropriate findings.

When the state went back and asked for an amendment to the judgment so that they could go after other doctors, I filed a counter request that they make the formal finding, the Court did so.

I think that that was their intention all along.

So they have used now the magic words, although I think that their opinion did file along the Court with the Federal rule.

Justice Thurgood Marshall: Which have been, the last one?

Mr. Robert H. Friebert: Yes the last one couple, their opinion --

Justice Thurgood Marshall: Where is that opinion?

Mr. Robert H. Friebert: The opinion is in the jurisdictional statement.

Justice Byron R. White: The December 21, 1973.

Mr. Robert H. Friebert: Yes, yes, I am --

Justice Thurgood Marshall: Do you think that one takes place of finding --

Mr. Robert H. Friebert: I think they make findings that there's nothing extremely different called about the critical facts in this case.

This issue is not as broad as the state would make it.

It is not an attempt to declare entire statutory scheme unconstitutional.

It is an attempt to declare an entire statutory scheme unconstitutional as applied to these very limited factual circumstances.

As such, it would not have the major impact on the APA and we submit that if the Court were to decide against us, it would have a major impact on administrative proceedings because the Court would then be giving its stamp of approval to an anything goes situation because this is about as aggravated, a mixing of function as one can imagine on the facts, and the reason it is so aggravated is because it is not just a question of mixing a functions within the administrative agency, which is the way the state would like to paint the picture, that's not this case.

This case involves the same people, the appellants, the very same people investigating Dr. Larkin by a formal investigation which they characterized in the Trial Court to be akin to a grand jury investigation.

That's what they told the Trial Court what they were doing and since they made the representations that they were like grand jurors engaging in an investigation on two occasions, the Court, the Trial Court, not a three-judge court this was just a single judge, refused a temporary restraining order.

Justice Byron R. White: Mr. Friebert who actually does that investigative work?

Do they have runners do it or outside investigators or do the members of the board themselves do it?

Mr. Robert H. Friebert: In this instance, testimony was taken by the board, brought in by counsel who was a trial counsel in this case, who was also counsel to the board and brought in by an employee but the testimony was taken by these board members themselves and they questioned these people and hence the analogy which they said to a grand jury.

Justice Byron R. White: But what if a right of conclusion than those that so called investigative procedures the board had simply suspended the license?

Mr. Robert H. Friebert: I think that that would have been unconstitutional -- first of all I think would violate Wisconsin practice because there --

Justice Byron R. White: If the board just sits in here for testimony and then decide that's unconstitutional?

Mr. Robert H. Friebert: Yes, I think without giving notice that that's what they are going to do and giving me an opportunity to cross examine or respond, I do.

Justice Byron R. White: Well, that may be so but would be because of external function?

Mr. Robert H. Friebert: Well, it would be in this -- again, in this case because I did not receive notice that that's what they were going to do.

It's caught --

Justice Byron R. White: And if so it wouldn't be the mixing function probably, it would be a procedural due process.

Mr. Robert H. Friebert: Correct, which I consider mixing a function is a procedural due process problem.

Justice William H. Rehnquist: Mr. Friebert, in Arizona where I practiced, I sat on one of the grievance committees and we would have a session of that committee whereby we would hear complaints and hear a complaining witness and simply decide whether there was sufficient basis to go ahead and notify that the lawyer was being complained against and if we decided that there was no sufficient basis we dismiss it.

If we decide there was sufficient basis then we would notify him of charges and hold a full hearing.

Now, do you think that violates the three-judge District Court's opinion here?

Mr. Robert H. Friebert: The same group would then be the trial people?

Justice William H. Rehnquist: Precisely.

Mr. Robert H. Friebert: Yes, I think that that would violate procedural due process.

In Wisconsin, I might add Mr. Justice Rehnquist, there is with respect to revoking or suspending the license to practice law, the charges are brought and the Supreme Court of Wisconsin appoints a judge to separately decide the factual matters and then the matter -- and makes a recommendation.

So there is a splitting of functions within the bar in Wisconsin.

Justice William H. Rehnquist: That was true in Arizona too after the administrative committee got there, went to the board of governors with the Supreme Court but here I take it your medical thing goes eventually under Court.

Mr. Robert H. Friebert: The medical thing goes eventually under the way they are moving in this case to two Courts.

I should state at the conclusion of their investigative hearing, they issued formal findings of fact and conclusions of law and in those findings of fact and conclusions of law they resolved each and every factual question in this case.

That case was then transmitted to the district attorney for further proceedings.

Chief Justice Warren E. Burger: You suppose that was partly because there was no contest after notice?

Mr. Robert H. Friebert: No I don't.

Chief Justice Warren E. Burger: Dr. Larkin undertook to put in no evidence, never denied the charges, if that's correct?

Mr. Robert H. Friebert: Well, Dr. Larkin denies the charges and I --

Chief Justice Warren E. Burger: Did he get a notice?

Mr. Robert H. Friebert: I was present and I made a statement as to the reasons why this board -- why these charges as on the record that they have before it, this is not in the record.

The hearings were not made a part of the record here but I did appear and I did --

Justice Thurgood Marshall: Did Dr. Larkin ever appeared?

Mr. Robert H. Friebert: No, he did not.

Justice Thurgood Marshall: Why not?

Mr. Robert H. Friebert: I didn't -- it was on my advice.

I didn't see any reason for him to appear.

Justice Thurgood Marshall: So then he didn't dispute anything?

Mr. Robert H. Friebert: Oh yes, I appeared on his behalf, he appeared through counsel.

Justice Thurgood Marshall: Were the other witnesses sworn?

Mr. Robert H. Friebert: I'm not sure, I believe so.

Justice Thurgood Marshall: Were you sworn?

Mr. Robert H. Friebert: No.

Justice Thurgood Marshall: Well, how could you make that testimony?

Mr. Robert H. Friebert: Because I made an extensive legal argument --

Justice Thurgood Marshall: Legal?

I'm talking about fact.

Mr. Robert H. Friebert: Oh yes, it's a factual argument and legal argument which appears at footnote 13 of my brief.

And now, I would like to state because I think it is important --

Justice Thurgood Marshall: Did he ever deny any of these facts, that's what it seems justice was asking.

Mr. Robert H. Friebert: Did he by testimony, no.

Justice Thurgood Marshall: Did you deny?

Mr. Robert H. Friebert: I denied that they had sufficient facts.

Justice Thurgood Marshall: Did you deny the facts that they had be improved?

Mr. Robert H. Friebert: Yes, I denied that they have improved that there was personal knowledge of some of the allegations.

Justice Thurgood Marshall: My question is did you deny that they were true?

Mr. Robert H. Friebert: I denied that some of them yes, I denied that the so-called unlicensed physician was unlicensed and I told them that he was a licensed physician at all times in South Korea according to my understanding.

They knew that he was a license physician in Georgia and Wisconsin allows by -- yes it's statutory but they didn't check that fact.

Justice Thurgood Marshall: Did you ever questioned fact that he was operating under the assumed name?

Mr. Robert H. Friebert: I denied that, yes.

I --

Justice Thurgood Marshall: How could you deny it?

Mr. Robert H. Friebert: Just because he signed a list, Dr. Larkin hit the papers in Milwaukee in October of 1971 and everybody knew who he has.

Justice Thurgood Marshall: I'm not rewarded by hitting the paper.

You made a legal argument and that's all you made, am I right or wrong?

Mr. Robert H. Friebert: And I challenge that they did not have all the facts?

Yes.

Justice Thurgood Marshall: But you didn't question the facts?

Mr. Robert H. Friebert: I was not given an opportunity to cross examine witnesses and I had no subpoena powers -- I had no subpoena powers in the hearing.

No.

Justice Byron R. White: Could you have produced Dr. Larkin?

Mr. Robert H. Friebert: Possibly.

That was not in my advice, I saw no purpose in it.

Justice Lewis F. Powell: (Inaudible)

Mr. Robert H. Friebert: I did not want him, yes.

Justice Lewis F. Powell: Mr. Friebert, what do you consider as before this Court as of today?

Mr. Robert H. Friebert: I consider the major issue before this Court as to whether an administrative agency can combine each and every function of investigation of accusatorial and decision making all within the same pursuits.

These are the -- the appellant's had all of these roles and sought to -- they were not restrained when they were investigating, they have never been restrained from charging, it is when they proposed to be judges of their charges that the federal three-judge court or stepped in first the Federal District Court considering singly and then the Federal three-judge court, does not have the sweep of statement of counsel.

This is not -- this malpractice is totally anathema to the APA.

Justice Lewis F. Powell: May I interrupt you a minute.

Mr. Robert H. Friebert: Excuse me.

Justice Lewis F. Powell: You're not quite answering the question I had in mind or perhaps is not clear that two orders that were entered in this case had been discussed the other day, the one on December 21, 1973, the subsequent one of 74, the July 25, I think.

Do you consider both of them to be before us if not, which one?

Mr. Robert H. Friebert: I think they're both here.

I really view the subsequent order as a modification but really more of an explanation of what they had said previously.

They really said that in their opinion but the point was missed, it's been cleared up and that's how I view the subsequent order.

If of course it's only the first order, well then I think a reversal could be done in one sentence to tell them to do what they did subsequently and then were no further along.

Justice Potter Stewart: The problem is if I may say so in the first action of December of 1973, they held this statute unconstitutional.

Now, in July of 1974, they seem at least if one could read the English language to have retreated from that position and simply said that the plaintiff's challenge to the constitutionality the statute has a high likelihood of success.

Now, that certainly is inconsistent and those orders are different things.

Mr. Robert H. Friebert: In fact -- and if the Court views only the first -- judgment is up here, it's automatic, they should not have declared a statute unconstitutional in a preliminary injunction.

Justice William H. Rehnquist: I don't agree with you at all.

Mr. Robert H. Friebert: I think the case law is clear on that.

The finding that they have to make is a high probability of success in a preliminary injunction stage unless they're combining the preliminary injunction with the final judgment which they could have done but did not do.

Justice William H. Rehnquist: I thought that the law was -- it's sufficient to issue a preliminary injunction that you find a high probability of success but surely, if you wanted -- if the Court wants to go further than that and say, this isn't just a high probability of success -- it's a hundred percent thing in our eyes.

I would think that they're perfectly justified that the preliminary -- as of saying this is unconstitutional, an argument won't change our minds on these legal points.

Mr. Robert H. Friebert: Well, this Court said it in Mayo and I don't wish to dispute.

I'm not asking for the overturning of Mayo.

I think that that was an error by the three-judge court which was corrected but it doesn't get us along the road much because they would go back down and they would do what they did and the same basic issues remained.

Justice Potter Stewart: What was the ground for your filing on this document on this September 3rd suggestion of mootness?

Mr. Robert H. Friebert: If that was the issue before the Court, whether they should not have issue -- if the Court felt that's a reason and not a probable jurisdiction and ordered it to oral argument was because they made a finding of unconstitutionality, then that issue is moot because they have subsequently corrected that situation.

Furthermore, if the Court felt that they were in error for not making an explicit finding of irreparable injury, they have now done so.

So that's the reason we're here and those two issues are moot.

The underlying issues are not really mooted except that I think and it's our position that the subtle law of the -- and I believe is a subtle law is that you cannot combine within the same persons all of the functions of accusing, investigating and then proposing to be the judges --

Justice Potter Stewart: Do I understand that you do not think of this amended judgment raises a question as to the predicate of our jurisdictions to review either judgment?

Mr. Robert H. Friebert: It's just that -- it seems like such a waste of time to --

Justice Potter Stewart: Waste of time or not, if we don't have jurisdiction, we don't have jurisdiction whatever maybe it was.

Mr. Robert H. Friebert: Oh, I think we have jurisdiction under either circumstances, an appeal --

Justice Potter Stewart: Even if we're to take the only judgment before us as the amended judgment?

Mr. Robert H. Friebert: Oh yes, I think there --

Justice Potter Stewart: Why?

Mr. Robert H. Friebert: -- Because the statute allows appeals from preliminary injunctions.

Justice William J. Brennan: What statute?

Justice Potter Stewart: Only preliminary injunctions entered on grounds of constitutionality?

Mr. Robert H. Friebert: Yes and there is that injunction as that.

Oh, I'm sorry.

Justice William J. Brennan: The amendment wipes out the finding of unconstitutionality, does it?

But was there any predicate of preliminary injunction on the basis of the finding of unconstitutionality?

Mr. Robert H. Friebert: Mr. Justice Brennan I believe the statute allows an appeal from a preliminary injunction restraining the enforcement of the statute which doesn't show --

Justice William J. Brennan: If founded on a --

Mr. Robert H. Friebert: A constitutional defect.

It certainly does originally.

Justice William J. Brennan: Well, that judgment, that's judgmental?

Mr. Robert H. Friebert: It certainly does, I don't have the statute before me, I believe it an appeal from a preliminary injunction and to this Court is available from a holding of a preliminary injunction restraining the enforcement of a statute of state wide application which is this situation.

Justice William H. Rehnquist: Required to be heard by a three- judge court?

Mr. Robert H. Friebert: Yes, required to be heard a three- judge court which is at stat situation by definition.

And so I think we're here.

Justice William H. Rehnquist: There was no other reason for the three-judge District Courts enjoining of the statute in this case than its serious doubt about its constitutionality, was there?

There was no independent basis for the Court to enjoin?

Mr. Robert H. Friebert: No.

The independent basis awaits further discovery on the first clause of action which is that our assertion and which we would intend to prove if when -- if when we get back if necessary that the board is biased against abortionist.

I would like to clear up some thing which is first of all, Ms. Brown stated that the complaint did not challenge the suspension authority of the board that is just not true.

The complaint, the amended complaint at paragraph 3 challenges the authority of the board under 448.18 to suspend the license and temporarily suspend the license and that paragraph 3 refers back to the paragraph preceding for its reasons and one of the reason stated is without being afforded a trial by jury or by persons other than his accusers.

The complaint -- the amended complaint very clearly raises this issue and that amended complaint was in Court before the board decided to try and take his license away for six months.

So we were in the Court house before that.

Secondly, the charges against Dr. Larkin do not relate to his professional competency and I think that that's very important.

There is no exigent circumstances in this situation.

The charges against him are all for past practices which they alleged occurred in which we deny or assert are not offenses and are protected.

They have to do with some kind of fee splitting which if you read the Wisconsin statute on it, it's comprehensible.

It has to do with the alleged use of a different name which the Wisconsin statute does not prohibit until there is a prior finding by the board that this would work to the detriment, no prior finding was there and it has to do with using an unlicensed physician, physician unlicensed in Wisconsin.

Chief Justice Warren E. Burger: Now, you said this was the denied, by what process or means was this denied?

Mr. Robert H. Friebert: By the board?

Chief Justice Warren E. Burger: No.

Mr. Robert H. Friebert: I'm sorry.

Chief Justice Warren E. Burger: You said that Dr. Larkin, Mr. Larkin whatever he is denied this thing, quoted he denies it.

Mr. Robert H. Friebert: In my appearance on his behalf before the board, which I told them and made these arguments to them and which I think also demonstrates at least that the -- well, I'd rather not state.

I made that those statements as contained in footnote 13 to the board and finally, the use of unlicensed physician, unlicensed in Wisconsin.

There are two, there is a factual defense, one and a -- two factual defenses, one he was licensed in another country and under a prevailing opinion of the Attorney General, a doctor license or unlicensed to Wisconsin who was licensed elsewhere can practice in conjunction with the Wisconsin doctor and secondly, that an unlicensed doctor or person can practice medicine on the state of a medical emergency which is our opinion was created by the very board themselves due to their extensive harassment over a period of two years of persons in Wisconsin who engaged in the practice of abortions despite rulings from the Eastern and Western District of Wisconsin declaring the Wisconsin statute unconstitutional.

Dr. Larkin had to get his own restraining order because of the public threats by these Appellants and the public threats by the Attorney General of Wisconsin and District Attorney that they might not mind the orders of the Federal District Court.

But those points have nothing to do with his professional competency.

So there is no medical emergency in the picture to require such a drastic fast movement and I think that those factors are extremely important towards -- in determining when a due process allows faster activity.

Certainly, one of the factors would be whether there is an urgent situation.

In fact, the suggestion for mootness demonstrates some urgent situations which the board felt they needed relief from and that was in the case of two alcoholics and one narcotic actor -- addict doctor and for them they just want it to suspend their license even though they were a hazard to the community, to the state in general and indicated for them there will be rehabilitation available because they would not see provocation.

For an abortionist in the scene and a situation who may have used or allegedly use the wrong name on occasion or sign to list under wrong name or use the doctor unlicensed to Wisconsin or engaged in a fee splitting which we just dispute and deny, there is no hope for rehabilitation so apparently drug addicts and alcoholics get greater percentage --

Justice Thurgood Marshall: In the statute now, in Wisconsin against signing you alleged name on the list?

Mr. Robert H. Friebert: No.

You can use under Wisconsin common law, I believe you can use any name and you don't have to achieve a formal name change.

Chief Justice Warren E. Burger: We'll resume after lunch.

You may continue Mr. Friebert, you have a few minutes left.

Mr. Robert H. Friebert: Thank you Mr. Chief Justice.

I should like to point out a continuation that there really are no facts in dispute.

In the suggestion of mootness at Page 12, I have reprinted the brief presented by these Appellants to the Trial Court in which they distinguished Larkin and make the flat statement.

The Larkin case was of course on its facts unique and that the board investigated charges and then proposed to hold a contested hearing on those charges and thus we have the total combining of functions, situation.

A situation --

Justice Byron R. White: Did the board recommend to the District Attorney that he files specific certain kinds of charges against the --

Mr. Robert H. Friebert: Yes Mr. Justice White.

Justice Byron R. White: -- and in accordance with the statute they may so called prefer charges with the District Attorney, is that it?

Mr. Robert H. Friebert: Correct Mr. Justice White and they've done that --

Justice Byron R. White: Well, you don't -- I would suppose that's your easiest case to argue and maybe you've got a hard case and no matter what but if -- but it's easier to argue that you put that, isn't it?

Mr. Robert H. Friebert: Well, that they've already done that, yes they had --

Justice Byron R. White: And then if they wanted to proceed to a contested hearing themselves.

Mr. Robert H. Friebert: Well, under the statute they have made findings of facts and conclusions of law prior to the issuance of the preliminary injunction which resolved each and every fact situation, factual matter which they propose to and submitted that to the District Attorney and then, they then propose to hold a hearing to suspend on the very same charges.

They go to the District Attorney because the District Attorney either can commenced criminal charges.

I might add to he's decided not to do that or to revoke.

Revocation proceedings in Wisconsin are judicial proceedings prosecuted by the District Attorney, and even at the end of a revocation proceeding the trial judge does not have to revoke, he can suspend the license.

So the result -- the only punishment that might ever been achieved by -- in this situation might be the proposed suspension by the board.

Chief Justice Warren E. Burger: When you say the District Attorney decided not to prefer charges, is there anything in the record that supports that.

Mr. Robert H. Friebert: No, but it was stated in all argument to the three- judge court but I assume the transfer --

Chief Justice Warren E. Burger: Perhaps the District Attorney like others is just waiting for the outcome of this case?

Mr. Robert H. Friebert: No, --

Chief Justice Warren E. Burger: And we don't agree with you.

Mr. Robert H. Friebert: -- on the criminal case?

Chief Justice Warren E. Burger: We don't know that, this case we arguing today?

Mr. Robert H. Friebert: I think the District Attorney stated that he would only pursue revocation proceedings and they haven't proceeded I might add but that was the position that he had taken.

Now, this does not then imply anything with respect to infringement upon the APA because if the APA had been involved this kind of situation never would have occurred.

