Cases by Issue - Jury Trial

United States v. Booker - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

United States v. Booker

Media File:

04-104_20041004-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Rehnquist: We'll hear argument now in Number 04-104, United States against Freddie J. Booker and 04-105, United States against Duncan Fanfan.

Mr. Clement.

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

This case, and these cases, concern the constitutionality of the twelve hundred criminal sentencings that take place in Federal court each week.

If this Court re-affirms its traditional understanding of the relationship between the Guidelines, and the statutory maximum penalties set forth in the United States Code, an understanding reflected in a series of this Court's decisions dealing with the Guidelines, than the constitutionality of those criminal sentencings remains secure.

On the other hand, if this Court takes a different view, and treats the outer bounds of the Guideline ranges as if they were statutory maximums, then the majority of those criminal sentencings become constitutionally dubious, and this Court must confront difficult remedial issues.

This is, of course, not the first time that this Court has confronted a challenge to the constitutionality of the Guidelines or to the Commission.

To be sure, in those previous cases, this Court has never considered the precise Sixth Amendment issue before the Court today.

But, nonetheless, those previous cases are instructive, because all of those cases, Dunnigan, Witte, Watts, and Edwards, all reflect a particular understanding of the relationship between the Guidelines and the statutory maximum sentences for each specific crime defined in the United States Code.

And all of those decisions suggest that the statutory maximum in the Code is the relevant focal point for constitutional analysis.

So, in the Witte case, for example, the finding of relevant conduct in the Witte case increased his sentence under the Guidelines by two hundred months.

Nonetheless, this Court rejected the double jeopardy challenge before the Court by emphasizing that that consideration of relevant conduct did not increase his penalty beyond the statutory maximum.

Likewise in the Edwards case, this Court considered the propriety of a judicial finding of crack cocaine that increased the Guideline sentence, when the jury was instructed in the alternative, to find cocaine or crack.

Now, even though the judicial finding had the effect of raising the punishment under the Guidelines, this Court found no serious Sixth Amendment issue raised precisely because the effect of the judge's finding did not take the sentence beyond the maximum for that cocaine-only conspiracy.

Justice Scalia: And you say we found no serious Sixth Amendment issue raised.

Was the right of jury trial issue argued in that case, and decided?

Mr. Clement: In the Edwards case, a Sixth Amendment issue and, I think, fairly including the jury trial, was raised in that case.

Now, I tried to go back and look briefs in that case and I have to admit, they're a little difficult to get through in terms of the precise issue that was being raised.

Justice Scalia: The right to jury trial is fairly clear and stark, and I guess don't recall that being argued in any of those cases.

Mr. Clement: Well, it was argued, I think, fairly clearly in the Watts case, I mean, there was a section... Watts, of course, was a summary reversal, so you have to go and look at the brief in opposition in the Watts case.

And if you do, there's a separate paragraph in the arguments section denominated the jury trial right.

And I think in some respects, the Watts case is a particularly clear indicator that this Court has rejected the view of the Guidelines that Respondents embrace.

Because Justice Stevens was quite prophetic in his dissent in that case.

He embraced the precise understanding of the significance of the outer bound of the Guidelines range in his Watts dissent, and no member of this Court joined that dissent, and no member found the disposition with respect to Watts--

Justice Stevens: That just proves they don't listen to me as much as they should.

Mr. Clement: --It may very well prove that, Justice Stevens, because you were very clear about the point, just to remind you, in the Watts case there were two cases before the Court, there was the Putra case, and there was the Watts case, they were consolidated.

And with respect to Putra, you can envision that case, or characterize that case as being sort of a collateral estoppel, double jeopardy case, but as you correctly recognized, very clearly, in your Watts dissent, with respect to Mr. Watts, the finding, the criminal finding of acquittal was based on 924(c), which requires use of a gun.

The sentencing enhancement was done based on an enhancing factor that only requires possession of a gun.

So there wasn't any collateral estoppel effect in that case.

But, nonetheless, in your dissent you pointed out, in footnotes 2 and 4 that it still had the effect of raising his sentence above the outer bound of the Guidelines range, and that, because that was done on the basis of a preponderance of the evidence, rather than a beyond a reasonable doubt standard, that that raised a constitutional problem, and you would have reversed.

The rest of the Court was happy to summarily reverse in that case.

Justice Scalia: Mr. Clement, here's the problem I have with the Government's argument insofar as it does not urge that we reverse Blakely, I know that you want us to do that as well.

But assuming we adhere to Blakely, it seems to me you have a cure that doesn't correspond to the disease.

You say that the reason the right to jury trial does not apply here is because, after all, these sentences have not been prescribed, or these maximums have not been prescribed by the legislature, but rather, have been prescribed by a quasi-judicial agency.

But the right of jury trial is meant to protect against whom?

Who are you worried about when you say,

"I want to be tried by a jury. "

You're not worried about the legislature, you're worried about the judges, precisely.

So I don't care if the upper level of the Guidelines were actually prescribed by a court, as opposed to the Commission which is, I don't know what it is, but it's not a court.

But even if it were prescribed by a court, how would that eliminate the jury trial problem?

The whole reason for jury trial is we don't trust judges.

Mr. Clement: With respect, Justice Scalia, I'd like to make two observations.

One, I don't think the jury trial right is just a juxtaposition of the role of the jury versus the role of the judge, because if that were the only factor at issue in this Court's Sixth Amendment jurisprudence, it would be very difficult to explain why it is that judicial fact-finding can have the effects that it can under a purely discretionary system, yet this Court has upheld that time and time again.

The second point I'd like to make, is I do think that this Court's Apprendi to Blakely line of cases--

Justice Ginsburg: Can we just go back to the point you just made, it's a little different when the judge has discretion and there's no... the judge has discretion to take a whole bunch of things into account, but they're not quantified.

And I think that was dramatically illustrated, the difference, by the decision of Judge Lynch when he said,

"Well, I'll go back to the old ways of doing it, I'll look at the Guidelines for some advice. "

he comes out with twenty-four months instead of thirty-three months.

So I think there is a huge difference between a judge taking account of many, many factors, not giving them a specific quantity as the Guidelines require.

Mr. Clement: --Well, Justice Ginsburg, I think there... there certainly is a difference between sentencing under the Guidelines, versus a system of discretionary sentencing, or even a system of discretionary sentencing where the Guidelines have an advisory character, I'd certainly concede that.

My point was, though, in making a distinction between the role of the jury and the judge, it's not just as simple as saying that the jury trial right exists precisely to protect the jury from the judge, because if that were the case, the kind of fact-finding that Judge Lynch engaged in, or the kind of fact finding that was commonplace under discretionary sentencing also takes roles away from the jury, and gives them to the judge.

Justice Scalia: Yes, but we're talking here about one precise role of the judge or of the jury, and that is, to find a fact that is necessary to keep you in jail for an additional number of years.

And the difference with discretionary sentencing is if it's, you know, ten to twenty years, what you know when you do the crime is that you've laid yourself open to twenty years.

Now, if you get a merciful judge, good for you, I mean, that's lagniappe as they say in Louisiana, but if you get a hanging judge, you've got twenty years, and you know that when you commit the crime, whereas we have a system now where you entitled to no more than so much.

And I find it just incompatible with a jury trial right to say that that fact must be determined, before you can be kept in jail.

And yet we're going let it be determined by a judge.

That bears no resemblance to the discretionary sentencing system.

Mr. Clement: With respect, Justice Scalia, I think you've built in some assumptions into that question, because under our system, generally speaking if somebody wants to know what the maximum exposure for a particular criminal offense is, they would be well-advised to look at the U.S. Code provision that specifies what the maximum sentence is for that offense, because that is their exposure, that's what they're told about in their Rule colloquy if they plead to the crime, and if the judge makes certain findings, to be sure, upward departure, whatever it takes in a particular case, that is the maximum exposure that the individual--

Justice Scalia: It's not the maximum exposure.

If, for example, one of the factors is whether the crime was committed with a firearm, I know that if I don't use a firearm, under the Guidelines, I can only get so many years, so somebody has to find that I used a firearm, and if I didn't, my maximum exposure is less.

Mr. Clement: --Unless the judge departs for some other reason, or the like.

I mean, certainly that's true--

Justice Stevens: No, or he makes a mistake in finding.

Mr. Clement: --I suppose that's true, too.

Justice Stevens: He finds a gun when there really wasn't one.

Mr. Clement: So there are different ways that you could get that sentence under the Guidelines system.

But if there's no mistake, and no departure on some of the grounds, we both understand, I think, how the Guidelines work and you're describing it correctly.

But still, that is a finding that is only necessary because of the determination of the Commission and the Guidelines, and that brings us back to the question--

Justice Ginsburg: Suppose the determination, as is occasionally true of the Guidelines, is made not by the Commission, but by Congress itself?

Or made by the Commission at the direction of Congress?

Then the distinction that you're making between the maximum set by the legislature and the guidance provided, or the guidance to discretion under the Guidelines, really doesn't stand up.

So at least to the extent that Congress directly enacts Guidelines, would you concede that then, the critical finding has to be made by the jury?

Mr. Clement: --I would not concede that, Justice Ginsburg, but let me first make clear that in the case before us today, the Guidelines that we have are promulgated by the Commission, and were not the direct or indirect result of a Congressional act the way that the, say, the Protect Act added particular amendments to the Guidelines, so that question is not directly posed in this case.

The reason I would say that even in that case there is a difference is because it is still different when Congress goes in and amends a particular Guideline in a sense in a sea of Guidelines provided by the Commission.

And I think that's true, one, because amending a single Guideline doesn't change the overall character of the Guidelines.

But also because, when Congress decides to take action not as a statute, but as an amendment to a Guideline, it doesn't change the fundamental character of the Guideline as a Guideline.

And so after... the Protect Act for example, specifies a period in which... after which the Commission can then amend that Guideline.

Which is obviously not a case that you can have with a statute consistent with the Presentment Clause.

And to just give you another example, the Sentencing Reform Act that has brought us here today, one of the things it did was make specific amendments to Federal Rule of Criminal Procedure 32.

I think when Congress does that, it doesn't make Federal Rule of Criminal Procedure 32 a statute, it continues to be a Federal Rule, the Federal Rules Advisory Committee can still modify it after the fact, and so I think even in that case, there's a difference in effect.

Justice Souter: What is the difference in effect?

I mean, that's where I'm having trouble, and I guess others are having trouble.

Yes, there's a difference in process, there may be a difference, in some sense, in ultimate status, but there isn't, it seems to me, any difference in effect.

The defendant in the courtroom is going to suffer the same effect either necessitated or sufficed by this fact which is just as crucial, whether it's a rule, whether it's a guideline, whether it's a statute, why should that make any difference for the Sixth Amendment?

Mr. Clement: I think it should make... well, I guess what I would respond to that, Justice Souter, is this.

I think that one thing that emerges from this Court's recent Sixth Amendment jurisprudence, is that the impact on the defendant himself or herself is not the only test that this Court looks to.

Because from the perspective of an individual defendant, they don't care if they've gotten five extra years because a judge made a finding under a discretionary regime, or they got five extra years because the judge made a finding that the legislature told the judge to make, the practical effect is the same.

Justice Souter: Well, the practical effect is the same but in the moment before either in theory they commit the crime or in the moment before the trial is over or in the moment before the sentence comes down, there is one big difference in the two classes of cases.

The defendant is entitled to claim that he can not be sentenced to the higher range unless a fact is found.

In a case of discretionary sentencing range, within that range, he can not make that claim, he can not make that assumption, and the... that, it seems to me, is the point at which the jury trial right has got to focus.

Mr. Clement: Well, I think again, as Justice Stevens suggested earlier, I mean, that may be true if you focus in on that single fact under the Guideline system, but under the myriad of various ways that your Guidelines sentence can go up or down, it may be inappropriate under the Federal Guideline system to focus in on the point of analysis on that particular interval, of just the one--

Justice Souter: Why not?

Mr. Clement: --Because, again, as a defendant, you may have a case where there are five or six potential enhancements, and there are five or six potential departures, and your sentence is going to be a product of the judicial fact finding that goes in, in making those various conclusions--

Justice Scalia: And each one is appealable separately, each one is appealable separately, it's a separate legal finding.

And the judge doesn't, in discretionary sentencing, he doesn't have to make any factual finding, he can just look at you and say,

"I think you're a bad actor, you've got forty years. "

We have a system here where the judge must make factual findings, and each one is appealable if he's made them incorrectly.

Mr. Clement: --I don't disagree with that characterization of the Guidelines, but I still think that it is a difference from a pure statutory scheme, it's different from a scheme like this Court had before in Blakely against Washington, where the statute focuses you in on just a couple of factors and you really can re-conceptualize that regime as providing for a base offense level and one or two aggravated grades of the offense.

As Judge Lynch observed in language that we quote on page 4 of our reply brief, you really can't re-conceptualize the Guideline system that way.

Justice Souter: Well, the principal reason you can't, or I think the principle reason that you're advancing is, that the Guideline system is so complicated.

There are a myriad of factors.

As Justice Scalia says, why isn't each one in that myriad subject to the same claim?

Surely, the argument can't be just because it's more complicated, that the Sixth Amendment evaporates.

Mr. Clement: I agree, Justice Souter, and the point isn't that it's more complicated.

If I just continue with Judge Lynch's observation, which, as I say, is quoted on page four of our reply brief, it's not just that it's complicated, it's that the mission of the Guidelines system is, once, assuming that somebody's been convicted of some Federal crime with certain elements defined by Congress, then, what the Guidelines ask the judge to do is evaluate the incident of criminal activity and assess an appropriate punishment without regard to whether it has met the certain elements of a particular Federal crime.

And so, the really, the focus is quite different, and in that sense, I think there is, there is more than a difference in form between a set of guidelines produced by a legislature and a set of guidelines produced by the sentencing commission.

Justice Scalia: I find very little difference between telling him to evaluate it with regard to particular elements of a crime and asking him to evaluate it with regard to particular sentencing facts.

The result is the same.

You're asking him to evaluate it in the light of certain facts that he has to find.

Whether you call them the one or the other, he's doing the same thing.

If he finds this fact you get three more years; if he doesn't find it, you don't.

I mean, you know, as far as the real outcome is concerned, what difference does it make whether you call it an "element" or a "required fact for sentencing"?

Mr. Clement: Well, I think there are differences between the two.

I think if you look at the Washington system that you had before you in the Blakely case, it was a product of the legislature, and so, not surprisingly, there is a focus on the crimes as defined by the legislature, there was a presumptive range for each crime, and then there were a handful of things that got you into... added three years, like a firearm, and then there was basically the upward departure authority or the downward departure authority, and that was it.

And that makes sense; a legislature is going to be predominantly focused on the statutorily defined crimes.

In the context of the Guidelines, on the other hand, it is a much more widely variant focused, and what it's focusing on is the criminal activity as a whole.

There are many factors that can increase it, there's many factors that can decrease it, and--

Justice Ginsburg: Is that complexity, is the key or, suppose these Guidelines were proposed by the Commission, just as they are, with all their complexity, but they were proposed as legislation, and then Congress enacted these Guidelines, would you be able to make the argument that you're making, still?

The Federal system, now legislative guidelines is viable after Blakely?

Mr. Clement: --I don't think so.

I think in that, in that context we would be limited to an argument to asking this Court to overrule Blakely.

But that is not to say that, that, what I want to make the point, though, is ultimately if pushed... and your hypothetical pushes us... if pushed, the argument is one of form, that the fact that these emanate from the sentencing commission makes a constitutional difference.

But I don't want to lose the fact in making that concession that there is still a real difference between the way the Federal Guidelines work and the way the Washington Guidelines work, and the Federal Guidelines work exactly as you would expect: sentencing guidelines promulgated by an entity located in the Article III branch, and consisting of Article III members; and the Washington Guidelines system works--

Justice Ginsburg: But that's not so clear anymore, it just happens that there are three members, but they don't have to be any judicial members, under the current legislation.

Mr. Clement: --That's true, Justice Ginsburg, but there--

Justice Scalia: It's still in the judicial branch, right?

Mr. Clement: --It's still in the judicial branch, Justice Scalia, and there are the same number of judicial members on the Commission now as there were when this Court considered the Mistretta decision.

And I think Mistretta itself recognized that we could have bodies located in the judicial branch that were auxiliary to the judicial branch, even if they consisted, quote, "solely of non-judges".

So I don't think that's what's dispositive.

I think what's dispositive ultimately is what this Court recognized in the Mistretta decision.

In the Mistretta decision, this Court made clear that the Commission was constitutionally located in the Article III branch precisely because it did not take on the quintessentially legislative tasks of setting maximum punishments and defining the elements of Federal crimes.

Chief Justice Rehnquist: In Mistretta it might have come out the other way had it not been for that observation.

Mr. Clement: I think that's exactly right, Mr. Chief Justice.

And I can talk more about that in terms of the separability issue, which is question two.

But I think especially if you get to the point where prospectively the proposal is to treat sentencing enhancement factors under the Guidelines exactly as if they're elements of Federal crimes, they would have to be included in indictments and have to be charged to the jury on beyond a reasonable doubt.

Then I don't see how Mistretta survives anymore or at least how Mistretta allows that particular judicial remedy to go forward.

Because at that point, you've really had the Commission become transformed into precisely what this Court said it wasn't, as a matter of constitutional law, in the Mistretta case.

Justice Kennedy: The paradigm that the cases discussed in Blakely and in the cases leading up to it from Apprendi, are facts such as the amount of drugs, was there a weapon, was there violence performed against the victim.

And if the Court finds that these are so much like an element that they have to be proved, and adheres to its jurisprudence and invalidates the Guidelines to that effect, is there any argument that either the Government makes or that some of the commentators would make, that there are other kinds of sentencing considerations that can be called factual, to be sure, but that should be from the judge: say, lack of remorse as demonstrated after the verdict; the fact that after the verdict, investigation shows that of the two defendants, one was the real ringleader, streetwise, the other was kind of a naive dupe; or that there was a failure to cooperate with the person presenting the... preparing the sentencing report.

These are facts in a certain way.

Is it for a penny, in for a pound?

Do we have to treat all of these as factual, or is there any progress to be made in trying to see if there are some, some facts that are, are like elements and some that are not.

That would be a... it would take a number of cases, I suppose, to elaborate that.

Mr. Clement: Justice Kennedy, I think that the thrust of respondents' position... they can obviously speak for themselves to this point, but I think the thrust of their position is in for a penny, in for a pound, that if you extend Blakely to the guidelines, then that's it, the guidelines go out.

I think the consequence of accepting the Government's position here, that the guidelines are different, would not foreclose the possibility for a more fine-tuned analysis that focused on the particular effects of particular guidelines ranges, or the particularly enhancing factors and the like.

And I think one thing that ought to give the Court caution before it extends Blakely all the way to the guidelines is, if you look at the guidelines, there are certainly some enhancing factors or some factors that increase punishment under the guidelines, that look nothing like any traditional element of any crime.

Justice Kennedy: What, what, what tests would you propose, or the commentators?

How do we distinguish the permitted kind of fact that the judge can find, and those that must be for the jury?

Mr. Clement: Well, I mean, two things, Justice Kennedy.

I don't want to get too far afield in the sense that we think that for purposes of this case, the Court could distinguish the guidelines and could still maintain the very bright line of Blakely as applies to legislative enactments.

But if this Court were going to either, with respect to legislative enactments or in the particular field of the guidelines, try to develop another test to differentiate elements from... I'm sorry, elements from sentencing factors, I think this Court could get guidance in the same kind of analysis that it's done in the context of affirmative defenses.

As Apprendi itself recognized, in the Patterson case, this Court decided that in that context, it would not adopt one bright line or another and just give up the enterprise of drawing lines in between.

And I think a similar enterprise could be done under the guise of dealing with the guidelines.

But I think the thrust of the Government's position here today is that you shouldn't accept the Respondent's particular challenge to the guidelines because that does have the effect of

"in for a penny, in for a pound. "

and wiping the guidelines out.

Justice Stevens: Mr. Clement, following up on Justice Kennedy's thought, if we adhere to the strict language in Apprendi itself, as quoted below, any... solely on the facts reflected in the jury verdict or the plea bargain, that's... that establishes the maximum.

What percent of the total number of sentences that are imposed in the, by the Federal system today would violate that rule?

Mr. Clement: Well, Justice Stevens, let me try to answer it as best as I can.

I want to make the observation, though, that the only estimate I can give you is based on retrospective data, obviously, and it could be--

Justice Stevens: Well, let's look at the future and assume that in 97 percent of the cases which are plea bargains, you could agree on what the relevant facts are.

That certainly could be done.

And in the 3 percent that are trialed, it is my impression that a very small number of those actually involve violations of the Apprendi rule.

Is that correct?

Mr. Clement: --I'm not sure that's right, Justice Stevens.

Let me answer it this way, because I can only answer it based on the data I have.

Justice Stevens: See, it's relevant because underlying all this is a question if the guidelines fail in toto, or do they only fail with respect to those relevant small number of cases in which there's a violation of the Apprendi rule?

Mr. Clement: I understand, and let me answer it this way, which is looking retrospectively at the data from 2002.

If you consider all the cases that either went to trial or pled and that, they're not differentiated, the two aren't differentiated, then about 65 percent of the cases raise a potential Blakely or Apprendi type issue, so that would be the starting point for the analysis.

Now, as you pointed--

Justice Stevens: In raising the issue, it depends on what... the issue you describe.

A lot of people describe it as an issue when you just use the guidelines at all.

Do they raise an issue, involve it in a sentence over and above the amount that would be authorized by either the jury verdict or the plea bargain?

Mr. Clement: --Yes, that's 65--

Justice Stevens: Do you think 65 percent of the cases do?

Mr. Clement: --The numbers that we have is 65 percent.

Basically, you have 44 percent of the cases involve some chapter II or chapter III enhancement or adjustment to the base level.

And then we've kind of looked, in addition to the 44 percent, we've looked at the drug cases, which by the nature of the drug sentencing table, virtually all of the drug cases, if they don't implicate a mandatory minimum, involve a potential Blakely upward adjustment.

And so what we've done is, in looking at these numbers, is to basically take all the drug cases and then subtract that--

Justice Stevens: They all, of course, involve a potential upward adjustment.

But do they all involve actual sentences above the amount that the jury verdict would have authorized?

Mr. Clement: --Well, again, Justice Stevens, I don't know, because that comes to a second question, which is, if I understand your question, which is, we know that 65 percent of the cases raise a potentially, a potential Blakely issue.

Then the question is, well, if 97 percent of the cases settle, is there a way to sort of waive Blakely rights and the like, and make this workable going forward?

And it's hard to know what the, what, what system will emerge.

Justice Stevens: The thing that... I'm sorry, but I really, it's very important to me.

Raising an issue, the issue is always raised when there's a possibility of a higher sentence, but I don't think it's fair to assume that 65 percent of the sentences of tried cases actually resulted in sentences higher than what the jury verdict would have authorized.

Mr. Clement: Well, again, I can only give you the numbers--

Justice Stevens: It's potentially that every case does.

But if in fact, most sentences come within the maximum anyway, it's of course a serious problem in those cases, but system-wide, it's not nearly the problem that the figures you've mentioned suggest.

Mr. Clement: --Again, Justice Stevens, I want to answer as best I can.

The figures I have suggest that 65 percent of the cases do involve an upward adjustment of some kind.

And so there is a Blakely problem.

So the only real question is, all right, 65 percent of the cases in the world where nobody thought Blakely was a problem for the guidelines involve those kind of upward adjustments.

There may be ways through plea agreements and the like to have people waive their Blakely rights in certain ways that may make the system work a little bit better or deal with a slightly reduced number of cases.

But I think any way you slice this, this is going to have a tremendous impact on the reality of criminal sentencing in the Federal system.

Justice Scalia: Well, as to past.

I mean, it may have a significant one-shot impact with respect to cases that were decided without Blakely in mind.

But for the future, I, I just don't agree with you that changes could make some reduction.

I think changes could provide for jury findings whenever, whenever there's a need for a higher sentence based on facts.

I don't know; what is the problem with that?

Mr. Clement: Well, I, well let me try to address the remedial question then going forward.

If this Court were to find that Blakely is fully applicable to the guidelines, then that's going to raise some very serious and complex remedial questions.

One question, though, I think ought to be clear, is that one option that shouldn't be on the table is the idea that on a prospective basis, the guidelines are severable in a way that makes all enhancements or all upward adjustments completely unavailable, and all downward departures fully available.

Because that system is obviously nothing that Congress intended.

Now Respondents, for their part, don't propose that rule, although they want to benefit from effectively that rule for their own cases.

What they suggest is that on a going-forward basis, you could include the sentencing enhancing factors as, in the indictment and then send them to the jury as effectively de facto elements of the crime to be found by the jury beyond a reasonable doubt.

Now with respect, I think that so-called Blakely-ization of the guidelines creates an enormous amount of judicial lawmaking and raises very serious separation of powers problems.

Justice Souter: What is, what is the lawmaking part?

I mean, if I have a choice... if I have... let's put the question this way.

Congress has authorized the Commission and the Commission has said,

"If fact X is found, then the range is higher. "

Is there a lot of lawmaking in concluding that Congress and the Commission would prefer that range to be higher regardless of whether a jury found the fact or a judge found the fact?

That doesn't seem like much of a stretch to me.

There may be other reasons not to do it.

But in terms of judicial lawmaking, it doesn't seem like much to me.

Mr. Clement: Well, with respect, Justice Souter, I think it is fairly ambitious judicial lawmaking.

You do have to take out a fair amount of text to get the sentencing judge effectively out of the business of fact-finding.

Justice Scalia: What text do you have to take out?

Mr. Clement: You have to take out the reference in 3553(b), that talks about what the courts find, and then it makes a definite reference to the court needing to find things in order to have upward and downward departures.

Justice Scalia: It depends on what you mean by the "court", doesn't it?

Justice Stevens: Just consider the word court to mean jury.

Jury or a judge.

Mr. Clement: And I think then--

Justice Scalia: Which... which is sometimes done, there are statutes that refer to the court, that--

Mr. Clement: --And as we point out in our brief, there are plenty of statutes that refer to the court in distinction from the jury.

I think then if you look at 3742(e), which is the appeal right, if you look at 3742(e), it makes it quite clear that on appeal, courts of appeals are supposed to defer to the, to the fact, the facts found by the district court.

Now I think in the context of the overall provision for judicial review, that it's clearly a reference to the judge, not to the jury.

Justice Scalia: --It seems to me, when there is an ambiguity that construed one way creates a constitutional statute and construed another way creates an unconstitutional one, it's an easy call.

Mr. Clement: Well, with respect, I don't think there's any way to avoid a potential unconstitutional system going forward, because if you treat these guideline factors that were clearly created by the Commission and in some cases created by Congress, on the assumption that they would be used for judge fact-finding, and then send them to the jury, then what you've done prospectively... it's one thing... let me put it this way.

It's one thing to recognize that the guideline factors that are enhancements have the effect of increasing sentences and operate like elements of crimes for retrospective constitutional analysis, for finding a Sixth Amendment problem, but it is quite another thing to prospectively treat those factors exactly as if they're elements of crimes, force them to be included in the indictment, send them to the jury beyond a reasonable doubt.

Justice Stevens: It just means that if a different procedure is followed, you'll reach precisely the same sentences the guidelines reached.

Mr. Clement: Well, I actually don't think that follows, Justice Stevens, because I think taking guidelines that were clearly designed for judge fact finding and sending them to the jury--

Justice Stevens: You think judges reach different results on factual issues than juries do?

Is that part of your submission?

Mr. Clement: --No.

What my submission is, is that taking guidelines that were designed for judge fact finding and sending them and using them for jury fact finding is going to have a very disproportionate impact on some cases.

Let me give you an example if I could, to make the point.

If you think of two fraud cases that under the guidelines--

Justice Stevens: But keep it simple because we're assuming that in most cases, there aren't a host of factors but usually just two or three, such as the drug quantity and did he... a gun.

Now in those where there's a fairly simple fact to identify, would it make any difference in the ultimate sentence that's imposed whether the jury finds it or the judge finds it?

Mr. Clement: --I think it would, Justice Stevens.

And if I could... I'll keep it a very simple fraud example.

Justice Stevens: Keep to the bad example I've given you.

The gun and the drug quantity.

Why would it make a difference?

Mr. Clement: Well, it might make as much a difference in the drug case--

Justice Stevens: Would it make any difference?

Mr. Clement: --Well, here's how it could make a difference, if I could use the fraud example.

Justice Stevens: Okay.

Mr. Clement: And then you may be able to see how it could or could not relate to the marijuana example or a drug example.

In the context of a fraud case, two fraud cases that are sentenced the exact same way and treated as uniform and proportional under the current system--

Justice Stevens: And there's a difference in sentence depending on the on the amount of money that the fraud involved.

Mr. Clement: --In the number of victims.

And what you'll have is... if you think of one fraud that involved one victim and a slightly higher amount of money, and another fraud that involved many victims and a slightly lower amount of money, the current guideline system basically tries to treat them the same.

Now with a single fraud victim, the idea of Blakely-izing the guidelines may be relatively straightforward.

You include the loss amount in the indictment.

You put a special verdict form with the amount of loss on it.

And you call in that one witness, and you can prove up your case beyond a reasonable doubt.

But if you have a case of telemarketing--

Justice Stevens: In that case... let's take them one at a time.

In that case, would it make any difference whether the jury made the finding or the judge made the finding?

Mr. Clement: --I don't think it would, Justice Stevens.

Justice Stevens: Okay.

Then what--

Mr. Clement: But that's what, what I want to contrast it is with--

Justice Stevens: --Now can you hand me a case in which it would make a difference.

Mr. Clement: --Sure.

Imagine that you have a telemarketing fraud where a thousand peoples... a thousand individuals have been milked out of a couple of dollars each.

Now under the current system, proving up the fraud amount for the judge is not that difficult because you can get the probation officer to testify, or some other way to get the total amount of the fraud in front of the judge.

Under the system that Respondents propose, you're going to have to call in every one of 2,000 individuals who was defrauded.

Otherwise, I think it's going to be very difficult to prove that fraud amount in front of the jury beyond a reasonable doubt.

And that just is one example of the disproportionate and disuniform effects--

Justice Stevens: You don't think a very large fraud such as you've described could be proved through two or three witnesses?

Mr. Clement: --I think it would be very--

Justice Stevens: If you used the Internet and they had all said... I am not persuaded.

Mr. Clement: --Well, I suppose--

Justice Scalia: And if it can't be, maybe the judges shouldn't go, be going around guessing how many people have been defrauded.

Or you know, saying

"more likely than not, on the basis of the kind of evidence we usually don't accept in criminal trials. "

Why is that okay?