Justice Byron R. White: Does the District Attorney taken any action at all either for revocation or on the criminal charge?

Mr. Robert H. Friebert: No he is just -- he's made that public statement, the one I just indicated which was that he would not pursue criminal charges but would only pursue revocation proceedings.

Justice Byron R. White: And is the situation the same?

I know this is outside the record but I'm curious as to Dr. Keenan?

Mr. Robert H. Friebert: No, I don't know of any subsequent activity with respect to Dr. Keenan subsequent to the Supreme Courts decisions on the abortion cases.

I don't know whether he's been investigated or not though there were substantial activity with respect to this board despite restraining orders entered by Judge Doyle in the Western District of Wisconsin and even after restraining orders were entered, this board proposed to take his licensed away because he was administering abortions, which is unprofessional conduct according to 448.18.

Now, the situation as far as this is concerned with this kind of totality of integration of activities there is no way to justify it.

This does not involve economic regulation like the FTC or the SCC.

There is no urgency in this situation because there's no assertion that he is a bad doctor.

Justice William H. Rehnquist: But you said doesn't involve economic regulations.

Certainly, its regulating somebody's way of making a living, isn't it?

Mr. Robert H. Friebert: Yes.

I mean the agency is not dealing with economic regulation in the same manner the FTC does so that a decision or a mingling or some mingling within their area of expertise might be allowable under due process because we are talking about economic regulation.

Justice William H. Rehnquist: But aren't we talked but economic regulation here to?

Mr. Robert H. Friebert: The economics of Dr. Larkin's right to make a living but not in the same sense as the FTC regulates the economy or the charge given to them by Congress and therefore that the due process might allow a certain amount of inter mingling with respect to an agency like that which is not the situation here.

Chief Justice Warren E. Burger: Well, since you mention the Federal trade commission, isn't this some of the alleged conduct found by the board that is he's setting up an office under a false name, something like Miss Brandy?

Mr. Robert H. Friebert: No, that lease and all of those situations are -- it seems to say that Dr. Larkin was not a known person and that he was a fly by night doctors so to speak.

In October of 1971, everybody in the state of Wisconsin knew about Dr. Larkin, he was on the front pages of the paper and everybody knew where his clinic was.

He closed down because he thought he was being threatened with prosecution despite the 6013 decision.

In December of 1971, we commence an action in the Federal Court for restraining order against Mr. McCann the District Attorney and the Attorney General and received a restraining order in December of 1971.

Chief Justice Warren E. Burger: Petition was never denied, he is never denied, the boards determination made on sworn testimony that he opened an office in Milwaukee under a false name.

Mr. Robert H. Friebert: That I don't think that's their charged, their charges is he signed a list under a different name and that is a man signing a list there is no way that people did not know that that was Dr. Larkin's clinic and we talked about him not being available to answer for civil litigation, everybody knows that it was Dr. Larkin's clinic, there is no showing or statement under that at all.

They might add that 448.02 (4) does not prohibit a doctor from practicing in Wisconsin under an assumed name that might add that.

It's only prohibits that in any instance in which the examining board after hearing finds that such practicing under such a changed name operates unfairly computed etcetera.

So, it's only in instances after board action this is -- and that section was added in after because statute use to be flat prohibition and they put that in taking away the flat prohibition.

So it's not illegal in Wisconsin and so they really come under or try to bring him under the catch all engaging in conduct unbecoming a person license to practice or detrimental to the best interest which is another issue in the case which we haven't brought up that which is three-judge court mentioned namely that that's void for vagueness.

Chief Justice Warren E. Burger: The case is submitted.

We'll hear argument --

Featured:

Taylor v. Hayes - Oral Argument

Thu, 23 Aug 2012 18:26:41 +0000

Case:

Taylor v. Hayes

Media File:

73-473_19740318-argument.mp3

Related Transcript:

73-473_19740318-argument

Transcript:

Argument of Robert Allen Sedler

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-473, Taylor against Hayes.

Mr. Sedler, you may proceed when you’re ready.

Mr. Robert Allen Sedler: Mr. Chief Justice, and may it please the Court.

There are two basic parts to this case.

One, going to the exercise of the summary contempt's power, the other going to the right to trial by jury in cases of criminal contempt.

With respect to the first part, the petitioner contends that this Court should hold that even if the trial judge is going to be allowed to proceed summarily, there is a minimal entitlement to a hearing, notice of a charge, opportunity to respond and judgment.

Secondly, he would contend that in the circumstances of this case, the trial judge, the respondent here was so personally embroiled in controversy with the petitioner that he could not impartially sit in judgment on the multiple contempt charges that he leveled against him.

We would also ask this Court to consider, the issue having been briefed by the parties, whether the summary contempt power itself is unconstitutional.

If the Court is going to hold --

Justice William H. Rehnquist: Was that raised in the Kentucky Court of Appeals?

Mr. Robert Allen Sedler: Your Honor, not specifically.

The -- nor was it specifically raised as such in the petition for certiorari.

It seemed to me that as we were developing these arguments before the Court, it was impossible to separate the inherent unfairness in the exercise of the summary contempt power, from question such as the right to a hearing, the embroilment of a particular judge.

If I may draw an analogy, it seems that long ago, this Court has recognized that the summary contempt power is arbitrary in its nature and is subject to abuse and over the years it’s worked out various refines.

For example, under Federal Rule 42 (a) the charges must be specified.

It’s developed a doctrine of embroilment in controversy of bias.

Now, we’re asking the Court to come up with still another correction on the doctrine such as to make it clear that there is the right to a hearing.

It seems to me that the Court in so doing is merely treating symptoms, in that the Court might wish to consider in this case going to the disease itself.

And the disease, we feel is the summary contempt power which combines in it the inherently inconsistent functions of prosecutor, judge and jury and the same individual who is necessarily involved in the events leading up to the charge and this is why --

Justice Thurgood Marshall: And how would the Court maintain decorum?

Mr. Robert Allen Sedler: Pardon, Your Honor?

Justice Thurgood Marshall: How would the judge maintain decorum in his courtroom?

Mr. Robert Allen Sedler: By citing the offending lawyer or party for contempt.

Justice Thurgood Marshall: Do you think that’s enough?

Mr. Robert Allen Sedler: I think, Your Honor, that that should be a sufficient deterrent in all, but the most serious cases of persistent obstruction, which all of the empirical evidence indicates is virtually non existent.

Justice Thurgood Marshall: Well, aren’t you right now pretty being hunky you don’t need that for this, do you?

Mr. Robert Allen Sedler: This is true, Your Honor, we do not need it for this case, but I honestly feel that the problem will remain.

The problem of the embroiled judge.

The problem of the non-embroiled judge, who may try as best he or she can impartially to sit in judgment, but still cannot separate his role from prosecuting judge and trial judge.

I think that it is necessary to -- If I say so, in order to ensure proper respect for the administration of justice in this country, we must put the responsibility where it lies and that responsibility is on the Court itself.

The summary contempt power I would submit produces far more disrespect for the administration of justice than any act, a disruptive client or a lawyer could do and I think the exercise of that power in the case at bar shows the disrespect that can result.

Chief Justice Warren E. Burger: Are you suggesting, are you suggesting that the existence of this summary contempt power in some way explains or excuses the conduct of this lawyer in this case?

Mr. Robert Allen Sedler: Well, Your Honor --

Chief Justice Warren E. Burger: Doesn't this provoke him to act that way?

Mr. Robert Allen Sedler: I would take the position of going back one step before.

We -- in the first place I would respectfully dispute that there was any improper conduct on the part of the present petitioner.

The Court did not grant certiorari on the issues of whether the conduct constituted criminal contempt.

But I would submit that the petitioner here did nothing more than vigorously defend to the best of his ability his client charged with a capital offense.

But armed with the summary contempt power, the respondent in this case could proceed as an activist seeking combat, knowing that any time he got the worst of the exchange he could always invoke the summary contempt power.

I think that comes out most clearly on contempt number three where the trial judge had said to the petitioner and counsel for the other defendant, you may have this blackboard in the courtroom and you may write on the blackboard the inconsistent statements that the tape of the key prosecution witness showed and counsel and co-counsel for the co-defendant did so.

At the end of this, the trial judge suddenly says, “Mr. Sheriff, remove the blackboard from the room.”

Petitioner files an objection.

The trial judge overrules him with a sarcastic comment.

The time to -- right in front of the jury, the time to argue your case is at the close of the evidence.

The petitioner responded and replied, “I certainly keep that in mind Your Honor.”

The trial judge though had the summary contempt power.

He says contempt six months in prison.

Now this I submit is just fundamentally unfair.

It’s also interesting to note that the case that I think this part is concerned about so called courtroom disruption, the so called Chicago Seven case.

When it was tried before a judge appointed by Your Honor who was not certainly and personally embroiled in controversy, this judge found that every act of the lawyer defendants and every act of the non-lawyer defendants accept coming into Court with judicial robes that he find contemptuous was a response albeit an excessive one to preemptory action on behalf of the judge.

I think the danger of the existence of the summary contempt power maybe threefold, yet encourages judges to act arbitrarily and tyrannically knowing that they can always come down with the summary contempt power on a lawyer.

Secondly, it inhibits, it has a showing effect on vigorous and effect to that because if the lawyer was found by the trial judge to have overstepped the line, the trial judge doesn’t have to warn or anything.

The trial judge is the trial judge did in this case and just say contempt.

This causes a lawyer to pull his punches.

Thirdly, I think that the exercise of the summary contempt power causes the public to lose confidence in the administration of justice.

When the public sees a judge sitting up there as judge, jury and prosecute him and meeting out sentences totaling four and a half years, this I do think brings across the notion, well, what kind of justice is there if a judge can do this and so I think it is in the interest of the administration of justice that the summary contempt power with its inherent unfairness be given a well deserved determent by this Court.

Justice William H. Rehnquist: Mr. Sedler you say that the summary contempt power makes a lawyer tend to pull his punches up.

I take it if the judge is going to retain any control of the proceeding, there has got to be something that makes counsel for each side to pull his punches on occasion, the Court has indicated their particular line of questioning will be prohibited or something like that?

Mr. Robert Allen Sedler: Well, I think that the -- as the study of this order in the Court in the case the judge does this by maintaining control over the proceedings as the judge.

If the lawyer --

Justice William H. Rehnquist: But how does he maintain that control?

Mr. Robert Allen Sedler: Well, by ruling on --

Justice William H. Rehnquist: Well, what if counsel doesn’t follow his rule?

Mr. Robert Allen Sedler: Then the judge can say counsel, I’ve heard enough argument on this point, let us proceed.

Justice William H. Rehnquist: Well, what if counsel continues to argue?

Mr. Robert Allen Sedler: At that point, the judge has the power and should have the power, we don’t dispute that, to cite the counsel for contempt.

There is no challenge to criminal contempt.

Justice William H. Rehnquist: But no punishment can be meted out during the course of those proceedings?

Mr. Robert Allen Sedler: On the spot, on the spot.

And I would submit that just as any other social -- antisocial conduct is considered deterred by the possibility of punishment at a later date, the same should be true of lawyer misconduct.

In other words, the judge will have cited the lawyer for contempt.

The lawyer knows that as a result of that citation, you will face a criminal charge of contempt with possible imprisonment and possible bar disciplinary proceeding.

Justice Thurgood Marshall: Doesn’t he know that when he is admitted to the bar?

Mr. Robert Allen Sedler: Well he is aware.

Justice Thurgood Marshall: Isn’t he?

Mr. Robert Allen Sedler: He doesn’t have much choice.

I mean the summary contempt power exists.

Justice Thurgood Marshall: Well, I mean when he takes his oath?

Mr. Robert Allen Sedler: Well, when he takes his oath he is aware.

Justice Thurgood Marshall: He knows that if he gets out of line he is going to be punished.

Mr. Robert Allen Sedler: And punished summarily.

Justice Thurgood Marshall: No.

I didn’t say that.

As he knows he is going to be punished.

Mr. Robert Allen Sedler: Or can be punished --

Justice Thurgood Marshall: Now you say by putting additional one you are saying, we’ll try you later.

So I mean now he has got two warnings.

Well, meanwhile you are going to get it.

Mr. Robert Allen Sedler: I think that that would be enough.

What frightens me Your Honor --

Justice Thurgood Marshall: That the two warnings would be enough, the first was not enough.

Mr. Robert Allen Sedler: Well, I think the problem is not so much of question of warning.

I may say with all due respect, I think we're focused on the wrong person.

We're focused on the lawyer.

I would respectfully suggest --

Justice Thurgood Marshall: Well you want the lawyer to hold judge in contempt?

Mr. Robert Allen Sedler: Well there is an adherent --

Justice Thurgood Marshall: You want to give him that power?

Mr. Robert Allen Sedler: I think that that the problem is that judges can act arbitrarily without any realistic sanction whatsoever and I don’t think we ought to allow the summary contempt power which simply encourages them to act arbitrarily.

The real judges that will do so.

One of the things that all the empirical evidence shows is that the summary contempt power is very rarely used by judges.

Most judges can maintain order and decorum in the courtroom without any resort to the summary contempt power at all.

But the legitimate interest, obviously the compelling interest if you will, in maintaining courtroom order can accurately be maintained by citing the lawyer for contempt.

Now in the extremely rare case where a lawyer is engaged on a course of persistent disruption, finding him guilty of contempt isn’t going to do any good either.

By that time the trial as turned into the shambles and the Court should declare a mistrial.

What’s very interesting in this case is that while the respondent castigates the conduct of the petitioner and says in his brief that it surely must have prejudiced his client's right to a fair trial, the respondent not only did not declare a mistrial, but when counsel for the co-defendant claimed that the petitioner's conduct prejudiced their clients right to a fair trial, the trial judge rejected that contention and of course that decision was affirmed by the Kentucky Court of Appeals.

Chief Justice Warren E. Burger: Well, then your client moved for a mistrial?

Mr. Robert Allen Sedler: He moved for a mistrial on numerous grounds.

Chief Justice Warren E. Burger: On this ground?

Mr. Robert Allen Sedler: No, because my counsel -- my client, I would submit and I think the record will reveal, was trying to vigorously defend his client in a highly emotionally charged situation.

He was coming out against a very hostile trial judge who gave, I think the record will reveal, the prosecution of great deal of leeway.

The prosecution's case took four days.

When the case for the both defendants came up, it only took a matter of three days.

The trial judge kept saying lets move it on, let’s get it over.

You can’t call this witness, he has nothing to add.

Let’s get it on.

Let’s move it over.

Six of the eight contempts occurred during the defense part of the case.

This is the time of the case where the attorney is most vulnerable, where the attorney has to do everything that he can to protect his client, to present his case to the jury, all the while battling with the trial judge so to speak.

It’s in this part of the case that the lawyer is most apt to step over that line, the line where permissible advocacy may constitute obstruction of justice.

Justice William H. Rehnquist: Mr. Sedler, I think the way many of us learned to practice law was that if the trial judge was unfair to you or you felt that was hostile to you, you felt you have to abide his rulings, your remedy was by appeal that you could get that reversed on appeal?

Mr. Robert Allen Sedler: Your Honor, when you take an appeal, you run into the problem of substantial error.

The dynamics of the trial show that what may seem an egregious error at the time when viewed by the appellate court in context with a presumption of validity of a conviction will frequently be found to be harmless error and the dynamics of the trial require that the lawyer vigorously defends his client against what he believes, the hostile actions of the trial judge.

Now again, we are not saying that the lawyer cannot be punished for criminal contempt.

When the lawyer's conduct is contemptuous, he can and should be punished for criminal contempt.

All we say is that this should occur in accordance with the time tested requirements of due process of law.

That the trial judge should not be able to proceed summarily that no matter how he tries, he cannot divorce himself from the fact that he is involved in the events leading up to the trial.

Moreover, in a criminal proceeding in which the accused faced originally four-and-a-half years imprisonment and now it was cut down to six months so as to defeat the claim of the jury trial, you have the trial judge performing the necessarily inconsistent functions of prosecutor, jury and judge.

I think that is one of the crucial things that’s wrong with the criminal contempt power.

Our system of criminal procedure is adversary and accusatory.

The judge, jury and prosecutor, each have a well defined role to play in the process.

We suddenly for this shibboleth of preventing disruption combine it into a single individual who is necessarily involved in the events leading up to the charge and I think no matter how you put it, it's just fundamentally unfair and that in light of contemporary standards of due process as recognized by this Court, the summary contempt power should be declared invalid.

Certainly at a minimum in this case, the Court should hold that there is a right to a hearing, and by a hearing I mean a separation, events on the spot, a separation of the contempt proceedings from the other events involved in the trial.

The lawyer has to be defending the interest of his client.

He can’t put his own interest --

Justice Thurgood Marshall: But suppose a lawyer is contemptuous to the Supreme Court of the State, what court would sit on that one?

Mr. Robert Allen Sedler: I failed to see Your Honor -- well, let me -- let’s assume that the lawyer filed a false brief or pleading or something --

Justice Thurgood Marshall: No, no he stood up in open court and just did all the things you and I know can possibly be done, an absolute contempt to the Court.

You say some other court should do it, now what other court?

Mr. Robert Allen Sedler: Assuming in Kentucky, we have a procedure by which when all of the judges of the Court of Appeals are disqualified from hearing the case because of interest or involvement, the Government can appoint pro tem special judges to hear that contempt.

Justice Thurgood Marshall: And that would be the protection that the Supreme Court would get?

Mr. Robert Allen Sedler: Well, that the terms of protection --

Justice Thurgood Marshall: Well suppose somebody is contemptuous in this Court, now what court will operate then?

All I’m talking about, why do you say that all summary contempts must be washed out with one stroke of the pan, why all?

Mr. Robert Allen Sedler: I guess that the best answer that I would give to Your Honor is that the exercise of the summary contempt power is inconsistent with those time tested principles of due process because it does combine the inherently inconsistent functions of prosecutor, jury and judge in the same instance -- in the same person and it also is the person who is necessarily involved in the events.

And the other answer that I would give is that the Court has long held that judicial power must be exercised by the means least at -- a reason of -- by least, not the least adequate but the least extreme means that are necessary to achieve the objective.

That would indicate an answer to Your Honor's question that maybe there would be no choice, but that the Supreme Court or an appellate court would have to exercise the summary contempt power, but that’s not where the problem arises, that’s not where the cases come up.

The cases come up from trial courts and so I would say that the means, the power must be the least adequate to deal with the problem presented then this would justify holding that the summary contempt power is unconstitutional when exercised by the trial judge, necessity justifies the power, if at all, necessities --

Justice William J. Brennan: Well I gather, Mr. Sedler, to that extent your position except it would invalidate Rule 42 (a), would it not?

Mr. Robert Allen Sedler: Yes, Your Honor.

Justice William J. Brennan: And also the underlying statute?

Mr. Robert Allen Sedler: I don’t believe that the underlying statute -- no, we are not challenging criminal contempt, we are not challenging the federal or state statutes that provide for criminal contempt.

All we are saying is --

Justice William J. Brennan: Well I thought the federal statute dealt by definition, doesn’t it, with what is a criminal contempt?

Mr. Robert Allen Sedler: Yes, and we are not questioning what is a criminal contempt.

All we are saying Your Honor is that criminal contempt should not be punished summarily.

Justice William J. Brennan: Alright.

So what you are saying is you’d invalidate only 42 (a)?

Mr. Robert Allen Sedler: 42 (a).

Justice William J. Brennan: And all contempts would have to -- the process would be under 42 (b)?

Mr. Robert Allen Sedler: Under 42 (b) is preferably with the jury and this I think moves us into the second issue in this case and here again --

Justice Harry A. Blackmun: Mr. Sedler before you get there, just the -- as a matter of curiosity, is your client Mr. Taylor a member of the bar of Kentucky?

Mr. Robert Allen Sedler: Yes, Your Honor.

Justice Harry A. Blackmun: This wasn’t a pro hac vice case?

Mr. Robert Allen Sedler: Oh no!

Mr. Taylor has long been a member of the Kentucky bar and defended some hundred capital cases, extremely well-known to the trial judge.

Justice Harry A. Blackmun: If this conviction holds up, is he likely to be disbarred?

Mr. Robert Allen Sedler: He certainly will be subject to disciplinary action which could reach out disbarment proportions.

I think that this is one of the reasons which shows why criminal contempt is a serious offense whenever a lawyer is involved and --

Justice William J. Brennan: Excuse me Mr. Sedler, if you follow a Rule 42, if that’s what you say constitutionally would be required 42 (b) procedure whether state or federal, what issues would be determined at the hearing?

Mr. Robert Allen Sedler: Whether the conduct constituted criminal contempt.

Justice William J. Brennan: I see, the judge in whose presence the conduct was committed could not say that’s contempt and --

Mr. Robert Allen Sedler: He would cite, he would cite and specify --

Justice William J. Brennan: He wouldn’t cite just for determination whether --

Mr. Robert Allen Sedler: Oh!

It's somewhat analogous to a grand jury indictment.

Justice William J. Brennan: Right and you’d have a -- you’re coming now that you’d say that the constitution would also require a jury trial?

Mr. Robert Allen Sedler: Well, depending on the view that the court takes.

My -- the point that I -- the submission that I would make is that -- is that contempt of court as defined by recent decisions of this Court such as the little case, necessarily constitutes a serious offense within the meaning of the trial by jury guarantee because it is the kind of offense, this material, intentional obstruction to the administration of justice that is likely to be regarded as contrary to the ethics of the community and secondly, there are some subsidiary arguments.

Many of the criminal contempt cases involved lawyers.

Lawyers do suffer collateral consequences which should be taken into account.

Moreover, the court itself is sitting in judgment on a contempt charge.

If justice must serve the appearance of justice, there is something again seriously questionable about a court sitting in judgment on the charge of contempt of court.

But I think that those are subsidiary arguments.

I think the major argument is that contempt is a serious offense because it is so regarded by the society as a whole.

And I think in this regard it is because criminal contempt has been defined by this Court not merely to include so called disrespect to the person of the trial judge, but as requiring an actual intentional material obstruction to the administration of justice.

At least the Court should hold that where there is the possibility of substantial imprisonment, let’s say beyond the ten days approved in the Dyke case, that contempt --

Justice William J. Brennan: You (Voice Overlap) only ten days would be substantial imprisonment for a lawyer?

Mr. Robert Allen Sedler: Well, I would argue Your Honor in light of Argersinger of that any imprisonment --

Justice William J. Brennan: I would think so.

Mr. Robert Allen Sedler: -- makes the charge a serious one within the meaning of the Sixth Amendment’s guarantee of right to trial by jury.

It seems to me, going on to that point, that the Sixth Amendment speaks in clear terms of all criminal prosecutions.

And just as the Court has held that an attorney, I am sorry, attorney is required in all criminal prosecutions so too a jury trial should be required.

The only difference is the historical genealogy of the right to trial by jury.

But when the Court has been dealing with the Seventh Amendment’s right to trial by jury in civil cases, it’s disregarded historical practice, even though under the clean up doctrine enacting the word historically equitable, the court could award damages without a jury, this Court has held that every time there is a claim for damages, there must be the right to trial by jury.

It seems to me that the terms of the Sixth Amendment are just as clear and that regardless of the historical practice, the clear thrust of the Sixth Amendment is to require the right to trial by jury in every case where any imprisonment is involved.

Justice Potter Stewart: We’re dealing here though with the Fourteenth Amendment, are we?

Wasn’t this a state trial?

Mr. Robert Allen Sedler: Yes, Your Honor but as I read Duncan, it holds that the same standards apply -- same jury standards apply to the state courts.

Justice Potter Stewart: Yes, but the Court has never held that the Fourteenth Amendment incorporates or absorbs or whatever the figure of speech maybe, the right to jury trial to be found in the Seventh Amendment has it?

Mr. Robert Allen Sedler: In civil actions, no Your Honor.

Justice Potter Stewart: No.

Mr. Robert Allen Sedler: Your Honor, I will reserve for rebuttal time.

Chief Justice Warren E. Burger: Mr. Sedler, let me go back to response you gave to Mr. Justice Rehnquist if I followed you.

What you said was that the right to appeal is not a genuine and meaningful remedy if the Court has overreached.

You did not fill in beyond that.

I might take it that your view is that since the right to appeal for the overreaching or arbitrariness of the judge is not a meaningful remedy that then the lawyer is free to try to out shout the judge?

Mr. Robert Allen Sedler: No.

Chief Justice Warren E. Burger: Well, then what are the alternatives?

Mr. Robert Allen Sedler: Well, I think if I were to be put, I was answering Mr. Justice Rehnquist question in regard to showing effect into the fact that the lawyer who must try to protect the rights of his client maybe shielded in his efforts to protest trial errors at the time that they occur.

And my point was that merely because he has a right to appeal trial errors, it doesn’t mean that he can ignore the trial errors at the time that he has -- they have occurred.

His duty to his client requires him to try to correct the trial error before the judge because those errors cumulatively could have an impact on the trial even though taken by themselves, they might not constitute substantial and reversible error.

Chief Justice Warren E. Burger: Would you think it is not contempt if after a judge, the trial judge has ruled and announced his ruling if the lawyer insists upon continuing argument of the ruling which has been closed?

Mr. Robert Allen Sedler: I think that the line is drawn where the trial judge says, “Counsel, I’ve heard enough argument on this point, proceed.”

So one of the things that I think appears from the record in this case, Your Honor was at no time that the trial judge say during the trial, “Mr. Taylor, I want you to stop this behavior, I want you to stop this line of argument.

You are heading towards the line where advocacy becomes contempt.”

There was sort as if the judge was waiting and waiting and then either something hit him personally or he thought the line was crossed and he pounced on contempt, as he put it in his tirade from the bench, “I have you nine counts of contempt.”

And I think that during the course of the trial, yes, there comes a time when the trial judge must be able to say to the lawyer, argument is stopped on this point.

If you have any further thing you want to say to the appellate court, say it in the record.

But I want to leave this matter and get on to something else.

And I think at that point, if the lawyer proceeds he could be cited for a contempt and although this court has not granted certiorari on the substantive contempt charges, I think a cursory examination of the charges almost on their face will reveal that they do not constitute criminal contempt under the standards promulgated by the Court.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Very well, Mr. Sedler.

Mr. Triplett.

Argument of Henry A. Triplett

Mr. Henry A. Triplett: Mr. Chief Justice and may it please the Court.

With the Court’s permission, I will deal first with the question raised in this petition as to whether or not the petitioner Taylor was given a right to be heard during a proceeding that resulted in his conviction for criminal contempt.

It is our position and we think the record completely sustains it that all during the trial and in each time the petitioner were cited for a contempt by Judge Hayes that he was indeed given a reasonable opportunity to be heard and in most instances he took it.

So it is our position here that this is really not a question of law, but a question of fact as to whether or not this 15-volume transcript sustains a position that Taylor was indeed given a chance to be heard on the contempts and whether or not he was given the right to state the mitigating factors which if no allocution does exist in a summary contempt proceeding he would be entitled to give.

It is our contention that the record does indeed show that each instance that he gave the mitigating circumstances of which he was aware, these included a marriage, a funeral, working without pay, long hours of being tired.

So first it is our position that the record sustained a hearing.

Justice Potter Stewart: I missed to what you said a moment ago.

Working without pay long hours and being tired and --

Mr. Henry A. Triplett: A marriage and a funeral, and that sort of thing -- things that caused him to be tired and things that --

Justice Potter Stewart: Who, who is tired, who is tired?

Mr. Henry A. Triplett: Mr. Taylor.

And keep in mind, Mr. Taylor was there, there were two or three other lawyers representing the co-defendant in the trial and of course the Court would be the principles involved in this case.

So we say the record is replete with that.

Second we say, that not only do we say that the record does sustain that he was heard as we understand the decisions of this Court starting with Terry and all the discussion that has occurred since Terry about the validity of Terry, it nevertheless remains that in Terry, this was a case where David Terry knocked the marshal down after the marshal started to eject his wife from the courtroom.

And in affirming or rather refusing to grant a writ of habeas corpus, this Court said that there was a right of instant apprehension and imprisonment with no allocution.

Coming forward to the case involving Judge Medina, the Sacher case although this Court took that case solely on the question of the bias of Judge Medina and his qualification to hear the contempt involving the Attorney Sacher.

The premise of the case was that there was no allocution as it is explicitly stated in the federal rules that is the right of -- to speak at the time of the sentencing.

However, in Sacher the same kind of allocution occurred as occurred here.

Throughout the nine-month trial there was continuous dialogue between Judge Medina and the lawyers involved and there couldn’t be of much doubt that everybody was pretty aware of what was transpiring and that this Court did not set aside that conviction because of a right -- because of no hearing.

And this is -- it seems to be the hearing, the procedure all through in the Sarafite case, the Ungar-Sarafite case.

Again, there was a lot of dialogue in the trial between Judge Sarafite and Unger who was on the witness stand during the trial of Hulan Jack and I think the hearing took two days -- placed two days after the trial, Ungar appeared with a lawyer.

The lawyer moved for continuance and Judge would give him a continuance, he withdrew from the case and then Ungar, all he said was “I am not feeling well and I’d like a continuance,” and that was the allocution in that case and this Court held that conviction sufficient.

Now, next I would like to turn very quickly to the right of a trial by jury in this case.

The petitioner stands convicted of criminal contempt.

The highest court in the Commonwealth of Kentucky has said that his ultimate sentence to be served is six months.

We say, taking the literal language in the Bloom against Illinois case where the petitioner got 24 months for offering a will alleged to be forged and which was reversed by this case and keeping in mind that the Bloom against Illinois case, the opinion was released on May 28, 1968, the same day as Duncan against Louisiana.

It is said under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as to the best evidence of the seriousness of the offense.

Justice Harry A. Blackmun: Mr. Triplett, I am just a little curious.

I realize that Kentucky Court of Appeals has spoken in this case, but apart from that, under Kentucky law, would the sentences initially imposed be consecutive or concurrent?

Mr. Henry A. Triplett: As they were initially opposed by Judge Hayes, they were consecutive.

Justice Harry A. Blackmun: Consecutive.

Mr. Henry A. Triplett: After they were imposed, Judge Hayes corrected his judgment with Court of Appeals of Kentucky’s permission and eliminated the requirement of consecutiveness and it was the ultimate judgment of the Court of Appeals that this meant six months.

Although we bring the question of the right of the trial court and of the Court of Appeals to permit this correction and of Judge Hayes to do it, this point is conceded by petitioner on page 21 of his brief when he says in addition, the respondent makes much of the fact that an appellate court has the power to modify sentences, this petitioner does not dispute.

Justice Harry A. Blackmun: In that connection, do you have appellate review of sentences in Kentucky?

Mr. Henry A. Triplett: Yes, sir.

The right to modify and eliminate and reduce contempt sentences in my mind is really not open to seriousness of --

Justice Thurgood Marshall: Mr. Triplett, when the Bar Association considers this case, will they consider it at one six months or more?

Mr. Henry A. Triplett: One six months, Mr. Justice Marshall.

Justice Thurgood Marshall: On how many counts?

Mr. Henry A. Triplett: On eight counts.

Justice Thurgood Marshall: Well, they would be considered guilty on all the accounts.

Mr. Henry A. Triplett: Yes, sir.

The Court of Appeals of Kentucky has affirmed it and this Court has refused to grant cert on that question.

And if the Bar Association does that, they haven’t yet, I don’t know that they will, they would have the right to do it, but if they do, do it, you are exactly correct that they would consider the eight findings of contempt as burden only of any disciplinary action that might ultimately be taken.

I think I would have to state that to you affirmatively.

Chief Justice Warren E. Burger: Well, what you’re saying there really is no more than that they would act on the full record?

Mr. Henry A. Triplett: That’s correct sir.

That’s correct Mr. Chief Justice.

Now --

Justice Potter Stewart: Mr. Triplett is there any limitation in Kentucky law as to the sentence that can be given by a trial judge for criminal contempt?

Mr. Henry A. Triplett: No, Mr. Justice Stewart there was none.

This was some what up in the air of although the ten was -- the trend was away from it, but the Court of Appeals case of Taylor against Hayes declared the limiting statute unconstitutional as being abridgment on the Court’s power to function.

So that this point in time Mr. Justice, there is no limitation.

We used to have the 30-hour rule, 30-hour or $30.00 rule that began to be eroded some years back and they cleared it up completely in this case.

Justice Potter Stewart: So now, so far at least as theoretical, how are those, the trial judge could send somebody to be locked up for the rest of his life for criminal contempt.

Mr. Henry A. Triplett: Theoretically, that was true as it was true in Bloom against Illinois, yes sir.

Chief Justice Warren E. Burger: Mr. Triplett, let me back a little bit for something you touched on in response to a question partly from Mr. Justice Stewart.

At what stage and as to which of the particular episodes did Mr. Taylor respond saying that his conduct was accounted for by the fact there had been a funeral, a wedding and a lot of other things.

Was that -- were you drawing together a whole series of things?

Mr. Henry A. Triplett: I was drawing a series of things, isolated portions of it.

It was all wrapped up in his final argument to the jury when he said this --

Chief Justice Warren E. Burger: Where are you now?

Mr. Henry A. Triplett: On page 119 of the transcript Mr. Chief Justice, where petitioner says this.

“I want to try to pose, I want to apologize to the Court if I had been in temper and state to the Court that would only been because of the desire to see justice done in the clearer conviction of believe that my client is innocent.

I want to tell you that life has moved on since this case began.

There has been a wedding in my family, a funeral of a dear friend of mine” and those things are interspersed of throughout of the trial Mr. Chief Justice.

And we say that all of this were example of petitioner at one point during the trial as to be excused on a Saturday afternoon and the transcript will support this, so he could go to this wedding of a relative who was flying in, and we also contend that those transcripts show a great deal of consideration toward petitioner’s problems by the trial court.

Wrapping up this jury in a matter very quickly.

In Frank versus United States in 1969, the -- this Court affirmed the judgment where Mr. Frank got a three-year suspended sentence for a stock fraud case.

In the Cheff and Schnackenberg case in 1966, this was where, Mr. Cheff violated the cease and desist order and three judges of the Seventh Circuit tried him and gave him six months.

This Court held it was a petty offense.

So we think that what happened here has well within the decisions of this Court.

Now, Mr. Chief Justice and may it please the Court, I would like to turn to what I consider the third phase of this case as I understand the questions upon which this Court granted certiorari and that relates to the alleged or biased hostility of Judge Hayes as to render him unqualified to pass judgment on these contempts.

We start with Mayberry.

Nothing similar to Mayberry occurred here.

There was no vilification by Taylor or Judge Hayes.

There were no epithets hurled at Judge Hayes.

Second, we come to Offutt.

There is nothing similar to what occurred in Offutt here.

Justice Thurgood Marshall: What about the phrase by “Now, I got you?” [Attempt to Laughter]

Mr. Henry A. Triplett: I beg your pardon Mr. Justice I didn’t hear you.

Justice Thurgood Marshall: What about the judge saying “Now, I got you?”

Mr. Henry A. Triplett: We say that that occurred after the judgment of contempt had been -- wait a minute sir, I don’t recall anything in this trial or this transcript that said -- where Judge Hayes said, “Taylor, now I got you.”

Justice Thurgood Marshall: Well, that might not be the exact words, but it’s close to it.

Mr. Henry A. Triplett: I dispute that Mr. Justice Marshall.

I dispute that Judge Hayes said that.

Justice Thurgood Marshall: Well, I have to find it.

Mr. Henry A. Triplett: Alright sir.

Now, let me be very clear and honest.

At the time he imposed the sentence, there was language in there, he said I have got you on nine contempts.

Justice Thurgood Marshall: Well, that's what we are talking about?

Mr. Henry A. Triplett: But I read that in a different context Mr. Justice Marshall as saying, “Now I’ve got you.”

Justice Thurgood Marshall: Well, now I got you on nine counts.

Mr. Henry A. Triplett: That’s correct sir.

Justice Thurgood Marshall: I stand corrected.[Laughter]

Mr. Henry A. Triplett: Yes, sir.

Justice Thurgood Marshall: I stand corrected.

Mr. Henry A. Triplett: I don’t mean to be argumentative on --

Unknown Speaker: (Inaudible)

Mr. Henry A. Triplett: That is correct sir, that’s exactly what he said.

Now, it is our position Mr. Justice, and may it please the Court that at the time of sentence, the trial that occurred on the matter of contempt and at some point in imposing the punishment, a judge must have the last say and the last word.

The right to be heard, we say had occurred.

The reasons for mitigation and defense had occurred.

It is not uncommon for judges at the end of a trial and I am not speaking only of lawyers at this point, I am speaking of a defendant.

Suppose a judge hears a particularly aggravated case that just shocks of conscience of any human being, it is not uncommon for state and federal judges and I have heard them both do it, to just absolutely take the punishment apart or defendant apart when he imposes sentence.

Otherwise, there wouldn't be much reason for the disparity in some of the sentences that are imposed.

With the sentencing power in the federal court, certainly the aggravating circumstances of a particular crime or a set of circumstances will cause a federal district judge to impose a larger sentence than a lesser sentence or even to probate.

And we say that just because a judge comes down hard on the defendant at the time he imposes a sentence is not a predisposition of hostility, particularly when we claim that the bias or a plain bias throughout this 15-volume record is just absolutely not present.

And that’s absolutely what we feel about it.

Let me address myself, if I may just for a moment, excuse me sir, [Attempt to Laughter] if I may to this proposition that whenever a summary of contempt occurs that the trial judge must recuse himself and allow it to be heard by another judge.

Let’s take a very practical question and Mr. Justice Marshall alluded to it in a question to Mr. Sedler, when he asked which Court would hear this.

Let’s take Father Groppi’s case in Michigan, where the people were led through the legislature.

And let’s assume that the Michigan general assembly was in joint session, the Senate and the House.

They cite Father Groppi for contempt.

Now the fact that they saw this, they heard this, which legislative body is going to try that contempt.

Let’s assume that if a trial judge is going to have to recuse himself in other cases, let’s see now whose going to do that.

Is it going to be his brother trial judge in the same district or the same circuit or in the same state?

Must it go outside the state?

Is it going to occur as it occurred in the Codispoti case which I understand is going to be heard here next week.

Codispoti got his second judge and what he said to the second judge was about as bad as what was that.[Voice Overlap]

Excuse me sir?

Chief Justice Warren E. Burger: No question.

By the way in the Groppi case, that was Wisconsin --

Mr. Henry A. Triplett: Yes sir, Excuse me, I’m sorry Mr. Chief Justice.

Chief Justice Warren E. Burger: In the Groppi case, I think the opinion indicated rather clearly that had they seized him immediately and proceeded with contempt, there might have been a different result.

It was because Groppi went away and then without notice to him.

Mr. Henry A. Triplett: He was in jail for disorderly conduct and two days later without the present hearing, notice of papers they imposed a punishment, that is exactly right Mr. Chief Justice.

But would the bias or the disqualification be any less because Father Groppi led the group pass the Wisconsin legislature you say, then the contempt occurring before a trial judge.

We think not and we think that this displays some fallacy in the proposition that they must be heard by another judge or by some other forum and perhaps that can be dealt with in this case.