I don't understand it.

Mr. Clement: --Well, again, I think whatever else is true, what you would be doing with such a system is you'd be taking factors that I think everyone concedes were designed by a Commission that was upheld as constitutional precisely because it did not have the effect of creating new Federal crimes and statutory limits.

Justice Scalia: It doesn't make me feel any good if I spend another years in jail because of it.

Say,

"Oh, well, don't worry about it, it wasn't an element of the crime, after all. "

[Laughter]

Mr. Clement: No, I understand that, Justice Scalia.

I'm trying to talk about the remedial question, though.

Justice Ginsburg: May I ask--

Mr. Clement: Sure.

Justice Ginsburg: --about practice experience in that regard.

I understand the Department of Justice has told prosecutors that now you allege these sentencing enhancers... like drug quantity, like amount of property stolen... you allege them in the indictment, you prove them beyond a reasonable doubt.

Has that proved intractably difficult in cases where it has been attempted?

Mr. Clement: Well, Justice Ginsburg, I think we don't have enough experience to know.

I think I can tell you one thing: that with a lot of enhancements, putting something in the indictment is not necessarily the difficult step.

There are some things like relevant conduct that can be very challenging to try to formulate in an indictment.

But for a lot of the factors that enhance a sentence, it's relatively easy to put it in the indictment itself.

I think the trickier difficulties come up in terms of trying to instruct the jury, especially in cases where there are multiple enhancements.

Chief Justice Rehnquist: I'm assuming that in the case of, say, perjury at trial, you couldn't possibly allege that in the indictment because you won't know.

Mr. Clement: That's completely right, Mr. Chief Justice.

And those cases are just out.

Justice Souter: They've got to be separately prosecuted.

Mr. Clement: And that's never been the under... I mean, that's true, there may be some cases that you could bring a separate perjury prosecution, but this court--

Justice Souter: Well, I don't know of any case in which you could.

Mr. Clement: --Well, there may be situations where there's an obstruction of justice that wouldn't necessarily make out all the elements of a perjury prosecution.

Justice Souter: No, no.

I just, we ought to have an obstruction of justice crime with defined elements that can be prosecuted.

Mr. Clement: Well, Justice Souter, with respect, I mean, this Court, both before the guidelines and after the guidelines, rejected the argument that the only way to enhance a sentence for obstruction of justice was to bring a separate perjury prosecution.

Justice Souter: And I, I would, I would take the same position today, unless you were going to define it, in terms of a condition that is both necessary and sufficient to expand the sentencing range of the crime that you are nominally prosecuting the person for.

I mean, that's the rub.

Mr. Clement: But that's--

Justice Souter: Let me go--

Mr. Clement: --That's what this Court had before it in Dunnigan.

And this Court said that that was not problematic.

It was obstruction during the trial.

And this Court upheld it on reliance on Grayson, a pre-guidelines case, and this Court said that the additional rigor and predictability instilled by the guidelines did not make a constitutional difference.

Justice Breyer: I've listed four categories of things that you think would be very difficult to prove to a jury at the trial, but not to a judge at sentencing.

The first is the vast amount of information now and prior to guidelines that were contained in the presentence report.

That information, most of which was used since history was begun, maybe a hundred years ago, is simply not available until the trial was over.

The second happens to be the things that the Chief brought up, matters committed at trial, such as perjury.

The third sort of thing are those things that just get too complicated when you try to list in indictment, such as victim... put them all together... victim, brandishing the gun, et cetera.

And the fourth kind of thing are the things that are too difficult to explain to a jury.

Try explaining even "brandishing" to a jury, and if you can do that one, which may be easy, try the multiple-count rules.

All right.

So I have those four things.

Now, are there others?

Mr. Clement: I think that's a fair summary, Justice Breyer.

I think on sort of how complicated it gets to take something that was designed for a judge and then send it before the jury in jury instructions, I would ask the Court to look at the Medas case, which we cite on page of our reply brief.

Justice Breyer: All right, all right if I believe that that is just out of the question, it's so complicated, nobody could do it, it would be a radical change, Congress could never have intended that, what about a much simpler approach?

What you would do is take 3553(b), and you say,

"Read the word i.e. "shall apply the guidelines"... to "may",. "

so that the guidelines become advisory, either because the "shall" becomes a "may" or because you give each judge the power to give any reasonable reason at all as to why the Commission's guideline, they didn't actively consider this factor.

In other words, read 3553(b) as permissive.

And now, assuming I've expressed myself on the underlying Apprendi questions, so I, but suppose Blakely does apply, would you... is... what would be wrong with taking that approach?

Mr. Clement: Assuming I understand the approach you propose, there would be nothing wrong with taking that approach.

Justice Breyer: All right, I have thought of one thing that might be wrong.

[Laughter]

So I'll ask you about it, if you want.

[Laughter]

Justice Scalia: Could it be that "shall" does not mean "may"?

Right?

[Laughter]

Oh, that's not it?

"Shall"--

Justice Breyer: All right, well, I... you see nothing wrong with that.

That makes the guidelines advisory, and there are a number of objections... maybe not, maybe big, maybe small.

One objection I was worried about is... I'm giving you my thought process, you know, and I... because I'm trying to get a... your response... is that if we did take that approach, you'd leave the appellate section in place.

That means every time the judge didn't use the guideline, the appeals courts would have to review for reasonableness.

Now that would be in place.

We would discover judges all over the country having different views on that.

Courts of appeals would have different views about was or what was not reasonable.

We would be here to review those differences, and we would become the sentencing commission.

I thought I had escaped.

[Laughter]

Now, how, how serious an objection is that?

Or do you recommend that, if you lose on this point, we take the approach of, in that way, making the guidelines advisory?

Mr. Clement: I would... I would take the approach that you should make the advisory... the advisory guidelines... the guidelines as advisory.

Now, with respect to whether or not you've escaped from the burden of serving on the sentencing commission, I don't think that the reading of 3742, the appeal provision, that you've envisioned is necessarily foreordained.

I think--

Justice Kennedy: Well, have you escaped Apprendi?

If discretion is cabined by guidelines and appellate courts review, for the abuse of discretion in applying those guidelines, why isn't that the same kind of entitlement that the Apprendi/Blakely opinion is predicated on to begin with?

Justice Scalia: --Absolutely.

Vote me for that.

I mean, after all, judges used to define the elements of crimes, didn't they?

And the mere fact that the elements at common law were defined by judges rather than by the legislature didn't mean that you didn't have to have a jury find them.

So if courts are going to establish the guidelines, so long as they are still binding, it seems to me you still need a jury finding, or you haven't escaped Apprendi.

Mr. Clement: --A couple of observations, Justice Scalia.

First of all, you're exactly right, since 1812 we've abandoned a system where judges can define the elements of crimes.

And that's why, if I leave you with one thought on the remedy, I would think that it's inappropriate to allow an entity within the judicial branch to have that effect on a prospective basis.

I think that would be a very serious separation of powers problem.

I think it would dwarf the separation of powers problem that at least you found quite significant in the Mistretta case.

Now, if I can address Justice Kennedy's question about the appeals system simply replicating the Apprendi or the Blakely problem.

First of all, we would suggest that the appeal process that you've envisioned would not violate Apprendi and Blakely.

And that's one of the reasons that we think the Commission wouldn't violate Blakely.

Because what we see is a distinction in this court's cases.

They have... this Court has that judicial discretionary sentencing doesn't implicate the Sixth Amendment.

This Court has said that legislative-directed sentencing does implicate the Sixth Amendment.

What the guidelines present is a situation of judicial sentencing that's directed.

We would suggest... we would suggest--

Justice Scalia: Judicial discretionary sentencing, as I understood it, never permitted an appellate court to increase the sentence given by the district judge.

Do you know of any cases, where an appellate court said the district judge did not give enough years, where there was discretionary sentencing?

Mr. Clement: --Well, Justice Scalia, I can point you to the DiFrancesco case, where this Court approved an earlier Federal statute that allowed for appeals in sentencing.

Justice Scalia: Well, that may be under statute, but I do not know, at common law, that when you talked about the discretion in the courts, it meant that in a criminal case a court of appeals could increase the sentence because of a... because of an abuse of discretion by the sentencing judge.

I'm unfamiliar with any such case.

Justice Breyer: Well, there are lots.

There are lots, actually.

If you... if... I ask, "Is it right, that"?

[Laughter]

But, I mean, if you take common law to mean England, as well as the United States, there weren't here, because the sentences weren't appealable, but in England, they were appealable, and they had a common law work out of what they called the "tariff", which is what the range of reasonableness was or wasn't.

And the prosecution, I believe, could appeal it of being too low; and the defense, being too high.

And the question was, Was the sentence reasonable?

The appellate court could set it.

Now, if we had a system like that... and this is my serious question... is it unconstitutional under Apprendi if appeals court judges reviewing a sentence could say,

"This is the range of reason, this is arbitrary up here, or this is arbitrary down there? "

Mr. Clement: Well, I think our position would be that that kind of system would be constitutional.

As I was suggesting to Justice Kennedy, we think, because that system would be constitutional, we think the guidelines are also constitutional.

I think Justice Kennedy is right, though, that somebody that says that that system is unconstitutional and the guidelines is unconstitutional is not going to be particularly impressed by that reading of 3742 that gets you to that result.

And that's why I want to leave you with an important thought, which is, that reading of 3742 is not foreordained.

This court could say that the guidelines should be applied in an advisory fashion, and that all that would be left of the Government--

Justice O'Connor: That just seems so contrary to what Congress intended.

There's no evidence that they intended this scheme to be advisory.

They told the Commission to set up a scheme that would be applied, because they wanted to make sentencing more uniformly applied in the Federal scheme of things.

I think it's a real stretch to try to argue for the position taken by some Federal judges in one of the amicus briefs that,

"It's just advisory, don't worry. "

And I find it very difficult to understand how appellate review could be applied to such a scheme.

Mr. Clement: --But, Justice O'Connor, that's why, to be clear, we've only argued in favor of an advisory view of the guidelines if we get to the remedial question, because I think you're absolutely right, if you look at what Congress actually intended, it's crystal clear they did not intend the guidelines to be advisory.

But it's equally crystal clear they didn't intend the guidelines to be the basis for jury fact-finding.

Chief Justice Rehnquist: Well, what if this Court said the guidelines are unconstitutional, period, and then judges simply looked to the guidelines, figuring, well, this is as good an idea as anybody else has about sentencing?

[Laughter]

Mr. Clement: I think that actually would be the proper remedy.

That's effectively what we ask for, Mr. Chief Justice.

And--

Justice Ginsburg: And if it were done that way, why would it be that you would try to change the word (b)?

Why not just have Section 3553(a), which does list the guidelines as one of the considerations that judges may take into account in sentencing, one of... among three or four others?

Mr. Clement: --No, I think that's fair, Justice Ginsburg.

I mean, in responding to Justice Breyer's hypothetical, I didn't mean that was the only way to get to the result we've proposed.

And the particular way, in our brief, that we suggest that you would get to an advisory use of the guidelines on a prospective basis is precisely as you suggest.

You don't read 3553(b) to change "may" to "shall"; instead, you read it, unfortunately, I guess, if we've reached the remedial question, to be unconstitutional.

And then, at that point, you focus in on 3553(a)--

Justice Ginsburg: Which has the guidelines--

Mr. Clement: --Absolutely.

Absolutely.

Justice Ginsburg: --as one of other factors.

Mr. Clement: Exactly.

And then if I could just--

Justice Scalia: Except that that, as Justice O'Connor suggests, deprives the statute of its principal purpose, which was to constrain... to constrain judicial discretion.

If there's anything clear about it, that was clear about, it was that they did not want judges to have as much discretion as they had.

And now you say these things are just advisory.

It seems to me much easier to... I wanted to ask you one very precise question.

Assuming I think "court" can mean "jury"... it doesn't have to mean "the judge"... where in, in the whole guideline system, how many sections do not permit the use of "court" to mean "jury"?

Mr. Clement: --Well, I think--

Justice Scalia: I think there's only one where, where it may not work.

Mr. Clement: --Well, I don't see how it works in 3742(e), because if you read that section in context it's talking about determinations made by the court, it's talking about determinations made by the court after the presentence report comes in--

Justice Scalia: That... that may be the one.

Mr. Clement: --and so I think that 3742(e) has to go.

I think the fairer--

Justice Scalia: All right.

Anything else has to go?

Mr. Clement: --Well, I think the fairer reading of 3553(b) is that it has to go, too.

I know that you don't agree with--

Justice Scalia: Yeah.

Mr. Clement: --I think you disagree with me on that.

I think 994... 99... 994(a), in Title 28, which talks about the guidelines being for the use of the sentencing court, I would suggest that has to go, but I assume you would say sentencing court can mean sentencing judge.

Then at that point, there's a provision of rule 32 of the Federal Rules of Criminal Procedure that must go, because it talks about the role of the district court in a way that I don't think you can, sort of, find to mean the jury.

And then I think, obviously, the sentencing guidelines provision that makes clear that it is the judge that's to make the findings by a preponderance of the evidence, has to go, as well.

So I think that is... that is... that is the sum total of the carnage of deciding--

[Laughter]

--that the guidelines are fully applicable with Blakely.

Justice Kennedy: If you... if you interpret "court" to mean "jury", how many of the sentencing factors which will be submitted to the jury are... would be a radical departure from the tradition, the role of the jury in the criminal system in the Anglo-American tradition?

Mr. Clement: I think very, very many of them.

I mean, I can't give you a better answer than that, in terms of the number.

But the Medas case, on page of a reply brief that I suggested the Court look at, provides one example.

There, you had a case where it had already gone to the, to the jury on a general verdict, and it had the typical kind of general verdict form that's used.

A six-count indictment.

There were boxes, guilty/non-guilty for each of the six crimes in the indictment.

Then when there was a concern that Blakely might require jury findings on all the various enhancements, the Government tried to put in a 20-page supplemental special verdict that tried to walk through the various factors that the jury would try to find.

I think that just, in miniature, shows you the kind of transformation you're talking about.

You go from a 12-line general verdict form, which is the classic kind of verdict form used in the criminal system, to 20 pages of a supplemental special verdict form.

Justice Scalia: Well, you ought to get rid of that prosecutor.

That didn't seem to me very sensible at all.

Mr. Clement: With respect, Justice Scalia, I think if you look at that supplemental verdict form, and you look at the guidelines, there's no other way to do it.

And I think, as the judge in that case said, one of the things that comes up in virtually every guidelines case is the issue of relevant conduct.

Now, that is a very, very difficult thing to try to instruct the jury on.

The application notes that the Commission itself have come up in span eight and a half pages of very small, single spaced text.

To try to give that as jury instructions, I think, would leave the jury completely bewildered.

Then, you'd also, though, even if you could get past the instruction problems, the effect of considering relevant conduct is going to have a transformative effect on what goes before the jury, because relevant conduct asks the jury not to focus on the elements of the specific crime; the relevant conduct focuses on the other acts of that individual defendant and, if there's joint criminal, if there's a joint criminal undertaking, the reasonably foreseeable events of acts of others taken in furtherance of the joint undertaking.

Now, the effect of using that guideline, designed for judges, and sending it to the jury, is effectively to transform many, many cases from individual defendant cases to scheme cases or conspiracy cases.

So in tallying up the carnage and the wreckage of applying these guidelines designed clearly for judge fact-finding and willy... nilly sending them to the jury, I think you have to include the confusion and the difficulty of that.

Justice Stevens: Mr. Clement can I... you don't have an awful lot of time left, and I want to ask you one rather important question, to me.

There's been a lot of talk about severability of the statute, and I can understand the concept that we'll only apply it in certain categories of cases.

But normally when I consider severability, I'm thinking of the text of a written statute.

Is there a particular provision of the sentencing guidelines that you think can be severed from the rest of the statute?

Mr. Clement: Well, Justice Stevens, I think with respect to the Sentencing Reform Act itself, the statute, the provision that we think needs to be severed is 3553(b).

Then, with respect to the Guidelines, I think our view on the guidelines--

Justice Stevens: Just sticking to the statute, take out 3553(b) in its entirety, you just--

Mr. Clement: --Well, the specific reference to "shall"... this is basically the "shall/may" issue... I think that needs to be severed.

I'm not quite sure whether 3553(b) is left after you do that, but that's... that's the important thing.

Justice Stevens: --I'm just not sure what's left of the whole statute if you take that provision out entirely.

Mr. Clement: Well, I think, as Justice Ginsburg suggests, 3553(a) still stands alone as telling the court that it should consider that.

And I think, in fact, if you look at the legislative history, I actually think the language in 3553(b) was, was a floor amendment that was added later.

So it certainly doesn't pull the whole statute down to take that one provision out of the statute.

If I could reserve the remainder of my time.

Argument of T. Christopher Kelly

Chief Justice Rehnquist: Very well, Mr. Clement.

Mr. Kelly, we'll hear from you.

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

The first years of Freddie Booker's sentence punished him for crimes that were proved to a jury.

But the judge added another eight years to his sentence, years that were only authorized by the judge's finding that Fred Booker probably committed other crimes.

Like thousands of other Federal defendants, Booker's sentence was increased based on crimes that were never proved to a jury beyond a reasonable doubt.

The final years of a Federal sentence are as worthy of constitutional protections against undeserved punishment as are the first years.

Justice Breyer: Suppose that the judge had simply sentenced the defendant, let's say, to ten years, but looked at these other crimes and said,

"In my practice, I go to 15. "

All right?

That's the basic situation.

Is that unconstitutional?

Mr. Kelly: Under the guidelines or under the--

Justice Breyer: No, no, there are no guidelines.

Mr. Kelly: --No, that is not unconstitutional.

Justice Breyer: All right.

Now suppose the people who do exactly the same thing is the Court of Appeals applying the word "reasonable", these officials of the judicial branch.

See, they're reviewing the sentence for reasonableness.

They say,

"In our practice when a person commits bank robbery, if just an ordinary case, we think it's reasonable five years; but if he has a gun, seven years. "

So if there's no gun, five years is the most that isn't arbitrary.

But if there's a gun, you can go to seven years.

In other words, an English-type tariff system.

Is that unconstitutional?

Mr. Kelly: I believe it would be, Justice Breyer.

Justice Breyer: You think it would be.

So--

Mr. Kelly: Right.

Justice Breyer: --now suppose the people who do it are the parole commission... as happen to be in the United States, executive branch officials.

For the last hundred years, they get sentences, for example, that were indeterminate, or might have been for 30 years.

And what they say,

"It is our practice, assuming good behavior, that if it was just an ordinary bank robbery we'll keep him in for five years, but if he had a gun, he's going to stay in for seven. "

Is that unconstitutional?

Mr. Kelly: Parole commissions don't increase sentences.

Parole commissions decrease sentences.

Justice Breyer: No, what they have is an indeterminate sentence.

Mr. Kelly: Right.

Justice Breyer: California.

Mr. Kelly: Yes.

Justice Breyer: And what they say is,

"In our practice, what we do is, we think it's reasonable, and we will keep a person in prison for five years in an ordinary bank robbery, but for seven years if he has a gun. "

I'm asking if that's constitutional.

Because that's the practice that they follow under parole commission guidelines, and they've done it now for a decade, I make up.

Mr. Kelly: That is constitutional, Your Honor.

And the reason is--

Justice Breyer: That's constitutional.

Justice Scalia: Does he have an entitlement to a certain number of years under any of these questions?

Mr. Kelly: --As I--

Justice Scalia: When you're sentenced to an indeterminate sentence, he's not entitled to parole at any time--

Mr. Kelly: --Other than venues--

Justice Scalia: --is he?

Mr. Kelly: --No, not at all.

And as I--

Justice Breyer: What I'm trying to drive at... and I'll be... is that I can't imagine a court holding that a parole commission in the executive branch that has exactly this same system would be behaving unconstitutionally.

It's difficult for me to imagine... though you say I'm wrong on that... a court holding it's unconstitutional when a court of appeals does the same thing reviewing for arbitrariness.

Mr. Kelly: --Well, perhaps I misunderstood your second hypothetical, Your Honor.

But my understanding of the hypothetical was that if the judge gave five years and the appellate court said,

"No, you should have given seven years because of the existence of a certain fact-- "

Justice Breyer: You know, I--

Mr. Kelly: "you must... you must increase the sentence.... "

Justice Breyer: --I'm not raising the question well.

I'm trying to imagine sentencing guidelines run by a parole commission, executive branch officials.

I'm trying to imagine sentencing guidelines run under the word arbitrary by ordinary courts of appeals panels reviewing the sentences.

And if those are both constitutional, then, I would ask, why is it unconstitutional to put the executive branch and judicial branch officials together in one group called the sentencing commission?

Mr. Kelly: The relevant constitutional principle doesn't have to do with whether it's the executive branch of Government or the judicial branch of Government; it has to do whether a fact is necessary in order to increase a sentence.

Justice Breyer: I understand that.

And... well, maybe I'm just not going to get my question across.

I am trying to imagine Apprendi.

Would Apprendi apply to parole commission guidelines?

I should think the answer, unless we're going to reverse a hundred years of history, is no.

Would Apprendi apply to a court of appeals panel with the power to review sentences for arbitrariness?

Mr. Kelly: No.

Justice Breyer: I would think the answer is no.

And, therefore, I wonder why it applies if we take judicial officials and executive branch officials, and they do exactly the same thing under the heading Sentencing Commission.

Mr. Kelly: In your hypotheticals, Justice Breyer, as I understand them, each of those entities is decreasing a sentence.

We're talking about a sentencing commission that authorizes a court and, in fact... well, authorizes a court to increase a sentence after finding a particular fact, and that is what triggers the Sixth Amendment protection.

It's the fact that a judge is authorized to give a longer sentence because of the existence of a fact than he would otherwise be authorized to impose.

And that is the essential protection against which the Sixth Amendment jury trial right protects.

That is a fact that has to be found by a jury, not by a judge.

Justice Kennedy: But what is your position if judges simply have complete discretion to sentence within a maximum range, and Judge A gives a lot of maximum sentences, and Judge B doesn't?

Is that system constitutional?

Mr. Kelly: There is no Sixth Amendment problem with that system, Your Honor.

Justice Kennedy: What is it in our legal tradition... what policies are served by preferring unexplained, unarticulated, standardless discretion to a system in which the judge gives reasons and follows careful standards and follows... and follows standards that give consistency from one sentence to the other?

Why should the former be preferred?

What are we doing here?

Mr. Kelly: I think, Justice Kennedy, that Blakely answers that question.

Blakely distinguishes between a discretionary system in which the judge has the authority to consider a number of different factors in order to do what the judge thinks is fair, but is not required to--

Justice Kennedy: What policies--

Mr. Kelly: --give any particular weight--

Justice Kennedy: --are being furthered by that, other than wooden adherence to Apprendi and Blakely?

Mr. Kelly: --The policy is that if the judge's sentencing authority increases by finding of fact, which is not the case in a discretionary system.

That fact is the kind of finding that we leave to a jury, because juries--

Justice Kennedy: But isn't that, isn't that ultimately formalistic and contrary to our whole design of our system, which is to learn over experience and to codify and to explain what considerations we take into account in applying the law?

Mr. Kelly: --I don't think it's contrary to our system, Your Honor, to say that if a more serious sentence attaches to a more serious crime, or to a more serious version of a crime, then it's up to the jury to decide whether the more serious crime or more serious version was committed.

In fact, that is essential to our system.

Justice Kennedy: So suppose, in Justice Breyer's hypothetical... like the California indeterminate sentencing regime which applied until about years ago, after an indeterminate sentence, the parole board interviews two people convicted for the same crime; one was the ringleader, street-hardened offender, and the other was just a novice, a guy that went along, although he... they both committed the same crime.

Under the California system, the former would be given a projected release date of ten years; and the other, a projected release date of about two years.

Would that be constitutional?

Mr. Kelly: Yes, it would, because, again, under a discretionary system, the judge's sentencing authority is unaffected by the finding of a fact.

If the parole commission determines that one offender's sentence should be increased and the other offender's should not be decreased, that has no Sixth Amendment application or Sixth Amendment--

Justice Breyer: Look, we're trying to go to the same point, and I think you're actually given me a pretty good answer.

The--

Mr. Kelly: --Thank you.

Justice Breyer: --I'm imagining my system being the system that Apprendi forbids.

So I'm not doing increase/decreases.

I'll think of the very kind of system.

And I take it your answer is this... and remember, I dissented in Apprendi.

Mr. Kelly: I remember.

Justice Breyer: I didn't agree with it.

Right.

But there we are.

And so I'm trying to see how far it goes.

So I wonder, we take our Apprendi system and now it's being administered by a parole commission.

We take our Apprendi system, and now it's being administered by a court of appeals using the legal standard arbitrariness.

And I take it your answer is those are just as unconstitutional.

Mr. Kelly: No, no, again, I'm not--

Justice Breyer: Now you understand what I'm doing, because I'm saying you either have to follow the force of your logic and make those unconstitutional, too, or you have to say there's a difference.

And, by definition, the only difference is who promulgated it.

And then, of course, I'm going to ask you, if there's a difference right there, why doesn't this one, which is executive plus judicial, fall on my side of the difference?

Mr. Kelly: --Well, maybe I... maybe I don't understand your hypothetical, Justice Breyer, because parole commissions do not increase sentences; parole commissions decrease sentences.

Justice Breyer: No, I... in my imaginary parole commission--

Mr. Kelly: Okay.

[Laughter]

Justice Breyer: --which I will argue a different point.

Mr. Kelly: Yes.

Justice Breyer: I mean, I will argue it another time.

I've seen a lot of parole commission guidelines, and I would say they, a lot of them did fall within the Apprendi boundaries.

But if we did take it and have the parole commission do it... "it", being the Apprendi forbidden system, in your view, is it unconstitutional?

Mr. Kelly: It would certainly be unconstitutional for a parole commission to find a fact that increased a sentence.

Justice Breyer: All right.

Okay.

Mr. Kelly: Yes.

Justice Breyer: And then the same thing is true of a... of a court of appeals panel.

Mr. Kelly: If it could find a fact that increased the sentence, yes, because those facts must be found by a jury.

Justice Scalia: Mr. Kelly, I would be interested in hearing you address some of the severability problems that the Government has been raising.

Justice Kennedy: If I could just ask one more question, because this is important to me.

Justice Scalia: Sure.

Justice Kennedy: What about the previous California system in which it was an indeterminate sentence and the correctional authority made findings which set the sentence?

They were... they were committed to the California--

Mr. Kelly: Sure.

Justice Kennedy: --correctional authority for the term prescribed by law, and that was set after the fact, post hoc, by the California Adult Authority.

Mr. Kelly: If the agency were increasing an authorized sentence--

Justice Kennedy: They're not increasing it.

Mr. Kelly: --on the basis of a finding--

Justice Kennedy: It's an indeterminate sentence.

Mr. Kelly: --Right.

Justice Kennedy: They set the sentence.

Mr. Kelly: After the... instead of the judge or after the judge?

Justice Kennedy: Yes.

It was just sentenced, the judge, for the term prescribed by law.

And an agency, after interviewing the defendant, after looking at the probation board, set the sentence.

The term prescribed by law could be for life.

Mr. Kelly: If there were facts which were necessary to authorize--

Justice Stevens: He sets the sentence within the range authorized by the jury's verdict.

That's the question.

Mr. Kelly: --Right, that's fine.

If it's within the range authorized by the jury's verdict, it's fine.

Chief Justice Rehnquist: Well, whoa.

What if, what if the statute says

"every felony in this state shall be punished by a term of not less than one year, or, on the other side, life. "

and you're committed to the parole authority, and the parole authority will decide between those boundaries?

Mr. Kelly: Assuming that authority is given to the parole commission to select a sentence, and no further findings need to be made beyond those made by the jury, there's no Sixth Amendment problem with that.

Justice Scalia: There might be a due process problem.

Mr. Kelly: In fact, there might be a lot of other constitutional problems, but not a Sixth Amendment problem.

Justice Ginsburg: I hope you will go over to the... to the severability problem, because, as I understood it, you and the Government were very much at odds about what should be severed and what shouldn't, and we didn't get to ask Mr. Clement about his severance, which was going to be that to the extent no plus factors are involved, no sentence-enhancing factors are involved, the guidelines remain binding.

He didn't get a chance to say that in his argument, and I hope he'll address it.

And you say,

"Whatever you do, don't make it half binding and half advisory. "

Mr. Kelly: Yes.

Justice Ginsburg: And why would it be so terrible to say,

"Well, to the extent that there are no sentencing enhancing factors, let's preserve what Congress did, let's make them binding when the jury doesn't have to find anything? "

Mr. Kelly: For a couple of reasons, Justice Ginsburg.

The first is that Congress certainly didn't intend to have dual systems.

That destroys the congressional purpose of uniformity because you would have sentences, I suppose, being uniform under systems... the system where guidelines applied, but certainly not under the system where the guidelines don't apply, because there are guideline facts that need to be found.

So that congressional purpose is not advanced.

The second problem is that it's such an easily manipulable system, particularly by the Government.

If the Government wants to be in the guidelines, it doesn't allege a sentence-enhancing fact, or a guideline fact.

If the Government doesn't want to be bound by the guidelines, it alleges a guideline fact, and that takes sentencing out of the guidelines.

And that cannot be what Congress intended.

Justice Souter: Is it any less uniform, any more manipulable, than on your proposal?

Mr. Kelly: Our--

Justice Souter: I mean, uniformity is gone.

A certain manipulability has got to be faced as a fact, and I'm not sure that you're proposing a better solution, I gather.

Mr. Kelly: --Well, I think our proposal doesn't really allow for any manipulation at all, Justice Souter.

We're simply saying that the fact finder must be a jury instead of a judge.

Justice Souter: Well, except that the manipulation, at that point, is the manipulation, in a way, in the present system, and that is it's the manipulability of charge bargaining.

Mr. Kelly: Well, that's certainly true, and that exists under the guidelines.

It exists without the guidelines.

It exists in discretionary systems.

Justice Souter: Yeah.

Justice Breyer: It does exist under the guidelines?

How does it?

Mr. Kelly: I think it does, because--

Justice Breyer: How?

Mr. Kelly: --Well, certainly, to the extent that prosecutors make decisions about what charges they're going to bring--

Justice Breyer: No, only, only, only if you have statutes that have mandatory minimums that have lesser sentences.

That's true.

Mr. Kelly: --Right.

Justice Breyer: But compared to the status quo, if you have the guidelines alone, one of their basic objectives was to prevent that kind of manipulation.

And, by and large, I thought they had succeeded on that point.

Justice Scalia: Well, hasn't charge bargaining simply been replaced with fact bargaining?

Mr. Kelly: It has, to a large extent.

Justice Breyer: Is that lawful under the guideline?