We think that the most important factor and the most important protection of a judge and of a lawyer involved in the criminal contempt case is that it appears on the transcript.

There is a record that an appellate court can do.

And this is somewhat followed by a -- stated by the Weisberg case out in the Ninth Circuit that when these things appear on the record, this prevent a judge without any court reporter, without any witnesses must do it in public, prevents any abuse in that respect.

Bringing my argument to an end here, we think that for two-week period and including the ultimate part here, Judge Hayes did a pretty good job in this trial if he’d imposed a punishment on Taylor at the time the contempt is heard -- were heard, he could claim a psychological disadvantage to hurt his client.

If he didn’t cite him for contempt and did nothing then they would be a claim that he discreetly searched the record after all this occurred.

What he did was at that the time they occurred was to cite him, permit him to be heard in practically all instances and then at the end of the trial, he imposed the punishments that he thought proper and then he corrected them as the petitioner has conceded, he had a right to do.

We think that it is highly necessary for the integrity of the judiciary which protects the freedom of us all, that this judgment be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Triplett.

You have a few minutes left Mr. Sedler.

Rebuttal of Robert Allen Sedler

Mr. Robert Allen Sedler: Mr. Chief Justice, and may it please the Court.

I think I have a comment on two points.

Mr. Triplett says that the petitioner had the right to respond.

The record of course which Mr. Triplett refers, shows that this simply was not so, but more importantly what we are in agreement on is that there was no hearing insofar as the petitioner had a chance to respond to them was only on counts two and three.

The response was strictly for the record and it occurred at a time when the petitioner was required to argue substantive questions to protect the interests of his client.

At least the court should hold that due process requires a hearing in the sentence that the summary contempt, if this Court is going to allow it to go on, be separated from the other events in the case that the trial judge specify the charge which never occurred here.

He didn’t specify the charge until three months later, specify the charges, listen objectively to argument, to matters in defense or mitigation and then make a ruling.

With respect to the matter of embroilment what the respondent says as well, ignore my remarks at the time of sentencing, but there is no comment about everything else that occurred during and after the trial.

This -- of course, it is a burden to prove embroilment.

Here, the respondent was not to very subtle.

He says to the petitioner before the jury, I am going to make an example of you.

I am going to do something the bar says they should have done years ago.

It’s true that there were no epithets hurled at the judge by the petitioner, but it was just a reverse when the judge sent -- when the petitioner argued I may have four or five months of my life tied up in this case.

The judge said “Acidly before it’s over you might have a lot more than that,” provoking all the time, “You’re putting on the show, I don’t like your utters.”

Then he said, “You’ve accused me of rigging the jury,” all this occurs very early and throughout the trial.

And then there is the acts of the judge where he says “You can’t practice in my court anymore.”

He refused to hold a bail hearing.

He used to admit the petitioner to bail.

Now if this does not show embroil then what I think the Court must be saying is that there is no such concept of being embroiled in controversy.

But it does raise the question of the -- what I call the inherent unfairness of the exercise of the summary contempt power.

This case does present both narrow and broad issues.

The petitioner has not only argued his own case and has not limited himself to the narrow issues that would result in a reversal of the petitioner’s conviction.

The petitioner believes that the issues presented in this case go far beyond the present petitioner and the present respondent and have deep implications for the administration of justice itself.

Petitioner would ask this Court to reverse his conviction.

Thank you Mr. Chief Justice.

Thank you Your Honors.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Featured:

Ward v. Village Of Monroeville - Oral Argument

Thu, 02 Apr 2009 06:34:24 +0000

Case:

Ward v. Village Of Monroeville

Media File:

71-496_19721017-argument.mp3

Related Transcript:

71-496_19721017-argument.xml

Featured:

Johnson v. Mississippi - Oral Argument

Thu, 23 Aug 2012 18:15:38 +0000

Case:

Johnson v. Mississippi

Media File:

5485_19710421-argument.mp3

Related Transcript:

5485_19710421-argument

Transcript:

Argument of Stephen W. Porter

Chief Justice Warren E. Burger: We will hear arguments next in 5485, Johnson against Mississippi.

Mr. Porter, you may proceed whenever you're ready.

Mr. Stephen W. Porter: Mr. Chief Justice, may it please the Court.

My name is Stephen Porter of the law firm Williams & Connolly, seated in counsel table is Richard Rugo of the law firm Hogan & Hartson.

We are co-counsel for petitioner in this matter.

This case arises out of the conviction and sentencing of a Mississippi civil rights worker under circumstances which would appear to ignore every pronouncement and every limitation and every cautionary statement that this Court has over the years ever made on the issue of the use by a trial court of the power, without the ordinary requirements of due process to punish allegedly contumacious behavior summarily.

The salient facts briefly reviewed are as follows.

On January 27, 1969, petitioner Robert Johnson was summarily convicted by Grenada County, Mississippi Circuit Court Judge Marshall Perry for a remarked allegedly made in Judge Perry’s Court more than two years earlier.

Judge Perry sentenced petitioner for four months in jail although the maximum sentence is one month to which the Supreme Court of Mississippi later reduced the sentence.

The conviction resulted from an incident which occurred on January 24, 1967 in the judge’s courtroom.

At 9 A.M. that morning, prospective jurors of the January term occupied benches near courtroom doors, a section normally reserved for the public.

Justice Hugo L. Black: Is this one month sentence was stayed?

Mr. Stephen W. Porter: Yes, Your Honor.

Justice Hugo L. Black: With serious evidence?

Mr. Stephen W. Porter: Yes.

Yes, Your Honor.

This one month sentence has been stayed.

The most direct route to seats reserved for defendants in pending cases before the term involved walking in front of these jurors.

Judge Perry announced that anyone entering the Court while in session would be required to use an aisle in the rear and this announcement was made approximately five or ten minutes before Robert Johnson appeared in Court.

When petitioner Johnson arrived, he walked via the most direct route to the seats reserved for the prospective defendants and as he did he walked in front of the jurors.

Justice Potter Stewart: And he was there as a defendant in case that’s going to be tried that day?

Mr. Stephen W. Porter: Yes, Your Honor whether or not he was going to be tried that day.

It was the opening day of the --

Justice Potter Stewart: Trial.

Mr. Stephen W. Porter: -- of this term.

Justice Potter Stewart: And he was --

Mr. Stephen W. Porter: And he was required --

Justice Potter Stewart: A defendant in one of the cases that the Court was going to try during that term.

Mr. Stephen W. Porter: Yes, Your Honor.

Petitioner Johnson was apprehended by the Deputy Sheriff who ordered him to walk around to the rear.

This point, according to the state’s show cause petition, Johnson there upon said in a loud and offensive voice, “What the hell do you mean, go around to the rear?”

That is the sum total of any allegation of contumacious behavior on petitioner’s part.

Chief Justice Warren E. Burger: What would be your view if the judge then and there or upon the adjournment of Court that had imposed the sentence of 30 days for contempt of Court?

Mr. Stephen W. Porter: Your Honor.

First of all, I think that that would be a far different matter than what he did do and --

Chief Justice Warren E. Burger: Yes.

Obviously, what happens --

Mr. Stephen W. Porter: And I think even then, the behavior of petitioner Johnson who was alleged is far less than the outrageous behavior which is present in many of the decided cases to this Court on this subject.

Furthermore, I think there's another issue which ought be raised and faced, and determined, that is the question of whether a judge ought involved a summary contempt power against a person who is not then involved in a proceeding before the Court or whether or not the ordinary fuller hearing ought be required.

Chief Justice Warren E. Burger: What difference does it make whether it’s a spectator, a tourist, a defendant, or a member of the bar of the Court?

Mr. Stephen W. Porter: Well, I think Your Honor that there are --

Chief Justice Warren E. Burger: And except that it might be a higher degree of culpability on the part of the lawyer of course.

Mr. Stephen W. Porter: Leaving aside the question of a lawyer for the moment.

I think the difference is this, is that in the case of the defendant before the Court, it is possible -- it’s much more difficult to invoke a summary punishment because it involves the possibility of prejudicing the case, possibly prejudicing the jury, and possibly interrupting the proceedings.

There is a lesser remedy available in respect of a spectator.

He can be removed from the Court.

The Court can proceed with its business and still take care of in due course charging the contemnor with the responsibility for his act.

Justice Hugo L. Black: Is the judge on the bench at the time this --

Mr. Stephen W. Porter: Yes, Your Honor.

The judge was on the bench.

Although, --

Justice Potter Stewart: What was going on in the courtroom?

Was a trial then in progress or doesn’t the record show?

Mr. Stephen W. Porter: The record does not show what was going on whether or not if it was going on -- it appears the petitioner arrived in Court shortly after the judge was making his opening announcements with respect to a -- I don’t believe it, a trial was going on because I don’t think jurors had been chosen yet, with respect to any of the pending cases.

Justice Potter Stewart: Just some preliminary matters at time.

Mr. Stephen W. Porter: It’s a preliminary matter -- I believe that’s correct, Your Honor.

Chief Justice Warren E. Burger: You haven’t indicated your view of the matter but you don’t need to, the view of the Court’s power summarily to deal with utterance of that kind in the courtroom, do you question the Court’s power to deal with that kind of an utterance in the courtroom by any person?

Mr. Stephen W. Porter: I don’t question Your Honor, the power of the court to deal with an utterance of that kind in a courtroom.

Although, I think traditionally, it would have to have been the kind of behavior which would have disrupted the proceedings.

The state’s show cause petition alleges that the chair from his deputy brought petitioner before the judge and related to the judge what had happened, indicating that the judge had never heard the disruption which had taken place.

And again, I think that although the Court that has the power to dispose off a disruption in the Court, questions of whether or not, it should deal with it in a summary proceeding, where some other method would be appropriate and still reserving the possibility of a prosecution for contemptuous behavior is a reasonable and proper result.

Justice Thurgood Marshall: You mean, staying in front of the courtroom he says, and to judge, look to him and say -- and say, “Go to hell.”

The judge can’t do anything about it?

Mr. Stephen W. Porter: I'm not suggesting that that the judge cannot do anything about it, Your Honor.

I'm suggesting --

Justice Thurgood Marshall: What do you suggest he could do?

Mr. Stephen W. Porter: There's several things he could do and it depends, I think --

Justice Thurgood Marshall: He could put him in jail for 30 days right then and there, could he?

Mr. Stephen W. Porter: I think he could probably put him in jail for 30 days right then and there.

Although,--

Justice Thurgood Marshall: Legally?

Mr. Stephen W. Porter: Yes, Your Honor, legally.

He could put him in jail for 30 days right then and there, if the judge saw and heard the -- this is the old distinction between direct and indirect contempts.

Justice Thurgood Marshall: And if the Sheriff heard it and told the judge that that’s different.

He can go attend the courtroom.

Mr. Stephen W. Porter: I think that’s correct.

Yes, Your Honor.

Justice Thurgood Marshall: What would he do then --

Justice John M. Harlan: Is there a state statute against him?

Mr. Stephen W. Porter: Pardon me Your Honor?

Justice John M. Harlan: Is there a state statute that covers it?

Mr. Stephen W. Porter: There is a state statute that covers contempt of -- direct contempt of Court punishable by one month.

It empowers the judge to sentence a contemnor to one month in jail in a direct contempt under Mississippi statute.

Justice Byron R. White: Well, this judge indicated later, he heard it himself.

Mr. Stephen W. Porter: This charge later indicated the, Your Honor, two years -- after two years had gone by that he did hear it himself.

Although, he had in the intervening of time schedule a show cause hearing.

Twice scheduled a show cause hearing and then he canceled it.

Justice Byron R. White: Oh, I don’t know that is inconsistent with his having heard it and I wouldn’t think it’s inconsistent with his having heard it that the sheriff brought the man up to him and told him what he said?

Mr. Stephen W. Porter: Your Honor, I think it may begin inconsistent in this respect and that is --

Justice Byron R. White: Well, he perhaps didn’t say, “Well, I have heard it by myself so you don’t need to tell me.” But he let him tell him.

Mr. Stephen W. Porter: And then he scheduled a show cause hearing and which would be the proper procedure under Mississippi statute for an indirect contempt.

Justice Byron R. White: It wouldn’t be improper for the direct one, would it?

Mr. Stephen W. Porter: No, it would not be improper to provide a fuller hearing, that’s correct.

The judge ordered the show cause hearing -- a show cause petition be filed and within the two days of the such order, petitioner filed a motion that Judge Perry disqualify himself from the pending show cause hearing alleging personal prejudice and further alleging that since the judge had ordered his arrest, he could not fairly decide the action.

On February 1, 1967, approximately a week after these events, petitioner filed a petition for removal to the United States District Court for the Northern District of Mississippi.

It was not until some 21 1/2 months that elapsed that the United States District Court remanded the prosecution to the Grenada County Circuit Court holding that petitioner’s remedy in the federal system could lie only after he demonstrated that he had been deprived of his constitutional rights by the state courts.

On January 22, 1969, prior to any action in Grenada County on the contempt charge and two months after, the federal court had returned the prosecution to the state system.

Petitioner and others filed an action in the United States District Court, the Northern District of Mississippi wholly separate action to restrain trials of Negroes and women until such time as those persons were not systematically excluded from juries in violation of the U.S. Constitution.

Judge Perry was named as one of the defendants in that action and served with the process on January 23, 1969.

On January 24, 1969, a summons was issued directing Johnson to appear in Judge Perry’s courtroom on January 27th, to show cause why he should not be punished on the old contempt charge.

On January 27th, petitioner and his attorney did appear in front of Judge Perry for the show cause hearing at which time the judge canceled the hearing instead reading a contempt conviction sentencing petitioner to four months in jail.

Bail was set at $2,000.00 and subsequently reduced to the statutory maximum of $300.00 for the Supreme Court of Mississippi.

Later that same morning at the second appearance before Judge Perry, in an effort to obtain the judge’s signature on a bill of exceptions, the judge refused.

And when the petitioner’s attorney prepared the bill of exceptions, the judge summarily, and charged hearing contempt, a conviction which was later reversed by the Supreme Court of Mississippi.

Justice Hugo L. Black: Why was the record show -- why was it the judge knew this episode happens?

Did he punish summarily?

Mr. Stephen W. Porter: I'm sorry Your Honor.

You mean, why didn’t punish him in 1967?

Justice Hugo L. Black: Yes.

Why not --

Mr. Stephen W. Porter: The record --

Justice Hugo L. Black: Immediately when the episode happened?

Mr. Stephen W. Porter: The record does not show why he didn’t.

The record only shows that he just elected to travel the show cause route rather than to invoke such summary powers as he might had have under the Mississippi statute.

Unknown Speaker: When was the order to show cause given?

Mr. Stephen W. Porter: The order to show cause was returnable on February 1st, I think, nine days after the alleged contumacious behavior.

Chief Justice Warren E. Burger: Then I take it, it was issued almost immediately?

Mr. Stephen W. Porter: Yes, Your Honor.

It was issued almost immediately following the judge’s order that a show cause order be issued.

Justice Byron R. White: Why wasn’t it heard?

Mr. Stephen W. Porter: Why was it not heard immediately?

The judge ordered that -- I believe the judge ordered that the show cause petition be issued within 48 hours and why he didn’t set it down for an earlier hearing is just not in the record, Your Honor.

Justice Byron R. White: Then he issued another one?

Mr. Stephen W. Porter: The second one was two years later.

Justice Byron R. White: Yes.

Mr. Stephen W. Porter: The February 1st show cause hearing was not held because by that time a removal petition had been filed in the federal court.

Justice Byron R. White: Do you respond writing to the show cause order in that jurisdiction?

Mr. Stephen W. Porter: I'm not aware of whether or the doer, I don’t know Your Honor.

Justice Byron R. White: Was there any response from the person’s show cause order?

Mr. Stephen W. Porter: I think the only response was a motion filed that Judge Perry recused himself from hearing the matter and that motion was never heard and never determined by the judge.

Justice Byron R. White: And was it?

There was then any suit filed against him?

Mr. Stephen W. Porter: There was then a suit filed against Judge Perry that was after 21-and-a-half months had elapsed and after the federal system had returned the case to the Grenada County Circuit Court.

About two months after the case had been returned and still without any action taken in Grenada County, the separate suit was filed by petitioner naming Judge Perry as the defendant.

Justice Hugo L. Black: What case was being tried at the time this occurred?

Mr. Stephen W. Porter: You mean Your Honor, the proceeding that was going on in the courtroom?

Justice Hugo L. Black: Over the court at the time the court was interrupted.

Mr. Stephen W. Porter: I don’t believe there was any proceeding going on at that time.

I believe they were in a process of choosing jurors --

Justice Hugo L. Black: Well, what case?

Mr. Stephen W. Porter: I believe they were selecting jurors, eligible jurors, for all the pending cases in that term.

Justice Hugo L. Black: Didn’t we --

Mr. Stephen W. Porter: Yes.

Justice Hugo L. Black: Was there any complaints to the Court about anything that had been done?

Mr. Stephen W. Porter: Not that I know of, Your Honor.

The record suggests none.

Justice Hugo L. Black: It was just a disorder that happened.

Mr. Stephen W. Porter: Just --

Justice Hugo L. Black: Without any reason.

Mr. Stephen W. Porter: The reason appears to have been the request by the deputy sheriff that petitioner walk around the rear of the room when he take his seat rather than take the more direct route and pass in front of the prospective jurors.

Justice Hugo L. Black: Well, was he on trial or charged for that term?

Mr. Stephen W. Porter: He was scheduled for trial during that term.

Justice Hugo L. Black: For what?

Mr. Stephen W. Porter: I believe it was a -- although, it is not indicated in the record.

I believe it was a trespass case which was, although, there wasn’t --

Justice Hugo L. Black: What kind of trespass?

What was it about?

Mr. Stephen W. Porter: I don’t know what it was, Your Honor.

It’s not in the record and the only thing that is in the record which we have in the footnote in our brief is that the -- there was never any prosecution on the matter.

The prosecution on the substantive charge against petitioner was dropped.

I believe it was a trespass arriving out of a civil rights demonstration.

Justice Hugo L. Black: In a restaurant or something like a Court has or where?

Mr. Stephen W. Porter: I've no idea Your Honor.

It’s not in the record.

From its earliest decisions, this Court has recognized that the use of summary procedures to convict must be carefully controlled since they do not encompass the ordinary procedural safeguards incorporated in our system of justice, the right of an accused to be apprised fully of the nature of the charges against him, the right to put on defense, the right to counsel.

Generally, the Merrill area within which summary contempt proceedings have been permitted is where the trial judge has observed the contumacious conduct and then acts swiftly by conviction of the contemnor rather than by an alternative remedy in order to quell a disturbance threatening to upset the sanctity of the courtroom.

Other remedies have been held constitutionally permissible in dealing with an obstreperous defendant.

This Court recently in Illinois v. Allen mentioned at least two others restraint and removal from the courtroom.

Other non-summary conviction procedures suggests themselves, contempt procedures suggests themselves were appropriate such as a civil contempt.

A postponement of the proceedings in a proper case or by the judge, informing the defendant that charges will be preferred against him for contempt after the conclusion of the trial and refer to another judge.

In light of these other possible remedies and in light of these Court’s recent holding in Mayberry versus Pennsylvania which we stripped to the use of a summary conviction after a trial’s conclusion.

Since at that time, immediate restoration of order is no -- or vindication of the authority of the Court is no longer the primary requisite.

Petitioner’s conviction and its affirmance by the Supreme Court of Mississippi must be reversed for the follow --

Justice Byron R. White: It wasn’t a major part of Mayberry though that the judge who is going to later hear the case had himself then slandered and insulted personally, and hence, there might have been some question about his fairness?