Is the judge required to accept the facts as the... as the prosecution and defense agree to present them?

Mr. Kelly: The judge is not required to--

Justice Breyer: No.

Mr. Kelly: --accept the facts.

The judge typically does.

Justice Stevens: I'm not sure that I understand why you wouldn't have the same alternatives under your view.

Because is it not correct that if the, if the sentence... the change under consideration is a decrease, those findings should be made by a judge.

Whereas, if it's an increase, you'd say they have to be found by a jury.

So why don't you have the same possibility of a two-track system under your view?

Mr. Kelly: I guess... I wouldn't view that as a two-track system, because the guidelines would continue to apply in either case.

It would not be a situation in which the guidelines apply to some criminal sentencings, but don't apply to other criminal sentencings.

The guidelines will apply in every criminal sentencing.

Whether a fact finder needs to be a judge or a jury depends upon whether the fact to be found increases the judge's sentencing authority.

Justice Stevens: So you would say... you would say your proposal is closer to what Congress really wanted, because it would leave in place all of the sentences that would be commanded by the guidelines, but just require a different fact finder in some of the cases.

Mr. Kelly: That's exactly right, Justice Stevens.

You--

Justice Ginsburg: But then what about all the factors... Justice Breyer outlined four categories of, of guideline factors that are not easily, if at all, presented to the jury.

The Chief Justice mentioned the one of perjury at the trial itself.

Could never give that to a jury because it hasn't happened until the trial.

And some of the others that become very complicated, like he mentioned, other... other relevant conduct, relevant conduct, yeah.

Mr. Kelly: --I agree that perjury is not something that could be submitted to a jury... perjury during trial is not something that could be submitted to a jury.

That's--

Justice Ginsburg: So that would just be out.

Mr. Kelly: --That would be out.

That's one of the very few.

Justice Ginsburg: It would have to be prosecuted as separate--

Mr. Kelly: It would have to be prosecuted as a separate crime.

Justice Scalia: Why couldn't you have a sentencing phase afterwards?

I don't know.

Justice Stevens: Could I interrupt for that?

Justice Scalia: Sure.

Justice Stevens: There's one thing that's running through my mind.

What if the defendant gets on the stand and testifies to a version of the events that the jury must have disbelieved in order to convict?

Could not the judge... in effect, he would be making the finding... he would say,

"The jury has really found this fact, and, therefore, I can rely on it. "

Mr. Kelly: I don't think so, Justice Stevens, because the judge is still making the finding that the witness deliberately lied, as opposed to being mistaken in his testimony.

And that is a finding of fact that increases sentencing authority.

So I don't think that a jury returning a guilty verdict in every case means that the jury disbelieved, or thought at least, that the defendant was lying.

Justice Breyer: What is your answer to Justice Ginsburg's question?

And I'd appreciate your focusing on what I thought were the two most important ones, which is, first, the... I thought that sentencing for a hundred years had gone on primarily on the basis of the presentence report.

And the idea was, the person is convicted and now we're going to decide what to do with this individual who's convicted, and we're going to read what the probation officer writes about it, and he'll go interview people after, as he does.

And many, many, many, if not most, of the facts in that presentence report were not available at the time of trial.

They're about the history of the individual, and they're more about the manner in which the crime was carried out.

And the other main thing is the... is the vast number of really complex operations, multiple-count rules, relevant conduct, all kinds of things that... try even "brandishing".

I mean, that's the second thing, the complexity.

So the presentence report--

Mr. Kelly: Sure.

Justice Breyer: --and the complexity.

Justice Kennedy: In other words, the tradition was that we asked the jury to determine what crime was committed, and the sentencing judge to determine the context in which it was committed.

Mr. Kelly: And that still happens, even under our proposal, to a large extent, Your Honor, because the presentence report has historically guided a judge in exercising his discretion at sentencing.

To the extent that the judge exercises discretion in selecting a sentence within a guideline range, the judge will still rely upon the presentence report.

And, frankly, most of what's in a presentence report doesn't have to do with finding extra facts; it has to do with guiding discretion in selecting a sentence.

So I don't think that that really changes under our system.

With regard to the complexity, it's been my experience in defending Federal criminal cases that although the guidelines are lengthy, there are only two or three that are likely to apply in any particular case, and it's not particularly complex to figure out what those are, and it wouldn't be all that complex to charge a jury with regard to how to determine facts that are required by the guidelines.

We give juries jury instructions that are complicated all the time.

We do it in RICO--

Justice Breyer: Congress's basic... that's a good answer.

Congress's basic objective here is... was uniformity.

I think it was a noble objective, whether or not it's been achieved or, but are you saying to Congress, Sorry, the Constitution prohibits you, in Congress, from trying to create uniformity, or greater uniformity, of sentencing among district judges?

There's just no way you can do it, because if you throw everything to a jury, you know, you throw it right into the hands of the prosecutor to determine what to charge, what not to charge, what facts to agree upon, et cetera, no way to do it?

We're back to our two cellmates... one day served, 50 years served... though the real conduct was the same.

Mr. Kelly: --The real conduct can still be proved to a jury, as long as it's charged and proved to a jury.

Chief Justice Rehnquist: How about the form of verdict under your system?

Is there one line for the basic offense, and then other lines for each additional factor that's alleged in the indictment?

Mr. Kelly: There may be, depending on the case.

There may be cases in which a general verdict is adequate because there are no guideline facts to find that would increase sentencing--

Chief Justice Rehnquist: But you're suggesting, then, a special... a special verdict in every case where there are guideline facts to be found.

Mr. Kelly: --Just as special verdicts have been used since Apprendi to find drug quantities and other facts that increase maximum sentences.

Justice Ginsburg: --But a special verdict wouldn't do from the point of view of the defendant, I think would resist it very heavily, if what the findings have to be are, say, a much larger drug quantity, the relevant conduct.

These are things that could be damning for a defendant.

So a defendant surely would not want that, all of this to be tried to the jury that's going to try the basic case.

The defendant would much prefer to have the jury not know about that it wasn't five ounces, that it was 500 grams, or that, at the same time, the defendant did a lot of other bad things.

Mr. Kelly: Your Honor, I think we can trust district judges to fashion procedural protections that assure that trials are fair.

That might, in some cases, mean bifurcating the underlying elements of the offense and the determination of those elements from the finding of guideline facts--

Justice Ginsburg: So you would have to have, then, essentially two trials.

Mr. Kelly: --In some cases, yes.

Justice Souter: Well, isn't it... isn't it... isn't that going to be so in every relevant conduct case in which the Government thinks the relevant conduct is a serious factor?

It is either going to have to be a separate jury verdict on sentencing, or the district judge is going to be limited simply to whatever range the jury fact finding provides as the maximum range.

There are no other possibilities, are there?

Mr. Kelly: Well, in some of those cases, Your Honor, the additional facts would come in on the main trail anyway, as 404(b) kind of evidence that is relevant to proving the underlying charges.

And if it's going to come in anyway, then there probably wouldn't be a second part of the trial.

So I think--

Justice Souter: But isn't the defendant in that case going to say look, I, I'm claiming a serious problem, if you're asking the jury to make a specific finding that I committed relevant facts A, B, C, D, and E, even though I don't happen to have been subjected to a criminal guilty verdict with respect to each one.

By, by requiring those findings, you're going to skew the jury's mind to the point where I'm not going to get a fair shake on the guilty/not guilty finding or special fact finding most immediately relevant to this case.

Every defendant is going to demand a separate jury proceeding for that, isn't he?

Mr. Kelly: --It's certainly possible that they'll demand separate, or bifurcation--

Justice Souter: Yes, but you wouldn't sit back and allow that focus, if you're the defense lawyer you're not going to allow that focus to be made at the time of the basic guilty/not guilty finding, are you?

Mr. Kelly: --Well, I've had experience with that.

And my experience has been, as I've said before, I might ask for a bifurcated trial, but if the judge thinks that that evidence is going to come in against my client anyway, the judge is going to deny bifurcation.

If the judge says you're right, this would be prejudicial to introduce this evidence in the main case, then we'll bifurcate the trial, and we'll let the jury find guilt, guilty not guilty and then find sentencing facts if the guilty verdict is returned.

Justice Ginsburg: Do you know what the Kansas system is?

I mean, right after Apprendi, they transformed their guideline system into one where the jury makes the findings, but are all of their trials bifurcated?

Mr. Kelly: I don't know if they bifurcate all their trials.

My understanding is that it works in a way that's similar to what I'm suggesting could happen in Federal court.

Justice Breyer: As long as you're on the subject, I'm quite... you're going to... what is your reaction to what I've written, which you've, you used to say wrong, wrong, wrong, but I want to know why.

And what I know why in particular is I speculated somewhat, that the reason that this might work, your side of it, if it works despite the, the complication, the bifurcated trials, etc.

, is that 97 percent of the cases are handled through plea bargaining, and this will give you a little bit of a leg up, which I speculated the defense bar likes.

I'm not surprised.

But then, I thought with in the long run, you just can't have a system of justice that depends for its workable nature upon plea bargaining, which in fact depends on the weapons you give to prosecutors.

And so I ended up thinking, I just can't underwrite such a thing.

And I'd like to get your, your, your reaction to that.

Mr. Kelly: Your Honor, here's how plea bargaining works now.

The prosecutor charges the easiest crime to prove that he can prove.

There is no effective plea bargaining in most of those cases because the prosecutor knows he's going to win that trial.

So the defendant pleads guilty because he doesn't want to lose his, his reduction for acceptance of responsibility.

I think what changes is probably if our proposal is accepted, that there is more meaningful negotiation and that prosecutors and defense attorney's will come to an understand in most cases of what sentencing facts are provable, and what are not, and cases will continue to plead out much the same as they do right now, except more effectively because we eliminate the problem of the prosecutor being able to prove the easiest charge and save the heart of the case for sentencing.

I think with that, Your Honor, I will, unless there are other questions, defer to my colleague.

Argument of Rosemary Curran Scapicchio

Chief Justice Rehnquist: Thank you, Mr. Kelly.

Ms. Scapicchio.

Mr. Scapicchio: As to question one, there's no meaningful difference between the Federal Sentencing Guidelines and the Washington State Guidelines.

The Government conceded as much in their brief to this Court in Blakely.

When they filed an amicus brief in Blakely they told this Court, or they urged this Court not to invalidate the Washington State Guidelines because, they told this Court, if you do, they are so similar to the Federal Guidelines that the Federal Guidelines will fall as well.

And here they are, less than five months later, standing before the same Court, saying something completely different.

Now, it's not that they're so similar to the Washington State Guidelines, but that they're completely different, and that they don't operate in the same manner at all.

And what it comes down to is that for Sixth Amendment purposes, the source of the law doesn't matter.

The Government got it right when they filed their amicus brief in Blakely.

It doesn't matter to a defendant whether or not the source of the law is legislative, or the source of the law is by commission or regulatory body.

If the sentence is going to increase, based on a fact that, that the law makes essential to punishment, that must be pled and proved to a jury beyond a reasonable doubt.

Justice Breyer: So can I ask you the same question?

Imagine that the statute says bank robbery is zero to twenty years.

Case one, a separate statute says a guideline commission will make distinctions, and the guideline commission says,

"five years in the ordinary case, seven years with a gun. "

Case two, the same thing but a parole commission does it.

Case three, the same thing, but a court of appeals panel does it, under the guise of what's arbitrary, what isn't.

They're all, in your opinion, to be treated alike.

Mr. Scapicchio: If there's a fact necessary to increase the sentence--

Justice Breyer: Well, there is just what I said, just what I said.

Mr. Scapicchio: --Then yes.

Justice Breyer: Okay.

Mr. Scapicchio: With respect to Mr. Fanfan in this case, Mr. Fanfan's sentence was promulgated based on the jury verdict alone.

Mr. Fanfan, the Government chose to indict Mr. Fanfan on a single count of conspiracy.

He went to trial on a single count of conspiracy.

Chief Justice Rehnquist: Conspiracy to what?

Mr. Scapicchio: Conspiracy to distribute 500 grams of cocaine.

The Government knew at the time of trial that Mr. Fanfan was arrested with 281 grams of crack cocaine at the time of his arrest.

The Government chose not to indict him for that 281 grams of crack cocaine, and instead, they chose to prove the easiest possibly indictment before the jury.

Once the jury was dismissed in this case, the Government then sought to increase Mr. Fanfan's sentence by 157 months, based on the possession of the crack cocaine that they knew about at the very beginning, and we're suggesting that Judge Hornby did the right thing in limiting Mr. Fanfan's sentence to that which was supported by the jury verdict alone and nothing else.

Justice Ginsburg: Judge Hornby had some distress in doing that, didn't he, because the difference was quite large?

Based on what the judge found, it would have been fifteen or sixteen years as opposed to five or six years?

Mr. Scapicchio: What Judge Hornby did for Mr. Fanfan was, he conducted what he called a presentence, a pre-Blakely hearing, and at the pre-Blakely hearing he allowed the prosecutor to present evidence relative to relevant conduct involved in the offense.

And the prosecutor presented evidence that the relevant conduct included this possession of 281 grams of crack cocaine, as well as a case agent who claimed that Mr. Fanfan was the leader of this entire conspiracy.

And then Judge Hornby went on to say, based on everything that he heard in the pre-Blakely hearing, if given the opportunity, he would sentence my client to between 188 to 235 months.

Justice Ginsburg: He didn't say it, that that was his discretionary choice.

He said that--

Mr. Scapicchio: He was required.

Justice Ginsburg: --He made, he made those findings of fact, that... leadership role and the quantity of drugs.

Mr. Scapicchio: He did.

Justice Ginsburg: And on the basis of those two he said the guidelines would require me to come up with this higher sentence, not that using the guidelines as advisory he would have gotten--

Mr. Scapicchio: Absolutely.

It was the guidelines required him to impose sentence between 188 to 235 months.

Justice Ginsburg: --And then the other, that's the high range, and the low range is, I'll just stick with the crime that he was indicted for, and that's five or six years.

Mr. Scapicchio: He, what Judge Hornby did is, is he sentenced Mr. Fanfan based solely on the jury's verdict.

The jury only heard evidence of the conspiracy to distribute 500 grams of crack cocaine.

Because the jury only heard evidence, and thus returned a verdict based solely on the 500 grams of crack cocaine, then Mr. Fanfan's sentence, according to the Judge Hornby after this Court decided Blakely, was limited to the jury verdict alone.

Justice Ginsburg: That's quite a windfall for Mr. Fanfan, isn't it?

Mr. Scapicchio: Well, in this particular case I would say no, because the Government knew when this Court decided Apprendi, and certainly knew by the time this Court decided Ring, that if they wanted to increase a defendant's sentence beyond the statutory max, that they should plead it and prove it in the indictment.

And in this case, they chose not to.

And so, whether or not Mr. Fanfan may have... get some benefit because of this Court's decision in Blakely, certainly he does.

I'm not denying that he doesn't.

But only because the Government didn't do what this Court told them they should do in both Apprendi and Ring.

Chief Justice Rehnquist: Did the trial judge give any indication of what sentence he would have imposed if he were not constrained by the guidelines?

Mr. Scapicchio: He did not.

He indicated that, if the guidelines applied, that he believed Mr. Fanfan fell between 188 and 235 months.

There was no discussion at all as to whether or not he had discretion to sentence anywhere outside the guidelines during this proceeding.

And, with respect to question two in this case, whether or not the guidelines are severable, which of course is the more difficult question before the Court, our proposal to sever out those portions of the guidelines that require judicial fact finding by a preponderance of the evidence will accomplish the sentencing reform goals.

The goals of the sentencing reform were uniformity, proportionality, and certainty.

Chief Justice Rehnquist: You wouldn't sever out the ones that would permit a downward departure, would you?

Mr. Scapicchio: Would we sever the portions of the statute that require--

Chief Justice Rehnquist: You would leave in place the provisions for downward departures?

Mr. Scapicchio: --We would leave in place the majority of the sentencing guidelines.

Chief Justice Rehnquist: Well, and... but could you answer my question?

Mr. Scapicchio: Mr. Chief Justice, would I sever out--

Chief Justice Rehnquist: Would you leave in place the provisions for downward departure?

Mr. Scapicchio: --Yes.

Justice Stevens: How can you do that?

The statute that makes the guidelines mandatory applies to both upwards and downwards departures, so I have always had trouble knowing what provision of the statute anybody severs.

I can understand your saying that there's a bunch of unconstitutional applications of the statute, and you have to set aside the sentences in those particular cases, but I simply don't understand severing a single provision that covers both upward and downward departures.

How do you sever it?

Mr. Scapicchio: Well, I think you sever it by severing out the unconstitutional portions of it.

And you sever it by getting rid of anything that indicates that indicates it's a judicial fact finding by a preponderance of the evidence.

Justice Stevens: But that's the same, that's the same provision that allows departures of the same... by the same procedure.

Mr. Scapicchio: Well, the departures in--

Justice Stevens: It seems to me you're not severing a piece of a statute, you're just severing a bunch of applications of the statute you think are invalid.

Mr. Scapicchio: --The applications of the statute that are invalid in this case are the ones that require judicial fact finding by a preponderance of the evidence.

Justice Stevens: Correct.

I understand.

Mr. Scapicchio: Those under Blakely need to be severed.

What we're left with now is a statute that needs to, that needs to function in terms of saving the guidelines.

Chief Justice Rehnquist: But would it... would it really save the guidelines in the way that Congress intended them, to strike basically the provision for enhancements, and leaving in place the provisions for downward departures?

Mr. Scapicchio: It's not going to operate exactly the way Congress intended.

Because Congress never intended to pass a statute that was unconstitutional.

And so it has to undergo some change.

And in this particular case, what we're saying is, minimize the amount of changes that the statute has to undergo in order to preserve it.

Justice O'Connor: Well, maybe we should just leave it to Congress to decide, because it doesn't sound like the scheme Congress intended.

Mr. Scapicchio: Well, Congress intended a mandatory system.

It's clear that Congress intended a mandatory system.

The Government--

Justice O'Connor: And it intended fact finding by a preponderance for both upward adjustments and downward.

Mr. Scapicchio: --Not necessarily fact finding by the judiciary.

It's not one of the listed goals of the sentencing reform act.

Those listed goals are uniformity, proportionality and certainty, and those goals can still be met under the proposal that we're suggesting the Court adopt.

There will still be uniformity in sentencing, there will still be proportionality and there will still be certainty of sentence.

Chief Justice Rehnquist: Well, but will there be proportionality if the sentences, sentences can be downward, the jury verdict could be adjusted downward, but not upward?

Mr. Scapicchio: If it turns out, Mr. Chief Justice, that there is some, some difference in the severity of a sentence that a defendant receives, certainly Congress could, could come in and make the appropriate changes if that's the result of the proposal that we're suggesting, but the proportionality wouldn't change.

You know, the degree of crimes is still going to line up in the exact same manner.

Chief Justice Rehnquist: But you can say the same thing if we simply said that the whole guidelines fall, and they're simply there for judges to apply if they wish.

You can say,

"Well, if Congress doesn't like that they can come in and put a new system. "

That's true any time Congress acts.

Mr. Scapicchio: But... absolutely, Mr. Chief Justice, it is true any time Congress acts, but in this particular case, the Government has the burden of proving the inseverability of the statute.

We're attempting to show that the statute is severable to save the guidelines in this case, and we're attempting to show that by suggesting to the Court that you don't have to throw out twenty years of sentencing reform.

That the guidelines should still be mandatory; we're suggesting that the mandatory portions of the guidelines remain, the bulk of the guidelines remain, and we're changing the fact finder.

Justice Scalia: Why do you... why do you have to call it severability?

Suppose we just said it's clear that whenever these facts have not been found by a jury, the guidelines cannot be applied?

That the guidelines are unconstitutional, as applied, when there's been no jury finding, and leave it.

We're not severing any particular language, we're just saying that that portion, that proceeding in that fashion produces and unconstitutional sentence.

And then let the Government work out how it wants to find its way around that problem.

Mr. Scapicchio: That's certainly an option that the Court could consider.

Justice Scalia: I'm just not sure, I share Justice Stevens' perplexity as to whether that's really properly described as severing part of the statute.

Justice Stevens: And may I add this thought, that it seems to me, I don't know whether this is true; Mr. Clement and I had a dialogue that was inconclusive; I had been under the impression, perhaps erroneous, that in fact the number of unconstitutional departures if one follows Apprendi as being the constitutional rule, is actually a small percentage of the total, and if it should follow that only three, four, five, six percent of the sentences that have heretofore been imposed or will be imposed in the future would be unconstitutional, that's a pretty weak reason for saying the whole statute is unconstitutional on its face, or even in one provision of the statute.

It seems to me you just say,

"Oh, okay, you can't impose those sentences in those three percent of the cases. "

I don't know why that's a departure from our prior practice.

Mr. Scapicchio: I, Well, I think because what's left is, is that the system will then be open to some manipulation, under that scenario.

If the Government can control who it is that will be sentenced under the guidelines and who will not be sentenced under the guidelines, then the system is, is ripe for manipulation.

Justice Stevens: No, my suggestion is everybody can be sentenced under the Guidelines; the only difference is that in three or four percent of the cases you may have to bring a jury in to get an enhanced sentence.

Mr. Scapicchio: In, under that scenario, if any fact that needed to increase a defendant's sentence was pled and proved to a jury, that would suffice.

Justice Scalia: You wouldn't care whether you call this severing, severability or not, would you?

Mr. Scapicchio: Absolutely not.

Justice Scalia: I didn't think you would.

Mr. Scapicchio: It produces the same results, whether it's, you call it severance or the way that the statute works.

Justice Scalia: And I assume, don't you, that any solution we come up to is likely to be an interim solution anyway?

Mr. Scapicchio: It's very likely to be interim solution and the legislature will tell us what they really want us to do and we'll all make the appropriate adjustments.

Justice Breyer: But the idea is that this works because most cases are plea bargained.

Mr. Scapicchio: Most cases are plea bargained.

Justice Breyer: So what you'll do if you're right, is all you would say is any time that the prosecutor wants to say that you committed the bank robbery or you committed the drug offense with more than a minimal amount of money or more than a minimal amount of drug, or there were guns, they get into a bargain, and they end up with a sentence once they bargain... if that's the sentence, because they're not even going to contest it before the judge, both sides will come in and agree.

But in those few cases where they do contest it, you would have to have the jury find the facts.

Mr. Scapicchio: Yes.

Justice Breyer: Now, the only reason that I find it disturbing is to think that Congress could have wanted such a system is given other developments in Congress, mandatory minimums and all kinds of things, that seems to me to be a system that would really, might make non-uniformity in reality, worse than it was before 1986.

See, I mean, my goodness, every prosecutor's going to be doing something different, every defense attorney; everything will depend upon the bargains.

The judges when they come in will think different things.

I mean--

Mr. Scapicchio: The--

Justice Breyer: --Should we uphold something like that in the face of a Congress that wanted uniformity?

Mr. Scapicchio: --Yes, and I'll tell you why.

Because that's exactly the way that the guidelines operate now.

The only thing that's changing is the identity of the fact finder.

That the Government can come in now and charge whatever it wants, because it's free to charge whatever it wants, and that, the Government in this case, or in any case, could then bargain with defense counsel and the defendant as to which facts they may want to plead to, as to which portions of the indictment they may want to plead to, happens every day.

And, and, and so, if that's the case, changing the identity of the fact finder isn't going to change that process at all.

Justice Breyer: Did you find out anything in your research on this where anybody in the... this discussion of the guidelines began, I think, in the early 70's, it's been around for 30 years.

The guidelines have been law for 17 years, and until recently with Apprendi, is there a history of anything being written about the guidelines being unconstitutional for this Sixth Amendment reason?

Did any group of judges, or defense attorneys, or academics or anybody write anything that we could look at until quite recently in which they thought this was a possibility?

Mr. Scapicchio: Before quite... before this Court's decision in Apprendi?

Justice Breyer: Yeah, before we began with Apprendi?

Mr. Scapicchio: I don't believe so.

Justice Breyer: Nothing.

Mr. Scapicchio: I'm not aware of any.

Justice Stevens: Have you read Justice Thomas's opinion in Apprendi?

He's got a lot of prior law in there that maybe would be of interest to you.

Mr. Scapicchio: And with respect to Mr. Fanfan in this case, Your Honors, we're asking that this Court give intelligible content to the jury's verdict by finding the district court's imposition of a 78-month sentence based solely on the facts found by the jury beyond a reasonable doubt.

Justice Stevens: May I ask just one, one last question?

Do you agree that within the guidelines ranges, which sometimes are fairly large, that a judge does have the discretion to impose any sentences he wants to based on the conduct of the defendant, whether or not it's proved to the jury?

Mr. Scapicchio: Within the guideline range?

Yeah.

Justice Stevens: You get to the range by the jury finding, the judge still retains substantial discretion within the, within the range.

Mr. Scapicchio: Substantial discretion within the range, yes.

If there are no further questions.

Rebuttal of Paul D. Clement

Chief Justice Rehnquist: Thank you Ms. Scapicchio.

Mr. Clement, you have four minutes remaining.

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

This Court in Mistretta expressed its understanding that the commission was constitutional because it would pursue traditional judicial tasks related to sentencing, and it would not get involved in quintessentially legislative acts of setting maximum penalties, or defining the elements of the crime.

Now, we of course, think that's quite relevant for the Sixth Amendment issue that's raised in question one; but even if you disagree with us on that, even if you think the non-legislative origins of the guidelines don't matter for purposes of question one, surely they do matter for purposes of the severability analysis under question two.

Because if one takes those elements, those enhancement factors in the guidelines, and treats them like true elements of crimes that must go to the jury, then you are giving this non-legislative body's work product the effect of Federal criminal statutes, and that's something that not only Mistretta suggests is problematic, but United States v. Hudson in 18 suggests is problematic.

And the effect is really breathtaking; it is an understatement to say that the effect of that judicial remedial decision would be to create thousands of new Federal crimes.

Now, let me talk just for a second about the language of severability.

There's been some questions about whether what we're really talking about is severability.

First of all you're going to have some cases where there's going to be no enhancing factor at all.

And in those cases you don't need to talk about severability.

If there's no Sixth Amendment issue raised in a case, there's no reason to strike anything down and that would be a simple matter of traditional principles of third party standing and facial challenges.

The fact that you might have a constitutional problem in this case, doesn't mean that you invalidate the guidelines in those other cases, where they apply without problem.

The real question becomes, what do you do in a case where there is a Sixth Amendment problem, assuming Blakely applies to the guidelines?

At that point, I think severability is the right way to talk about it.

One way of dealing with the case at the point you recognize there's a Sixth Amendment problem in this case is to say,

"Well, there's nothing we can do about it, we can't sentence this individual to any more than the upper bound of the sentencing range. "

The second thing you can do is you can say,

"Well, okay, there's a constitutional problem, but the result is that we sever 3553(b), we don't make the guidelines mandatory, and we allow the judge to impose a discretionary sentence within the range of the statute. "

That is what we think is the appropriate solution.

As a couple of you have mentioned, what we may be talking about here is an interim solution anyway as Congress may well get involved.

That's why in considering what regime of remediability or severability best serves the interests of Congress in uniformity and proportionality, it pays to pay particular attention to the cases that are in the pipeline now.

And on those cases, there's no question which proposal better serves the interest of uniformity and proportionality.

Respondents have to admit that they are seeking a huge sentencing windfall here.

One other point that bears mention is this idea of, the suggestion that because the guidelines will not be binding in every case, the Government somehow controls the decision as to whether or not it's a guidelines case or not.

That is not the case.

That decision under the system will rest with the judge.

If there is an enhancement sought, but it's not found in the basis of the judge, then there's no Sixth Amendment problem in that case, and the case can go forward.

The irony, of course, is that the consequence of applying Blakely to the guidelines is to create more power with the prosecutor, because as Justice Breyer pointed out, under the current system of the guidelines, the prosecutor cannot control through the indictment exactly what sentencing factors the judge will consider.

The Burns case, for example, that this Court had involved a case in where the judge sua sponte took notice of sentencing factors that neither the prosecutor nor the defendant very much wanted in front of the court.

That will no longer be possible under a system where everything has to be in the indictment, so the result is to strengthen the hand of the Government.

The last thing is this idea of bifurcation is not a panacea.

I know Justice Scalia, you've thrown that out in a number of instances, but the traditional rule in cases with real elements of real Federal crimes is that you don't get to bifurcate out one element that the defendant doesn't want to put before the jury.

That's the, that's the binding law in cases like Collamore out of the First Circuit and Barker out of the Ninth Circuit.

So, I think it's wrong to suggest that, that bifurcation is going to solve all these problems.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Clement, the case is submitted.

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

Attribution:

The Oyez Project

Featured:

Harris v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:22 +0000

Case:

Harris v. United States

Media File:

00-10666_20020325-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of William C. Ingram

Chief Justice Rehnquist: Mr. Ingram.

Mr. Ingram: Mr. Chief Justice, and may it please the Court: The petitioner in this case is asking the Court to rule that the brandish clause of 18 United States Code, Section 924(c) is an element to be charged and proved beyond a reasonable doubt and not merely a sentencing enhancement, based on two separate and independent bases.

The first is the statutory analysis under Jones v. United States, and the second basis is the constitutional analysis under Apprendi v. New Jersey.

And I will address the Jones argument first.

The carjacking statute in Jones v. United States had, as additional elements, serious injury and death, which the Court held to be additional elements after the statutory analysis was completed.

And the carjacking statute in that case and 18 United States Code, section 924(c) in this case are virtually mirror images of each other structurally and grammatically.

The Court looked at the text of the statute, the legislative history behind those facts, and how legislatures historically had treated those facts in determining that serious injury and death were, in fact, elements to be proved and not merely sentencing enhancements.

Likewise, we contend that brandish, based on the... the text of the statute, the... how legislatures have typically treated that fact and the fact that it involves a mens rea element... that is, brandish is... is defined as displaying or making the presence known of a firearm in order to intimidate and... and mens rea has traditionally been an element... and then based on the legislative history that those statutes would lead the Court to conclude, based on the statutory analysis, that brandish is in fact an element to be proved and not merely a sentencing enhancement.

Justice Souter: But it's not so... it seems to me that... I understand your argument, but it's not so clear as it was in Jones.

I mean, the difference between use and brandish is... is a... is a smaller difference in degree.

The difference in the penalties are smaller differences.

It's just a couple of years, the difference between 5 and... and 7, for example.

And... and I understand how you can make the argument, but I don't see the argument as being sort of a slam dunk in the case.

Mr. Ingram: Your Honor, if I may address each of those concerns.

The... first of all, the... the fact that the increase under the brandish statute goes from a mandatory minimum of 5 to a mandatory minimum of... of 7 not being a steep increase, first of all, it does take the defendant 40 percent higher for brandishing from 5 to 7, and... and it doubles the penalty 100 percent higher for discharging the firearm, which cannot be divorced from the brandishing element.

There are cases from this Court in the context of ex post facto challenges to application of sentences that were enacted after the defendant committed the crime, most particularly Miller v. Florida, the leading case which we cite in our brief, where the Court held that an increase in a sentence of anywhere from two to two and a half years substantially disadvantaged the defendant and foreclosed the defendant from asking for a lower sentence.

Likewise, in the case of Glover v. United States, which we do not cite in our brief... that is at 531 U.S. 198... the Court held, in the context of a challenge of ineffective assistance of counsel, that an additional guideline sentence under the Federal sentencing guidelines of anywhere from 6 to 21 months meets the substantial prejudice prong of the ineffective assistance of counsel claim.

So, we contend that the increase from 5 to 7 years is in fact a... a substantial difference.

The elements in question, comparing serious bodily injury and death to brandishing, are somewhat different in that the serious bodily injury and death are results, whereas brandish and discharge are conduct of the defendant.

But we contend that the brandish and discharge being treated more seriously are seeking to address the same possible results; that is, if a defendant merely carries a firearm or possesses a firearm, it is far less likely that serious bodily injury or death will result than if the defendant brandishes or discharge... discharges--

Justice Breyer: Can I... can I go to Apprendi?

Because the... I want to just focus you a little bit, assuming you lose on this argument.

I want to know... and this is hard for me because I dissented in Apprendi.

I want to know how you, as a person living with the case, understands it.

Imagine two statutes.

I just want to know if you think Apprendi applies to the second of the two statutes.

The first statute says the sentence is up to 10 years for robbery, but if a gun is discharged, up to 15.

There's no question that Apprendi applies to that second.

Doesn't it?

Mr. Ingram: --I agree with that.

Justice Breyer: That's what Apprendi is about.

Now, suppose I take that same statute and I just rewrite the words as follows.

The maximum for this crime of robbery is 15, but unless a gun is discharged, you shall not sentence to more than 10.

Now, is that second statute treated identically to the first in your understanding and the understanding of the bar?

That's what I'm trying to get at.

Mr. Ingram: Yes.

My understanding is that Apprendi would cover the--

Justice Breyer: Both.

Mr. Ingram: --latter statute that you have described.

Justice Breyer: Both.

So, the wording of it doesn't matter.

Mr. Ingram: No.

I contend that it... it does not.

Justice Breyer: All right.

Now, if that's the case, I'd also like... and this is my other... only other question.

I'd... I'd like to get your understanding.

The defense bar, I understand, of which you're an important part, wants this extended, and my question is why.

And this is my, why... what I have trouble seeing in this.

It seems to me as a practical matter what's likely to happen is the prosecutor will come in, and it's primarily about drug cases.

And they'll say, fine, we'll go to the jury.

You want a trial?

Fine.

You say you were in Chicago?

Fine.

We say that there were two kilos of drugs, and then you have to get in front of the jury and argue my client was in Chicago, but just in case he happened to be around, there was only one kilo.

Now, that's impossible for you to argue.

Now, given that kind of problem, why does the defense bar, why do you, and why does everyone else... why are they so anxious to extend this case?

Mr. Ingram: Your Honor, that is not a problem that the defense bar does not already face.

In... in the context that you described in a drug case, in Federal court now the evidence presented at trial will involve both possession with intent to distribute evidence, as well as quantity evidence.

Justice Breyer: Yes, but still under the present law, if you have a good claim as to whether it's one kilo or two and the evidence is in dispute, you find the guilty verdict come in.

At that point, you go to the judge and you say, now, judge, we want... we want to go into the evidence here about how much drug there really was.

You can't do that if you have to do it all at the same time in front of the jury.

Mr. Ingram: As a practical matter, in Federal court, the... the Federal judges at sentencing rely on the trial evidence.

So, a defense attorney knows during trial that I am hearing evidence about quantity that I want to dispute because I know it's going to come up later in a sentencing hearing, but I don't dare do that here because I am telling the jury that there was no possession at all.

So, it is a dilemma that we face now and... and faces attorneys, for example, in cases where you admit my client did kill someone, but not with malice aforethought.

Quite often you do have to negate additional elements, and you do have that dilemma already.

This would not create any new dilemma for us.

Justice Kennedy: Well, let me rephrase Justice Breyer's question slightly or... or make the point that I think underlies part of his question.

Apprendi is not a... true or false?

Apprendi is not an unmixed blessing for the defense bar.

Mr. Ingram: I think it can create some problems, as we just described, but they're not problems that we don't face in other areas and on other--

Justice Kennedy: Well, given Apprendi, of course, you face the problem.

But looking at Apprendi as an original matter, which we cannot... which I think we're unlikely to do, it... it has... it imposes some real disadvantages on defendants, does it not?

Mr. Ingram: --I do not think they're real disadvantages.

I think they're just... they're just some... some difficulties that defense attorneys face all the time.

Justice Kennedy: Well, but the case Justice Breyer puts to you shows a very real difficulty.

Mr. Ingram: And as I've described, that is a difficulty that we face already.

And... and the important--

Justice Kennedy: Because of Apprendi.

Mr. Ingram: --No, Your Honor.

Before Apprendi.

That problem faced defense attorneys in... in a number of contexts.

And... and we're really more concerned here not so much with the problems it creates, because they're not new problems, but with... with the fact that mandatory minimums add additional deprivations of liberty that should be addressed by the jury and found beyond a reasonable doubt and not... not left to the discretion of trial judges, based on the case law of this Court, including Apprendi itself.

We are relying on the constitutional rule announced in Apprendi.

Prior to Apprendi, in... in McMillan and Patterson, the Court had acknowledged that there were some limits, some constitutional limits to what a legislature could do in defining the elements of a crime.

But it... the Court had never announced exactly what those limits are.

Now, it is true that Apprendi was limited to an increase in statutory maximums because that is what the case was about.

Those were the facts of the case.

But the constitutional rule that was the underpinning of the Apprendi holding was that as... as stated by the majority in endorsing the concurring opinions in Jones as follows, it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed, and equally clear that they must be proved beyond a reasonable doubt.

So, the constitutional rule of Apprendi was any fact that increases the range, either the floor or the ceiling, of the prescribed penalties are constitutionally elements that must be alleged by the defendant... by the prosecution in the charging document and must be proved.

Justice O'Connor: What about things like the Federal Sentencing Guidelines which also have the effect of increasing the range of the penalty within certain limits?

There are lots of factors there that under the guidelines the judge would still decide.

Under your argument, Apprendi would throw all those out.

It has to go to the jury.

Mr. Ingram: I disagree, Your Honor, and--

Justice O'Connor: Why?

Mr. Ingram: --and I do agree with your statement that there are lots of things that the guidelines allow the judges to consider.

First of all, mandatory minimums are just that.

They are mandatory.

They do not allow a judge to consider any mitigating factor, however strongly the judge may... may believe in those mitigating factors, to go below.

The sentencing guidelines, first of all, expressly allow the judge to consider a number of aggravating and mitigating factors.

Justice O'Connor: But they may be unconstitutional under your theory.

Mr. Ingram: They are not because we contend that the guidelines, unlike mandatory minimums, still leave the judge with lots of discretion.

In Koon v. United States, this Court--

Justice O'Connor: The question is under your theory of Apprendi, which imposes constitutional limits on discretion for judges, that can be given to judges, how many of the sentencing factors are going to fall by the wayside?

Mr. Ingram: --I... I submit that none of them will because none of those factors mandate a particular penalty to the exclusion of any mitigating offense.

For example, under the drug guideline, if the defendant possessed a firearm, then in a sense a two-level increase is mandated or called for, but that nevertheless still allows the judge, without a Koon discretionary departure--

Justice O'Connor: Well, that's exactly the kind of thing that presumably under your argument would have to go to the jury, whether he possessed a firearm, or the quantity of drugs involved.

Mr. Ingram: --No, it is not, Your Honor, because the judge in such a case would still have the ability to depart, or first of all, to reduce the offense level for other mitigating facts in the case.

Chief Justice Rehnquist: You're... you're saying that just the level is kind of inchoate until the sentence comes out because there are other factors that could be applied?

Mr. Ingram: The... the sentencing guideline range, once established, is mandatory unless and until the judge determines that there is a legally permissible basis to depart downward or upward.

And Koon recognized that there are innumerable bases for allowing the judge to exercise that discretion.

Chief Justice Rehnquist: So long as... so long as the upward or downward departure is there, you say Apprendi doesn't cover it.

Mr. Ingram: That's correct.

Justice Scalia: Or downward, anyway.

Chief Justice Rehnquist: Oh, I see now.

Justice Scalia: Downward or upward?

Or upward?

Chief Justice Rehnquist: I said upward or downward.

Justice Scalia: I know.

And he agreed.

[Laughter]

I'm surprised that he agrees.

I... I would think you would... you would say that... that it's only the downward that... that saves the guidelines.

Mr. Ingram: Well, I think it is in this case.

The... the fact that the judge can depart downward--

Justice Scalia: I mean, suppose a judge could not depart downward under the guidelines, could only... only depart upward, you'd have a mandatory minimum, wouldn't you?

Mr. Ingram: --You would have.

But that... that--

Justice Scalia: Okay.

So... so, what you agree with is that so long as the judge, under the guidelines, has the option of departing downward, you wouldn't... this case would not necessarily decide the guidelines.

Mr. Ingram: --That is correct.

Justice Souter: Suppose a judge--

Justice O'Connor: --How... how does a judge have the opportunity to depart downward under the guideline if the guideline says if he had a gun, you're supposed to go up?

I just don't understand your argument at all.

Mr. Ingram: Because that--

Justice O'Connor: --purpose is if he has a gun, you increase it.

Why isn't that an Apprendi thing under your theory?

Mr. Ingram: --Because the judge still... that... that does not bind the judge at that level.

The judge still--

Justice Kennedy: Suppose... suppose the judge says, now, it's the policy in this court and in this jurisdiction, counsel, that if you come in and your defendant has a gun or has brandished a gun, I'm going to go upward.

I want you to know that.

Then the case is decided, and he said, you know, I would have given your counsel... your client six months if he hadn't brandished the gun, but he brandished that gun: 5 years.

And you contend he didn't brandish the gun.

Why shouldn't Apprendi control that?

Mr. Ingram: --Because the... the constitutional rule announced by the Court is that if a legislature mandates an increase in the prescribed range of penalties.

In the case you've described, Your Honor, the judge, although he says I would still... I will always go up, he... he still has the freedom to not go up.

Justice Kennedy: So--

Mr. Ingram: And... and he is subject to an abuse of discretion standard on appeal.

Justice Kennedy: --So... so, in your view, Apprendi stands for the proposition that legislatures cannot control judges in the sentencing process.

Mr. Ingram: No.

My... my... in a sense that is true.

My position is constitutionally that legislatures have the power to determine what conduct they're going to criminalize and to define the elements and the prescribed punishment for those elements as long as it is not cruel and unusual.

Justice Kennedy: Well, I... I think Apprendi is clearly binding here, and... and we have to decide how... how it should be applied.

I... I do have some problems in... in this case because of the fact that I think the statute is a little bit different than Jones.

I... I don't agree that it's structurally the same.

And I really don't see why this shouldn't apply where judges have discretion.

Mr. Ingram: Is your question why would this... why would the Apprendi doctrine not apply where the judge has discretion?

Justice Kennedy: That's part of my concern, yes.

Mr. Ingram: Well, I think the answer to that is that constitutionally the... the rule announced in Apprendi is that where a legislature mandates a particular mandatory minimum or maximum, then that is where the constitutional demands that the... those facts be tried by beyond a reasonable doubt--

Justice Scalia: Where... where a judge has discretion, I suppose no single fact requires a certain sentence.

Isn't that right?

Mr. Ingram: --That's correct.

Justice Scalia: By definition, where the judge has discretion, no single fact requires a certain sentence.

Mr. Ingram: That is correct.

Justice Ginsburg: But as a practical matter, even in... in this, suppose this judge thought that the... Harris should not have gotten more than 5 years.

So, he says, well, the evidence of brandishing could go either way, so I want to give him 5 years.

I'll find... I won't find brandishing.

That kind of discretion you... the prosecutor I suppose couldn't say anything about.

A judge... a judge has that discretion no matter what the legislature rules are.

He can say, it's a close question whether brandishing exists.

Therefore, I will not find brandishing.

That will bring him down to the 5-year level.

Right?

Mr. Ingram: That is true.

If he... if he--

Justice Scalia: It's true?

A judge... a judge has discretion, when he's making factual findings, to say what is false?

Even though he thinks one... one fact is true, he has discretion to say that it's not true?

Mr. Ingram: --No.

Your Honor, I don't mean to say that he has discretion to make fact finding.

That... that is always--

Justice Scalia: That was the question.

Does the judge have discretion to say, even though I know there was brandishing, I'm going to say there wasn't brandishing.

He doesn't have the kind of discretion.

Mr. Ingram: --No, he does not, and I misunderstood the question then.

Justice Ginsburg: No.

I didn't say that even if he knew.

I said if the judge said, well, it's a... it's a tough question, so I'm not going to... I'm not going to make up my mind on it.

Mr. Ingram: Our position is once the judge does conclude, by a preponderance of the evidence, that brandishing exists, he has no authority to give anything less than the mandatory minimum, no matter what other mitigating facts he may conclude may be present in the case.

Justice Stevens: What you're saying is he has to--

Mr. Ingram: He is bound by that.

Justice Stevens: --What you're saying is he has to be honest when he decides the brandishing issue.

Mr. Ingram: Yes.

Justice Stevens: Okay.

Justice Scalia: And I suppose he has to confront the brandishing issue.

He can't say, it's a tough question, so you know, I'm not going to... I'm not going to face it.

The law requires him to... to decide whether there's been brandishing or not, doesn't it?

Mr. Ingram: Yes, it does, by a preponderance of the evidence standard.

And we contend where the... under the constitutional rule in Apprendi, that increasing the mandatory minimum makes that fact an element that must be found not by a preponderance of the evidence, but by the fact finder at trial beyond a reasonable doubt.

All the more important, because in this case, the judge noted that it was a close case, and therefore the standard of review becomes all the more important in... as illustrated by this case that--

Justice Ginsburg: Close on brandishing.

But he also said, I would have given this guy 7 years no matter what; Apprendi, without Apprendi, 7 years is what I think is right for him.

Isn't--

Mr. Ingram: --That is what... that is what he at least implied strongly.

But he cannot do that... if... if we prevail here and we go back for a resentencing, the judge is not going to be able to give more than 5 years.

That is the... the guideline sentence.

There's no guideline range for this.

The guideline is the mandatory minimum sentence.

The judge will not be allowed to give more than 5 years unless he identifies a legally permissible basis for an upward departure.

And in that case, he can increase above the 5-year mandatory minimum.

Justice Kennedy: --Suppose on... on remand, if you prevail here,... well, I guess there would have to be a new... a new trial on the sentencing point.

But suppose the judge says, you know, the jury has found there's no brandishing because he displayed it but they didn't think that was brandishing under my instructions.

But he did have a gun and he did show it, and even if that isn't brandishing, I'm going to up it to 7 years.

He can do that?

Mr. Ingram: If I understand Your Honor's question, then yes.

If a jury concluded that the defendant--

Justice Kennedy: No brandishing.

Mr. Ingram: --did not brandish... that is, if it was considered to be an element and the jury determined that he did not brandish... then first of all, he would be not guilty of the crime, because that would be an element that must be proved, and any element that is not proved beyond a reasonable doubt means that he would be not guilty of the crime.

But if there, for example, was some accompanying charge that the defendant was found guilty of and not the brandishing, then certainly the judge would have the discretion to consider whether the firearm was brandished or discharged.

Chief Justice Rehnquist: Are you saying that if he were charged with this offense and charged specifically with brandishing, and the jury found him not to have brandished, he would have to be acquitted?

Mr. Ingram: That is correct.

Chief Justice Rehnquist: Wouldn't... wouldn't there be a lesser included offense of everything in the statute except brandishing?

Mr. Ingram: Well, that is true.

By saying he would be acquitted and found not guilty, it would be of the separate offense of brandishing the firearm.

Chief Justice Rehnquist: But... but the prosecution would be entitled to a charge on a lesser included offense.

Mr. Ingram: That is correct.

That is correct.

Justice Scalia: But... but wait.

But you would allow the judge to increase his sentence on the basis of the judge's belief that he was brandishing?

Mr. Ingram: Yes.

That... that is... although I do not agree with--

Justice Scalia: Well--

Mr. Ingram: --with that policy, nevertheless that is... that is the case under the status of the law now.

Where a defendant is found not guilty, for example, of substantive drug offenses, at sentencing, the judge is allowed to conclude beyond... by a preponderance of the evidence that those quantities were possessed and, in fact, should count against the defendant for sentencing purposes.

Justice Kennedy: --Well, I'm quite surprised at that.

I... I tried to phrase my... my question to get around that.

I said the judge accepts the jury finding that there was no brandishing, but everybody agrees that he did at least have a gun and so he's going to increase it for that.

That was my hypothetical.

But in answer to Justice Scalia, you said the judge could say I think there's brandishing by a preponderance of the evidence.

I'm surprised at that.

Mr. Ingram: We are suggesting that brandishing must be proved--

Justice Breyer: That's this Court's case I take it--

Justice Ginsburg: --That... that... I--

Justice Breyer: --which maybe we should reconsider.

Chief Justice Rehnquist: Why don't you let him answer?

Answer Justice Kennedy's question.

Mr. Ingram: --By... by saying that the brandish must be an element to be proved beyond a reasonable doubt, we are not contending that if the jury finds the defendant not guilty on that particular element, that the judge might not be able to consider, by a preponderance of the evidence, that fact, in... in addition to any other number of mitigating and aggravating facts, in... in determining the appropriate sentence.

Justice Kennedy: I'm surprised at that.

Justice Scalia: But the appropriate sentence within his discretion.

Mr. Ingram: That is correct.

That is correct.

He could not--

Justice Ginsburg: And... and it is true that under the guidelines a judge can find something that the jury didn't find because the standards are different, beyond a reasonable doubt in the one case, and the judge said, well, I'm... I would think, too, it wasn't proved beyond a reasonable doubt, but there is a preponderance of the evidence.

Therefore, I find it, for purposes of my guideline calculation.

That's... that's quite common, isn't it?

Mr. Ingram: --It is... it is quite common that the judge finds by a preponderance of the evidence both conduct that was not even charged and conduct that was charged and... of which the defendant was found not guilty, because of the difference in the standard of proof.

Justice Scalia: So... so--

Mr. Ingram: That is... that is... I'm not happy with that either, but that is the case law and that is the law as... as it stands.

Justice Scalia: --So, what have you accomplished if... if they just rewrite the guidelines to say you get 5 years for brandishing?

Mr. Ingram: What we will have accomplished--

Justice Scalia: The consequence will be that even if the jury finds no brandishing as an element of the crime, the... the judge may... and indeed, under the guidelines, must... add 5 years for brandishing if he thinks, by a preponderance of the evidence, there was brandishing, which is the situation you're in now.

Justice Kennedy: And if I can pile onto Justice Scalia's question, you now have the worst of both worlds because you have the disadvantages we referred to at first, and yet the judge can still go upward.

Mr. Ingram: --No, Your Honor, it does not.

If this is an element to be proved at trial, and the finder of fact determines beyond a reasonable doubt that the... the Government has failed to find beyond a reasonable doubt that he brandished, then he can only be sentenced for the carry and use phase or possession of the statute.

And... and that only mandates a 5-year mandatory minimum.

Therefore, brandish cannot under those circumstances increase the range.

It cannot increase the mandatory minimum.

It cannot increase the maximum.

The judge can still sentence within the mandatory 5 to life.

He simply cannot and is not bound by a determination that the defendant brandished and therefore he must give a higher sentence.

He... he can in considering that, along with any other aggravating and mitigating factors.

Justice Scalia: But the guidelines can require him to give a higher sentence.

If the same higher sentence of 5 years were mandated in the guidelines, you say that's okay.

Right?

Mr. Ingram: It would not be mandated in the same sense.

A mandatory minimum is just that.

The judge has no longer any discretion to go below.

The... the defendant has no right to ask the judge to go below.

The prosecution is empowered to insist that the judge give the higher mandatory minimum sentence.

The defendant is not precluded under the guidelines from asking the Court to depart downward on any number of legal bases for downward departures that take his case outside the heartland of cases under Koon v. United States.

If there are no further questions, I will reserve the remainder of my time for rebuttal.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Very well, Mr. Ingram.

Mr. Dreeben, we'll hear from you.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court: This Court's decision in McMillan v. Pennsylvania forms the backdrop for both the statutory and the constitutional questions in this case.

As a matter of statutory interpretation, the amended section 924(c) creates one crime with a minimum of 5 years and a maximum of life in prison and then gives the sentencing court additional guidance as to where the penalty shall be set within that 5-year-to-life range.

The increase in the mandatory minimums does not run afoul of the Apprendi rule and is, in fact, specifically endorsed by this Court's decision in McMillan.

And on the constitutional question, this Court's decision in McMillan 16 years ago established that it does not violate the Constitution for a legislature to choose one fact that has historically borne on the appropriate penalty to be assessed at sentencing and give the judge guidance as to what that sentence shall be.

Justice Kennedy: Well... well, given the precedent of Apprendi, suppose the judge says, now, you know, the jury finds an enhancement because of harassment, and the judge says, well, under... let me begin again.

Under your theory of the case, the jury doesn't... the judge said, you know, I would ordinarily give you 6 months, but I... I find there's a harassment here... or pardon me... brandishing here, and so I'm going to give you 5 to 7 years.

True, it's a mandatory minimum.

True, that's different than Apprendi.

But it certainly seems to me that the concerns Apprendi... of Apprendi are fully applicable here.

Mr. Dreeben: Justice Kennedy, there are several significant differences between the issue in a case like this and the issue in a case like Apprendi.

In Apprendi, the judge could not go above the jury's verdict based on the Court's constitutional analysis.

In other words, the jury sets the outermost limit that the judge can do, and in the sense of protecting the jury trial right, the Apprendi rule tracks onto what the jury must find.

Here, regardless of what the jury finds, the judge has the discretion and the authority to sentence the defendant between 5 years and life in prison.

What the mandatory minimum takes away is not a jury trial right, but a right to judicial discretion to give a lower sentence than the mandatory minimum calls for.

But Apprendi was not about protecting judicial discretion.

Apprendi, in fact, limited judicial discretion and said that the judge cannot go above the maximum that the jury's facts have determined.

Here the judge is not doing anything that he could not do based on the jury's verdict anyway.

All that is happening is that he is losing the discretionary power to give less, and that judicial discretion interest is not the interest that was at stake in Apprendi.

That's reinforced by the fact that the history that this Court relied on, as one of its key determinants in the Apprendi decision, is not present in this case.

The history in Apprendi, the Court concluded, showed that it has been the rule down centuries into the common law that the judge cannot give a higher sentence than based on the facts that the jury has determined.

But there is no comparable historical rule that would support a preclusion of judicial discretion within the otherwise applicable range.

The history of sentencing in this country shows that within the maximum sentence established by the jury verdict, judges have been often given tremendous amounts of discretion on what sentence they should impose.

But the history of sentencing also reveals that legislatures have frequently intervened in order to establish more precise rules to govern that discretion.

And the... therefore, there is no broad historical rule that is contradicted by a statute like the one in this case and the one that was at issue in McMillan.

Justice Breyer: But if that's so, do you... do you accept what... what your... what the petitioner said in respect to my second statute, if you remember it?

The second statute is, Congress passes a law and it says the maximum for robbery is 15 years, but if there is no injury, then it's 7 or 5.

Now, does Apprendi apply to that?

Mr. Dreeben: It--

Justice Breyer: Or if there is... if the gun isn't discharged.

Does Apprendi apply to that?

Mr. Dreeben: --It might, Justice Breyer.

The crucial question is whether that statute has created an affirmative defense.

Justice Breyer: No, no, no.

There is no doubt that the statute I'm talking about intends the fact of discharge to be a sentencing factor.

There is no doubt.

I mean, I can write it in such a way that that's clear.

Mr. Dreeben: If it's--

Justice Breyer: Now, at that point, Apprendi is a constitutional rule, and therefore does the discharger not have to be presented to the jury?

Mr. Dreeben: --As I understand Apprendi, it would.

Justice Breyer: All right.

If that's so, then what did you say in your first answer?

You've had two parts.

You had a... a purposive part and you had a historical part.

All right.

Now, did you say anything, other than saying eloquently and in several different ways, that Apprendi concerned a maximum and this case concerns a minimum, which I am sure that the petitioners would concede?

Mr. Dreeben: The significance of it concerning a minimum is that under this statute, once the jury returns a verdict of guilty, using or carrying a firearm during in relation to an underlying drug trafficking offense, the judge has the authority by virtue of that jury verdict to sentence from 5 years to life in prison.

That's what the statute means.

What the mandatory minimum provision does is say, within that range, we want this defendant sentenced to not less than 7.

Justice Breyer: All right.

That's certainly true.

But what's bothering me about it is every factor in Apprendi... and I was against Apprendi.

I dissented.

But having that now being the law, it seems to me every factor, other than the fact that this is a minimum and that's a maximum, applies a fortiori in this case.

Mr. Dreeben: Well, the two most significant factors, as I've tried to say... and I'll try one more time... is that in Apprendi, the defendant could not have gotten a sentence above 10 years based on the jury's verdict alone.

It took an additional finding by the judge to send him into the realm where the maximum was now 20, and then he... Apprendi got 12.

In this case, once the jury or, as it happens, the judge... the defendant waived a jury trial... assigned a finding of guilt to the defendant, the statute said, your sentence, Mr. Harris, is between 5 years and life in prison.

And the statute comes along and doesn't give the judge the authority to do something that he could not have done before.

Justice Scalia: So, Apprendi is just a draftsmanship problem, really.

So, I mean, it's bad if... if the legislature says, for this crime you get 20 years, but if you brandish a weapon, you get another 5.

That's bad.

So, the legislature, that's okay.

I'm sorry.

For... for this crime you get 1 to 20, but if you brandish, you get... you get 25.

So, I say, okay, we'll revise it in light of Apprendi.

For this crime, you get... you get 1 to 25, but if you brandish a weapon, it shall be 25.

That's okay, although the other one wasn't okay.

And... and it's up to the judge to find whether it's brandishing or not.

Mr. Dreeben: The difference in that statute, Justice Scalia... and I agree that that would not trigger the rule that this Court announced in Apprendi... is that as the Court's opinion in Apprendi notes, if Congress writes the second kind of statute and says the range is 1 to 25, it is exposing all defendants who are sentenced under that statute to a possible sentence of 25 years.

And the Court said that structural democratic constraints exist to deter legislatures from enacting statutes with more draconian maximum penalties than they think are appropriate for the worst of the worst who are going to be sentenced under that statute.

Now, here when Congress amended section 924(c), it went from a statute that had determinate sentences.

Previously whatever you did under 924(c), the judge had no sentencing discretion at all.

It was just 5 years or 20 years or 30 years.

Congress changed that and said this is a more serious crime.

This is a crime which, if you're convicted of it, you're going to get at least 5 years with an implied maximum all the way up to life in prison.

By virtue of doing that, Congress envisioned that there would a spectrum of offenders under section 924(c), some of whom are going to be at the bottom of the tier and are just the least worst offenders under that statute.

They'll get 5 years.

Others are going to be the worst of the worst.

They are going to get a sentence that will be closer to the top of the statute.

Within that range, Congress gave to the sentencing judge additional guide points of how to exercise that discretion.

For someone who brandishes, that's a little worse than simply using; he should get at least 7 years.

For someone who discharges... that's an increment worse yet... it's 10 years.

But there's still all of the head room up to life in prison that Congress established for this offense.

It doesn't violate the Eighth Amendment for Congress to say that someone who brings a gun into a drug or a violent crime has committed a serious offense.

We want the judge to have up to life in prison.

Justice Breyer: So, if you tell the--

Justice Stevens: --May I ask you a question on... on a different topic?

Because I think we understand your argument here and I... Justice O'Connor asked your opponent, in essence, to what extent he thought the sentencing guidelines were implicated by this case.

Would you comment on that subject?

Tell us what you think the impact of this decision will have on the sentencing guidelines.

Mr. Dreeben: Justice Stevens, it's unclear what impact this decision will have on the sentencing guidelines, I assume on the assumption that the Court extends Apprendi to mandatory minimums.

The sentencing guidelines are like mandatory minimums in certain respects.

They provide ranges, once the judge has determined by a preponderance of the evidence, the defendant's conduct and criminal history, that by statute the judge is to give a sentence within.

But they differ from mandatory minimums in that the statute further says that the judge can depart from the guidelines sentence based on an aggravating or a mitigating fact that distinguishes the case from the kinds that the guidelines' drafters had in mind.

Now, the guidelines are... are different primarily in that there is a broader range of discretion available for the judge to depart than there is under a mandatory minimum.

I emphasize that this is a question of degree rather than one of kind because even these mandatory minimums under section 924(c) can be departed from.

If the Government makes a motion that says the defendant has rendered substantial assistance to the Government in the prosecution of others, that authorizes the judge to depart from what is otherwise a mandatory minimum.

That same ground for departure also exists within the guidelines, and it accounts for more than half of the departures that exist in the guidelines.

Now, the guidelines do, of course, provide a further zone of less guided discretion to the judge in when he can depart.

And if this Court rules against the Government in this case, we will be back saying that that zone of discretion distinguishes the guidelines.

Whether the Court agrees with that or not will be an open question.

Justice Stevens: Right.

I understand, but at least the... at least the argument that your opponent made would be available to the Government.

There's a difference because of the amount of discretion--

Mr. Dreeben: That's correct.

Justice Stevens: --under the guideline.

I did not understand.

I want to be sure I don't miss this point that you made in your answer.

Do you argue that in this case it's really not a mandatory minimum because there is the discretion in... in the prosecutor to ask for... for a deviation from the statute?

Mr. Dreeben: No, not in the sense that Your Honor is asking the question.

But I... I do wish to underscore that there is... there is a range of ways that Congress can draft statutes and the States can draft statutes.

Under the drug statutes, for example, there's not only the substantial assistance departure that I've mentioned, but there's also a departure for first-time offenders called the safety valve.

Now, that adds an additional amount of discretion to the judge.

And any constitutional rule that this Court develops for mandatory minimums is going to have to be very careful in articulating how much discretion is enough in order to make the mandatory minimum no longer mandatory and no longer minimum.