Mr. Stephen W. Porter: I think that’s correct Your Honor.

I think that’s -- that is also --

Justice Byron R. White: And why do you rely on this case to suggest that the judge trying this contempt later might have had a personal animus and would be biased?

Mr. Stephen W. Porter: Well, there are several possible alternatives which suggest themselves Your Honor.

There’s several affidavits in the records suggesting the judge’s personal bias against defendant and its members of his race and civil rights workers --

Justice Byron R. White: Based on what?

Base on what note?

Based on what?

I mean, just generalized allegations would suffice every --

Mr. Stephen W. Porter: Yes.

And also allegations of prejudice or part of the possibility of prejudice as a result of a lawsuit filed by petitioner naming the judges or defendant --

Justice Byron R. White: Yes.

Mr. Stephen W. Porter: At the time of the second show cause hearing.

That might -- I would suggest might even be a greater possibility of bias than most present in the exchange --

Justice Byron R. White: What was the charge?

What was the charge in the suit against the judge?

Mr. Stephen W. Porter: Well, the suit Your Honor against the judge was against the judge and several others for systemically restraining and preventing Negroes and laymen from serving on juries in Grenada County, Mississippi.

Justice Byron R. White: But this didn’t have anything to do with this petitioner?

I mean, was the petitioner, a plaintiff?

Mr. Stephen W. Porter: No.

But the petitioner was plaintiff.

Justice Byron R. White: But that he wasn’t suing him for anything that the judge did to him?

Mr. Stephen W. Porter: No, Your Honor. Other than as a member of class.

Justice William O. Douglas: Mr. Porter, you were not counsel for Johnson at the time of this incident, were you?

Mr. Stephen W. Porter: No, I was not Your Honor.

Justice William O. Douglas: Do I correctly infer that the attorney, which he had at that time, was also cited for contempt?

Mr. Stephen W. Porter: Yes, Your Honor.

Both attorneys that he --

Justice William O. Douglas: And with what result?

Mr. Stephen W. Porter: Both, the first attorney who represented him the day of the alleged contumacious behavior was cited for contempt for protesting in Judge Perry’s Court that the show cause hearing was improper and that trial was restrained by a temporary restraining order issued by the U.S. District Court for the Northern District of Mississippi and the case had never -- was just never just brought to trial after the temporary retraining order expired.

His second attorney, the attorney who represented him at the time of the second show cause hearing or the time the second show cause hearing was scheduled was also cited for contempt and that contempt conviction, that summary conviction was reversed by the Supreme Court of Mississippi on the grounds that it was not direct contempt before the judge and that the summary procedure did not apply.

Chief Justice Warren E. Burger: Well, now the summary procedure then was the correct procedure under Mississippi law to use in Johnson’s case, I take it, since it was not in your view a direct contempt.

Mr. Stephen W. Porter: Your Honor, If were -- if it were not a direct contempt, the summary procedure would not be.

Chief Justice Warren E. Burger: Well, but he didn’t use the summary procedure here, did he?

Mr. Stephen W. Porter: No, he did not.

I thought you were suggesting that the summary procedure would be then.

Chief Justice Warren E. Burger: Oh no.

Mr. Stephen W. Porter: It would not be the correct procedure --

Chief Justice Warren E. Burger: So, that you don’t have any quarrel with the procedure that the judge used to deal with contemnor?

Mr. Stephen W. Porter: The show cause procedure, no sir.

No quarrel with the procedure that was scheduled.

We are alleging that the failure to then hold the show cause hearing or to hear the motion that the judge recused himself and that the show cause hearing be before an unbiased judge was improper.

Chief Justice Warren E. Burger: Do you suggest that a person in the posture of Johnson may disqualify a judge by bringing a lawsuit against him?

Mr. Stephen W. Porter: No, Your Honor.

I don’t suggest that.

I don’t think that there's any suggestion here that this lawsuit was brought to divest the judge of his power to hear the contempt charge.

Chief Justice Warren E. Burger: But in your earlier argument, you suggested that this is one of the large factors I think that’s the way you put it, in a probable bias since he was a defendant in the lawsuit.

The judge was the defendant in the lawsuit.

Mr. Stephen W. Porter: Yes, Your Honor.

I think it is a major factor and I -- but I think that if -- I think when you have an elapse of two years time, you have your petitioner who is a civil rights worker, who is working actively in that field, when he brings a lawsuit which --

Chief Justice Warren E. Burger: What difference does it make whether he’s civil rights worker or a plumber if he is guilty of contumacious conduct in the courtroom?

Mr. Stephen W. Porter: Well, I think, if you have an intervening legitimate lawsuit with merits which is not brought simply to divest -- some charge in order to divest the judge of his jurisdiction to hear the contempt charge, I think you have an intervening factor which simply requires the judge to excuse himself.

Chief Justice Warren E. Burger: Has that lawsuit been tried?

Mr. Stephen W. Porter: That lawsuit -- according to the record was won by petitioner of the federal District Court, issued an order enjoining the judge and the other defendants from any further acts which would violate the civil rights of the plaintiffs and members of the class.

As a matter of fact that order, Your Honor, was issued and Judge Perry and others were enjoined prior to the time that the judge canceled the show cause hearing.

In other words, the suit was filed within the matter of 48 or 72 hours.

The United States District Court issued its injunction.

Justice Hugo L. Black: Supposing a judge here has contempt committed in his presence, (Inaudible) he says, “I find you in contempt.”

I oppose the wrong sentencing to the inclusion of the trial until I get through with this case and he brings (Inaudible) impose 30 days on you.

Would you hold bar with that procedure?

Mr. Stephen W. Porter: No, Your Honor.

I would not.

I think that’s --

Justice Hugo L. Black: Could that be equivalent of what's happened here or is it different?

Mr. Stephen W. Porter: I think something far different has happened --

Justice Hugo L. Black: I was trying to get at that --

Mr. Stephen W. Porter: I think something far different has happened here.

There was no finding of contempt by the judge.

First of all, it’s not clear that this was a proper case in which there could be a finding of contempt by the judge without a hearing.

Secondly, even if this were the case, that power was not invoked by the judge.

He did not specifically find petitioner in contempt.

He instead ordered a show cause hearing.

He ordered two show cause hearings and he later canceled those hearings.

And we’re suggesting that once the judge has elected to use another procedure, unless there is intervening obstreperous behavior, there may not be a cancellation of the due process hearing and a return to the summary procedure because at that point, two years down the road or 30 days or even one day down the road, there's no longer any need to call the disorder in the courtroom that summary procedure has historically been reserved for just that purpose, to quell a disruption and if the judge elects not utilize it for the purpose of quelling the disruption, he ought not have it later.

Justice Hugo L. Black: When the ‘69 show cause order was issued that was the operative one in your view, was the response put in and answer put in by your client?

What I’m getting at with the issues in fact tendered?

Mr. Stephen W. Porter: No, Your Honor, I think there were no issues of fact tendered.

The petitioner pointer out or petitioner appeared for the show cause hearing and asked through his attorney to put on a defense and was -- and that request was denied in the bill of exceptions which is in the record.

The petitioner’s attorney states that she was prepared to present evidence of the fact that petitioner did not behave contumaciously.

Unknown Speaker: Open the bench, please!

Chief Justice Warren E. Burger: You may go right on counsel.

Mr. Stephen W. Porter: Sir.

The power to punish summarily in any event if this Court is to permit its limited -- in limited instances its continued use, should only be sanctioned or all else is proved unavailing.

Otherwise, the defendant stands confronted with the conviction, never having had a chance to assert a defense but the only protection remaining between him and the jailhouse door an appeal in which the record is often scanty at best and non-existent at worst.

Such an appeal even if ultimately successful, might be long arduous and expensive and might have been completely avoided if all the facts had been examined in unbiased fashion at the trial level.

In summary, we have before us and I think is an outrageous case which amply demonstrates the perils of the misuse of the power to punish summarily.

His power was here employed with the state’s own petition admits the alleged misconduct do not occur within the second hearing of the judge or an alternative remedy had been selected or swiftness was not a prerequisite and whether was ample evidence of possible bias.

Finally, there is wholly absent from the record in this case, the unusual exceptional or flagrant nature of behavior which is ordinarily a condition precedent to the invocation of summary procedures.

Chief Justice Warren E. Burger: Would you make the same argument if a sentence penalty of 30 days had been imposed?

Mr. Stephen W. Porter: Immediately, Your Honor?

Chief Justice Warren E. Burger: Anytime.

Mr. Stephen W. Porter: Rather than a -- rather than a sentence of four months?

Yes, Your Honor.

We would make the same argument.

Chief Justice Warren E. Burger: So, it isn’t your -- it isn’t the length of the penalty you’re complaining about, it’s the process?

Mr. Stephen W. Porter: It is the process.

The penalty has already been reduced to fit to the statutory maximum by the Supreme Court of Mississippi.

Justice Hugo L. Black: Already been reduced to what?

Mr. Stephen W. Porter: To the statutory maximum. Judge Perry’s sentence exceeded the statutory maximum and it was reduced by the Supreme Court of Mississippi to the statutory maximum of 30 days.

Chief Justice Warren E. Burger: Mr. Lyell.

Argument of G. Garland Lyell, Jr.

Mr. G. Garland Lyell, Jr.: Mr. Chief Justice, may it please the Court.

I might say this at the outset that Judge Perry is an old friend of mine, a classmate and I've known him for years and he has his way of doing things sometimes rather unpredictable frankly.

Justice William O. Douglas: Who’s this?

The judge of the --

Mr. G. Garland Lyell, Jr.: Judge that imposed this sentence.

Justice Potter Stewart: Is this the same -- this was in Grenada County which you are addressing?

Mr. G. Garland Lyell, Jr.: Grenada County, yes.

Justice Potter Stewart: But is this the same Judge Perry who was involved in the proceedings in Winston County and as related in the appendix C to your brief?

This is the same Judge Perry?

Mr. G. Garland Lyell, Jr.: Same judge and I come to my reason for making that opinion (Inaudible) in the appendix to the brief what the defendant published a report at the time, this brief once affirmed.

Without all the fly outs of bias and prejudice that may have existed, assuming for argument on in front Judge Perry towards this so-called civil rights worker or whoever he might be, I don’t see it he’s in any position to complain of the procedures that was used against him.

If Judge Perry heard those contemptuous remarks --

Justice Thurgood Marshall: Did he hear him?

Mr. G. Garland Lyell, Jr.: Mr. Justice Marshall --

Justice Thurgood Marshall: (Voice Overlap)

Mr. G. Garland Lyell, Jr.: He said he did in the petition that he instructed the show cause petition or information which he instructed to prosecute it to prepare.

I think that’s where the prosecutor who decided and who prepared it said, it was reported to Judge Perry.

Justice Thurgood Marshall: Yes.

Mr. G. Garland Lyell, Jr.: But you’ll find in the record that Judge Perry himself stated that he heard it.

Justice Thurgood Marshall: I see.

Chief Justice Warren E. Burger: But would there be anything inconsistent between hearing it and having it reported to him?

Mr. G. Garland Lyell, Jr.: It could have been both and like here is a question of counsel.

But I might add this, even though, the punishment was not summarily imposed which he had a right to do for direct contempt in his presence and he directed the prosecution at time to file an information on show cause order, if it occurred out of his presence or out of his hearing, it would have been constructive or indirect and he wouldn’t had have to start the day maximum stays on.

He could got six months for example and I liked this thing you mentioned the way Justice Harlan did, I forgot the word you described the last show cause order of a hearing, nothing every opportunity was given to this man and his counsel to file some sort of response to show something in mitigation, something to purge himself, nothing was ever done.

As true as he noted along went the time the way it imposed of grounded for contempt but they never appeared to defend themselves and I don’t like Judge --

Justice Thurgood Marshall: It was never denied.

Mr. G. Garland Lyell, Jr.: Sir?

Justice Thurgood Marshall: There never was denial on what was said.

Mr. G. Garland Lyell, Jr.: No, sir.

Justice Thurgood Marshall: Never, never.

Up until this one.

Mr. G. Garland Lyell, Jr.: No, sir.

And to me, it gets back.

I don’t know what the aspects the usual contempt in Mississippi is unique, and I didn’t have the time to research it from other states with this tremendous task.

But I agree thoroughly with the rationale of Mayberry and other similar cases that if summary punishment is not immediately imposed at that judge ought to get some other judge to hear the thing.

Hear the evidence and defend on whether or not, first, it is contempt and what the penalty ought to be.

Some judges are unstrung by the contemptuous conduct or unbiased, unprejudiced, and unattached.

But I suggest this, I mean I have been through the court, I felt it like a sort of thin ice in this case for a while and I tried to get counsel to agree, in spite of the fact I think Rule 37, being find on submissive through that argument.

I tried to get them to agree to submit it.

But instead in the thing and the statute on appeals from contempt convictions, I found an interesting thing I've pointed out in my virtual brief that that statute accomplishes, I think to greater degree what would be accomplished by having one single judge hear this thing at a later date when summary punishment not imposed.

That statute on appeal from contempt conviction provides that the Supreme Court of Mississippi, nine judges will review the thing on a record and decide one.

Was there a contempt?

Then, if they determined that there was a contempt from that cold printed record uninfluenced by courtroom atmosphere and what not they can do one of four things.

At the time when the statute said, whether the appellant was guilty of contempt and the sentence or decree or order of the court below maybe affirmed, reversed, annulled or modified.

According to the judgment of the appellate court, that of course was a reason I have attested Boston opinion as an appendix to the brief, to show just how our State Supreme Court has handled these things.

Now, there was a case where the same Judge Perry found a man in Boston who was a lawyer on Winston County, Mississippi.

They ran against Judge Perry, the Circuit judge in contempt and they appealed to their Supreme Court and they completely annulled the conviction.

They didn’t reverse, remand, vacate, or modify.

They completely annulled it as you see from that appendix.

Justice Potter Stewart: I have two problems with your argument and I may say so unless you can straighten it out Mr. Lyell.

About your argument as to the Mississippi statute that gives the Supreme Court reviewing power.

In this particular case in its opinion, the Supreme Court of your state said, “Upon appeal with this Court from a conviction of direct contempt, the statement of the substantive facts set out in the judgment of the trial court will be taken as true and correct.”

So that’s pretty far away from any sort of factual review that I had understood you were suggesting.

And secondly, since there was no hearing, there really wasn’t anything to review in this case if they took the findings in the trial court's judgment as true and correct.

And if the trial judge didn’t conduct a hearing on the show cause order.

There was just no review at all.

Mr. G. Garland Lyell, Jr.: Well, I think what they mean by the statement Mr. Justice, as I understood is this, that they had to accept as a fact from the finding of the trial court, what this contemnor did?

There was -- as Mr. Justice Marshall asks this, there's never been any denial of the fact that he did what he did.

Then under this appeal statute, they will determine if that is the contempt and go ahead and vacate, reverse, --

Justice Potter Stewart: Now, there's never been a denial of this or is there ever been any opportunity for a denial.

As I read the statement of the facts in the petitioner's brief, it boiled out to the fact that at nine o’clock in the morning on January 27, 1969, Johnson with his lawyer appeared before Judge Perry and denying Johnson’s request for a hearing.

Judge Perry read the order, judging Johnson in criminal contempt and sentencing him to four months in prison.

Mr. G. Garland Lyell, Jr.: Well, he had --

Justice Potter Stewart: Therefore, if there was no hearing or opportunity for a hearing, if there was denial of a hearing and if the appellate court takes the facts stated in the judgment of the trial judge as true and correct, I don’t see how there could’ve been any appellate review at all?

Mr. G. Garland Lyell, Jr.: Summarily, --

Justice Potter Stewart: Unless the dumb noble kind of a review that you suggest that Mississippi statute requires?

Mr. G. Garland Lyell, Jr.: My recollection is that there at least two of these show cause order who served and to give him an answer or opportunity to file a written response.

I forgot which Justice -- asking for written response as required in Mississippi I don’t think it is.

But that any contemnor who -- that I never heard of who desired to purge himself was -- has done so, for having anything to say in litigation or by way of apology.

Justice Hugo L. Black: I heard you say, it means offers some excuse for doing something, admits you’ve done something?

Mr. G. Garland Lyell, Jr.: Yes.

That’s my understanding of the word.

Justice Potter Stewart: But you -- on page 40 of the appendix, it stated that Martha M. Wood, and that was his lawyer as I understand it.

At that time, requested a hearing which request was denied now, is that true?

Mr. G. Garland Lyell, Jr.: What date was that, sir?

Justice Potter Stewart: I think it was 1969, 9:00 AM on January 27, 1969.

At that day, at which Johnson was found to be in contempt and there was a denial of a request for a hearing according to the --

Mr. G. Garland Lyell, Jr.: But had not he’d been previously afforded an opportunity to file a response in earlier.

Justice Potter Stewart: Now, where is that in the record?

Mr. G. Garland Lyell, Jr.: Part of Mississippi --

Justice Potter Stewart: Or in the appendix?

I've looked through it and I can’t find it.

Mr. G. Garland Lyell, Jr.: I haven’t seen the printed record.

In fact, this is an informal corpus appeal, is it not?

Justice Potter Stewart: Or you have --

Mr. G. Garland Lyell, Jr.: Then, I think the original record was up there, when I have to thank sheriff Almeda.

Justice Potter Stewart: Well, this was filed here on February 10, 1971.

Chief Justice Warren E. Burger: Which cannot be found in the appendix?

Mr. G. Garland Lyell, Jr.: From my information was that he had -- there were two hearings set and the first one, he didn’t even show up.

Chief Justice Warren E. Burger: Is it your position he defaulted in his opportunity to present evidence and litigation, or to purge or to claim

Mr. G. Garland Lyell, Jr.: I think so.

Chief Justice Warren E. Burger: And that the occasion that Justice Stewart is referring to then in your view was just the occasion to hear this judge’s sentence for contempt?

Mr. G. Garland Lyell, Jr.: Perhaps on second one but it is there on the second one.

My recollection is that he has given other judge to hear it and the rather make any defense which gets back to the proposition that if Judge Perry heard it, took testimony and actually had denial of whether or not he uttered these contemptuous words and conduct that and still found him in contempt, then under these various statutory statute on appeal which I think is even better than having a single judge, you got nine Supreme Court Judges just passionately reviewing the thing from a cold printed record and as illustrated by this Boston case completely annulling the contempt conviction.

Justice William O. Douglas: Mr. Lyell.

Mr. G. Garland Lyell, Jr.: Sir.

Justice William O. Douglas: As I understand, I'm looking at page 40 Mr. Justice Stewart referred to.

These are the proceedings and so it’s stated here before Judge Perry at nine o’clock in January 27, 1969, here, it’s cited that Martha M. Wood requested a hearing.

Her request was denied.

She then objected to the denial and this appears, Judge Perry stated that he had intended to give respondent a hearing under the contempt charge as the Court files ordering him to appear in a show cause proof.

But that since respondent had the audacity to go to federal court, and whether Judge Perry meant by that the original removal order or the affirmative jury suit or both is not clear, he was not going to give him a hearing?

Mr. G. Garland Lyell, Jr.: Well, I can’t answer that --

Justice William O. Douglas: You can’t say whether that did or did not occur?

Mr. G. Garland Lyell, Jr.: I can’t say it no.

Justice Byron R. White: Would you think that --

Mr. G. Garland Lyell, Jr.: What, sir?

Justice Byron R. White: When doing that brings this case within Mayberry?

Mr. G. Garland Lyell, Jr.: Well, I think Mr. Justice White that he is guilty of a summary contempt which would bear immediate imposition of punishment.