It could be that the availability of the substantial assistance departure is enough to take it out of a rule that says never means never, and if... if Congress says never, then the judge can't make the finding.

That is precisely why we urge the Court to adhere to McMillan v. Pennsylvania which held 16 years ago that it is permissible for... for the legislature to provide additional guidance.

And the Court left open the possibility that particular statutes may fall under a constitutional rule, but it didn't prescribe the sort of rigid rule that petitioner is advocating in this case.

Justice Ginsburg: Mr. Dreeben, apart from one being within the jury zone and the other not, is there a rational distinction between saying, judge, you can't add on 2 years at the top and saying you can't subtract 2 years at the bottom?

Mr. Dreeben: The rational distinction, Justice Ginsburg, is that in the former case, the defendant has a right to a jury trial that has to find him guilty on all the facts that are going to determine the longest possible time that he can spend in prison.

Under this statute, even if he does have a jury trial right to brandishing... just suppose that he did; suppose that Congress gave it to him so we eliminate the constitutional question... the jury could find him not guilty.

And the judge could still say, well, I think by a preponderance of the evidence, you did brandish, and exercising my discretion, I'm going to give you exactly the same 7 years that the statute called for.

The fact that that can happen shows, I think, that the right that's in play here is not a right to a jury trial that will protect the defendant against the possibility of this increased punishment.

It is the right to have a judge with unlimited discretion not to impose the mandatory minimum even if he finds brandishing, because that is the distinction that I think both petitioner and I draw between the sentencing guidelines and this mandatory minimum.

And the right to judicial discretion is simply not the Apprendi right.

It's not a right that's been historically recognized.

And if this Court were to accept respondent's... or petitioner's analysis of the constitutional rules that govern here as being drawn from the ex post facto cases, which is essentially what he relied on in his reply brief and in this Court, the Court would have to fashion a far more sweeping constitutional rule than would address merely mandatory minimums, because the ex post facto cases are triggered by any substantial disadvantage to the defendant.

It doesn't have to be a substantial disadvantage that can only be proved as an element of the crime.

The ex post facto cases apply to the withdrawal of good-time credits.

They apply to the sentencing guidelines, as the Court held in Miller v. Florida.

They would presumably apply to the withdrawal of an affirmative defense after the defendant committed his crime.

And petitioner, by relying on that test, essentially says, I want a rule that means that anytime I am substantially disadvantaged by one aspect or another of the criminal laws of a State, the jury must find those facts.

All facts that are germane to my punishment--

Justice O'Connor: Is that the implication of Apprendi?

Mr. Dreeben: --That is the--

Justice O'Connor: Is that where we're headed, in your view?

Mr. Dreeben: --I hope not, Justice O'Connor, because I think that the Apprendi rule, as bounded by the history that the Court relied on and the explicit statements of its holding, coupled with the Court's recognition that, yes, legislatures can write statutes that will achieve similar results to Apprendi but will do it in an acceptable form, all of those things suggest that the Court did not have a broad ruling on it.

Justice O'Connor: Do you have a sense of how the application of Apprendi is working out in the system now?

I mean, how is it being applied?

What's happening?

What has changed as a result?

Mr. Dreeben: Well, retrospectively Apprendi has caused a considerable amount of judicial chaos as courts have attempted to sort out harmless error, plain error, and retroactivity considerations, one of which is before the Court next month in the Cotton case.

Prospectively, the United States has responded to Apprendi by having facts that raise the... the maximum be submitted to the jury.

And it does, as a matter of practice, cause some complications in particularly intricate conspiracy cases where the jury has to make separate determinations as to each conspirator.

It also creates the kinds of issues that Justice Breyer was talking about for defendants who are hampered to some extent in their ability to present dual alternative defenses of the nature, I wasn't involved in this conspiracy, but if I was, I'm only accountable for a certain amount of drugs, because the jury is being asked to make that determination.

Once the jury makes it affirmatively, the judge is not going to be in a position at sentencing to second guess that.

So, Apprendi does... does restrict the... the defendant's ability to make a defense--

Justice Scalia: --defense bar complained about that, have they?

Mr. Dreeben: --The defense bar has been--

Justice Scalia: I'm... I'm unaware that they are... are keen on getting rid of Apprendi.

Mr. Dreeben: --Their primary desire to date so far, Justice Scalia, has been to get all of the old sentences in the pre-Apprendi regime overturned.

And when they've finished with that agenda, maybe they'll turn to trying to get different proceedings at trial.

Justice Breyer: But as far as you're concerned--

Justice O'Connor: --To get it expanded.

Mr. Dreeben: As cases like this reveal, there's been an effort to expand Apprendi to what could be viewed as its widest logical implications, because although I've presented a theory for why Apprendi should be read narrowly to avoid disrupting the traditional ability of legislatures to structure sentencing, there is obviously within the opinion the seeds of a much more fundamental change in the--

Justice Breyer: Yes, but those are extensions... extensions on the... on the basis that you've said, which I now understand, is you say, well, there has to be a jury finding for anything that will lead to a longer maximum term, the highest possible term.

And they say, yes, but if that's so, you also have to have a jury finding for the shortest mandatory term, because the shortest mandatory term is far more important to any individual defendant than the highest theoretical possible term.

And I think that's what their argument rests upon, and that sounds basically true.

And it doesn't lead you down the path you're talking about.

Mr. Dreeben: --I don't think that it would be true for a defendant like the defendant in Jones who was convicted by the jury of a crime that carried a 15-year penalty.

Justice Breyer: No, there are some... there are some exceptions, but they're saying in general.

And... but what's... I want to be sure I... I'm in a slight dilemma because I think Apprendi was not right.

But still, there it is.

And the... but the... the question... I want to be sure you finished Justice O'Connor's question.

My understanding is prospectively a ruling against you here would not give the Government a lot of trouble.

Prospectively what you would do is you would simply charge in the indictment every factor related to mandatory minimums and go and prove it.

And that's not herculean.

That isn't some tremendously difficult thing to do, or not?

Mr. Dreeben: The Government could do that.

Justice Breyer: They could do it.

Mr. Dreeben: The States have a much wider range of mandatory minimum sentencing programs.

They've filed an amicus brief in this case that itemizes the far greater number and wider range of State mandatory minimum programs.

I'm not in a position--

Justice Breyer: Well, having read those, do you have any impression in respect to the practicalities of it?

Mr. Dreeben: --I think that the States will suffer increased practical problems compared to the Federal Government because in the Federal Government, the mandatory minimums are in relatively specific areas and we could, indeed, go forward and charge and prove them to a jury.

The more fundamental implication of an extension of Apprendi within the maximum term is that it does raise greater questions about the constitutionality of schemes such as the sentencing guidelines.

Those are, of course, not only on the Federal level but prevalent throughout the States as well.

And... and the process of drawing lines between whether mandatory minimums are mandatory enough to trigger any constitutional rule, versus sentencing guidelines not being, is going to require a process of adjudication, and there's no way to predict where that will end up.

It will largely depend on how broadly this Court interprets the rule that it announced in Apprendi and then if it applies it here, how it applies it.

If there--

Justice Stevens: May I ask you just a short... so I don't lose the point?

In our discussion a little earlier, you mentioned a statute that makes the mandatory minimum not 100 percent mandatory because the Government may ask for a... a departure.

What is the statutory authority for the Government to make such a motion?

Mr. Dreeben: --Under 18 U.S.C., section 3553(e).

Unknown Speaker: 3553.

Mr. Dreeben: Yes.

The Government can file a motion for substantial assistance of the defendant in the prosecution of others, and upon that motion, the judge can go below.

This Court analyzed that statute in Melendez v. United States several years ago, a case which I believe is cited in our brief.

Justice Ginsburg: Mr. Dreeben, are you going to say anything before you get done about the statutory construction question?

Because I'm... if we said the statute is like Jones, wouldn't that be the end of it?

Mr. Dreeben: Correct.

And, Justice Ginsburg, I... I agree with the suggestion of Justice Souter earlier that this statute is not identical to the Jones statute and shouldn't be construed identically to it.

First and most fundamentally, in Jones and again unanimously in Castillo, the Court commented that a statute that's written, as section 924(c) is written, has the look of the creation of sentencing factors when you start off looking at it.

In Jones, the Court then went on to analyze a number of structural features that suggested that the initial look was unreliable.

Here the initial look is reliable.

Unlike in Jones where the additional factors, serious bodily injury and death, took the penalty from 15 years, first to 25 years, and then to life in prison, here the initial range of the statute is 5 years to life, and the mandatory minimums are fairly modest incremental increases in the minimum sentence of 5 years and 7 years.

But most importantly, what is different from the statute in Jones, the carjacking statute and the statute here, section 924(c), is in Jones the carjacking statute was modeled on three Federal robbery statutes.

Two of those Federal robbery statutes contained serious bodily injury or putting somebody in jeopardy of serious bodily injury that were clearly offense elements, and the Court commented that it could see no reason... and the Government was unable to adduce a reason... why Congress would have departed from the explicit models on which it relied in drafting the carjacking statute.

So you had a firmer basis for concluding in the carjacking statute that Congress probably intended an element.

Here not only do you not have that feature, because there was no Federal antecedent for section 924(c), but you have the very important consideration that there's no constitutional doubt that should be applied to the construction of section 924(c).

Unlike in Jones where the Court held that a series of cases over 25 years had raised constitutional questions about increasing the maximum, here the relevant precedent, of which Congress is presumed to be aware, is McMillan v. Pennsylvania which gave the legislature fair warning that it could provide for the kind of statute that it's provided here.

And for those reasons, we think that the Fourth Circuit and every other court of appeals that's analyzed the question is correct in concluding that Congress's approach in section 924(c) was a sentencing factor approach.

The question then becomes whether that is a constitutional approach.

Justice Stevens: May I just ask another... another question about the history and the length of the history?

I particularly have in mind Justice Thomas's concurring opinion in Apprendi.

Other than the McMillan case itself, are you aware of any long line of cases prior to McMillan reaching the same result?

Mr. Dreeben: No, Justice Stevens.

And the reason for that is that the history of sentencing in this country moved from early statutes which were wholly determinate.

Justice Stevens: Right.

Mr. Dreeben: Then in the 19th century, the legislatures and Congress and the State adopted a... a policy of having wide ranges and judicial discretion within them.

Then later, legislatures moved to a system of parole boards and... and indeterminate sentencing in many States.

And it was as a result of those processes that in the mid-20th century and late 20th century, a variety of commentators began to decide that this sentencing scheme that gives so much discretion to various actors in the system was not acceptable because it produced unwarranted disparities against similarly situated offenders.

And at that point, to promote transparency, meaning we know what... why the judge is doing what he's doing, and uniformity, namely, similar offenders will get the same sentence, schemes came along like mandatory minimums and guideline sentencing.

But I believe that they were understood to be directions to limit judicial discretion, not to wholly supplant it or to be the type of statute that the Court invalidated in Apprendi.

And it's really the petitioner's burden in this case to show that these sentencing innovations are unconstitutional.

In Apprendi, the defendant was able to carry that burden by pointing to a long line of consistent judicial decisions.

Here neither party can point to a long line of consistent decisions.

What each of us does is argue from the background baseline tradition.

Our submission is that judges have always had a wide range of discretion.

Defendants have never been able to rely on not getting a stiffer sentence within the maximum authorized ranges.

Legislatures have relied on this Court's decision in McMillan, saying that it's constitutional for the legislature to structure that discretion, and we believe that the Court should adhere to that position today.

Thank you.

Rebuttal of William C. Ingram

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Mr. Ingram, you have 3 minutes remaining.

Mr. Ingram: Responding to the questions about the effect that a ruling in our favor will have on the lower courts, first of all, as noted, there will be no prospective impact.

The Government in the Federal context is already alleging drug amounts, is already alleging brandish and discharge, and it's a very simple matter for the Government and the prosecution, either the State or the Federal courts, to allege and... and prove these additional facts.

Retroactively, there will be some cases that will be sent back.

They will not be sent back to set aside guilty verdicts or guilty pleas.

They will simply be sent back for resentencing, consistent with the opinion in this case, just like they were with Apprendi.

There's not nearly the flood of remands on Apprendi, and Bailey for that matter, as the Government contends, but in any event, however many there are, if the Constitution demands it, then so be it.

The Government is concerned that a ruling in our favor will undermine legislatures' concerns about limiting judicial discretion in sentencing by enacting mandatory minimums.

Those statutes, the statute in this case in particular, and any statutes enacting mandatory minimums in... in the State courts will not go away with a ruling in our favor.

The only difference is that the Government will simply have to allege and prove the additional fact, further limiting the judge's discretion, whereas currently the judge has discretion to determine, by a preponderance of the evidence, whether or not a fact exists or not.

Once a jury finds beyond a reasonable doubt that it does, the judge has no more discretion and must impose the mandatory minimum.

And as has been pointed out and we point out in our brief and reply brief, we contend that mandatory minimums, as a practical matter, are far more important increases at the bottom level than the possible increases at the top of a sentencing scheme would be.

And finally, we are not asking the Court to extend the constitutional rule announced in Apprendi.

Apprendi was limited by its facts, but the constitutional rule announced was that it is unconstitutional for a legislature to remove from the jury the assessment of facts that increased the prescribed range of penalties.

A mandatory minimum increases the prescribed range of penalties.

We are simply asking the Court to apply the constitutional rule announced in Apprendi to the facts of our case and... and ask the Court to rule in our favor.

Chief Justice Rehnquist: Thank you, Mr. Ingram.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Monterey v. Del Monte Dunes At Monterey, Ltd. - Oral Argument

Fri, 09 Jan 2009 14:50:10 +0000

Case:

Monterey v. Del Monte Dunes At Monterey, Ltd.

Media File:

97-1235_19981007-argument.mp3

Related Transcript:

1998_97_1235_argument.xml

Transcript:

Argument of George A. Yuhas

Chief Justice Rehnquist: We'll hear argument first this morning in Number 97-1235, the City of Monterey v. Del Monte Dunes, et cetera.

Mr. Yuhas.

Is that the correct pronunciation of your name?

Mr. Yuhas: Yes.

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

We are asking this Court to decide three issues in this inverse condemnation case.

First and most important the constitutional standard for review of a city's land use decision does not allow the imposition of takings liability based upon a de novo second guessing of the city's policy and factual determinations.

Second, courts, not juries, are the appropriate decisionmakers for all inverse condemnation liability issues and, finally, the concept of rough proportionality does not apply to this case, where the city denied the proposed development.

What ties these issues together are the concepts of deference and the concepts of the limited role of the Constitution and the Federal courts in the local land use planning process.

This case is not atypical in some respects.

The city was faced with a complex decision it had to reconcile competing interests, sift through facts, and exercise its discretion and judgment, and it did so.

Justice Scalia: Five times.

Mr. Yuhas: It did so, Your Honor.

It was a complicated project.

In this particular case it only exercised discretion once, that is directly relevant, and that is, its consideration of the restoration plan presented by the respondents.

Justice Scalia: This was the fifth plan presented, right?

Each one was successively rejected for a different reason each time?

Mr. Yuhas: The initial rejections were for density, and the fifth one was rejected down for two reasons only.

There was access, and there was the restoration plan, and that was the first time that... in fact, the city council had faced the question as to whether there was an adequate recommended plan.

Justice Scalia: And this is typical, you say?

Mr. Yuhas: It is typical in this kind of complex.

It was a complicated project.

Justice Stevens: Well, in asking whether the decision in question was reasonable, the history of the zoning and the previous attempts are relevant, are they not, in determining the reasonableness of the city's action?

Mr. Yuhas: I submit that the issue is not the reasonableness of the city's action, but rather the issue is whether, in fact, the city's action in the first instance bears a reasonable relationship to a legitimate goal.

Justice Kennedy: Well, could you... suppose you told the jury, the issue for you to decide is, was the decision based on reason?

Did it substantially advance a legitimate public goal?

Could the jury answer that question?

Mr. Yuhas: I believe that that is two different questions.

Justice Kennedy: Well, that was your argument to the jury.

I've read the record.

Mr. Yuhas: I submit that the question presented to the jury in the instructions was, does the city's action bear a reasonable relationship to a legitimate goal.

Here...

Justice Kennedy: You said, did it substantially advance a legitimate goal?

You said that's the issue for the jury, and you said the issue for you to decide was the decision based on reason.

Those are two questions, and you said those are presented here, and it seems to me that the past history of what the developer was required to do is relevant to that.

Mr. Yuhas: And we didn't argue that the jury could not consider that past history, but on the specific issue that the jury was asked to address, over our objection, because we continue to believe that that is an issue for the court, on the first prong, the substantially advance a legitimate public interest, that prong, which derives essentially from substantive due proc language, that is a deferential test.

Chief Justice Rehnquist: Well, are you saying that the jury was not entitled to consider the length of time that these proceedings were underway at all?

Mr. Yuhas: I'm not suggesting that, Your Honor.

Chief Justice Rehnquist: How long were they underway, from beginning to end?

Mr. Yuhas: The first time that the city was presented with this development application was 1983.

The final consideration was 1986.

There was some additional planning for 1983, because the local coastal plan was being implemented or developed at that time.

Chief Justice Rehnquist: What happened between 1986 and now?

Mr. Yuhas: After 1986, the testimony is that the developer made no further effort to develop the property or contact the city.

The property was sold in 1991 for $4.5 million, approximately $800,000 more than the developer paid, and something less than...

Chief Justice Rehnquist: We have a lawsuit here.

Surely the lawsuit must have begun sometime after 1986, one hopes.

Mr. Yuhas: Well, one hopes.

Believe it not, the lawsuit began in 1986.

In 1986 the lawsuit was filed, there was a ripeness challenge, that went up to the Ninth Circuit, it was reversed, it came back, and that resulted in the trial that brings it to today.

Justice Ginsburg: May I ask about that ripeness challenge, and it relates to how significant this jury trial issue is because, as I understand it, the Ninth Circuit said it was ripe because at the time California had no proceeding which the developer could bring, but now California does and, as I understand our case law, a developer in the situation that this one is in would be obliged to go to the State court, not Federal court, is that correct?

Mr. Yuhas: That is correct, Your Honor.

Justice Ginsburg: And under the California procedure the liability issue would not go to a jury.

Mr. Yuhas: That is also correct, Your Honor.

Justice Ginsburg: So is there, now that the States have been told that they must have these proceedings, is this question of jury trial or not just a question for these cases hanging over from the eighties?

Mr. Yuhas: Your Honor, I certainly submit that the issue of the jury trial is very significant to my client in this case.

It is not... it does not have, I think, great significance directly in cases litigated in the State courts.

Justice Ginsburg: Does it have any continuing significance at all?

That's my question, because if there's no ripe challenge until we've gone to the State, the State would decide those questions.

The State would decide the liability questions, and then you might have some constitutional question about it.

Mr. Yuhas: There are two issues that were raised, one which was raised by the amicus filed on behalf of some of the States is there might be, under some circumstances, a question as to whether, in fact, the State determination would be fully collaterally estoppeled in a subsequent case, or whether it would give rise to collateral litigation.

But I think of more importance is that, depending upon the nature and the reason why it's determined that there is a right to jury trial, the character of the issue is important.

If, in fact, the issue is one that requires a deferential standard, because one that is akin to substantive due process, that is an issue that cuts across simply the procedural issue as to who decides, and goes to what standard should be used.

The Ninth Circuit standard, the reasonableness standard, is one that says, when a Government agency makes a decision... it could be establishing seismic standards.

It could be anything, and all a developer, a property owner needs to do, is to say, you know, we have an expert, and our expert says that we can build safely, we can essentially dispute the fact that you need these standards, or we can say that those standards are excessive.

Justice O'Connor: Well, let's talk about... we're dealing with inverse condemnation here, and it's a two-part inquiry if we follow Agins.

I don't know what the inquiry is.

What do you think it is?

Mr. Yuhas: I believe...

Justice O'Connor: Agins says two things, that the city's action has to substantially advance a legitimate purpose, and deny the subject property all economically viable use.

Mr. Yuhas: Yes, that is what Agins says.

That's what the jury was instructed here.

Justice O'Connor: And they found on both those points in favor of the respondents.

Mr. Yuhas: We don't know that, Your Honor.

Justice O'Connor: Well, they gave a general verdict.

Mr. Yuhas: They gave a general verdict.

They found on one or the other, or both.

Justice O'Connor: Well, was it an and or an or instruction?

Were they told to find that...

Mr. Yuhas: Or.

Justice O'Connor: it takes both, or were they told either one?

Mr. Yuhas: Either one.

Either one, and that...

Justice O'Connor: It was a general verdict.

Mr. Yuhas: It was a general verdict on that claim.

Justice Kennedy: And you didn't object to those instructions?

Justice O'Connor: Even if we were to conclude that there were one or more issues in here that were legal issues for the court, it wouldn't require a new trial because the court could look at the evidence and resolve it anyway.

It's not like we're having to send it back for a new trial, regardless of the answer.

Mr. Yuhas: That's correct, and I believe the Ninth Circuit in fact indicated that in its opinion.

Justice O'Connor: And there are certainly some factual issues here, like economically viable use, that traditionally would go to a jury, it seems to me.

Mr. Yuhas: Those are certainly ad hoc factual inquiries.

Justice O'Connor: Absolutely.

Mr. Yuhas: However, they are not inquiries that I believe are properly decided by the jury, because the decision of economically viable use is not simply a question of valuation.

That is certainly a component, but going with that is the question of what is the reasonable investment-back expectations of the property?

Chief Justice Rehnquist: But surely a jury could be charged on that.

Juries decide all sorts of questions where they get legal instructions from the judge and they decide the factual component of the question.

Mr. Yuhas: Juries are very adept at resolving historical issues of fact.

Juries are not adept at employing balancing tests or multifactor analysis.

Chief Justice Rehnquist: Well, but juries decide questions of land value all the time in the State courts in condemnation actions.

California, Arizona...

Mr. Yuhas: Mr. Chief Justice that is absolutely correct, and if the only issue on a denial of all economically viable use was a valuation question, I would say the jury had the competence, but it goes far beyond that.

For example, even where it does deprive the property of all economically viable use, there is also the issue of simply, is the intended use akin to a nuisance, the Lucas issue.

That is an issue which is akin to a public nuisance determination, which is historically made by courts.

Justice Kennedy: Well, you cast the case as if the jury is going to be assessing the reasonableness of the zoning ordinance, but that's not what the jury was instructed.

That's not what you argued to the jury.

That's not what Mr. Jacobson argued.

They said, was this decision a reasonable implementation of that ordinance, and that's different, and juries talk about reasonableness all the time.

That's the whole law of torts.

Mr. Yuhas: Juries do decide reasonable questions.

They decide reasonable conduct because that is underlying the legal standard of liability.

Where the standard of liability, I submit, is, in fact, one, does an action substantially advance the public purpose, and where that standard derives from substantive due process principles which carries with it a level of deference, carries with it the idea that we don't want juries coming in in every case and saying, I don't think that the State's action reasonably implemented zoning, that will depend upon invariably complicated facts and subsidiary policy decisions as well.

Justice Kennedy: Well, you instruct the jury that the city is entitled to the greatest of deference and leeway, but that if they have been unreasonable or, say in bad... suppose the jury's... the planning commissioner is in bad faith in implementing the ordinance, could that question go to the jury?

Mr. Yuhas: That question did not go to the jury.

In fact...

Justice Kennedy: Could that question...

Mr. Yuhas: Oh...

Justice Kennedy: in a proper case go to the jury?

Mr. Yuhas: in a proper case, that question could go to the jury.

In this case, the jury was instructed that they were to disregard motive, because there was no evidence of bad faith and, in fact, the trial court, considering this same record, concluded that the city acted reasonably.

They were not attempting to forestall all reasonable development.

Justice Breyer: Could the jury do this.

This is... am I right... help me with this.

Am I right in thinking that we're reviewing a judgment that awarded your opponent $1.45 million for a temporary taking, which I take it was for the period of time from, like maybe when they bought the land or something, until California paid the $4.5 million, or 4.8.

That was the judgment we're reviewing.

I may not have it precisely right, but roughly.

Mr. Yuhas: The taking damages went all the way to trial.

They went 4 years beyond when they actually sold the property, but...

Justice Breyer: But it's a temporary taking.

Mr. Yuhas: It is, Your Honor.

Justice Breyer: All right.

Now, if that's so, and if I believe the jury could assess this question, had it during that time been deprived of all value, I suppose that's a jury question in my mind, supposedly.

They can decide that question, whether or not all value disappears from the property, therefore it warrants... and, moreover, the jury could assess the amount.

All right.

If I believe those two things, is there any reason for me to go further in this case?

Mr. Yuhas: I believe there is, Your Honor.

Justice Breyer: Why?

Mr. Yuhas: First, in this case the evidence was undisputed and, in fact, the jury was instructed that if they found an insubstantial value...

Justice Breyer: Could anyone have found... could anyone, any reasonable person have doubted that the property lost all its value during that temporary time?

Is there some evidence here?

Is there some dispute?

I mean, I know there is a dispute as to whether or not, when they got paid the money later... I mean, you had 4.8 million.

I understand that dispute.

But during the temporary time, is there any dispute that it had no value?

Mr. Yuhas: Oh, very much so.

Justice Breyer: There was.

Mr. Yuhas: In fact, the plaintiff's expert opined that immediately after the city's action the property retained $2.9 million in value, and he opined that that value from that point in time went up, so that when the property was sold to the State in its regulated State it was worth $4.5 million.

Now, that was, to be fair, according to that expert, a diminution value.

In fact, the diminution I believe was in the ball park of about 50... about 55 percent, but, in fact, there was substantial value the entire time and that's why, when the jury was instructed, if this property has substantial value, you should conclude that there has been no denial of economically viable use.

Justice Breyer: Is there any value, other than the value that would come about by selling it to the State for the use as a seashore?

Mr. Yuhas: Oh, I believe so.

I mean, this project was turned down for two reasons, and two reasons only.

Justice Breyer: Okay.

Mr. Yuhas: And all that had to be done was to resubmit the site plan that had a better restoration plan, or, in fact, buy the property needed for the access.

Justice Scalia: But I thought they did that five times to try to get a better restoration plan.

Mr. Yuhas: The very first time that the restoration plan was ever even put together in draft form was in 1984, shortly before the city council overruled the planning commission and approved conditionally the 190-unit development, and the conditions were, you need to show that you can do this development consistent with habitat protection and, in fact, they went through a year's process.

The city council expressly said, we can't assess the adequacy of this habitat plan because we don't know enough.

You need to talk to Fish & Wildlife and Fish & Game.

Finally, in 1986, they for the first time said, we have the information, you have not shown us this is good enough.

Justice Scalia: The landowner here essentially thinks that it was getting jerked around, that basically the city didn't want this land used for anything and wanted to retain it empty so it could be used as a seashore.

That's what this thing is about.

Now, let's talk about deference to the city's judgment.

I can under... our normal rule is that we do defer and, if there's a rational basis, that's all we look to.

But where you have a consistent process, as is alleged here, of turning down one plan, the next plan, the next plan, okay, I'll do this to satisfy you, isn't there some point at which, although there's a rational basis for the fifth decision, a rational basis for the fourth and the third and the second and the first, you begin to smell a rat, and at that point can't we say, despite our normal rational basis review, there's some other factor that begins to come in here, and that is, at some point you can say, this is simply unreasonable.

Mr. Yuhas: I submit, Justice Scalia, that that inquiry does not occur in the first prong of Agins as to whether the decision substantially advances illegitimate use.

That comes into the second prong as to whether, in fact, there are economically viable uses available.

If, in fact, the evidence demonstrates the city intended never to approve any development, the trier of fact could conclude, well, I guess this thing doesn't have any economically viable use, and presumably it would have no value.

But on the first prong, the first prong simply says, is there, in fact, the city's action denying this development, leaving the property as it is, does that have a substantial relationship to a legitimate goal, whether that goal be open space, whether that goal be habitat protection.

Chief Justice Rehnquist: What if the commission, instead of saying no, you can't... we'll reject your plan five times, says, we're going to reject it for 100 units but we'll approve it for 10 units?

Now, there the owner can't say it was denied all economic value, but isn't it possible that an element of bad faith would come in somewhere along the lines of Justice Scalia... I'm not saying it happened here, but if a jury or a finder of fact was convinced that the city council was simply going through motions here, that it was determined not to really appraise the situation in the light of the ordinance, couldn't a finder of fact, either a jury or a judge, say that an element of bad faith plays a part in the decision?

Mr. Yuhas: Again, I submit that the element of bad faith goes into whether in fact the property has been deprived of all economically viable use.

Justice Stevens: But what the Chief Justice is asking, and I think it was prompted by Justice Scalia's question in my mind as well, let's assume that the city is unreasonable in the implementation of its planning ordinances, and that it's in bad faith in the implementation of its planning ordinance.

The property still has an economically... an economic viability.

Is there... the city still liable in damages for that unreasonable treatment of the landowner?

Mr. Yuhas: Not under the Fifth Amendment.

There may be a remedy under State law and if, in fact, the city participates in an effort to deliberately deflate the value of the property for purposes of condemnation there's a remedy for oppressive and unreasonable precondemnation conduct, certainly under State law.

Justice Souter: Well, may I try...

Justice Scalia: Why doesn't it come under the other... the other of the two criteria?

Why do you insist that we force this under the economically viable use criteria rather than under whether it substantially furthers any valid purpose?

Mr. Yuhas: Because, looking at the... what the jury was instructed in this case as to a valid purpose, which was habitat protection, health and safety, the denial of this development, you know, did unquestionably have a relationship...

Justice Scalia: Not if there was bad faith.

If there was bad faith it rationally could further that purpose but it wasn't being used for that purpose.

Mr. Yuhas: No.

In this case there was no finding of that.

The Court was... directed the jury to disregard questions of motive and certainly I understand that the respondent felt that in fact they were being jerked around.

The respondent acquired this property and only pursued two applications.

The one that got approved... I correct myself, one application.

The only application that this respondent pursued was the one in 1986.

Justice Breyer: Okay...

Mr. Yuhas: They bought the property...

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Yuhas.

Mr. Kneedler, we'll hear from you.

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

Before discussing the substantially advanced legitimate Government purpose aspect of this case I would like to briefly address another point which the Ninth Circuit addressed and that is that the Ninth Circuit, without any prompting by the parties, brought this Court's decisions in Nollan and Dolan into this case and said that the overall denial of the plan in this case had to be assessed under the rough proportionality formulation that this Court announced in the Dolan case.

Justice Kennedy: Well, of course, the jury wasn't instructed on that theory.

The oral arguments weren't on that theory.

I'm not sure why that issue is in the case if the verdict can be sustained on another basis.