Unknown Speaker: Well, how do you know he said --

Mr. G. Garland Lyell, Jr.: But, but --

Unknown Speaker: How do you know he said these things?

Mr. G. Garland Lyell, Jr.: The only thing in the printed record is that he did it.

Unknown Speaker: Except that he never had an opportunity for a hearing to --

Mr. G. Garland Lyell, Jr.: Well, he didn’t --

Unknown Speaker: Testify the proceeding --

Mr. G. Garland Lyell, Jr.: Then the record show that he had one previous opportunity to appear and did not appear.

Justice William O. Douglas: I simply say Mr. Lyell.

Mr. G. Garland Lyell, Jr.: What?

Justice William O. Douglas: That appears here.

Well, from this it appears that he didn’t.

So, we don’t know whether had he have a hearing? Perhaps to take in the stand and had denied that stayed?

Justice Byron R. White: The only determination that he ever said it is by Judge --

Mr. G. Garland Lyell, Jr.: Judge Perry’s statement.

Justice Byron R. White: Who, perhaps, arguably at least shouldn’t have heard it at all?

Mr. G. Garland Lyell, Jr.: Well, I can only say this Mr. Justice White that when the conviction was appealed on the State Supreme Court, there was no complaint made that no effort made in the State Supreme Court and that you have a written record here that based on that ground that he didn’t have a chance to deny that he did this thing.

Justice Hugo L. Black: So, why is that statement on page 40?

What was it put there for?

Mr. G. Garland Lyell, Jr.: I'm talking about the previous opportunity.

Justice Hugo L. Black: Well, I'm talking about this time?

Mr. G. Garland Lyell, Jr.: This time?

What --

Justice Hugo L. Black: If the man has gotten up, he could be tried for contempt and he has asked for a hearing and they say they won’t give it to him in part of his audacity in going into the federal court.

Mr. G. Garland Lyell, Jr.: Well, my po --

Justice Hugo L. Black: Would that be accepted as a good defense by the Supreme Court of Mississippi to reject a man’s claim to be heard?

Mr. G. Garland Lyell, Jr.: I don’t think Supreme Court of Mississippi or this Court ought to say it except for anything other than the fact, did he commit this act which is gone under that completely and no complaints --

Justice Hugo L. Black: But he is asking here for a hearing only which means that he is denying something.

Mr. G. Garland Lyell, Jr.: Well, we accepted the fact in the record and I think we can (Inaudible) deny and nobody’s claiming that they won’t need a hearing to deny --

Justice Hugo L. Black: But, it is not --

Mr. G. Garland Lyell, Jr.: -- to deny that he did this thing.

Justice Hugo L. Black: You have this defense but didn't ask, didn't you?

His defense was not that he had previously been given an answer but he had the audacity to go on to federal court and try to get relief.

Mr. G. Garland Lyell, Jr.: Well, that was -- that was after the first show cause was issued.

Justice Hugo L. Black: Whenever it was, is that correct in Mississippi and do you consider it correct to his Attorney General to tell a defendant who is gone into federal Court that he has had the audacity to go there and you won’t hear anything else upon him?

Mr. G. Garland Lyell, Jr.: All I can say Your Honor that I wouldn’t have done a thing.

Justice Hugo L. Black: I thought of that.

Chief Justice Warren E. Burger: But counsel, counsel as I understand it.

This material on page 40, 41 etcetera beginning in 38 are the allegations set forth in the bill of exceptions, that’s not evidentiary matter in the sense of a record made at that time.

These are in the nature of allegations that would appear in a compliant.

Justice Potter Stewart: If I may suggests, it seems to me what they are -- they are the bill of exceptions, isn't this what the Supreme --

Mr. G. Garland Lyell, Jr.: Yes.

Unknown Speaker: Court of Mississippi decides to repeal upon?

Mr. G. Garland Lyell, Jr.: They have all of it in the record --

Unknown Speaker: Yes.

I mean, they have the bill of exceptions, do they not?

Mr. G. Garland Lyell, Jr.: I pursue it was in and I suppose the Court --

Unknown Speaker: And I gather that these are the exceptions which were taken to the proceedings, isn’t that right?

Mr. G. Garland Lyell, Jr.: I'm sure that was in the record of Supreme Court Your Honor.

Unknown Speaker: Yes.

Chief Justice Warren E. Burger: Well, my point counsel --

Mr. G. Garland Lyell, Jr.: Let me say --

Justice Hugo L. Black: In Alabama --

Mr. G. Garland Lyell, Jr.: Sir?

Justice Hugo L. Black: I think there is some similarity between Mississippi and Alabama proceedings.

If you have an exception in Alabama and I think it is in Mississippi, the statements of the facts tested to by the judge or exemplified as being the truth of what appeared as shown in the bill of exceptions?

Mr. G. Garland Lyell, Jr.: Well in Mississippi, you can get it two ways up.

You take the bill of exceptions and someone transpires in the courtroom which is not taken down by the Court reporter.

Justice Hugo L. Black: Because some of them are not there?

Mr. G. Garland Lyell, Jr.: And some things that are not there --

Justice Hugo L. Black: But what about those report that that is there and accepted as the bill of exceptions?

Mr. G. Garland Lyell, Jr.: The judge -- prepare the bill of exceptions, the judge if he agrees that those are transpired, he will sign it.

Justice Hugo L. Black: And then --

Mr. G. Garland Lyell, Jr.: And if he refuses to sign it, you can get two members of the bar who are present in the Court to sign it and then --

Justice Hugo L. Black: That’s what you call a bystanders bill of exceptions.

Mr. G. Garland Lyell, Jr.: Yes.

Justice Hugo L. Black: But here, you have a bill of exceptions appearing to us as being signed and being the bill of exceptions which states the facts that we should accept these facts, isn’t that right?

Mr. G. Garland Lyell, Jr.: Well, bill of exception that for what --

Chief Justice Warren E. Burger: What signatures -- what signatures appear on -- well, if I'm reading the correct document on page 44, you have three lawyers for Johnson have signed this petition and then the clerk of the Court had certified that this is the true and certified copy of what the lawyers have filed?

Justice Potter Stewart: That’s explain on page 43 an item in paragraph 15 under your statute of that two lawyers present in the Court as you told us to sign the bill of exceptions and he meant that the judge does not or will not and they sign it, and that’s the bill of exceptions.

Justice William J. Brennan: That’s what happened here, technically.

Justice Potter Stewart: Paragraph 15.

Justice William J. Brennan: Paragraph on the conclusion it says that Judge Perry refused to sign it and therefore the alternative of having two lawyers who were present to sign it, was adopted, was it?

Mr. G. Garland Lyell, Jr.: Well, I still get back to the proposition if the Court please that since this was a direct contempt in the premises of the Court which I must accept to the fact, because there was never been any denial or they have attempted to deny anything and any document that was filed or any argument that was made, I think in that respect, the Supreme Court of Mississippi could accept the trial judge’s statement as to what transpired.

But it seems to me it simply gets back to this and how can this man complain when Judge Perry could have summarily put this 30 days on him right then and there.

But he gets it two years later and as fully reviewed by the Supreme Court how can he complain?

Justice William J. Brennan: Well, I suppose he could complain if he never had a chance to deny it and he says, he never said it.

Justice William J. Brennan: Well, --

Justice William J. Brennan: He never had a chance to say that.

You hold premises that the judge in fact heard it and that he didn’t did say it.

Mr. G. Garland Lyell, Jr.: My premise is this Mr. Justice Brennan that while on that he heard it and he said he heard it but if he heard it, it was direct.

If he did not he hear it, it was constructed.

Justice William J. Brennan: Yes, but I gather whether direct or indirect, there was no contempt unless he said --

Mr. G. Garland Lyell, Jr.: Unless he said it.

Justice William J. Brennan: -- what he was accused to say.

Mr. G. Garland Lyell, Jr.: And have contumacious --

Justice William J. Brennan: And I gather he saying, I never have the chance to be heard or on whether I've said it or not?

Mr. G. Garland Lyell, Jr.: Well, they never.

I can only get back this, they never even intimated that this event did not transpire.

Chief Justice Warren E. Burger: Counsel in the appendix or anywhere else, do we have any record, any account of what took place when Johnson failed to appear in response to the first order to show cause as you said, he failed to appear?

Mr. G. Garland Lyell, Jr.: (Inaudible)

Chief Justice Warren E. Burger: Would the failure to appear in response to in order to show cause at a fixed time and place, be in itself a contempt under Mississippi law?

Mr. G. Garland Lyell, Jr.: Would it be what, sir?

Chief Justice Warren E. Burger: Would that in itself be a contempt, the failure to appear in response to an order?

Justice Potter Stewart: What happened was there was a petition for removal in the District Court in response to the first order to show cause, was there not?

To the federal court, do I misunderstand that?

Mr. G. Garland Lyell, Jr.: I understood that. From my understanding, that’s correct.

Justice Potter Stewart: That’s what happened and that could hardly be contemptuous --

Mr. G. Garland Lyell, Jr.: It was remanded.

No sir.

Justice Potter Stewart: No.

It was a petition to remove the case to the United States District Court and the Court held that petition for a matter of several months as I understand it.

And has been added it to the state judge and there followed the second order to show cause, wasn’t that it?

And then, they came to the Court in response to that and according to that what this record shows, they asked for a hearing and they were denied a hearing.

Now, aren't those facts and if not, what are they?

Mr. G. Garland Lyell, Jr.: Well, I remove the first one to the federal court.

Justice William J. Brennan: Well, --

Mr. G. Garland Lyell, Jr.: Why not defend yourself, Your Honor.

Justice John M. Harlan: You wouldn’t, I gather is contempt to remove his --

Mr. G. Garland Lyell, Jr.: When he asked such a complete review by the State Supreme Court on any conviction contempt and to say on whether that type of statute is unique in Mississippi or wide spread but to me it’s --

Justice Thurgood Marshall: But if you go and say that they could not consider disqualification on the trial judge where it's not in his presence.

As if Mississippi Supreme Court is correct.

Mr. G. Garland Lyell, Jr.: Yes.

Well, I think.

Justice Thurgood Marshall: Where as if it had been tried before another judge, you could have petitioned the Court and sought to disqualify?

Mr. G. Garland Lyell, Jr.: Now, that’s -- that’s what it said.

Yes sir.

Justice Thurgood Marshall: Well, isn’t that additional reason, why it should have gone to another judge?

Mr. G. Garland Lyell, Jr.: Well, as I say Mr. Justice Marshall, we all have a different ways of doing things and I think if this have been transpired, he should have been summarily punished but I still I think he was better off when given an opportunity.

And with the sheriff, the judge could’ve said, “Mr. Sheriff, take this man outside and (Inaudible) contempt take him up to the jail.

He didn’t do that, he gave him a show cause hearing, an opportunity and he didn’t take it back.

Then he removed at federal court.

Justice Thurgood Marshall: What about a show cause hearing that says you can’t say anything?

Mr. G. Garland Lyell, Jr.: He didn’t say it that first show cause hearing --

Justice Thurgood Marshall: Oh, I don’t know, what happened to the first hearing?

Mr. G. Garland Lyell, Jr.: They removed it at the federal court.

Justice Thurgood Marshall: Well, I mean, we don’t know what happened to the first hearing.

Mr. G. Garland Lyell, Jr.: Nothing because this petitioner removed the thing to the federal court.

Justice Thurgood Marshall: Which he had a perfect right to do.

Mr. G. Garland Lyell, Jr.: A perfect right to do it but they had perfectly proceeded to file in the state courts.

Chief Justice Warren E. Burger: You have anything further counsel?

Rebuttal of Stephen W. Porter

Mr. Stephen W. Porter: No, Your Honor.

Chief Justice Warren E. Burger: Very well.

Thank you, Mr. Porter.

Thank you, Mr. Lyell.

The case is submitted.

Featured:

Mayberry v. Pennsylvania - Oral Argument

Thu, 23 Aug 2012 18:10:07 +0000

Case:

Mayberry v. Pennsylvania

Media File:

121_19701217-argument.mp3

Related Transcript:

121_19701217-argument

Transcript:

Argument of Curtis R. Reitz

Chief Justice Warren E. Burger: We will hear arguments Number 121, Mayberry against Pennsylvania, is the counsel ready?

Mr. Reitz can you conveniently, do you think without discommoding yourself, present a section of your argument now in about seven minutes?

Mr. Curtis R. Reitz: I’ll try.

Chief Justice Warren E. Burger: Before we recess.

Mr. Curtis R. Reitz: Mr. Chief Justice, may it please the Court.

I think it's fortuitous that the morning ends with the case that involves a different kind of speech.

We have here a criminal contempt case arising from Pennsylvania which is in my research unprecedented in the law of criminal contempt.

We have a defendant who was on trial in 1966 under two very serious charges for prison breach and for holding hostage, in the course of a prison breach, charges which had a potential of life imprisonment under the second of those charges.

The trial lasted 22 days, 22 trial days, it stretched from November 7 until December 22 on a calendar.

During those 22 days of the defendant and two co-defendants were representing themselves on these very serious charges.

At the conclusion of the trial, after the jury verdict had been brought in on 22nd day, the trial judge opened the next session of Court on Monday morning and excoriated all three defendants, summarily convicted them of criminal contempt and held that as to 11 separate days, although, there were multiple incidents involved, that petitioner Mayberry had been guilty of criminal contempt.

On each one of those 11 charges as he recited the facts as he recalled them, he imposed a sentence of a minimum of one year and a maximum of two years in state prison.

After each one of those sentences following the first, he directed that each one of those sentences be served consecutively.

So that the first of his impositions of sentence was a sentence in aggregation of 11 years at a minimum and 22 years at a maximum for criminal contempt.

Chief Justice Warren E. Burger: Now, clarify for me if you will Mr. Reitz the relationship of these sentences collectively to the sentence on the substantive charge.

Mr. Curtis R. Reitz: He then proceeded Mr. Chief Justice to sentence on a substantive charge and he gave a sentence for prison breach of 10 years which was the maximum.

Five years minimum, 10 years maximum which was the maximum permitted by the statutes of Pennsylvania for prison breach.

Chief Justice Warren E. Burger: Now, is that consecutive?

Mr. Curtis R. Reitz: That was also consecutive.

He then imposed a sentence of 30 years maximum, 15 years minimum for the charge of holding hostage.

The aggregate of all of that was 40 years on the substantive crimes, 22 years for criminal contempt or a net sentence of 62 years with a 31-year minimum.

That was the sentence imposed that morning.

I'm told, although, I have not seen the documents itself that a few days later, he reversed the order of sentencing so that the -- although, he started that Monday morning with the criminal contempt sentence and then followed with the substantive crimes but he directed the sentence on a substantive crimes.

For 40 years, he served first and then the 22 years for criminal contempt.

But the net effect of the sentencing that morning was 22 years for criminal contempt, 40 years for substantive crime, 62 years total.

I am aware of no criminal contempt sentence which comes even within a long distance of that sentence.

There had been many studies made of criminal contempts over the years.

None of them reflected a sentence that is even one-seventh, who’s great for any kind of criminal contempt.

In that same session, the judge sentenced the two co-defendants also for criminal contempt.

On exactly the same methodology, he had it this per diem method and it was two years for each day on which he found a criminal contempt had been committed.

The sentences on the co-defendants were somewhat shorter, it were six days in the case of one defendant and seven days in the case of another.

Chief Justice Warren E. Burger: Would say that their conduct was as aggravated as it was with respect to this petitioner?

Mr. Curtis R. Reitz: In some instances, Your Honor, the conduct I would think would be substantially worse.

One of the co-defendants verbally threatened the life of the judge which never happened in the case of petitioner Mayberry.

Some of the obstreperous, disruptive conduct on the part of, one of the co-defendants, it seems to me that have been substantially worse from reading the records.

The 11 contempts found against the petitioner Mayberry involved nine counts, nine charges of what I have described as purely verbal epithets directed at the judge.

They were quite brief.

They're printed in total in the appendix.

They ranged in seriousness over a considerable variety of hyperbolic.

Chief Justice Warren E. Burger: I take it, if you would agree that these were very aggravated episodes of the conduct and utterance, would you not?

Mr. Curtis R. Reitz: Oh, they would be conduct Your Honor, which from any attorney, I think, would have been thought of as very aggravated in the instance of a layman defending himself, not an educated layman defending himself in a very serious Court with the kind of background from which he comes and the life which he has led, I’m not -- I don’t think I would have put the label aggravated on the verbal contents.

Chief Justice Warren E. Burger: Even after repeated, you wouldn’t concede this was aggravated?

Mr. Curtis R. Reitz: The warnings were repeated Your Honor, but the incidents for example, late in the trial, one of the two-year sentences is imposed for the defendant more or less expostulating an anger after having been prevented from developing a line of questioning that he was not arguing with fools.

The judge inferred from that, I think, relatively properly that the defendant was referring to the judge as a fool.

For that, he got two years in jail.

Justice Potter Stewart: You would concede, I suppose that the conduct of the defendant throughout this trial was fully outrageous, would you not?

Mr. Curtis R. Reitz: It is conduct which we certainly had not condoned.

Justice Potter Stewart: I don’t mean every moment of the trial but only -- but that it was continually and quite outrageous, would you?

I mean, don’t we begin with that hypothesis?

Mr. Curtis R. Reitz: I would not use the word “outrageous” Your Honor to describe --

Justice Potter Stewart: When he called the judge “a stumbling dog”, he called him a “son of a bitch”, he called him -- those are the two, that I remember from reading the briefs.

He called him a good many other things?

Mr. Curtis R. Reitz: He did indeed.

Justice Potter Stewart: On Court.

Mr. Curtis R. Reitz: He had some rather exotic like a --

Justice Potter Stewart: Some very foul language but the --

Mr. Curtis R. Reitz: I think the level of outrage that one develops in this kind of a case defends a good deal on what one finds the level of expectation from the speaker.

Chief Justice Warren E. Burger: I think we’ll suspend here, Mr. Reitz.

Mr. Curtis R. Reitz: May it please the Court.

Before we recessed for lunch we had explored a bit of the factual history of this case and had begun some discussion of the seriousness of the verbal conduct on which the trial judge in this case sentenced a petitioner to so many years in jail.

I think, it’s fair to say that it’s perfectly obvious that the judge himself took a very serious view of the conduct of petitioner.

Indeed, the sentence alone indicates that he viewed it as the most serious contempt case of all time -- confirms that.

Whatever adjective one might say is adequate to describe the conduct and I think that will depend on many points of view.

It is perfectly clear that the case was treated as a very serious case and I would not urge the Court that this conduct was either meritorious or even to be condoned.

What I do urge on the Court and I think this is the critical point and it is underscored by whatever view of seriousness one takes.

But the procedure employed in handling this case was grossly disproportionate to the seriousness of the crime even if one views it as a rather petty crime.

The amount of procedural due process afforded to this petitioner in handling this case was nilled.

Chief Justice Warren E. Burger: But was it basically any different from the procedural due process that he had in the trial of the substantive charges?

Mr. Curtis R. Reitz: Oh, indeed Your Honor.

On a substantive charge he had notice.

He had the right to counsel.

He had the right to make preliminary motions including a motion to disqualify the judge.

Chief Justice Warren E. Burger: But what he had done about counsel in the substantive case?

Mr. Curtis R. Reitz: In the substantive case, he had waived counsel.

He had insisted on the --

Chief Justice Warren E. Burger: Although from that, is that he rejected affirmatively permanently, didn’t he?

Mr. Curtis R. Reitz: He had indeed.

He insisted on his right to try himself in that case which he is permitted under the Constitution.

But he was afforded the right to counsel.

Counsel was offered to him and indeed despite his waiver, the trial judge appointed the public defender to serve as an advisor to him during the trial and he was present throughout the trial and available for resource.

There was a jury, there was evidence produced, at time for argument not only on the issue of guilt but on the issue of a litigation of sentence.

The full panoply of a trial was followed in the case of the substantive crime.

None of that followed in the contempt case.

Chief Justice Warren E. Burger: May I ask this Professor Reitz.

Is it your submission that the real vice here is the proportion in terms of procedure or the disproportion in terms of panoply?

Mr. Curtis R. Reitz: MI think they go together Your Honor.

If the sentence in this case had been in the tradition of sentences for courtroom in de quorum a few days or a few dollars that happened in, for example, in the Fisher and Pace case, this Court reviewed many years ago, the amount of procedure that we traditionally have required in that kind of a case is rather slight, and indeed if the judge does as in the Fisher case impose or threaten to impose the sanctions during the course of the trial, the procedural requisites follow from the necessary situation.

In this case, we have an obviously much different situation of a very serious crime in the mind of the judge and it seems to me the nature of the penalty quite reinforces the total absence of any process.

There was no opportunity in this case to do many of the things that the commonwealth in the briefs suggest petitioner did not do.

He did not have an opportunity to challenge the judge.

He did not have an opportunity to waive counsel.

He did not even have an opportunity to ask for counsel.

He was suggested that he might have moved after the fact to modify sentence.

When one looks at the record as to what happened that Monday morning on December 22nd, after the judge had finished imposing the 22 years of sentence on the petitioner, he asked to be allowed to speak and the judge refused to hear a word.

At that stage, the judge would have none of his further participation in the courtroom proceedings.

So, the absence of his own advocacy at that stage to which the commonwealth alludes seems to me to be quite irrelevant.

In addition, --

Justice Hugo L. Black: Is the full record in the Court?

Mr. Curtis R. Reitz: It is indeed Your Honor.

The entire stenographic transcript is here.

We have printed only a small portion in the appendix.

Justice Hugo L. Black: It’s a long, long trial.

Mr. Curtis R. Reitz: It was a trial that lasted for 22 trial days for the last day being entirely sentencing, so it is a very long trial.

There was something in excess of 3,000 pages of stenographic transcript in the trial.

In addition to the fundamental due process argument, we make a separate argument which is in some ways even more basic and that was the opportunity -- petitioner was denied the opportunity to make any statement in mitigation of punishment in this case.

Chief Justice Warren E. Burger: Wouldn’t that have been somewhat ceremonial here?

Mr. Curtis R. Reitz: It might indeed had been ceremonial because of the obviously overwrought state of the trial judge with an impartial tribunal, I am not convinced that a fairly substantial argument could not have been made in mitigation of the severity of the conduct.

Chief Justice Warren E. Burger: Of the conduct or the sentence?

Mr. Curtis R. Reitz: Of the conduct.

Chief Justice Warren E. Burger: How could you mitigate the conduct?

What explanation could possibly, even approach justification?

Mr. Curtis R. Reitz: As you study the record Your Honor, I don’t think one would need to approach justification in order to find there were indeed issues of provocation or explanation that might in some way have tempered the fury.

The defendant in this case for example attempted several times to introduce evidence that went to his conduct, immediately after he was apprehended.

The prosecution in the case in chief had put on a witness who testified that after he was apprehended, he had still resisted very forcefully, the arresting officer and there was a fight that took place going down the stairs in the hospital in which he was apprehended.

Petitioner several times attempted to introduce evidence that would have contradicted that.

Witnesses who would’ve denied that he was then in that state of flagrant resistance.

Every time he tried to produce that evidence, he was afforded by objection on the part of the District Attorney without explanation and objection sustained.

In the face of this, --

Chief Justice Warren E. Burger: Suppose that meant that the trial judge simply was taking position that there was no evidence that could bear by way of litigation or explanation of his conduct during the course of the trial.

I suppose if the trial judge had the benefit of Illinois against Allen at that time, he might well have removed this man from the courtroom, after his second outburst, but of course this was tried on before Illinois against Allen was --

Mr. Curtis R. Reitz: Yes, sir.

It was tried in 1966.

Chief Justice Warren E. Burger: Yes.

I wonder if our real problem in this case isn’t the severity of the sanctions and frankly that’s the way it seemed to me and I refer to that on that theory and then I maybe I've diverted from it?

Mr. Curtis R. Reitz: No Your Honor, I have not the slightest doubt that there is an enormous problem here with the severity of the sanction.

It is so far out of keeping with any of the customary standards to which we have had look in the past for sentencing and contempt cases that it simply looms as an unacceptable judicial act.

Justice William O. Douglas: Mr. Reitz, suppose we were to agree with this, that you will not-- about position, what we can do about it?

Mr. Curtis R. Reitz: That’s the major difficulty with the point Your Honor.

We do not have in Pennsylvania as we do not have in the federal statutes, a statutory maximum on sentences.

So far as the statute is concerned, the sky is the limit.

We have and I have attempted to collect in the brief, a series of benchmarks to which one could look for some sort of a ceiling to be imposed from the outside on what a sentencing judge can do --

Justice William O. Douglas: What would the --

Mr. Curtis R. Reitz: We have many statutory ceilings, none over six months.

Justice William O. Douglas: What would the constitutional provision be to which we've relied?

Mr. Curtis R. Reitz: The constitutional provision on which we rely in the brief Your Honor, is the Eighth Amendment, prohibition of cruel and unusual punishment.

Justice William O. Douglas: That’s the only one you think that would be applicable.

As far as this Court’s power to do anything about the sentence?

Mr. Curtis R. Reitz: I believe so, Your Honor.

That one might --

Justice William O. Douglas: I suppose --

Mr. Curtis R. Reitz: One might try to make a substantive due process argument but I don’t think that gives us any greater precision as to the limitations that one could impose through the Constitution on state trial judges.

It --

Justice William O. Douglas: Well, certainly at least we can do what we did in the Yates, in this case, can’t we?

Mr. Curtis R. Reitz: Quite right.

This Court lacks the supervisory power.

It lacks the normal, very broad appellate review that the Court has exercised on numerous occasions in reducing what it felt to be mild excesses by comparison on the part of federal trial judges.

The 11 consecutive counts, concurrent counts, in the Yates case impressed the Court as being grossly disproportionate to the offense in that case and the Court was able through a supervisory power to deal with that problem.

Chief Justice Warren E. Burger: We decided you were right on the constitutional argument, but what could be the mechanism to deal with it, undertake to deal it with ourselves or to remand it for reconsideration in a calmer atmosphere?

Mr. Curtis R. Reitz: I think Your Honor.

If this Court finds that the cruel and unusual punishment or the substantive due process argument has merits, some guidance would have to be created as to the outside limits that would be permitted for this type of sentence.

A remand of the Pennsylvania Supreme Court which has already faced this issue and rejected it with one dissenting justice, is not likely to generate the kind of standards that one would need for a national Constitution.

Chief Justice Warren E. Burger: Well, aren’t state courts capable of applying the federal constitutional provision or provisions that you rely on.

What is different about their approach?

I'm not speaking of the instant case in terms of the action.

I'm speaking of establishing standards.

Shouldn’t they be established in the state courts in the first instance?

Mr. Curtis R. Reitz: There’s great virtue to that in some instances and many of the scholars of federal jurisdiction urged that in the ultimate, the only basic safeguard for all constitutional rights are state courts that all federal courts jurisdiction is subject to statutory limitation by Congress.

But in this instance, we are in I think such a brand new area with cruel and unusual punishment standards that unless the Court is able to provide some reasonable guidance to state courts, my expectation would not be that the results would be a very happy in the first instances.

Justice William O. Douglas: May I ask Mr. Reitz, does the Pennsylvania Supreme Court have a power comparable to our so-called supervisory power which I guess is what we used in the Yates case?

In other words, could that Court have reduced the sentence?

Mr. Curtis R. Reitz: The Pennsylvania courts take a very narrow review, a narrow position on their appellate review sentences generally.

Their law of contempt is relatively unformed.

This is the first case, which I'm aware on which the Pennsylvania Supreme Court has ever faced an in-Court contempt problem.

Justice William O. Douglas: Do I correctly infer from Justice Jones’ treatment of the questions as whether the sentences constitute cruel and unusual punishment that that’s the only way this was put to the Pennsylvania Supreme Court that they did constitute cruel and unusual punishment?

Mr. Curtis R. Reitz: That argument was put, that was not the sole argument put --

Justice William O. Douglas: Well, I notice the opinion doesn’t seem to address itself to any other basis for the challenge to the sentence.

I'm looking at page 14 of the record.

Mr. Curtis R. Reitz: In the Pennsylvania Supreme Court, all of the arguments there before this Court were raised in one fashion or another, Mr. Mayberry there represented himself.

The Court appointed an attorney to represent him, who also filed the brief and they raised between them every issue that is now before this Court.

Chief Justice Warren E. Burger: Well, Professor Reitz, didn’t Justice O’Brien assume in his separate opinion that there was something in the nature of supervisory power that imposed the duty on the Supreme Court of Pennsylvania to examine the sentence for the contempt?

Mr. Curtis R. Reitz: Justice O’Brien relies on a cruel and unusual punishment argument.

He is persuaded that in comparison with the statutory maxima for a whole raft of offenses including second degree murder being less than the sentence imposed on this defendant for conduct which bears no resemblance to the atrocious assaults and homicides that have very lesser statutory maximum that the sentence was impermissible.

Since, he was a lone justice on that issue, he was not forced to face the question of what remedy could be provided.

Justice Byron R. White: What's your view in the offenses towards this Court?

Mr. Curtis R. Reitz: I think an argument can be built on the basis of existing data that a maximum of six months is a customary standard that is now so well entrenched by statute and case law that it is the outside limit for a sentence in a contempt case absent a statute permitting a longer one.

All the statutes stop short of that.

Many as I've indicate stopped far shorter in terms of hours or days for such punishment.

Chief Justice Warren E. Burger: If the judge had made all these sentences concurrent one with another, there were 11, weren’t they?

Mr. Curtis R. Reitz: There were 11.

Chief Justice Warren E. Burger: If it made him concurrent, would you be here?

Mr. Curtis R. Reitz: Yes indeed, Your Honor.

I think we would, that is --

Chief Justice Warren E. Burger: It is two years on each, was it?

Mr. Curtis R. Reitz: Two years on each and that is still twice as long as the Yates case which was one year, 11 times concurrently and that is still in my judgment an enormously over broad sentence for the kind of contempt that this record contains.

It is only the because of the fact that the multiplier of 11 is added that the seriousness of that first sentence can be lost sight of.

A two-year sentence is itself, one of the most severe in the whole catalog of criminal contempt sentences.

Justice Hugo L. Black: Suppose they had instead of sentencing him for contempt put the charge against him on the legislative enactment which provided that a person who had appeared before the Court in a serious manner as this man here had attempted to stop it, he committed a crime, and tried him, indicted, tried him before a jury, given him a lawyer, given him all the protection that could be afforded.

Would you still argue as seriously as you do now, that that would violate the cruel and unusual punishment charge?

Mr. Curtis R. Reitz: If the same sentence were imposed as a result of that and the statute provided for a crime of obstructing justice --

Justice Hugo L. Black: That’s right.

Mr. Curtis R. Reitz: I would not make the argument, Your Honor.

Indeed, I make the point in this case --

Justice Hugo L. Black: Well, that really is the basis of the complaint, isn’t it, not the cruel and unusual punishment section?

Mr. Curtis R. Reitz: Well, Your Honor.

In this case, the Pennsylvania contempt statute provides a limit requiring obstruction of justice.

The first nine counts in this case to me cannot be brought within the language of obstructing justice.

Justice Hugo L. Black: Yes, perhaps --

Mr. Curtis R. Reitz: They were insolent, they were discourteous but they were not in any way blocking the advance of the trial.

Justice Hugo L. Black: It is treated as contempt, all is just treated as any other crime.

Now, you want to punish the man for doing something seriously wrong.

They should take fix this punishment at 25 years and he’d stood up in this courtroom, decide in this table of the Court and had to be taken control of and it interfered with the Court, put foul names in against it, would you think 25-year that the legislative department would be committing and violating the cruel and unusual punishment to say that’s so serious?

Mr. Curtis R. Reitz: If you may Your Honor, I take a very different view if we have a legislature, having faced the question and establishing a statutory parameter to the permissible sentences.

In this case, we have no such legislative judgment to which either the state judges or this Court can look --

Justice Potter Stewart: Well, I suppose, the legislative judgment is to put no limit on it.

Now, you do have a statute in Pennsylvania, appears on page 2 of your brief and I suppose the Pennsylvania legislature can be assumed to be aware of the action of the legislatures in many other states as it put various limitations on it and this one didn’t.

Isn’t that a legislative judgment?

Mr. Curtis R. Reitz: Well, Your Honor that statute was passed in 1836.

Justice Potter Stewart: Whenever it was passed?

Mr. Curtis R. Reitz: It has not been reviewed since I think all of the statutes in which they do appear statutory maxima have been of more recent vintage in that.

There has been nothing prior to this case in which the Pennsylvania legislature or any other legislature could be given notice of the enormous extension of customary power to which a trial judge might go.

Justice Hugo L. Black: What you’re doing is talking about a case with a same judge as a witness to it who is assaulted by, who is guilt (Inaudible), tries the case, is not a separate crime where he is put before another judge where the jury disappears, given a lawyer and given all the protections of due process of law as I understand, what I understand, due process to the one which is a trial in courtroom on unbiased judge in an unbiased jury?

Mr. Curtis R. Reitz: I could not agree with you more Your Honor, the requirements --

Justice Potter Stewart: On the other hand, Mr. Reitz, may I suggest, if in this summary procedure, the conclusion of this trial judge for all of this contemptuous behavior had summarily sentenced the fellow for three days in jail, would you find that objectionable or violation of any constitutional right?

Mr. Curtis R. Reitz: No, Your Honor, I would not.

I would accept as so well grounded in our law of criminal contempt that a judge has within that very narrow range of customary penalties that the kind of restraint that this Court referred to many years ago in the Anderson case, that that is not -- that can be handled without the full panoply of a trial.

Chief Justice Warren E. Burger: Where do you draw the line?

Would you undertake to draw line?

Mr. Curtis R. Reitz: Well, I suggested in the --

Chief Justice Warren E. Burger: Within the 22 years?

Mr. Curtis R. Reitz: I've suggested in the brief that a place to stop is the place this Court stopped in the Bloom case, in regard to the right to jury trial.

I do not think that is the right place to stop.

I do not subscribe to that.

There was of course another jury trial and --

Unknown Speaker: (Inaudible)

Mr. Curtis R. Reitz: In light of De Stefano case Your Honor, I think it would be futile to make that argument now.

I think the line has to be drawn at a very low level at the point where the number of days and I would think it is number of days, reaches beyond the stage where we can tolerate the total absence of anything we call a trial.

And that it seems to me has to be very short and has to come within I think very well recognized ancient limitations.

Chief Justice Warren E. Burger: Well, just test it for size, suppose you gave him 60 days on first offensive conduct, would you think that was acceptable?

Mr. Curtis R. Reitz: I would not Your Honor.

Chief Justice Warren E. Burger: And then, when it is repeated he gave him another 60 days and continued that right through then he would have what -- 22 months wouldn’t he?

Would you be here then?

Mr. Curtis R. Reitz: Yes, indeed.

I think that is the point at which certainly a trial becomes quite relevant, an impartial judge and the opportunity to make the necessary defense and litigation --

Chief Justice Warren E. Burger: No, but then let’s stop.

Let’s go back.

The first misconduct occurs after the jury has left the room for the day.

He calls him in and sentences him to 60 days for that offensive conduct and you concede, no other process necessary, I take it.

Now two days later, he repeats that and the judge repeats the same process.

You mean that after the first few bites, they're all free?

Mr. Curtis R. Reitz: No, Your Honor.

I would not even concede on the first 60 days.

Chief Justice Warren E. Burger: You, you wouldn’t?

Mr. Curtis R. Reitz: 60 days is a --

Chief Justice Warren E. Burger: The jury trial for 60 days --

Mr. Curtis R. Reitz: No.

No, a trial Your Honor.

This Court has drawn the limit of jury trials for the moment of six months.

It seems to me that at least one can say that six months is the line that which one is now clearly entitled for trial.

I think that is a necessary almost a priori argument from the Bloom decision itself but it seems to me that’s way below six months before one can say that you have a penalty, that is so trivial, so much a reprimand, so much within the ambit of work.

Contempt has traditionally lane of discipline of lawyers.

If one looks at contempt cases, it’s the lawyers who are usually the defendants in contempt cases.

In those cases, the remedies are as the appendix in our brief indicates extremely short, a matter of one, two, three days and in that range I think, the custom is now well-established that a judge can impose that kind of sanction.

I would not attempt to persuade the Court to change that now but 60 days is well beyond that limit Your Honor.

Well beyond.

Justice William J. Brennan: Of course, this gentleman wasn’t a lawyer.

That commitment of the -- maybe it imitates -- fundamentally this might be wish to deter lawyers whose jobs depend on their acting like lawyers.

This gentleman was representing himself --

Mr. Curtis R. Reitz: Well, this Court has faced and I think well resolved the problem of deterrence of persons who would disturb the courtroom in the Allen case.

There are many devices which can be used that do not involve the imposition of criminal punishments, summarily imposed by the judge that can be used for deterrence, this is not the only deterrent.

Chief Justice Warren E. Burger: The problem in Illinois against Allen power of contempt was specifically reserved in Justice Black’s opinion.

Mr. Curtis R. Reitz: The power to sight for contempt, not the power to impose a contempt sentence and I think as Justice Black’s opinion makes clear that citation is a notice which requires a subsequent trial.

A trial at which the defendant as Justice Black noted could again be disorderly.

But I read nothing in the Allen case that would justify summary in position of criminal punishments under the heading of contempt.

Chief Justice Warren E. Burger: Unless it were three days?

Mr. Curtis R. Reitz: In the Allen case, it’s peculiar Your Honor.

Chief Justice Warren E. Burger: Now, our reservation before was that if it were three days, you would think that was alright?

Mr. Curtis R. Reitz: I would indeed.

I would indeed.

Chief Justice Warren E. Burger: Very well.

Miss Los.

Argument of Carol Mary Los

Ms Carol Mary Los: Mr. Chief Justice and may it please the Court.

We were originally of the opinion that the entire trial transcript should be printed in the appendix for the Court because we felt that only by reading the entire trial transcript could this Court get some idea of the feelings, and the tensions, and the pressures that existed throughout this long five week trial.

Unfortunately, going through the trial transcript we realized that by the court's stenographer merely really taking down the words that happened that so much missed the Court’s stenographer or could not be taken down simply in the method of words that this Court could not feel simply from a cold record, the tensions, and the pressures that existed that day or the response that the petitioner was able to evoke, not only from his co-defendants or from the jury, but from the spectators who were in the courtroom at the time.

Apparently, it seems to me that the petitioner might be able to take advantage of this cold record in denying, first of all, that he is an extremely intelligent and articulate man.

And secondly, that he was not the ring leader or the instigator of all of these contempts.

If I may just for a few moments to recap some of the events of the trial that might not necessarily be printed in the trial record.

This was the second trial that had begun in these charges.

The first ended in the mistrial when the petitioner alleged that a prospective juror had seen him handcuffed to a sheriff, a mistrial was granted and the petitioner boasted at this time that he would never be brought to trial in these charges, that if all those failed, he would break out of jail.

He threatened the prosecutor and stated that prosecutor would never see him from the trial in these charges for prison breach.

These weren’t idle threats.