Mr. Kneedler: Well, I... but... that seemed to be an important aspect to the court of appeals affirmance of the judgment.

On page 16 and page 20 of the appendix to the petition the Court relies upon the rough proportionality standard as the basis for finding that the jury could have found that there was no sufficient evidence to support the city council's verdict, and it may be sufficient for this Court simply to vacate the judgment and eliminate that discussion from the Ninth Circuit's decision.

But we do want to make clear our position on that question, that this Court's decisions in Nollan and Dolan imposed that special rule for a special situation, where the concern was that the city might actually be extorting a right of physical access, essentially an interest in property on the land, and using the occasion of a permit approval in order to extort that.

It was a special rule for that situation.

In fact, in the Dolan case the Court specifically distinguished that situation from one in which the... you simply had regulations that controlled the landowner's use of her own property as opposed to having someone come onto the property.

Justice O'Connor: Well, suppose we agree with you that the court of appeals got it wrong on the Dolan point, what is... how would reversing that, or vacating it, affect the balance of the decision, if at all?

Mr. Kneedler: Well, the question then would be whether the court of appeals was correct in affirming the judgment on the ground that there was sufficient evidence from which the jury could have concluded that there was not a reasonable basis for the action in this case, and that really goes to the substantial relationship prong, and we have... we have two basic problems with that.

One is, we believe that the Court's formulation of that aspect of finding a compensable taking in Agins was erroneous, and that the question of whether a land use regulation substantially advances a legitimate governmental purpose should not be...

Chief Justice Rehnquist: Was that challenged by the petitioner, the Agins rule?

Mr. Kneedler: It was not, Mr. Chief Justice.

Chief Justice Rehnquist: Ordinarily we don't accept any new questions or positions from an amicus.

Mr. Kneedler: I understand that.

The reason that I do think it's relevant to the Court's consideration, however, is the Court is being asked to lay down a rule for the lower courts in terms of how a jury or... if it's a jury issue, or how a trial court should address that question.

Specifically, the petitioner is arguing, and we think quite correctly, that if this is a proper standard in a takings analysis.

Chief Justice Rehnquist: Well, but that's not any particular justification for taking a new point from an amicus.

You're simply saying you think it's wrong.

Mr. Kneedler: No...

Chief Justice Rehnquist: Presumably all new points from amicus are based on that.

Mr. Kneedler: My point was that in order to decide the question of whether deference to the agency is appropriate and whether the question should be whether there was sufficient evidence before the city council from which it could conclude that there was a rational basis for this action, there is the antecedent question as to whether that is a proper inquiry at all, and we think that where you have an antecedent question upon which the standard of review depends...

Justice O'Connor: Well, do you...

Mr. Kneedler: it would be proper for the Court...

Justice O'Connor: Do you take the position that the legitimacy of the Government purpose is irrelevant to the inverse condemnation question?

Mr. Kneedler: We believe that it is irrelevant to the question of whether a compensable taking has occurred.

That's quite... that is a...

Justice O'Connor: That's hard to derive from Agins, certainly.

Mr. Kneedler: No, but if... if you look at Agins, what the court recited for that proposition was this Court's decision in Nectow, which was a due process case, and what the Court said there was that the action did not substantially advance a legitimate governmental purpose because it was arbitrary and irrational.

It was language that spoke in due process terms.

And I think this goes to Justice Kennedy's point, too, in focusing on the reasonableness of the past history of the consideration of this project proposal.

That is essentially an objection I think that sounds in procedural due process terms.

Unreasonable delay, and that sort of thing, are procedural due process or, in the first instance governed by State APA standards, or...

Justice Souter: Would this be a... Mr. Kneedler, would this be a possible different way of looking at it in nonprocedural terms?

We... the discussion up to this point has been largely in terms of the language that was used in Agins, but if you look at the Penn Central multifactor formulation, one of the sort of broad subjects to be addressed is the nature of the governmental action, and if we take that into consideration properly, isn't the issue of bad faith something that may be considered right up front under that particular heading?

Mr. Kneedler: I think not.

The purpose of the just compensation clause is to address the situation where the Government has taken lawful action, but lawful action that benefits the entire community in a way that it's unfair to visit that cost of a lawful action on a particular individual.

Bad faith, arbitrary action, those are not aspects of lawful governmental action.

Those are aspects of unlawful governmental action, and as this Court said way back in the Pennsylvania Coal Company case the basis for the award of compensation under the Fifth Amendment presupposes that the action is being taken for a public purpose.

It presupposes lawful, proper governmental action.

It is a question of who must pay for it.

And we think this is reinforced by the structure of the Fifth Amendment, which separately addresses the question of the propriety of the governmental purpose.

Justice Breyer: When you get... is it relevant here?

It keeps coming into my mind that the damages here were awarded for a temporary taking, and the conditions of obtaining damages for a temporary taking are?

Mr. Kneedler: Well, it would... the way the jury was instructed here, either that the property...

Justice Breyer: What is the fact?

What do the Court's cases say?

You get money for a temporary taking, you get... does the total value have to be destroyed?

Mr. Kneedler: The Court has said if there was all economic... that is the test.

Justice Breyer: All right.

For a temporary taking... for a temporary taking, total value destroyed, plus... anything?

Mr. Kneedler: The Court has not really spelled out what the standards are, but it has typically come up in terms of saying that the property has been deprived of all economic... all economically beneficial...

Justice Breyer: And if it has?

Mr. Kneedler: Pardon?

Justice Breyer: See, that's what keeps bothering me.

This is a temporary takings case, I take it, and everybody's arguing as if it's not, so I must be wrong, but why?

Mr. Kneedler: Well, first of all we think if you focus on the deprivation of all economic value in this case that would simply be impossible to find, because the... as petitioner's counsel pointed out, the respondent's own expert said this land was worth $3 million after the permit was denied.

That's $80,000 an acre.

So it would be I think impossible to say that this land was deprived of all economic value, and therefore we think it would be inconsistent with the purposes of the Just Compensation Clause, where you don't have anything approaching the sort of physical appropriation...

Justice Scalia: What about a case...

Mr. Kneedler, if this is... granting, for the sake of argument, the correctness of your proposition that this good faith factor is a due process concern ordinarily, does it not become a proper concern in a temporary takings case, even though it may not be in a permanent takings case?

Mr. Kneedler: I... I...

Justice Scalia: Because the argument here is you've effectively taken it during this interim period by jerking me around, by using an essentially unfair procedure for me to get my rights under the existing ordinance.

Mr. Kneedler: As you've said, an essentially unfair procedure.

That objection sounds in due process objections precisely...

Justice Scalia: Maybe, but that's what... that's why there has been a taking, because you have not used a fair procedure, and so at least in the temporary takings cases, if you believe in temporary takings... maybe you don't believe in temporary takings at all, but once you acknowledge there's such a thing as a temporary taking, what else produces it except... except an unfair procedure?

Mr. Kneedler: A temporary taking occurs, as I understand this Court's decision in First English, not from unlawful governmental conduct, unlawful procedure, but where there's a substantive limitation on development that is imposed for a temporary period of time.

Again, the purpose of the Just compensation Clause was not to protect the people against arbitrary or unlawful action.

It presupposes lawful action.

And in the land use area there are both questions of procedure and questions of substance.

Justice Souter: So you're saying this is not a temporary taking case.

That isn't what...

Mr. Kneedler: I believe it was not properly a temporary... I mean, it was tried on alternative theories, and one theory being that the property was deprived of all economic value, but that simply can't be, given respondent's own expert saying it was worth $3 million.

Justice Souter: Did the jury instructions advert to the issue that the action was brought by the buyer, whereas I guess chronologically most of the temporary taking, if that's what there was, occurred during the ownership of the previous owner, the prior buyer shows inaction.

Mr. Kneedler: The premise of the temporary taking award, it began after the period in which the buyer purchased...

Justice Souter: I see.

Mr. Kneedler: purchased the property.

Argument of Michael M. Berger

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Berger, we'll hear from you.

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

I suppose I ought to start out by referring to Justice Breyer's question and answer it.

This is a temporary takings case.

This property was taken for a finite period of time which the jury found under instructions that were, by the way, drafted by the city.

The city got the jury instructed with everything that it wanted and presumably could have offered more if it didn't like the instructions it had.

Justice Ginsburg: Mr. Berger, I'd like to... this jury trial issue, which has been posed as a discrete issue, I have it in my mind, and I may be wrong about this, that as a result of our two decisions, Williamson the last one, there won't be any ripe claim to be brought in the Federal court as a court of first view any more, because the inverse condemnation proceeding will take place... must take place in the California State courts, is that right?

Mr. Berger: That's my reading of this Court's cases as well, Justice Ginsburg.

Justice Ginsburg: And do I also understand that these two questions, the economic justification or deprivation, that under the California law the liability question, that is, whether there has been a taking, is done by the judge?

Mr. Berger: I would have to say that's not as clear as counsel for the city represented.

Chief Justice Rehnquist: Well, what cases are you referring to, Mr. Berger?

You said the last two cases from our Court in response to Justice Ginsburg.

Mr. Berger: Oh, actually I thought that that was Justice Ginsburg's reference.

I think she was referring...

Justice Ginsburg: Williamson was the second one.

Mr. Berger: Williamson and probably First English...

Justice Ginsburg: Yes, and First English... yes.

Mr. Berger: that mandated compensation as a remedy for a regulatory taking.

Justice Ginsburg: And Judge Wallace, as I recall, said the reason this case is ripe, he said at the time all this happened California did not have those procedures...

Mr. Berger: That is correct.

The...

Justice Ginsburg: in place.

Now it does.

Mr. Berger: This case arose in 1986, 1 year before First English, at a time when California recognized no compensatory remedy.

Justice Ginsburg: So that's why this whole 1983 jury trial or not seems to me largely academic, not having any continuing importance.

Mr. Berger: It could have little continuing importance, I would...

Chief Justice Rehnquist: It's certainly not academic in your case, though, is it?

Mr. Berger: In this case it was the heart of the case.

Justice Kennedy: Well, and in California juries do, in precondemnation delay cases, for instance, decide whether the State was unreasonable in delaying condemnation activity under Coppin, I take it.

That's a jury question, isn't it?

Mr. Berger: Your Honor, there are many of those kinds of cases in California, and I would have to say I cannot put my finger on a citation to an appellate decision that deals with the issue.

I can assure the Court we've tried cases like that in California that have gone to juries...

Chief Justice Rehnquist: Well, in...

Mr. Berger: and without objection.

That's why it doesn't go up.

Chief Justice Rehnquist: In California, State condemnation is a jury trial, is it not, because Arizona it is, and we patterned ours after California, unlike the Federal system where it is not.

Mr. Berger: Yes, Your Honor, but of course the only issue in a direct condemnation case would be the valuation of the property, a major distinction between the kind of case we have here and a condemnation case, but in California those issues, the only issues that are left, the valuation issues, are decided by juries.

Justice Ginsburg: And in the inverse condemnation case, which is new in California, how is that division?

Mr. Berger: I'm hesitating, Justice Ginsburg, only because there have been so few of them that have reached...

Justice Ginsburg: Well, I don't want to detract you on that, but at least it's my understanding that these cases are not going to come up under 1983 now the way they did.

Mr. Berger: They're very unlikely to make an appearance in the way that this case did, because this Court has ordered California to recognize compensation as a remedy.

To the extent that California complies with that, and some of us think that it pays only lip service, these cases will not be filed at least in the first instance in Federal district court.

But getting back to the reasonableness issue that counsel spent so much time on, this is not something that I think was invented for this case.

It was not something that was even invented in Agins.

This Court's jurisprudence on regulatory takings is based on a determination by a court, whether it be a judge or a jury, of the reasonableness of the conduct of the governmental...

Justice O'Connor: Does that derive, do you agree, from due process concerns?

I mean, it's basically whether it's sufficiently arbitrary to violate due process.

Mr. Berger: Well, Your Honor, there are certainly some due process aspects that could be raised in such a case.

They can't, by the way, be raised in the Ninth Circuit any longer.

We briefed this in our brief pointing out to the Court that in an en banc decision in a case called Armendariz v. Penman the Ninth Circuit has decided that all property owner claims related to constitutional infirmities have to be brought as takings claims and cannot be brought as due process claims.

There's an Eleventh Circuit opinion in a case called Villas of Lake Jackson v. Leon County that reaches that same conclusion.

So there are some due process-sounding concerns in these cases, but at least in the part of the country where we live we can't raise those on behalf of property owners.

Justice Kennedy: It seems a little odd to me, perhaps to you, too, given your representation in the case in your client's position, that the judge would find as a matter of law that the planning action was substantively reasonable under due process but then submit the takings issue to a jury.

That does seem to me somewhat inconsistent.

Mr. Berger: Well, let me say at least I was disappointed in that result, Your Honor, but I don't think that... I don't think it's terribly inconsistent.

It depends on the standard of review that one uses in these two different questions, and when you look at the standard of review for a due process violation it's a very low threshold that the city has to climb.

It's a determination that the city did not act arbitrarily, and once the Court makes that determination, as I think it could make legitimately in this case, which is why we did not appeal that finding, the city did not act arbitrarily.

That doesn't mean that the impact of what it did to this property owner in applying its general planning and zoning laws did not result in a taking.

Justice Kennedy: It was not arbitrary, but it was unreasonable?

Mr. Berger: It was not a reasonable way for the city to effectuate...

Justice Kennedy: Well, if it's not a reasonable way, then it was unreasonable, wasn't it?

Mr. Berger: I think in that sense, yes, but I think that it could also pass an arbitrary standard under a due process examination, and I think that's what happened here.

Justice Breyer: If this is basically a temporary takings case, and if... and here I'm not certain... the point of the temporary takings doctrine is to stop, say, cities from giving people what one might call the extreme run-around, all right, suppose that's the point of it, and if that's so, we could answer the first question, I guess.

We could answer the first question and say, some issues anyway... maybe we'd answer it in your favor, I don't know.

Assume that for the sake of argument.

But the second and third questions, how would we even get to them?

I mean, that's what I'm having trouble with.

This question of proportionality has nothing to do with the temporary takings case, I would think, as... at least if it's the extreme run-around.

I don't see the relationship.

Nor do I see the relationship of the reweighing.

I mean, I don't... in other words, I don't know what to do with this case if I see it as a temporary takings case.

I got question 1.

I guess we could answer that.

But how do you see the 2 and 3 relating to this case?

Mr. Berger: I... Justice Breyer, I have to confess that I have trouble understanding some of this case as well.

I believe that what the city is trying to do is to get this Court to review the standards by which takings, either permanent or temporary, are evaluated, but I... it feels to me as though a temporary taking, where the jury looks at what's going on and looks at the period of time, as it was instructed to do.

Whether the action was reasonable or unreasonable, whether it was proportional or not proportional, if they determine that there was a period of time during which there was a complete taking of this property, which it appears that they did, then I would agree that those other questions on the substantive merits of the case become irrelevant.

Justice Scalia: Well, we don't know that they did.

The thing was put to them in the alternative.

Mr. Berger: Yes.

Justice Scalia: Either there was a total taking, or.

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

They were told, in the words of this Court's decision in Agins, that they could find a taking either if it... the city's actions failed to substantially advance a legitimate State interest, or if it denied the property owner economically viable use.

Justice Ginsburg: Mr. Berger, if the... what was submerged in this general word is not clear to me, because even before we get to the split on the takings there was also an equal protection claim.

As I understand it, the jury was told you could find a violation of equal protection or unconstitutional taking, one or the other, and how can we just uphold this verdict without saying that the award would be independently sustainable on either basis, equal protection and takings, because unless there was a special verdict, we could be talking about takings when in fact the jury went off on equal protection.

Mr. Berger: Justice Ginsburg, the... as I read the record in this case the equal protection issue is not before the Court.

The Ninth Circuit...

Justice Ginsburg: But we don't know what the jury told you could find on either basis?

Mr. Berger: I believe that it was, Your Honor.

Justice Ginsburg: Do we know which one the jury did find on?

Mr. Berger: We got a general verdict from the jury.

Justice Ginsburg: So that's... even before you get to the which part of the takings analysis was it, we don't even know whether the jury ever got to a taking question.

Mr. Berger: I believe that they examined each of those things independently.

They were instructed...

Justice Ginsburg: But we can't tell.

If it's a general verdict they could have gone on equal protection or taking.

If they went on taking, then these two parts they could have gone on, either-or there.

But if... I don't understand... unless we agree that this verdict was independently sustainable as an equal protection claim or a takings claim, then I don't understand how we can do anything with it.

Justice Scalia: There's been no claim of inadequacy of the equal protection ground, has there been?

Mr. Berger: The...

Justice Scalia: I didn't realize that question was here.

Mr. Berger: It was... it has not been briefed in this Court.

It was the Ninth Circuit expressly did not deal with the equal protection issue.

Justice Scalia: Then it's not one of the questions presented in the petition, certainly.

Mr. Berger: That's certainly true, as the... I believe in the... either in the petition or in the petitioner's...

Justice Scalia: I mean, it may be true, but I didn't know we were going to have to grapple with it.

Justice Ginsburg: Well, my only point is, we don't... we are making an assumption that the jury went on the takings claim when there's no basis for that.

I mean, how much can we make up?

Chief Justice Rehnquist: Well, the petitioner framed the question he chose to put it in terms of regulatory takings and not to challenge the equal protection.

Mr. Berger: Your Honor, I believe that the verdict form did distinguish between the equal protection and the takings, and that the jury found that there was a violation...

Justice Ginsburg: Then I could understand this case, but if it was just a general verdict, so we don't know...

Mr. Berger: It was general within the takings realm, so that we have these unanswered questions of which prong of the Agins formulation the jury may or may not have ruled on, and how they determined what the amount of compensation was.

Justice Ginsburg: As long as they found both, the jury found both, then I have no problem with it.

Mr. Berger: The jury found both, Your Honor.

Justice Stevens: Well, it found both equal protection and takings.

Yes.

But within the takings...

Mr. Berger: That's right.

Justice Stevens: This is the concern I have.

I hope you'll address it a little.

The first prong within the taking is not substantially advance legitimate State interest and I gather, given the judge's finding that there was no substantive due process violation, it was nonarbitrary, we're saying that something can be nonarbitrary that does not substantially advance legitimate State interests.

Mr. Berger: Yes, Your Honor, that's the way it looks here.

Justice Stevens: And I frankly had not... I was here during... I had thought that that former prong meant totally irrational, but I guess it's... I guess there's some intermediate area between being nonarbitrary and not substantially advancing.

Mr. Berger: Well, it seems to me, Justice Stevens, that this case may be an excellent example of that kind of a determination, as I think that the court of appeals properly analyzed.

What we had here was a jury examining whether it was a reasonable way to achieve the city's environmental goals to completely frustrate the development of this property, and the jury decided that that was such an extreme misconnection between ends and means that it failed to substantially advance legitimate State interests.

Justice Stevens: Even though it was not arbitrary.

Mr. Berger: Even though you could say that there was a reason...

Justice Stevens: Yes.

Mr. Berger: why they did it.

Justice Kennedy: Of course, I suppose we could sustain your verdict by saying the judge was wrong and the jury was right.

Mr. Berger: If the Court wanted to do that we'd certainly...

Justice Breyer: But you...

Justice Scalia: Even if the two standards are the same.

Justice Breyer: Is it in that...

Justice Stevens: But I don't think we could say that, because you did not appeal from the judge's holding.

I think we have to accept... assume that for purposes of this case the judge was right.

Mr. Berger: That's correct.

Justice Stevens: Maybe he wasn't, but it seems to me that's the way it comes to us.

Mr. Berger: Justice Stevens, you're correct that we did not appeal from the due process holding.

As it turns out in hindsight, if we had appealed the Ninth Circuit's intervening decision in Armendariz would have resulted in a conclusion that we had no due process claim in any event, but that's...

Justice Kennedy: On the jury trial issue there's been some mention in the brief that the judge would have discretion to submit this to the jury anyway, and so maybe that issue isn't before us, either.

But assuming the question is before us whether or not there is a right to jury trial, what is the best case you have for the proposition that there is, that there is a right to jury trial on this issue under 1983?

Mr. Berger: The... well, there are no cases from this Court, I believe, that has directly dealt with a... the right to a jury trial in a 1983 case.

Chief Justice Rehnquist: Ah... excuse me.

Go ahead.

Mr. Berger: There are two cases that this Court has decided.

Justice Kennedy: Chauffeurs and Terry and Tull, are those the two you have?

Mr. Berger: Chauffeurs is a good discussion of the jury trial analysis.

The cases that I was thinking of were Jett v. Dallas Independent School District and Hetzel v. Prince William County, both of them 1983 cases.

In Jett this Court determined that after the district court decided a question of law as to who the appropriate decisionmaker was in a municipality then the remainder of the determination of liability, whether that decisionmaker's actions resulted in section 1983 liability would be decided by the jury.

In the Hetzel case, decided I think this last term, this Court reversed a determination by the Seventh Circuit when the Seventh Circuit attempted to reduce a jury verdict and this Court said you can't do that.

They had a right to have a jury determine this issue, and the court of appeals cannot arbitrarily...

Justice O'Connor: Well, I would have thought we'd look to the Seventh Amendment in a Federal court case to decide whether a jury should decide a particular issue or case, and not to section 1983.

I mean, there's no indication, is there, that the drafters of section 1983 were trying to tinker with what the Seventh Amendment required and say every case could go to a jury at plaintiff's option?

Mr. Berger: Well, they certainly wouldn't have had any inclination to tinker with the Seventh Amendment, Justice O'Connor, if that's your...

Justice O'Connor: No.

I mean, it just... I don't know, I thought your argument on that was very strange, and that we should look to the Seventh Amendment for what goes to a jury.

Mr. Berger: Your Honor, I'm sorry that it struck the Court as strange, but I was doing that because of this Court's earlier decisions, which said that the first thing to examine in determining whether there's a jury trial right is the statute, and only after having exhausted the statute do we turn to the Seventh Amendment itself.

That's why in our brief we analyzed it both ways as did, I believe, the court of appeals here, and concluded that the drafters of section 1983, when they said that a plaintiff at his or her option could file an action at law or a suit in equity or some other appropriate proceeding, was giving the plaintiff the right to choose...

Justice O'Connor: Oh, but I would think you'd...

Mr. Berger: the kind of action he wanted.

Justice O'Connor: Yes, but you'd have to look at this temporary takings claim and try to analogize it to something to figure out whether there's a right to a jury trial or not.

I don't think you'd derive that from the face of 1983.

Mr. Berger: Not from the face of 1983.

Justice O'Connor: No.

Chief Justice Rehnquist: In the Jett case that you referred to and the other... did the court look at it, the jury trial right, as a statutory thing, or did they analyze it in terms of the Seventh Amendment?

Mr. Berger: The Hetzel case was clearly a Seventh Amendment analysis.

The Jett case I believe was a 1983 analysis.

Chief Justice Rehnquist: The... 1983 required a jury trial.

Mr. Berger: I can't push it that far, Your Honor.

The court didn't directly deal with the question of whether the statute required a jury trial.

What the Court dealt with was how to divide the issues in the case to determine whether a judge decided the issues or a jury decided the issues, and what the Court decided was that the jury would decide liability once the judge had determined as a matter of law which municipal official was the actual decision-making body.

Justice Breyer: Is it the case at the trial that when the second half, that the city's decision to reject the plaintiff's unit did not substantially advance a legitimate public purpose... that was the second half of the basic instruction.

Did your opponents say, judge, we don't want to submit that to the jury?

Mr. Berger: Your Honor, all of the jury instructions were drafted by the city.

Justice Breyer: Well then...

Mr. Berger: Everything the city wanted they got.

Justice Breyer: How are they saying now that the error is that it was submitted to the jury, if they didn't object?

Justice Ginsburg: Didn't they object to a jury trial in the beginning?

Mr. Berger: They did object to the trial, yes.

Justice Breyer: To the whole thing?

Mr. Berger: Yes.

Justice Breyer: To the whole thing, okay.

Mr. Berger: That's correct.

Justice Breyer: Now, was there an element in this case, when you get back to the details of the case, which had to do not with whether or not as a matter of law the city's decision was reasonable or not, but as to what factually happened?

That is, was there bad faith?

Was an official saying, I don't... I want to protect the butterfly, or was saying I don't want to protect the butterfly, but reality, that was his motive, or... was there a factual element to this, or was it simply a matter of the lawfulness of a city's, or the reasonableness of a set of facts that were not in dispute?

Mr. Berger: Justice Breyer, let me try answering it this way, because bad faith per se was not an issue that was raised directly in the trial.

What the jury got was the entire history of this case from the time that the first application was filed in 1981, the entire 5-year history of administrative proceedings from 1981 through 1986, all of the trips that were made to the planning commission, all of the revisions that were requested, all of the revisions that were made, and they heard the biologist who was processing the reclamation plan on behalf of the developer testify about what he did, how he worked with the city staff, with the coastal commission staff, how they accepted and incorporated all of the suggestions that were made by any of the expert agencies, unless they, for example, conflicted with one of the other city's requirements.

I remember one place in the...

Justice Ginsburg: Mr. Yuhas... may I just interrupt to clarify what Mr. Yuhas said, and if this is wrong please tell me, that the motive, bad faith and motive were not made issues in this case?

Mr. Berger: That is correct, Justice Ginsburg.

Motive was not an issue that was submitted to the jury.

Justice Ginsburg: And what was submitted to the jury was either-or, and can you explain to me now why it doesn't make any difference that we don't know whether it was the substantially justified or the no economic value that the jury in fact determined?

Mr. Berger: Well, I believe, Justice Ginsburg, it doesn't make any difference, because, as the court of appeals explained, the evidence amply supports both prongs of that Agins test, and therefore whichever way the jury went, and they may well have gone both ways, it's supported by the evidence in the record.

Justice O'Connor: Mr. Berger...

Well, how is it amply supported if the Ninth Circuit says that there's no arbitrariness within the meaning of the Due Process Clause?

That's where we get tangled up.

Mr. Berger: I think, Justice O'Connor, it has to do with the level of examination that goes on in a due process case as opposed to a takings case.

Justice Souter: What if we assumed...

Justice O'Connor: How is it different in your view, the inquiry of the substantial relationship to a legitimate city purpose?

How does that really differ from the essential due process inquiry?

Mr. Berger: I believe that the essential due process inquiry simply looks on its face at what the city said it was doing, and if the city said we are basing this determination on our conclusion that we need to protect this habitat for a butterfly that nobody's ever seen there, then that is sufficient to get the city past the extremely low threshold of review that happens in a due process case.

I think when the matter gets submitted to a determination of whether there's a substantial advancement of legitimate State interest, the jury in this case or a judge if it didn't go to a jury would be entitled to look at what the city is trying to accomplish... that is, to set up a butterfly preserve... and look at the means that it adopted to get there, essentially total frustration of the use of this 36-1/2 acre parcel of property, and say, is this an appropriate way to achieve that end as a matter of fact, and I think that that's a different level of examination than you'd get when you just look at, what is the city's rationalization for what it was doing.

Justice Souter: But if we read Agins the way Justice Stevens said he remembered, or he thought was intended, then we really would have a conflict, wouldn't we, because Justice Stevens... I hope I don't misstate him, but he said that he thought of the Agins test, or had at one point thought of the Agins test as being essentially an absolute irrationality kind of test, and if that's the case, then we really would have a conflict between what the court found and what the jury was... would have apparently found here.

Mr. Berger: It would appear that way, Justice Souter, although I have to say that the trial judge at the time that he made that ruling expressly said that he didn't find it to be in conflict.

Justice Stevens: No, certainly one can draw... I mean, the language is different, and maybe I just... you know, I didn't understand what was going on at the time.

Mr. Berger: [Laughter]

Justice Stevens: But the other question, I'd like to have you comment just to be sure I don't... you have a full opportunity.

Your opponent has said it's perfectly clear that they could not have relied on the denying economically viable use of the land because he sold it for several million dollars.

What is your response to that?

Mr. Berger: My response is that this is a temporary taking case, and that there was a period of time that the jury found that this property had no use and no particular value to a private property owner.

The fact that they actually sold the property at some later date...

Justice Stevens: But wouldn't that always be true in any case in which time is required to make a zoning decision?

There's always going to be a period where you can't start construction while they make up their mind and there's a total denial... is that the same?

Is there a difference between that and what happened here?

Mr. Berger: Sure.

The difference, and I agree with you, Justice Stevens, because that's what the Court said in First English, that there is this period of delay during normal planning, although I think that the developer here in 5 years went sort of overboard in the normal planning process trying to find something that would satisfy the city.

But what we have here, as the trial court instructed the jury, that they should focus their attention in awarding damages for a temporary taking from the time in 1986 when the permit was finally denied, the fifth permit application was denied, until sometime between then and the date of trial, so that it wasn't that normal period of planning and waiting and trying to get permits that was compensated in this case.

The developer was essentially told, that's your problem.

You're going to... you went through all that process.

You'll have to take the heat for that one.

But from the time the city denied the permit in 1986, from there forward the jury was instructed to determine what the period of delay was in allowing these people to make some productive use of either their property or its monetary equivalent, and to find a monetary equivalent and award it.

Justice Souter: Mr. Berger...

Mr. Berger: That's what they did.

Justice Scalia: Could I ask about the... coming back to the jury question, the objection to the jury request, did that go to use of the jury for any of the issues in the case?

Mr. Berger: I believe it did, Your Honor.

Justice Scalia: Including the equal protection?

Mr. Berger: I believe so, although, like Your Honor, I...

Justice Scalia: Well, if that were the case the objection wouldn't be sufficient if a jury would be appropriate for the equal protection claim, even though it was not appropriate for the taking claim, I suppose.

Mr. Berger: If it was not appropriate across the board...

Justice Scalia: Yes.

Mr. Berger: it certainly would not have been.

Justice Scalia: Yes.

Justice Ginsburg: But you don't remember... as I remember, the position was, this action is not triable to a jury.

This action, equal protection, due process taking, goes to a judge.

I think that was...

Mr. Berger: I believe it was across the board that the objection was raised.

Justice Ginsburg: That was my recollection.

Mr. Berger: The Fifth Amendment is a critically important part of the Constitution.

It was applied in this case.

It was enforced in this case.

As this Court said very recently in the Dolan case the Fifth Amendment is not to be considered as some sort of poor relation in the Bill of Rights.

It is just as important as the First Amendment or the Fourth Amendment.

The reason that it's important is that people like this developer need to know that when they are dealing with their regulating local government agencies that their rights are protected, that they can't be simply strung along and abused at the city's whim.

I think, looking at the record in this case as the court of appeals laid it out, what you have here is a pattern of abuse, if you will, and I think the jury was entitled to look at that pattern that existed from 1981 when the first application for use of this land was made.