Mayberry had previously broken out of the Eastern Penitentiary in Pennsylvania, the Western Penitentiary in Pennsylvania, the Graterford prison he attempted a prison breach and during the course of this trial, he was able to break out at the Allegany County Jail.

This prison breach occurred almost in the middle of this particular trial.

At the time it occurred on a weekend, the petitioner and his two co-defendants as well as three other inmates of the Allegany County Jail broke out, kidnapped the city police officer, who was on duty at that time and were able to get a good distance from the city before they were captured.

It was only because the gun that they had secured from the police officer misfired that a police officer was not killed at close range.

As I say, this occurred during the course of a trial and does not necessarily appear as the matter of record.

But in any event, petitioner from the start was deemed to be a very dangerous individual.

The courtroom, understandably contained the great number of sheriff’s deputies.

Trial began before Judge Fiok and Mayberry as has been set forth before decided that he wanted to act as his own counsel and refused the help of counsel that was appointed for him.

Counsel, nonetheless appeared throughout the trial and was there at the sentencing for the contempt citations.

Mayberry requested from the trial judge that he permitted to come to sidebar, whenever he wished, the trial judge refused this.

First of all, I believe that because Mayberry was a very dangerous individual and a search of Mayberry’s legal papers during the trial revealed that he had placed sharpened razor blades inside of his legal pad.

Secondly, one of the co-defendants had been throwing pencils at the judge, during the trial.

So I mean, there’s a certainly reasonable grounds to believe that the judge himself might have feared that his life was in danger.

There was a bodyguard especially assigned to the prosecutor after the threats and the petitioner became so numerous across the counsel table.

These again are not recorded in the trial transcript because the court stenographer was not within the hearing range.

Nonetheless, the request for sidebar was refused.

Mayberry started a series of taunts to the judge which continued throughout the trial.

His attitude was this, “I want an explanation that satisfies me right now and if I don’t get it, I'm not going to continue with this trial.”

For example, a very good example I think occurs at the end of trial when he closes to the jury.

He is told that he will only be permitted an hour to close.

The end of the hour, he is given an additional 15 minutes, Mayberry decides that he wants just to continue his closing to the jury.

When he refuses to hear the judge’s warnings, he is taken out of the courtroom and another co-defendant is permitted to close.

When Mayberry is brought back in again, he gets off and starts closing to the jury again, he’s again taken out of the room.

So that the trial judge attempted on several occasions, various different methods, he had him taken out of the room at least 10 or 11 times.

When brought back, Mayberry proceeded the same way as when he had left off, when he was taken out of the room.

He was bound and gagged.

But unfortunately, he was able to shout through the gag and pound on the floor.

His shoes and the shoes of his co-defendants were removed.

He still raised such a ruckus that the trial judge was unable to charge to the jury.

Now, when Mayberry would direct one of his assaults to the trial judge, petitioner’s brief would have you believed that nothing merely happen except the judge said, “Continue on with your questioning.”

What happened precisely was this, Mayberry was greatly amused by the fact that there were loud gossips in the courtroom that the jury was shocked that some of the spectators were shocked.

He would burst out into this loud laughter which was followed by his co-defendant, who would hoot and howl, and applaud, and stamp their feet.

And in fact, the reason we say that Mayberry was the ring leader here was that when he would return to his seat, he would lean across to the prosecutor and say, “Now, watch this.”

And would stand up and repeat something.

Justice Potter Stewart: There were two co-defendants, were there Miss Los?

Ms Carol Mary Los: Yes, they were Your Honor.

Justice Potter Stewart: And were they cited for you?

Are -- they haven’t --

Ms Carol Mary Los: Yes, there were.

What Mayberry did was he would lean to them and say, “Now, it’s your turn”, or after he would repeat something, if one of the men wouldn’t get up, he’d give him a nudge inside and the co-defendant would spring up and direct some abuse to the judge.

Justice Potter Stewart: And they were both found guilty of criminal contempt, were they?

Ms Carol Mary Los: All three of them were, Your Honor.

Yes.

Justice Potter Stewart: And then what happened to their cases in the Pennsylvania Court?

Ms Carol Mary Los: They did not take the cases on appeal.

Justice Potter Stewart: The co-defendants.

Ms Carol Mary Los: That is true.

Justice Potter Stewart: What sort of sentences did they get?

Ms Carol Mary Los: They got one to two year sentences precisely as Mayberry had. Only they were not cited for contempt as many times.

I believe one was cited six times and the other was cited for seven different occasions during the trial.

Justice Potter Stewart: So, they got 6 to 12 and 7 to 14 respectively?

Ms Carol Mary Los: I believe that is true.

Yes, Your Honor.

Justice Potter Stewart: And no appeal?

Ms Carol Mary Los: I do not believe that there was an appeal taken.

At least, not to my knowledge.

Justice Potter Stewart: Is this very grounded picture you’ve given us, is that what one gets on the record or were you at the trial, Miss Los?

Ms Carol Mary Los: No.

I was not at the trial but I had the benefit of talking with the prosecutor on numerous occasions and again, I was in the law school at the time of this trial.

But there was a great deal of publicity and in fact, that this was a case of some notoriety at the time.

Justice Potter Stewart: This is in Pittsburgh?

Ms Carol Mary Los: Yes, Your Honor.

This is in Pittsburgh in Allegany County.

Incidentally, after Mayberry would nudge one of his co-defendants and asked them to indicating to them to stand up and raise some ruckus.

He would then after they had addressed something too rude to the trial judge, he would stand up and ask for a mistrial and when that was denied, he would ask for severance on the grounds that he was prejudiced in front of the jury about what his co-defendants had said.

There was also in the back of the courtroom, a small group of men who were later identified as being inmates, who were either out on bond, who were released from prison, who were known to Mayberry.

And after he would direct something to the judge, he would turn around in laughing manner toward them, they would again applaud and would stamp their feet and so it’s to create such a disturbance --

Justice Thurgood Marshall: There were penitentiary inmates in the back of the courtroom and the judge couldn’t put them out?

Ms Carol Mary Los: Oh, no Your Honor.

They were removed from the courtroom.

But what -- I am saying is that the purpose of his remarks to the judge were not just to excoriate the judge, the purpose was to create sufficient ruckus so that there would be delay in the trial.

Unknown Speaker: Was there -- as much as it this is within authority of trial, was there any effort in the legislature to get legislation to reveal to this kind of business?

Ms Carol Mary Los: I am not aware of any I know that of course that none in the interim period has passed.

I cannot say with any certainty that there has been legislation proposed.

As I said, binding and gagging didn’t do any good.

And at first the judge was leery in the sense of saying anything to Mayberry about his contumacious conduct in front of the jury.

I think, very honestly that he felt that he didn’t want to prejudice Mayberry in front of the jury presiding him for contempt and again, Mayberry was acting as his own counsel.

So, for the judge to have the jury leave the courtroom and cite him specifically might not have served the purpose or might only -- the end result had Mayberry so inflamed as to continue this course of conduct probably even in a more serious thing and eventually cause the trial to stop.

Now, we almost concede that we are concerned about the 11 to 22 years sentence.

It does in view of previous contempts, that have come before this Court, seem rather severe.

We maintain however, that the actions of Mayberry here were so outrageous and so outlandish as to far exceed anything that has come before this Court.

Justice Byron R. White: Now, how are we really supposed to if these facts are relevant to that judgment, how are we supposed to get them before us when they aren’t in the record?

Ms Carol Mary Los: Yes.

That is, I think, the major difficulty before this Court doing anything to lessen the sentence.

I think the only course that can be entertained at this point if you feel that 11 to 22 years is cruel and unusual punishments --

Justice Byron R. White: The habeas corpus?

Ms Carol Mary Los: -- is to remand on a habeas corpus, Your Honor.

To hold a hearing, to determine all of the relevant facts that must come before this Court can determine that 11 to 22 years was unjustified.

Justice Byron R. White: I think he has a state post conviction, Miss Los.

Ms Carol Mary Los: Yes, we do Your Honor.

Justice Byron R. White: I suppose it would have to go there to the federal habeas --

Ms Carol Mary Los: Yes, that’s true.

We do have a vehicle to deal with this --

Justice Byron R. White: What do you suppose the purpose of giving these contempt sentences was?

Certainly, it wasn’t in control of the trial, was it?

Ms Carol Mary Los: No, because certainly they were given after the trial.

I think the purpose --

Justice Byron R. White: Was it to deter Mayberry?

Whenever doing anything like this again, I don’t suppose?

Ms Carol Mary Los: Well, I think that might have been one of the ends.

I think, secondly though, because the case did have a great deal of notoriety.

Because of the fact that a lot of inmates penitentiary or prisoners who are out on bail or who rather bond or had not yet come for trial were watching this closely.

There’s evidence by a great number of people who came into the courtroom and then a number that had caused a commotion along with Mayberry.

I think the purpose was to show that a man cannot do this and get away with it.

And that’s the fact that there was so much notoriety, I'm sure the trial judge realized that the prisoners and those come into trial would watch very closely to see how Mayberry was dealt with.

Justice Byron R. White: Why shouldn’t, Miss Los or do you think it’s at least bit of sensible to suggest that if a judge thinks that an act in the courtroom is so serous that it justifies the two-year sentence that he must not try it himself, that he is going to wait until after trial?

Ms Carol Mary Los: I think the question here ought to be, “What should he have done in 1966?”

I think in 1966 under due process standards as the Court, the Pennsylvania Court interpreted them and the Pennsylvania Supreme Court interpreted them relying on In re Oliver, the trial judge had the absolute right to sentence the petitioner as the hearing judge.

Justice Byron R. White: But would you know that whenever -- isn’t it the rule that when it appears that a judge is so personally involved and so insulted by contemptuous act that he shouldn’t be the one to try the contempt?

Ms Carol Mary Los: Certainly, if the remarks are directed personally to him.

It’s our belief --

Justice Byron R. White: That’s clear.

Somebody's statements were pretty personal --

Ms Carol Mary Los: But yes, Your Honor.

But the purpose of them I think, and I think the trial judge was able to see this.

It was directed towards stopping the trial.

Justice Byron R. White: But when a judge reacts so strongly to having a personal remark directed at them that he gives a man two years for it?

Ms Carol Mary Los: But that’s an assumption we’re making Your Honor.

I think he felt that the administration of justice and that the proper handling of this trial was insulted, so to speak.

Justice William O. Douglas: Does Pennsylvania have contempts through the Court apparent in the courtroom and that required him before another judge.

Do you have this in Pennsylvania --

Ms Carol Mary Los: No, Your Honor.

The statute is set forth for you.

This is the --

Justice William O. Douglas: This is another federal rule to make it --

Ms Carol Mary Los: Yes, Your Honor.

We have no distinction of that sort.

No, Your Honor.

We don’t.

But my only answer to that really is and I honestly feel that the judge himself did not feel these were personal attacks upon his own character.

I think he understood them in the context of what Mayberry was attempting to do.

Justice William O. Douglas: Let me ask.

Let’s assume that the trial was held today on the same events in Pennsylvania, let’s assume the same trial took place and the same events happened today?

Ms Carol Mary Los: Then I think, we have a completely different ball game because we are then bound by ruling of this Court that if the sentence can exceed six months, certainly, --

Justice William O. Douglas: Well, what's the reason -- what’s the reason for saying that the judge here -- if he wants to give more than six months, he has to have the jury.

What's the reason for that?

Ms Carol Mary Los: I think the severity of the sentence Your Honor.

I believe, it’s the feeling of this Court --

Justice William O. Douglas: Well, I know but what's the reason for it?

What's the reason for having the jury at all?

Ms Carol Mary Los: I think because there, a man’s right to be tried by his on peers where a serious sentence is involved and a serious crime is involved overrides the administration of justice.

In other words, the (Inaudible) to the Court which should be dealt with by the judge himself, so --

Justice William J. Brennan: So longs the -- oh, excuse me.

Ms Carol Mary Los: Yes, Your Honor.

Justice William J. Brennan: I don’t mean to interrupt.

Ms Carol Mary Los: I was just going to say, we will not deny that this is a serious a offense.

But we must talk in terms of 1966 standards and not 1970 if I may --

Justice William J. Brennan: I’m not talking about a jury, I’m talking about a judge?

Ms Carol Mary Los: I don’t feel as if another judge would have to hear this case because it is my firm belief, that while certainly the phrase “a stumbling old dog” were directed toward the judge or “I'm not going to argue with fools”, meaning the judge.

I think the purpose was clearly understood.

Justice William J. Brennan: Do you find any basis and you think that you discovered the case is saying that or a judge chooses to not to exercise his contempt power on episodes of the courtroom are heard or to postpone the holding after the trial in what he is dealing with in the absence of the state’s statutes, it is serious offense?

Ms Carol Mary Los: No, Your Honor.

And the reason why I feel here that this was not just one continuing offense.

These were separate events and correctly separate citation.

Justice William J. Brennan: That’s not the way I’m conceding.

Ms Carol Mary Los: Yes.

Justice William J. Brennan: But they were not dealt with at the time by the judge during the course of trial, perhaps a very good reason.

Ms Carol Mary Los: First of all, the sentencing was not given out until the end of the trial.

The petitioner and his co-defendants were warned repeatedly by the trial judge and in fact at one point, judge called counsel before him and expressly asked counsel to go through the possibilities of contempt and the actions of their clients because he felt that they should be well aware that their actions we contemptuous.

Now, the fact that he waited until the end of trial, I think, it was done solely to protect the petitioner and his co-defendant.

So that the petitioner wouldn’t become first of all, so inflamed and so enraged that he would stop the trial by means of letting the jury know and again, getting so out of hand that the trial couldn’t continue.

I think that since his purpose here was to protect the petitioner and certainly to protect the common laws right to see the case through to its just ends, the petitioner cannot, now say, well the judge couldn’t do at the end of trial what he could do in the middle of trial.

Justice Thurgood Marshall: This law is assuming that some people would consider these violent verbal attacks as assaults.

If he were charged with that he would have gotten a jury, wouldn’t he?

Ms Carol Mary Los: If he had requested a jury.

Yes, Your Honor that is true.

Justice Thurgood Marshall: 20 -- it is --

Ms Carol Mary Los: 11 --

Justice Thurgood Marshall: Is Mr. Reitz corrected 20 years as sentenced for second degree murder in Pennsylvania?

Ms Carol Mary Los: Yes.

10 to 20 years, Your Honor.

Yes, for second degree.

Justice Thurgood Marshall: And this man has 22?

Ms Carol Mary Los: Your Honor, we’re talking here about an (Inaudible) to public justice and not to one individual.

We’re talking about a man disrupting the orderly administration of justice, affronting the dignity and honor of the Court.

Justice Thurgood Marshall: We’re also talking about the judge trying him after the man called him “a stumbling old dog” or something.

Ms Carol Mary Los: That is true but I fully believe that the judge understood, Mayberry’s purpose in doing this was not directed toward him as such.

Only because Mayberry’s chief purpose was to stop the trial.

Justice Thurgood Marshall: How in the world could he know that and how in the world do you know that he knew that?

Ms Carol Mary Los: I believe he knew that, Your Honor.

Justice Thurgood Marshall: Do you believe it, I agree with that.

Ms Carol Mary Los: For these reasons.

First of all, as I say Mayberry had threatened several times and he boasted that the trial would never reach its completion.

Secondly, he --

Justice Thurgood Marshall: That’s not in this record, right?

Ms Carol Mary Los: Because there -- it was not part of testimony, Your Honor.

Justice Thurgood Marshall: We deal with what we have before us, don’t we?

Ms Carol Mary Los: Right.

And that is why I'm asking you that you are --

Justice Thurgood Marshall: I'm not in the moment not agreeing that you tell the truth.

I mean, but the point is we got a record here.

Ms Carol Mary Los: And that’s why, I respectfully ask, that if you feel this cruel and unusual punishment that you remand it for hearing, so that all the facts can be put before the Court because as the record stands, it’s a very cold record and as exerted, it appears as if Mayberry might have been justified for some of the comments that he made.

I think that it so distorts what actually happened to trial that this Court cannot make a determination as to whether or not that was actually cruel and unusual punishment without a complete hearing on what actually occurred.

Chief Justice Warren E. Burger: When you talk about a complete hearing, are you suggesting that this be a complete hearing in a due process sense of a trial with the jury before it could --

Ms Carol Mary Los: No, I'm not Your Honor.

Because I still believe that 1966 standards must apply and as such in 1966, Pennsylvania law rely -- the interpretations by the State of Pennsylvania, relying upon In re Oliver were that a judge could sentence summarily without due process safeguards that are now essential.

For example, in the serious crime and we will concede that 11 to 22 years as a serious offense.

Justice Hugo L. Black: Did you have any idea that this man had been indicted by a jury or glory of time given him a close rough trial like anybody else gets charged with crime and there wouldn’t have been any difficulty of getting him convicted?

Ms Carol Mary Los: Absolutely none, Your Honor.

Justice Hugo L. Black: In a fair and impartial trial?

Ms Carol Mary Los: Absolutely no difficulty.

I think, absolutely he weren’t been convicted.

Justice Hugo L. Black: Without any -- would you have any chance then to get an unbiased judge and an unbiased jury?

Ms Carol Mary Los: That may very well be true, Your Honor.

But I don’t think that officiates the proceeding that we had here.

I think the judge did have an absolute right to sentence as he did summarily.

Justice Hugo L. Black: But what if they have sentenced him to life?

Ms Carol Mary Los: I think he had the right under the acts in cruel and unusual punishment, absent that argument, I think he absolutely had the right to do that.

Justice Hugo L. Black: Well, I agree with the seriousness of the crime fully.

I have no doubt about that, I don’t worry about the punishment for 22 years, trying to disturb and destroy possibility of a court procedure.

The only thing I'm worried about it in the case is that the judge tried him while he’s having that puts a man charged with the serious crime ought to have.

That is a trial of an impartial judge and according to due process?

Ms Carol Mary Los: If he was entitled to a trial though, Your Honor.

I disagree with you that he was.

I think that the judge had the right because the administration of justice was affronted.

Justice Hugo L. Black: That’s right.

Ms Carol Mary Los: I feel that in 1966, --

Justice Hugo L. Black: Well, that’s going back to the saying, well, this is retroactive.

Ms Carol Mary Los: Yes, Your Honor and I think that we must judge this in terms --

Justice Hugo L. Black: You wouldn’t think so now, would you?

Ms Carol Mary Los: Oh, no.

Certainly not now, Your Honor.

Chief Justice Warren E. Burger: But if we remand as you intimated might be one solution, is the case going to be tried under 1966 standards or 1971 standards?

Ms Carol Mary Los: I think it’s only fair that if we are going to judge what a trial judge did in 1966 under their standards, that he do it in terms that the hearing be done in terms of what was the law in Pennsylvania at that time.

Thank you.

Chief Justice Warren E. Burger: Thank you, Miss Los.

I think your time is consumed Professor Reitz, unless you have something to consider with high urgency and we’ll give you a little bit of time for that.

Rebuttal of Curtis R. Reitz

Mr. Curtis R. Reitz: I want to make just one point, Your Honor and that is on the issue of retroactivity that has been discussed.

Miss Los has testified at some length, the matter is not in the record which, of course, her testimony could not even be part of the trial on a remand.

It is to me a shocking thing to hear in any Court, 1970 a suggestion that even in 1966.

No matter what one views the law in 1966 to be that it would raise any question that a man is entitled to a trial on a punishment that could produce 22 years of sentence.

Chief Justice Warren E. Burger: Professor Reitz, you acted at our request and by our appointment in this case and on behalf of the Court, thank you, for your assistance to the client and to the Court.

Mr. Curtis R. Reitz: Thank you, Your Honor.

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