The judiciary in general and this Court in particular remains the only hope of these kind of people.

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Berger.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Lewis v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:48 +0000

Case:

Lewis v. United States

Media File:

95-6465_19960423-argument.mp3

Related Transcript:

1995_95_6465_argument.xml

Transcript:

Argument of Steven M. Statsinger

Chief Justice Rehnquist: We'll hear argument next in Number 95-6465, Ray Lewis v. United States.

Mr. Statsinger.

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

By requiring jury trials in all criminal prosecutions, the Framers made a lasting statement about the structure of Government and the balance of political power.

In cases where the threat to liberty is dire, the power to convict does not belong to the State, it belongs to the people themselves.

The Framers regarded the jury trial as such a potent instrument against Government oppression that they included the guarantee in the Constitution not once, but twice.

These bedrock political values, the plain language of the Sixth Amendment guarantee, and this Court's decisions construing the Sixth Amendment, all point toward a single conclusion.

My client, who faced 1 year in prison on the two counts in which he was tried, was entitled to a jury trial.

Unknown Speaker: But wouldn't be if the counts were split up into two separate prosecutions.

Mr. Statsinger: That is correct, Justice Ginburg... Ginsburg.

Unknown Speaker: So if we accept your view in order to make anything but sort of a farcical rule we would have to, I suppose, have a rule of compulsory joinder.

Mr. Statsinger: I disagree with that, with all respect, Justice Souter.

The reason is that in the first place it strikes us as very unlikely that the Government would seek to sever counts in order to circumvent this rule.

The reason is that... for that is that the Government derives a benefit from joining counts, and has every incentive to join them and not to sever them.

Unknown Speaker: Well, it may, it may not.

I mean, it may get a benefit if the evidence, in fact, is common to all of the counts, or all of the separate indictments, but if the Government really wants somebody to do the maximum amount of hard time, I suppose even under the guidelines there's some reason to believe the total will be greater if they're tried separately.

So the Government might be under conflicting motivations and it might in some cases decide to sever, and I would suppose if it does, unless we have a compulsory joinder rule, then the rule that you argue for is not going to be of any practical effect.

Mr. Statsinger: I continue to disagree with that view.

I think that the value to the prosecution of joining counts would outweigh those concerns, because the Government would get not only the administrative convenience of a single proceeding, but it also does derive a tactical advantage from joining the counts in the first place.

The finder of fact gets to hear evidence that the defendant is, in essence, a worse defendant, because he or she has committed more than one offense, and there's also the possibility of some sort of spillover that might bolster some of the weaker counts.

Unknown Speaker: You, at any rate, are not arguing for a compulsory joinder rule along with your view of the jury trial requirement.

Mr. Statsinger: I am not, Mr. Chief Justice.

To the extent necessary, we believe that the Due Process Clause might give sufficient protection to protect against that kind of abuse.

Unknown Speaker: Mr. Statsinger, how does your... how does the rule you're urging square with the proposition that you cannot avoid jury trial requirement by committing that you will not ask for a sentence of more than 6 months?

I mean, can the prosecution, by making that commitment and the judge, by saying at the outset, I... it is understood that whatever... eve if the defendant is found guilty he will not be sentenced by more than 6 months, can you eliminate the jury trial by doing just that?

Mr. Statsinger: No, you cannot, Justice Souter.

Unknown Speaker: Now, why would that be consistent with the rule that you're urging here?

It seems to me what it means is, by subtracting you can't avoid the jury trial.

Why, by adding, should you require it?

Mr. Statsinger: The two positions are entirely consistent, Justice Souter, for this reason--

Unknown Speaker: He's Souter, I'm Scalia.

Mr. Statsinger: --I'm sorry, Justice Scalia.

[Laughter]

Unknown Speaker: You have paid me a great compliment.

[Laughter]

Mr. Statsinger: With that proposition I agree.

Unknown Speaker: Our jurisprudence is very similar.

I can understand... I can understand--

[Laughter]

Since your questioning is similar, yes.

[Laughter]

Mr. Statsinger: Justice Scalia, the two propositions are not in conflict, and the reason is because the way this Court has defined criminal seriousness for jury trial purposes is by looking at the authorized penalty regardless of whether it's the authorized penalty for a single serious offense or for the aggregate authorized penalty of petty offenses.

Once a case is serious, it is serious in the same away, regardless of whether it is serious by virtue of aggregation or serious because of the authorized penalty on a single--

Unknown Speaker: Well, so then it's not just the power of the judge that you're concerned with, it's the dignitary or the interest or the stigma that's attached to the crime.

Mr. Statsinger: --That is a component of this as well.

Even if the judge promises a lenient sentence as a result, in order to extinguish the jury trial, the defendant is still left with the possibility of the conviction on more than one count, which itself carries not only a stigma but other collateral consequences, and indeed, it appears that the core of the jury-trial right was protection against the conviction power, and that there was less concern per se about the sentencing power.

Unknown Speaker: But that's not the way our cases have interpreted it.

I mean, the Nevada case, several others, have focused primarily on the potential for incarceration.

Mr. Statsinger: That is true, Mr. Chief Justice, but I think the important distinction between the Court's prior cases and this case was that in each of those cases the defendant was only being tried on a single count, so in a sense the question never arose in those cases, but it is our position that--

Unknown Speaker: So you say there's a lot worse stigma being convicted of two counts than one?

Mr. Statsinger: --It may not be a lot, Mr. Chief Justice, but I believe that there is some, and I... again, I... this is not our exclusive justification for this.

We believe there are other justifications for allowing this.

Unknown Speaker: That has to be your principal justification if the judge says, or the prosecution says at the outset that 6 months is the maximum.

If that's taken out of play, then what are you left with, other than this stigma argument?

Mr. Statsinger: Well, we are left with the stigma, and we are left with the possibility of an unfair or an unjust conviction in the first place.

The reason why this Court has, and the Framers have always preferred jury trial is because they were viewed as the fairest mechanism for adjudicating the facts in a criminal case, and a defendant who comes before a court could reasonably view a jury trial, even today, as being a fairer proceeding than a bench trial.

Unknown Speaker: Well, but if that's logical, why did the Court ever say that a jury trial doesn't carry over to misdemeanors?

I mean, should you have an unfair misdemeanor trial where your maximum sentence is 3 months?

Mr. Statsinger: The Court... the Court did that for two reasons.

It looked back at common law history and found that there was a historical basis for saying that a trial on a single petty offense could be tried without a jury.

There also appears to be, particularly in Duncan, some concern about the administrative convenience, the balance between administrative convenience and the possible threat to a defendant, but again, that balance was struck in cases where the defendant was only being tried on a single count, and that balance has been struck only in cases where the defendant's sentencing consequences are 6 months or less.

And in this case the balance is tipped in the other direction because the sentencing consequences... regardless of the promise, the sentencing consequences at the beginning are... were well in excess of 6 months.

Unknown Speaker: Well, why do you say regardless of the promise?

Mr. Statsinger: I say that because the relevant measure of criminal seriousness has always been what is authorized rather than what is actually imposed.

Unknown Speaker: Well, so you say the sentencing consequences, and it is quite an abstract thing.

It doesn't have anything to do with the maximum sentence which this particular defendant might face.

Mr. Statsinger: That is correct, Your Honor.

Perhaps I used the term injudiciously.

The Court has always focused more on the authorized sentence rather than the likely or possible sentence, or, indeed, even the actual sentence imposed in a particular case.

Unknown Speaker: And the reason for that was, as we've said in recent cases, the judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.

Now, when you string together a bunch of offenses, each of which the legislature has found to be not serious because the sentence is under 6 months, how does that create a new legislative judgment that this case is now serious?

It doesn't.

It seems to me the legislative judgment remains the same, no matter how many legislated crimes you string together.

Mr. Statsinger: Justice Scalia, the legislative judgment that we are discussing is embodied in section 3584(a), which authorizes consecutive sentences on multiple counts.

It is our view that that statute confers a substantive authority on the Court to impose--

Unknown Speaker: I see.

I see.

Mr. Statsinger: --consecutive sentences, and that it reflects a judgment that the commission of multiple offenses is a more serious transgression than the commission of a single offense.

Indeed, it is the same judgment that goes into authorizing a... the particular penalty for any single offense.

In either case, what the legislature is doing is it is setting the maximum penalty for the worst possible instance of that offense.

The maximum penalty for a single offense represents the authorized consequences in the worst possible case.

Similarly, the authorized sentence for multiple offenses authorizes a particular sentence for the worst possible instance of that combination of offenses.

So it is our view that the judgment embodied in that statute is identical to the judgment that the Court has always looked to, or at least since Duncan has always looked to in determining criminal seriousness.

I believe that this is also consistent with the plain language of the Sixth Amendment itself.

Although the Government takes the view that the jury-trial right is what they call offense-specific, or attaches only to categories of offenses, that is not borne out by the language of the Sixth Amendment, which says that the right attaches in all criminal prosecutions.

Unknown Speaker: Mr. Statsinger, I have a question... I don't know whether it goes to standing, but this sentence here was probation, right?

Why would a defendant who got probation, no jail time, want to risk a new trial before a jury when the end result of that could be jail time?

Mr. Statsinger: I don't think it is a standing question.

I think that the answer to that, Your Honor, is that we view the likelihood of an increased sentence, assuming he were convicted on retrial, as very slim, and the North Carolina v. Pierce line of cases we think protects Mr. Lewis from a more severe sentence should the case be retried and should the retrial end in a conviction.

But the jury-trial right has always been viewed as a structural right, or an absolute right, that is not contingent or affected by the sentence actually imposed.

Certainly the defendant in Duncan, who received 60 days when he was facing 2 years, must have made that same calculus, and made the decision that the core importance of having a jury determine guilt or innocence in the first instance was more important, and certainly--

Unknown Speaker: It sounds like the kind of determination that lawyers might make instead of the clients.

I hope that's not the case here.

Mr. Statsinger: --I don't believe it was the case--

Unknown Speaker: Yes.

Mr. Statsinger: --in this case.

Unknown Speaker: Perhaps you'll argue that this is quite irrelevant either way, but I have no sense of how burdensome this rule that you propose would be on all of the State courts.

It would seem to me that in magistrates' courts, municipal courts all over the country, multiple charges are frequently made.

Prosecutors like to have multiple charges, misdemeanor varieties and so forth, but it seems to me this might be a very, very burdensome rule, but I have no statistics.

I have no real grasp for that at all.

Mr. Statsinger: The answer, Justice Kennedy, is that this would not be a burdensome rule.

We did look at statistics that were compiled by the Administrative Office of the United States Courts, which indicated that in fiscal 1994 the Federal courts heard an enormous number of petty cases, over 60,000.

Of those 60-odd thousand, exactly 74 went to trial, and of those 74, perhaps 15 involved multiple counts.

Unknown Speaker: But that doesn't go to the State court situation that Justice Kennedy was asking about.

Mr. Statsinger: That is correct, Mr. Chief Justice, but I have looked at that as well.

One of my amici has indicated that their research indicates that at least 30 States already grant, either by statute or State constitution, a jury-trial right that is broader than what the Sixth Amendment requires.

My own research indicates that the number is more like 34, so we are, in fact, talking about a very small number of States to begin with.

Unknown Speaker: We're talking about 17 or 20, I guess.

Mr. Statsinger: Roughly 17 or 20, Mr. Chief Justice.

I might add that I think the real instance where that burden was looked at and rejected was in Duncan, when the court applied the jury-trial right to the States in the first place.

I think that the balance struck then was the appropriate one, and that there certainly has... nothing had been changed in the last 30 or so years to indicate that the balance should now be weighted in favor of administrative--

Unknown Speaker: Yes, but this... no one is saying here that Duncan should be changed.

This is just an application of Duncan, and surely it's a fair question of how is this going to affect prosecutions in the States?

Mr. Statsinger: --I agree that it is a fair question, Mr. Chief Justice, but I believe that the answer to the question is that it will not have a tremendous impact on the States.

Unknown Speaker: Well, it seems to me likely that it will, because 6 months is a fairly common cutoff point for petty offenses, and it seems to me quite ordinary, quite frequent for prosecutions to charge more than one petty offense.

Mr. Statsinger: Even if it is, Justice Kennedy, the possible consequences to a defendant who has a large number of 6-month offenses stacked up are severe indeed, so severe we believe as to trigger what the Sixth Amendment was intended to do, which is to protect defendants who are facing serious consequences from the potential abuse of power that the Framers saw in a bench trial.

So even if it is a... even if it is a large number of cases, which I dispute, I submit that the Sixth Amendment values that that situation implicates are in this case more important.

Unknown Speaker: I suppose you're arguing that the larger the number, the more important it is to vindicate the right.

Mr. Statsinger: I don't need to argue that, Justice Stevens--

Unknown Speaker: Yes, that's your point.

Yes.

Mr. Statsinger: --but it may well be right, certainly with respect to what the Sixth Amendment really means and the core values that it contains, a society in which large numbers of defendants are subject to many years... and the Government would concede that there's no limit, potentially unlimited exposure... that those are exactly the kinds of cases that the Sixth Amendment is supposed to cover, and that--

Unknown Speaker: Well, but you argue that there's no right, even if there's an agreement in advance, undertaking in advance to limit the sentence.

Mr. Statsinger: --I do agree with that, and again, I say so for two reasons.

The first is that the... and I say this with all respect, the core value of the Sixth Amendment is to protect defendants from judges, and I think it would be contrary to what the Framers envisioned in the Sixth Amendment if judges could single-handedly or unilaterally take away or remove the power that was supposed to curb that power in the first place.

I also... so that really is our primary point of view on that, and I think that the record in this case actually serves as a good illustration of the dangers of allowing it.

The record in this case contains a lengthy argument about the legalities of trying this case without a jury, but no mention at all of the seriousness of the case, and it is plain from this record that the pretrial promise here was simply a manifestation of the magistrate's desire to try this case without a jury.

And I submit that this is the precise evil that the Framers were concerned about when they insisted on the wide use of jury trials to begin with.

I would like to return to the preliminary question of the authorities suggesting that this case was, indeed, a serious case and worthy of a jury trial to begin with, and I think that the Court's decision in Codispoti is really on all fours with this situation.

Unknown Speaker: Except Codispoti, there was no limit on the sentence for contempt, was there?

Mr. Statsinger: There was no limit on the sentence for contempt.

Unknown Speaker: Then it really isn't on all fours, is it?

Mr. Statsinger: Mr. Chief Justice, it's on all fours on the preliminary question of whether the prosecution was serious enough to trigger the jury-trial right in the first place.

In that case, the Court concluded that a trial on joint petty counts, in that case contempt counts, was a serious one when the aggregate penalty, petty penalties exceeded 39 months, and I don't think that there can be a meaningful distinction between Codispoti and what was happening here in terms of the preliminary question of whether the case was serious.

It is true that the Codispoti decision did not involve a pretrial sentencing stipulation--

Unknown Speaker: Well, except that if our guideline is for determining seriousness what the legislature determines is serious, then Codispoti has no relevance for us, because the legislature hadn't made that determination.

Mr. Statsinger: --It does, Justice O'Connor, because the Court has repeatedly said that the actual sentencing decision in a contempt case represents the identical judgment to the legislative judgment in a statutory offense case, so it is our view that in a sense the Court has turned to the sentence imposed, actually imposed in contempt cases as a substitute for the legislator's judgment, but the court has always viewed them as equivalents.

Unknown Speaker: Add that in Codispoti each individual sentence was for less than 6 months, so when you combine that with Blanton, you have a series of 6 months offenses.

That's your argument, isn't it?

Mr. Statsinger: Yes, Your Honor.

Unknown Speaker: All right, so that's... and... go ahead.

I just wanted to see that that was--

Mr. Statsinger: Oh, yes.

Our position is that a series of six amendments, when... 6-month counts, when joined, triggers a jury trial.

When they are tried separately, they do not, because if each individual trial on a single petty offense falls outside of the Sixth Amendment, then any individual one does.

Moving back to the pretrial sentencing stipulation again, there is a secondary reason besides the policy behind the Sixth Amendment that I think indicates that such a stipulation procedure should not be authorized in this case, and the reason is that it is inconsistent with this Court's decisions that have refused to hold that the sentence actually imposed can deprive someone of a jury trial.

The relevant question is, and always has been, whether a serious sentence was authorized by the legislature, and the Court has consistently held that a judge cannot trump that view of seriousness, and in fact the Court has had many opportunities to look at this rule and has never changed it.

Unknown Speaker: --Maybe I should ask, because the thing that I find difficult with Codispoti is, it seems to me that Codispoti's... you have cases that stand for the proposition if you have more than a major... minor offense, you have to have a jury, all right, and here we have only minor offenses.

Codispoti seems to stand for the proposition that if you add them all up and they add to more than 6 months, you have to have a jury, right?

Mr. Statsinger: Yes, Your Honor.

Unknown Speaker: All right, so why isn't the obvious answer to that here, well, the Constitution forbids your client from being punished by more than 6 months.

He wasn't.

End of case.

Mr. Statsinger: Well, the Court... certainly the Court has never held that in the context of statutory offenses, even though it has in the context of contempt cases, and I think one problem with that is that it would have the, in a sense, perverse result of granting a broader Sixth Amendment right to contempt cases than for statutory offense cases.

Unknown Speaker: Why?

Mr. Statsinger: Because the contempt cases where the counts were... the contempt cases where the counts were stacked would always trigger a jury-trial right unless there was such a promise.

Unknown Speaker: There need be no promise.

The Constitution forbids a person tried for a series of minor offenses, each of which has a maximum, from going to prison for more than 6 months.

If they try to put him in for more than 6 months, he's released on habeas.

Mr. Statsinger: I see your point, Justice Breyer.

Again, we continue to believe that the constitutional provision at issue here has never operated, and has... has never operated on... by looking at or considering the sentence actually imposed or to be imposed.

It has always looked in a more general sense at the authorized penalty.

I'm not sure how that rule could be squared--

Unknown Speaker: To Codispoti.

Mr. Statsinger: --Aside from that, I'm not sure how that rule could be squared with a rule that would say, in any case, whether it be for a felony or a string of misdemeanors--

Unknown Speaker: No.

Two things.

You get a jury trial if you're being punished for other than a minor offense.

That's where you start, and in addition to that, you get a jury trial if you're going to be put away for more than 6 months.

Codispoti.

I suppose your response is that the Constitution says you get a jury trial if it's a criminal prosecution.

Mr. Statsinger: --That is an excellent response to that.

[Laughter]

I may do that.

And it was a response to that that was developed by considerably wiser individuals than me who were very, very concerned not only with the sentencing consequences but with the power to convict.

And that rule, while providing a measure of security to defendants, does not change the core value, the possibility of the abuse of State power, the possibility of a conviction that is itself unfair or unjust because the common sense and... the common sense community values and the impartiality of the jury wasn't brought into the case in the first place.

And I think it's relevant to note at this point that, although the Court has not decided a very large number of cases in this area, it has approved of bench trials either implicitly or explicitly in a number of them, but a significant number of those cases, even though the Court approved of the bench trial, the Court reversed because the proceeding itself was unfair for some other reason.

And I think that in a sense speaks to this particular concern, that the Court has always viewed jury trials as better, a fairer way of adjudicating the facts in criminal cases, and--

Unknown Speaker: Well, that might be persuasive if the reason bench trials were reversed here was because there was no evidence to support the judgment conviction, but I take it that's not what you're saying.

I mean, a judge presides over a jury trial just as well as a bench trial and can make all sorts of errors even with a jury present.

Mr. Statsinger: --Of course he can, Mr. Chief Justice.

I only pointed that out in the general sense of marshalling this Court's position that it does view jury trials as fairer, and it does, in a sense, force the parties to do a more complete job and to make sure that a judge does what is necessary so that the jury can understand the evidence.

That would be our position with respect to that.

I'll reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Statsinger.

Ms. Pillard, we'll hear from you.

Argument of Cornelia T. L. Pillard

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

In our view, any case involving only offenses that Congress has defined as petty may be tried without a jury.

Petitioner has no right to a trial by jury because both of the offenses in this case were defined by Congress as petty.

Petitioner acknowledges that the United States could have charged him with the same offenses in two separate informations and tried him without a jury in two separate trials.

In fact, he could have been tried in separate seriatim trials before the same judge on the same day, and he could have been sentenced to a total of a year in prison in the two proceedings.

In petitioner's view, he would have had no jury right in that situation.

The petty character of obstruction of the mails is unchanged by the prosecutor's decision in this case to try the two counts together.

Unknown Speaker: Of course, it's true that in the examples you give, those would have been separate prosecutions.

Mr. Pillard: Those would have been separate prosecutions, Justice Stevens.

Unknown Speaker: Whereas, here you have one prosecution.

Mr. Pillard: Here you have one prosecution.

Unknown Speaker: And the Constitution refers to prosecution as the test.

Mr. Pillard: We believe there's no basis to petitioner's textual argument that the constitutional reference to criminal prosecutions means that the prosecution as a whole is the relevant unit for purposes of the jury-right analysis.

The petty offense exclusion has already made clear that criminal prosecutions exclude prosecutions of petty offenses.

Moreover, this Court in Callan v. Wilson specified that the Sixth Amendment did not expand the jury right as articulated in Article III of the Constitution.

Article III refers not to prosecutions, but to crimes, and this Court's cases have made clear that crimes, as specified in Article III, and the criminal prosecutions as specified in the Sixth Amendment, are limited to serious crimes.

Therefore, petitioner's argument reduces to arguing that serious offense prosecutions are covered by the Sixth Amendment.

It doesn't support the weight he tries to give it.

Under the petitioner's theory, the criminal prosecution theory also makes no sense, because under his theory an individual charged with two petty crimes that are tried separately but who faces the same total year consequence would be treated differently from an individual who is charged with those two petty offenses in one--

Unknown Speaker: But he argues as a practical matter the prosecution isn't going to do that.

If you've got a couple of petty offenses like this, why would the prosecutor separate them?

Mr. Pillard: --Well, the joinder rule is discretionary, it's not mandatory.

Unknown Speaker: I understand, but isn't it in 99 and 99/100th percent of the cases of this kind that would be tried jointly?

Mr. Pillard: I think there are plenty of practical situations in which two offenses perhaps arising, one a couple of months later than the other, might happen to go to trial separately, that individual could have--

Unknown Speaker: Yes, I know you could give a lot of hypothetical cases, but as a practical matter it's just a waste of time to have two separate trials in a matter like this.

I mean, prosecutors don't... are too busy to do what you're suggesting, it seems to me.

Mr. Pillard: --The basic point, though, is that you look not to the prosecutor's decision under Rule 8 whether to join or not to join, but the established methodology for determining which offenses are serious is to look to the legislative assessment of the seriousness of the offense or the offenses, and the prosecutor's decision whether or not to join is not a legislative assessment.

When the legislature authorizes a maximum sentence of 6 months incarceration, that's the legislature's determination.

Unknown Speaker: But can you not say the legislature has authorized a maximum punishment of 12 months on the facts in this particular prosecution?

Mr. Pillard: No, and that follows on the response that petitioner's counsel gave to Justice Scalia.

Petitioner's counsel relies on section 3584, which authorizes consecutive sentencing.

However, that provision is not a prosecution-specific provision.

That provision applies equally to the cases that are... the two petty offenses that are separately tried seriatim as it applies to the two cases consolidated together, so you can't say that that is a legislative determination speaking to the seriousness of any particular offense or combination--

Unknown Speaker: Well, the legislature certainly decided that if these two misdemeanors are tried together, the judge is authorized to impose a sentence of 12 months.

Mr. Pillard: --The Congress--

Unknown Speaker: Is that not correct?

Mr. Pillard: --The Congress--

Unknown Speaker: Is that not correct?

Mr. Pillard: --Justice Stevens, I think it's not correct, because 3584 speaks to the situation of multiple crimes without regard to whether they're tried together, whereas petitioner's rule--

Unknown Speaker: Correct, but it includes the cases the are tried together.

Mr. Pillard: --It does, but it includes--

Unknown Speaker: And it does authorize in the cases that are tried together a 12-month sentence.

Mr. Pillard: --I think my point, Justice Stevens, is that because that legislative authorization, 3584, speaks equally to the situation of separate trials and to the situation of trials together, it can't reflect a determination by Congress that the together situation is more serious.

Unknown Speaker: It can't reflect the determination that two misdemeanors are more serious than one, or twice as serious as one?

Mr. Pillard: That's precisely right, it doesn't reflect that, because the two tried separately, as petitioner concedes, are not subject to the jury right, and therefore that congressional determination--

Unknown Speaker: And, of course, they're not subject to it because they're not one prosecution within the meaning of the Sixth Amendment.

Mr. Pillard: --Moreover, I would point to this Court's language in Blanton v. Las Vegas, in which the Court pointed to the relevant legislative determination of seriousness as the determination that the legislature includes within the definition of the crime itself that in setting the maximum penalty for the particular offense, it's looking at that offense as the unit and setting the maximum penalty for that offense.

Unknown Speaker: But if you do look at the prosecution as a unit, you could have, I suppose, 10 or 15 misdemeanors joined together in 10 times 6 months in a single prosecution.

That's your position, is it not?

Mr. Pillard: That's our position.

Unknown Speaker: Yes.

Mr. Pillard: As a theoretical matter, you could.

You could also have that same result as a result of serial, separate prosecutions.

Unknown Speaker: Or a prosecution decision to have 10 separate trials instead of one joint trial.

Mr. Pillard: That's right.

Unknown Speaker: Ms. Pillard--

--Well... go ahead.

Thinking of an analogy to the Seventh Amendment on the civil side, there's a whole string of cases in this Court that said the old idea that the judge could set the order of trial by putting the equitable claim before the legal, that didn't fly because the jury-trial right was so basic that whenever there was a choice the legal claim had to be treated first so that the jury would preempt the judge.

Now, if that's the mind set that was supposed to bring to jury trial the Seventh Amendment, why shouldn't it be the same in the Sixth Amendment, and you say well, you could argue it as the prosecution is the unit, you could argue it as the crime is the unit, but in view of the importance of jury trial, you take the prosecution as the unit, and if the two add up to more than 6 months, you get a jury trial.

Mr. Pillard: Justice Ginsburg, in the criminal area as well, where a collateral estoppel issue would arise and where the jury right would apply to the separate claims, we believe the same principle would follow.

But I think the broader point, whether the importance of the jury right requires a jury right here, is clearly refuted by the common law antecedents of the jury right, that those were the antecedents that the Framers had in mind in excluding the petty offenses from the coverage of the Sixth Amendment.

The Court's categorical distinction between petty and serious offenses derives from the common law practice of trying petty offenses to juries.

The petty offense exclusion was around at the time of the Framers, and the common law basically establish a jurisdictional divide.

It had petty offenses which went to justices of the peace and were tried without juries.

Serious offenses went to a jury.

And given that sort of jurisdictional, structural allocation, it makes clear that it doesn't make a difference, for example, if at common law an individual committed the petty offense of window-breaking.

If that individual committed the petty offense of breaking two windows, by the same token, that case jurisdictionally would be assigned to the justice of the peace to be tried without a jury.

Unknown Speaker: Would the justice of the peace have the authority to send the defendant to prison, though, as opposed to a jail?

Mr. Pillard: Yes, I believe the justice of the peace would have authority to send an individual up to prison for a period of time.

Unknown Speaker: Do you know of any cases where justices of the peace aggregated offenses where you had multiple counts?

Mr. Pillard: We do have cases where the justices of the peace aggregated offenses in the King v. Swallows and Queen v. Mathews.

Both those cases dealt with aggregated offenses tried before the justices of the peace, and those were cases that--

Unknown Speaker: And what were the terms there, the length... the length of--

Mr. Pillard: --Those were assigned cases.

They were not terms of incarceration cases.

We don't have cases showing aggregation of incarceration.

The petitioners also have been unable to cite any cases were any aggregate term of imprisonment rendered the case non... ineligible for trial, a nonjury trial before the justice of the peace, so to that extent all we have is those cumulation cases in the file.

Unknown Speaker: --It does seem to me that if you have multiple crimes with a common modus operandi and they're aggravated so there's a potential of a 5-year sentence, say, even though individually each crime is only 6 months, there is something disturbing about saying the defendant must stand before the judge without the protection of the jury in that case.

I recognize that he could go before the judge 5 different days, although that would assume that the Government would deliberately try to defeat the jury-trial right.

Mr. Pillard: It doesn't assume that so much as highlight the focus on not what the rules and the prosecutor and the court do in framing a particular prosecution, but that the focus has always been on what the legislature does, and the legislature doesn't and cannot address the various offenses that might be grouped together in a particular prosecution or might not.

Alternatively, we've argued that to the extent that the Court does believe that the total aggregate sentence faced by an individual in a particular prosecution is relevant, that the Codispoti model applies, and that here, the fact that the magistrate judge stipulated before trial that the defendant would not be sentenced to a sentence greater than 6 months and, in fact, the sentence imposed here was a sentence that did not include imprisonment, defeats any jury-trial right that petitioner might have had under that theory.

Unknown Speaker: That's what I didn't understand about Codispoti.

It seemed to me the language there was continuously referring to what the sentence for a series of minor offenses actually was, not what he faced.

Mr. Pillard: We don't think--

Unknown Speaker: But I... and if that's so, then there'd be a constitutional bar, but I don't know that that is what it meant.

I mean, I... that's what I was... that's why I was quite interested what you thought.

Mr. Pillard: --We don't think it makes a constitutional difference whether the ultimate sentence is less than 6 months or whether the promise at the outset of trial--

Unknown Speaker: Well, if it's a promise... I mean, there's something rather disturbing about saying anyone of, you know, several thousand magistrates here at some point, or judges or whatever, they're all just going to take it on themselves, and they might say some words, and then we'll get into an argument about what they meant, and... I mean, this whole set of rules, I take it, is a judgemade effort to create a kind of rough order on a common law that was very unrough in terms of the meaning of criminal proceeding.

Mr. Pillard: --That's right.

I mean, the bottom line is that where the actual sentence imposed is less than 6 months, under the Codispoti model, whether you have a pretrial promise or not, whether there's ambiguous language at the beginning of trial or not, when the actual sentence is less than 6 months on a cumulated petty offense trial, that there's no violation of a jury right.

Unknown Speaker: You'd say that there wouldn't be even if was more than 6 months, so long as it just accumulates offenses.

Mr. Pillard: That's right.

Under our principal argument--

Unknown Speaker: But even... you'd say even if you're wrong about that, at least where the ultimate sentence is no more than 6 months, the defendant can have no complaint.

Mr. Pillard: --That's exactly right, Justice Scalia.

Unknown Speaker: It's at that point I need some help.

That is, there's a kind of chicken-and-egg problem.

It's... I'm not certain what Codispoti means, rejecting your first argument, whether it's face or actual, what the theory is.

Mr. Pillard: I think the premise of the aggregation theory is that the accused has a right to interpose a jury between himself and a possible prison term of 6 months arising out of a single proceeding, but it requires in order even to reach that question that you're looking at an actual result for the individual defendant.

And so the bottom line is that if a case is tried to a judge without a jury, a multiple petty offense case, no sentence in excess of 6 months may validly be imposed under this theory, and Justice Scalia is right to point out this is an alternative theory.

We believe that as long as all the petty offenses in a particular prosecution are, in fact, legislatively determined to be petty, that no jury right attaches in that situation, but if you disagree with that, and believe that our aggregation model applies, it follows from that aggregation model that the actual limitation in this case of the sentence to 6 months should obviate any jury-right problem.

There's an inherent tension within petitioner's position between its... between petitioner's reliance on the prosecution as the unit and on section 3584 as the legislative determination whether that unit is serious.

As I mentioned before, Congress has not and does not speak to prosecutions.

Congress speaks to individual offenses, and all petitioner can point to to say there's a legislative determination regarding the seriousness of a prosecution as a whole is the statute 3584, but that statute speaks equally to offenses that are not encompassed within a single prosecution.

In view of this Court's established analysis and its common law antecedents, the only sensible way to make jury trial determinations is to make them on an offense-specific basis with reference to the legislature's determination of penalty within the definition of the particular offense itself.

Unknown Speaker: May I ask you if you have any comment on Justice Kennedy's question of your adversary about how serious a problem this really is?

Do you happen to know... he gave figures about the Federal system, which I assume you accept.

Do you have any further enlightenment on the extent of the problem in the States?

Mr. Pillard: I really don't have anything systematic, Justice Stevens.

I've spoken to prosecutors in the District of Columbia who prosecute under local law, and in their experience a substantial portion... this is very rough, anecdotal... in the range of perhaps 30 percent of the prosecutions are multiple petty offense prosecutions.

It's also worth noting that it's extremely rare that individuals, even in multipetty offense prosecutions, receive a term of incarceration as part of the sentence.

Unknown Speaker: Thank you.

Mr. Pillard: If there are no further questions--

Unknown Speaker: Thank you, Ms. Pillard.

Mr. Statsinger, you have 3 minutes remaining.

Rebuttal of Steven M. Statsinger

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

I did not get an opportunity to address our view of the common law procedures in this area, and I did want to take a moment to address them, since it is our position that to the extent there is any evidence of common law practice in this area at all, it does not support the Government's position.

The Government has produced no historical evidence that a common law court of summary jurisdiction could exceed its jurisdictional limits simply by virtue of the joinder of petty offenses, yet that is what the Government is asking this Court to permit now.

Since Baldwin, there has been a jurisdictional limit on the triability of bench trials to 6 months, and the Government is asking the Court to allow joinder to exceed that jurisdictional limit in a way that was never approved of or contemplated at common law.

Unknown Speaker: Do you know whether at common law at the period that would be relevant for us, which would be the time of the founding, that justices committed to prison or to jail as punishments as distinct from simply incarceration awaiting trial?

Mr. Statsinger: It is our understanding that... at least, it is now widely accepted historically that common law justices did have the power to send people to the local jail but not to prison.

Unknown Speaker: In 1791?

Mr. Statsinger: That's... we don't have a rough sense of the exact years, but I think at this point--

Unknown Speaker: Well, that would matter.

Mr. Statsinger: --Right.

I under--

Unknown Speaker: I mean, if that developed afterwards, then it wouldn't be comprehended by the Sixth Amendment.

Mr. Statsinger: --We would be willing to accept that there was the authority, even before--

Unknown Speaker: I know you would be willing to accept it, but do you have any authority to that effect?

Mr. Statsinger: --We do not, Justice Souter.

What it is safe to say is that even assuming there was that authority, and that we assume that as a general framework common law summary courts could incarcerate people for no more than 6 months, they couldn't get around that by virtue of joinder, so to the extent there is a common law basis to this argument at all--

Unknown Speaker: And what cases do you have for that?

Mr. Statsinger: --We don't have cases, Justice O'Connor, we have an absence of cases suggesting that the procedure didn't exist.

It is our view that if the Government is going to invoke the common law, it has the burden of establishing common law principles that are... were widely enough accepted to be assumed into the Sixth Amendment, and we don't see any such common law practices that would support the Government's position in this case.

Unknown Speaker: You don't consider relevant to this problem that we have that in the old days, 1791, this would not have been a petty offense, it would have been... this offense would have been a rather serious offense.

Mr. Statsinger: Oh, I consider that extremely relevant, Justice Ginsburg.

I think that could conceivably be an independent ground for determining that this case should have been tried by a jury in the first place.

I don't think that the Court has completely abandoned the notion that even a single offense, even if only a petty sentence is authorized, that even a single offense, if it were serious at common law and can be easily established as such, I think that there's still an opening, even in Blandon, that a situation such as that would result in a jury trial.

Unknown Speaker: Suppose a State--

--I wasn't aware that our--

--Suppose a State legislature said that if the prosecution in its discretion, at its option, goes before, say, a municipal court and consolidates offenses, joins offenses, that in that case the sentence for all combined offenses will be no more than 6 months.

Mr. Statsinger: If that were a legislative determination?

Unknown Speaker: Yes, but that if the prosecution had the option, it elected the option to go to another court, that the offenses would be greater.

What would be the result there?

Mr. Statsinger: Well, consistent with our view that it is the legislative judgment that is paramount, we would have to defer to the legislative judgment and conclude that in that circumstance there would be no jury trial.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Statsinger.

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Markman v. Westview Instruments, Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:48 +0000

Case:

Markman v. Westview Instruments, Inc.

Media File:

95-26_19960108-argument.mp3

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Argument of William B. Mallin

Chief Justice Rehnquist: We'll hear argument next in No. 95-26, Herbert Markman and Positek v. Westview Instruments, Inc.--

Mr. Mallin, you may proceed whenever you're ready.

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

This is a constitutional case.

It concerns the Seventh Amendment guarantee of the right to jury trial on infringement issues in patent infringement actions for damages.

It is established that the Seventh Amendment guarantees the constitutional right to jury trial in civil cases as it existed in 1791 in England.

Accordingly, we submit that it is decisive here that in England in 1791 the meaning of the terms of patents, the meaning of patent specifications were submitted to the jury.

Consistent with that common law practice, that became the early understanding in the United States and that early understanding was confirmed as the years passed by outstanding judges noted for their efforts in the patent area, such as Justice Thurey in the mid-19th century and Judge Learned Hand in the mid-20th century.

Unknown Speaker: I had a little trouble finding that confirmation that you seem to have found.

I mean, Judge Hand's opinion seemed ambiguous and it also certainly says that in the part that favors you, that it's a question of fact.

Mr. Mallin: Yes.

Unknown Speaker: All right.

So, where does that get us?

Mr. Mallin: It... Judge Hand indicates that the issue is a question of fact.

Unknown Speaker: I have no doubt about that, but where does... the question of how people in a particular industry see a particular word and interpret it is a linguistic question.

It is a factual question as to how they interpret it.

Mr. Mallin: Yes.

Unknown Speaker: That's true, but where does that get us?

Mr. Mallin: That gets us under the Seventh Amendment.

Unknown Speaker: Why?

There are dozens and dozens of things... we just heard a case where there were all kinds of facts which judges decide.

There are many, many facts that judges decide.

We write about segregation.

We write about integration.

We write about gerrymandering.

We write about dozens and dozens of things.

We write about antitrust laws which have to do with theories of economics.

There are thousands and thousands of facts that judges decide in interpreting statutes and rules of evidence in preliminary matters.

Why is this the kind of question of fact that the Seventh Amendment requires to go to a jury?

Mr. Mallin: For two reasons.

Because of the common law practice and also--

Unknown Speaker: What is the... fine.

I'm trying to get you to discuss this because I read many of those, not all of the cases, and I couldn't find something that was directly on point, not even Learned Hand, because the earlier part of the opinion you're thinking of seems to go just the other way and the part that you're thinking of seemed to have involved a factual matter that had to do with the word saturation, which they agreed about the meaning of.

Mr. Mallin: --Under the understanding... under the jurisprudence of the Seventh Amendment under decisions of this case, factual issues on the merits of a claim are for the jury.

In the case--

Unknown Speaker: I know that's the conclusion.

I'm saying what would you say is the strongest case in your favor in respect to the factual question as to how the industry understands the meaning of a term in a patent application, a term that will give the person who holds it a monopoly under the law to exclude competitors.

Now, that's the precise thing.

What your opponents say is there is nothing that favors you on that precise point.

Mr. Mallin: --On that precise point, we go back to the common law practice where in Liardet v. Johnson, Awkwright v. Nightingale, and other cases at common law the meaning of patent terms were submitted to the jury.

Those particular cases involved validity issues.

But it is... was understood at common law and it is understood in law today that the patent means the same thing for infringement as it does for validity.

It wouldn't make any sense otherwise.

A patent can't mean one thing at one stage of the trial and another thing at another stage of the trial.

Unknown Speaker: But your opponents argue, if I understand it, that there is an issue today, the issue in this case, that was not a jury issue, in fact was not understood as an independent issue at the time that you refer to as your standard of practice, and that was there was not the modern notion of patent claim, and therefore there was not an issue of construing a patent claim.

Your opponents say that the two kinds of issues that the old juries considered were issues of enablement and I guess issues of just design identity.

Mr. Mallin: Yes, whether there was sufficient disclosure--

Unknown Speaker: Right.

Mr. Mallin: --whether it was an advancement of novelty in a prior art, and those kind of issues were left to the jury which necessarily involved the jury interpreting what the specifications mean in order to decide whether--

Unknown Speaker: But they say the specifications that you're talking about are simply different kinds of statements from the statement of claim.

And you say in your reply brief, well, the word claim was not used in the 18th and early 19th century as it is used today, but that issue was still there.

And I... you may be right on that, but I just I guess couldn't follow you to your conclusion.

How do we know the issue was there?

Mr. Mallin: --Yes.

First of all, at common law it had a specification that described the invention.

It was required at common law that the--

Unknown Speaker: Was that a physical description of the invention?

Mr. Mallin: --Yes.

A description by words.

Unknown Speaker: You know, this is a box and it has a crank and a door--

Mr. Mallin: And so on--

Unknown Speaker: --and so on.

Mr. Mallin: --the way you see in patents.

Unknown Speaker: Okay.

And that's something quite different from what we're talking about in the modern sense of claim I take it.

Mr. Mallin: No, I don't think it is.

Unknown Speaker: Okay.

Mr. Mallin: And let me explain.

First, at common law it was necessary that the specifications distinctly enclose what... disclose what the invention was, the disclosure part of it.

Early cases showed that patents in the early part of this century would often end with the words I claim as a way of making it clear as to what the claim was.

Eventually in the--

Unknown Speaker: What words did you say they ended with?

Mr. Mallin: --Pardon?

Unknown Speaker: What words did you say that they ended with?

Mr. Mallin: I claim.

Unknown Speaker: I claim.

Mr. Mallin: I claim.

Eventually the statute in 1836 specifically referred to the word claim.

The statute of 1870 had a specific requirement, that is the modern patent practice, that the specification end with the word I claim and then set forth the invention.

It was always required to set forth the invention.

This is just a particular way in modern practice that you set it forth, and the claim in modern practice is interpreted in light of the specifications.

It would be rare for the specification not to include a term that's in the claim.

So, our position, Justice Souter, is that that formal distinction, that rearranging which does not go to the substance of the matter cannot undermine precedent at common law that... where judges, Lord Mansfield in particular, the name of the judge at common law, submitted the interpretation of the specification to the jury.

The formal differences in claim practices cannot eliminate the Seventh Amendment right.

Unknown Speaker: So, the specification of the early cases includes the claim as we understand it today.

That's... is that in a nutshell your position?

Mr. Mallin: Yes.

There's no substantive difference and the formalities were not significantly different--

Unknown Speaker: Well, I take it the specification--

Mr. Mallin: --but it has no impact--

Unknown Speaker: --I'm sorry.

Mr. Mallin: --And it has no impact on Seventh Amendment rights.

Otherwise, it would be easy to get rid of the Seventh Amendment in any case.

Unknown Speaker: But, Mr. Mallin, you agree I think that the scope of the claim, the construction of the claim is a question of law for the court, but you are distinguishing interpretation of a term from the ultimate question.

Well, why don't those two go together?

That is, if the court is charged with making the ultimate determination of the scope of what's encompassed within the claim, then why shouldn't subsidiary matters on the way to that ultimate determination also be made by the court?

Mr. Mallin: Justice Ginsburg, because of the Seventh Amendment.

The standard formula that we often hear is that the construction of the claim, the construction of the patent is an ultimate question of law, but until recently it was also said the underlying factual disputes are for the fact finder, a judge when it's a case for the judge or a jury case.

Unknown Speaker: Well, Mr. Mallin, I'm thinking of this kind of question.

You were careful to say on the merits, if it's a question on the merits.

Mr. Mallin: Yes.

Unknown Speaker: But in threshold questions, for example, jurisdictional questions like diversity of citizenship... there's a dispute about where one of the parties resides... that's... and it's a fact question.

It's a fact question.

But the question of is the jurisdictional requirement met is a question for the court, and so we don't have the jury hearing the evidence.

There may well be evidence on that question, but it's determined by the court, right, even though it's a fact question.

Mr. Mallin: It's determined by the court and it was determined by the court, as far as I understand, at common law.

I think the judge's decisions on the facts on jurisdiction would be appealable under the clearly erroneous rule.

It's not... the effort here, Your Honor, is to say this matter of what the claim means is a legal question that... it's not a factual question at all.

Unknown Speaker: Would it be a legal question if you didn't have any testimony, if all you had was the claim, the specification, and the prosecution history?

Mr. Mallin: It's a matter, I think, of terminology there, Justice Ginsburg.

I don't think it's a legal question.

It was still a factual question.

But judges in all kinds of civil cases take disputes away from the jury as a matter of law because there's no factual support for it, petitioners' particular contention.

The judge has that gatekeeper's role in jury cases in that sense, and saying that something doesn't go to the jury because the judge decides it as a matter of law doesn't change the issue from fact to a legal question, it simply says does not--

Unknown Speaker: Suppose the judge looks at that material and says I can see that there's an argument the other way, but this is enough for me.

I think that the term means X based on the documentary evidence, and I don't want to hear... I know the parties are going get... each one will get an expert and that's not going to help me.

Mr. Mallin: --I... like any factual question in a civil jury case, if the judge is able to determine that it is clear on the face of the documents and there is no genuine dispute of fact, then the judge can determine that question as a matter of law in the sense I indicated--

Unknown Speaker: Well, some of the dissenters in this very case thought that was the situation here, didn't they?

Mr. Mallin: --No.

The judge in these cases... the trial judge first held that this was a legal question, exclusively for the judge in every case.

Unknown Speaker: Wasn't there one or more dissents written or separate opinions written at the appellate court level?

Maybe a concurring opinion.

Mr. Mallin: Yes, there was a short concurring opinion where a concurring judge indicated that he didn't think there was sufficient evidence to support our position.

Unknown Speaker: Right.

Mr. Mallin: But that isn't what the majority did.

The majority said that the question was a legal question in every case--

Unknown Speaker: And here the question is--

Mr. Mallin: --exclusively for judges.

Unknown Speaker: --The question is whether the inventory referred to the articles of clothing?

Mr. Mallin: Yes.

Unknown Speaker: I mean, it boils down to that.

Mr. Mallin: The particular question in the case was whether the word inventory used in the claim in the specifications was limited only to article of clothing or could cover a dollar inventory reflected by invoices and dollars associated with the invoices.

Unknown Speaker: Supposing this... the word inventory appeared in a contract and there was no evidence aliunde, as they say, no evidence of intent, do you think that a judge could interpret that as a... without submitting it to the jury even though it was quite debatable on either side as to what it meant?

Mr. Mallin: Well, it depends on the particular circumstances, but if the issue is what does the word inventory mean in the particular industry that's involved in a contract, Professor Corbin and Professor Williston would say yes.

That meaning of language is a factual question in a jury trial--

Unknown Speaker: So, then if you have a contract that uses the word inventory and there's no testimony as to what people meant, it's simply a documented, written kind of... that is a factual question that would go to the jury?

Mr. Mallin: --Well, in order for it to be a factual question to go to the jury, someone must offer evidence on it as to its meaning to the industry involved.

Unknown Speaker: Well, okay.

Supposing that I am... that we have this contract with the word inventory in it and someone comes in and says, I offer X who will testify what the parties meant when they used the word inventory in the contract.

Mr. Mallin: No.

Your Honor, I would suggest that the analogy is in the particular contract, if this is the relevant question, what does inventory mean in a particular industry or to one skilled in that.

And the patent analogy to contract is made sometimes, but we have to remember what a patent and its term is talking about.

In a patent case, the question is what the term means to one skilled in the art.

That is a factual question of what it means to one skilled in the art.

If there's no real factual dispute, like any other case the judge can decide it, but if there's factual evidence--

Unknown Speaker: But ordinarily I understood the law to be that the terms of a written contract are interpreted as a matter of law.

It isn't a question of fact.

Mr. Mallin: --Williston and Corbin, as we cite in our brief, in some cases make the distinction that is similar to the distinction in patent law, that the construction of the patent... of the contract in your hypothetical is for the court, its legal effect, but if there's a question about the meaning of language, that's a factual dispute to be resolved as a factual matter.

Unknown Speaker: Suppose that a statute used the word inventory, say, in an income tax refund case tried before a jury.

Would the meaning of the term inventory in the statute be for the court, would it not?

Mr. Mallin: The interpretation of statutes as a matter... as a legal matter is for the court.

Unknown Speaker: So, do you think it's an appropriate way for us to begin looking at this case to ask whether or not the patent is more like a statute or a contract?

That's what the briefs discussed.

Do you think that's an appropriate way for us to--

Mr. Mallin: I think that that's a--

Unknown Speaker: --look at this case?

Mr. Mallin: --very collateral way because of the direct authority from the common law--

Unknown Speaker: Well, if we find that... if we disagree with you on how persuasive and clear that direct authority is, then do you think that we can legitimately decide this case by asking whether or not the patent is more like a contract on one hand or a statute on the other?

Mr. Mallin: --That would be a factor, and on that issue, Justice Kennedy, I would respectfully suggest that a patent is not like a statute.

It's not analogous to a statute.

Of course, it's not a statute.

A patent is not a publicly piece... a publicly enacted piece of legislation from the political process.

Unknown Speaker: Well, but it does seem to me more like a statute than a contract in this respect.

There is an interest.

Maybe you'll disagree, but I should think there is an interest in a uniform interpretation of the meaning of a particular patent, just as there is with a statute.

And it seems to me that if the interpretation of the patent is a question for the court, a question of law, or at least a question of interpretation makes a question of law in fact... there may be even evidence on the point... that it's a question properly reserved to the court in order to have uniformity in its interpretation.

Mr. Mallin: I think to assert the uniformity is misdirected and contrary to the Seventh Amendment.

Unknown Speaker: It's not important to have uniformity in the patent, the construction of a particular patent?

Mr. Mallin: It would be nice to have it, but it's the practicality of it.

It's agreed by everybody, including the majority, that in order to interpret the terms of a patent to one skilled in the art, that it's appropriate to take evidence, and whether the judge is deciding that or the jury is deciding it, the evidence has to be looked at.

Unknown Speaker: Well, I would have thought that under a patent scheme where the applicant for a patent has to set forth very clearly what's covered and how it can be made so that everyone is put on notice of what is patented and what is claimed and how it can be produced.

And I would think the Patent Office wouldn't want to accept something about which there might be wildly different views of what's claimed.

I mean, the whole scheme seems to me one that is designed to make it as clear and simple as possible to put people on notice, and what you are arguing seems to be at some divergence of that approach.

Would there be many cases today where the question of the meaning of a term in the patent would have to go to a jury?

Mr. Mallin: I really don't know quantitatively whether there would be many, but there are many cases in the books and it's settled law at the Federal circuit level that in order to interpret the patent, that it is appropriate to look at what they call extrinsic evidence: what happened before the Patent Office, what expert testified, the state of the prior art.

Unknown Speaker: It seems like most of the cases you rely on resulted in some kind of general verdict where the patent ends up having to be compared to something quite different, and it's hard to tell from those cases whether there's this separate factual issue on the meaning--

Mr. Mallin: It--

Unknown Speaker: --of the patent construction.

Mr. Mallin: --Pardon me.

It seems to me that they're intertwined together and you cannot separate the one from the other.

I would like to return to the statute analogy.

I think it is very important to understand that in 200 years of litigation over patents in this country and at the common law, as far as we can find or has been cited, the analogy to a statute has never been used before this case before it was--

Unknown Speaker: What about the analogy in one of the briefs to patents for land and also scope of copyright?

This is in the Surgical Corporation brief.

It gave those two analogies as being perhaps closer.

Mr. Mallin: --I think a copyright is far different than a patent.

A patent is not a land grant.

I have difficulty going off to the analogies when we have clear Seventh Amendment rules and we have the English common law practice that has been cited.

Unknown Speaker: If... the reason... I don't find them determinative yet.

That is to say, if they're not determinative, then... and I'm assuming they're not... what is the right analogy?

There are so many instances where judges do take evidence, where they do decide factual matters which don't have to go to a jury, and that's why I'm looking for the analogy.

What about agency rules where technical terms are used, where what you want, if you're a judge reviewing that agency rule, is you want to know what the agency really had in mind?

You might want to refer to the industry.

It might come in in a tort case, for example, you see, a jury case, and I would be surprised if you had to leave up to the jury the determination of interpreting the agency rule that used a technical term.

I mean, maybe it's such a good analogy that it has never come up and therefore it's a bad analogy.

Mr. Mallin: I don't know that it has.

Unknown Speaker: But do you see--

Mr. Mallin: I--

Unknown Speaker: --Here you have your jury and the agency is up there talking about dioxin, SO4, ishkabibble, whatever, something very, very hard to understand, and the agency interpretation is relevant.

And the parties say to the judge, judge, will you instruct the jury as to what that agency rule means?

I don't think you'd have to have the jury decide it even though you might take evidence on it.

Mr. Mallin: --It would have to be looked at, the common law action to which the Seventh Amendment attached.

Unknown Speaker: Well, it's a tort action.

Mr. Mallin: It's a tort action.

Unknown Speaker: But I don't think they'd ever say that the jury has to decide the meaning of a statute, and by that I would say the jury would never have to decide the meaning of an agency rule even though it could use technical terms on which experts could differ.

Mr. Mallin: And we're not here contending that juries ought to decide meanings of statutes.

Unknown Speaker: Or agency rules.

And now what about patents?

Where it is--

Mr. Mallin: Patents we say, on the authority that we cite, that when there's a genuine dispute... and the analogy that has been referred to at common law and by this Court has been an analogy to contracts not statute.

Take a malpractice case where the issue is what a medical term means to physicians.

I would suggest to you that under the Seventh Amendment jurisprudence, the question of what that medical term means to physicians would go to the jury.

Unknown Speaker: --But that's a tort action.

You're not talking about some sort of a relatively integrated written instrument which I think in different branches of the law has been treated differently than just ordinary oral testimony.

Mr. Mallin: In the malpractice case, my hypothetical could include wherever that medical term happened to be used.

It might be in the complete instrument or not.

Unknown Speaker: What about a question of foreign law which, as I understand it, judges decide as an issue of law even though they hear expert testimony from those skilled in what the foreign law might be?

Mr. Mallin: Yes.

The rule seems to be there that the material, the legal material, is proved as a fact and then the judges look at the statute--

Unknown Speaker: But we don't submit that to the jury, do we?

Mr. Mallin: --No.

Unknown Speaker: No.

Mr. Mallin: You do not.

That... according to the new Federal rules that have been changed.

And I don't know that that has ever been dealt with--

Unknown Speaker: But we never did--

Mr. Mallin: --as a constitutional--

Unknown Speaker: --submit it to the jury, did we?

Mr. Mallin: --I would like to--

Unknown Speaker: It's not proved as a fact.

It's just that oral testimony is heard.

Experts say what they think the foreign law means.

It doesn't change... the fact that there's evidence, that there's testimony doesn't determine whether something is a question of fact or law.

Mr. Mallin: --Your Honor, in that situation it's clear it's foreign law, and that is a legal point.

But this Court in the validity area, for example, has made it clear that the way you look to see that something is factual when you're looking at determinations based upon weighing evidence, persuasiveness, and credibility, those are factual issues.

And in the validity context, the ultimate question of validity is a question of law, but nonetheless, the underlying factual issues like the state of the art that go to the determination of non-obviousness are submitted to the jury or the fact finder.

Unknown Speaker: How many English cases do you have supporting this?

Because, you know, I'm a little skeptical of the certainty, or perhaps indeed even the existence, of the English law.

As you know, one of the amicus says from 1750 to 1791... 99, there were only 18 patent decisions at common law in England.

There was no coherent body of English patent law to be known by the enactors of the Seventh Amendment.

How many English cases do you rely on?

Mr. Mallin: Well, reported cases that we rely upon are one, two, three, four, five, six, if I count them--

Unknown Speaker: Six.

And how many of them involve the definiteness issue rather than the nature of the claim?

Mr. Mallin: --I can't just--

Unknown Speaker: Some of them anyway.

Some of them anyway, maybe most of them.

Mr. Mallin: --novelty issue, some whether there was an adequate disclosure so that one skilled in the art could make the machine.

I'd like to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Mallin.

Mr. Griffin, we'll hear from you.

Argument of Frank H. Griffin, III

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

Contrary to the petitioners' position, Seventh Amendment policy, precedent, and reason support the conclusion which was reached by the Federal circuit in this case that in a patent infringement action tried to a jury, it is the province of the court to determine the meaning of the words used in the claim language as a matter of law.

Unknown Speaker: Do we have to decide this case on as global a basis as the Federal circuit decided to say that it's always thus or it's never thus?

Mr. Griffin: No, Mr. Chief Justice, because in this case there was no question about the meaning of the language in the patent... no real question about the meaning of the language used in the patent.

And that was the conclusion by the trial judge, by the eight judges writing in the majority, by the two judges concurring, and Judge Newman who dissented did not disagree with the interpretation of the patent.

Unknown Speaker: But if that were going to be our basis for decision, we wouldn't be deciding very much, would we?

Because we would simply be saying that in a patent case, as in any other case, if there is no dispute of fact as to which there could be reasonable disagreement as a matter of law, the court must declare the conclusion.

And that wouldn't really decide very much, would it?

Mr. Griffin: That is correct, Your Honor.

Unknown Speaker: So, if we don't decide on that extremely narrow ground, do we have to decide as globally as the circuit did?

Mr. Griffin: No, you don't because I think it is taking it... looking at the interpretation of the claim.

One here could conclude that there was just no substantial evidence to support the jury verdict below, but if you go--

Unknown Speaker: No.

If you're to decide something broader than that, can we decide it on a basis less globally than... less global than the basis that the circuit employed?

Mr. Griffin: --I don't--

Unknown Speaker: I understood your argument to be... I understood you to be arguing two things in your brief.

Let me put it this way.

One was that as a matter of law, no reasonable jury could come to any other conclusion anyway.

That's the narrow ground.

I also understood you to be arguing that even if there were factual disputes, evidentiary questions, as to which reasonable jury or reasonable fact finders might come to differing conclusions, it was still an issue for the court.

Mr. Griffin: --That is correct.

Unknown Speaker: The latter is your position, isn't it?

Mr. Griffin: That's correct.

Unknown Speaker: And that's the global position.

Mr. Griffin: That's the global position.

Unknown Speaker: So, if we're not going to decide this as simply a case about the particular evidence going to this dry cleaning patent, then your position is we do have to decide it as globally as the circuit did.

Mr. Griffin: Yes, sir.

Unknown Speaker: Is that... suppose I thought this hypothetically.

This is... do you remember the Learned Hand case?

Are you pretty familiar with that?

Mr. Griffin: I'm not completely familiar with it, but I understand it.

Unknown Speaker: All right.

At the end of... suppose I thought this.

In the end of the opinion, they're talking about the word saturation, and they say it means that after a certain point there won't be a lot of variation in electrons.

Then the question is, what's that point?

And they call in some experts, and they say plus or minus 6 percent.

That's a question of fact?

He says, that's right.

At the beginning of the opinion, he's talking about the length of a beam.

Do the words in this document mean you have a long beam, or does it mean long in relation to the width?

Now, he says there, assuming experts would say it meant the latter, I still think it means the former.

You see?

All right.

Suppose you thought, as a result of that, sometimes you should send it to a jury and sometimes you shouldn't, and let's leave it up to the judges to decide because they understand electron saturation and things 50 times better than I do after they have heard 4 days of testimony on it.

Suppose that was your belief of what the law should be.

Now, how would you get there in this case?

Mr. Griffin: If that were my belief as to what the law would be, I would get there in this case by exactly the same route that the district judge did here.

Unknown Speaker: The circuit seems to say it's never a question for the jury.

It's always a question for the judge.

So, if you thought sometimes it should be the one, sometimes it should be the other, and the district... how would you get there?

Mr. Griffin: It's difficult for me to consider because I... that's not my view of what the law is or ought to be, and it's a tough question for me to stand here and come up with an answer for you because I think that under this Court's decisions and under a proper Seventh Amendment analysis, this issue of what is the meaning of words, what's the definition of a term is a question of law for the court.

And it is in all instances, even when the court has to go outside of the patent documents to get information about the meaning of the term.

Unknown Speaker: Mr. Griffin, do I understand correctly that the division in the Federal circuit... they took this case en banc because they were internally divided.

Mr. Griffin: That's what I understand, Your Honor.

Unknown Speaker: And one took the position that it's always for the jury, and one took the position that it's always for the court.

But I didn't see in the division within the circuit anything in between.

Mr. Griffin: I did not see anything in between either, Your Honor.

Unknown Speaker: No discretion left to the district judge.

At least of the division within the Federal circuit panels, Judge Newman would leave it to the jury in all cases and Judge Archer, Chief Judge Archer, in none.

Mr. Griffin: In none, and it would appear that the concurring judges would in some instances.

It's very difficult to say.

When I... when the case was before the Federal circuit, one of the issues and one of the questions was, can you think of any time when there would be an underlying fact issue which would be appropriate to go to the jury?

And I could not think of one.

And as... and I tried to think of one today and I can't think of one because a patent is a... a patent claim is by statute required to be definite.

The patent claim is in context of the specification and the prosecution history.

Unknown Speaker: Then why do you ever hear evidence about it?

Mr. Griffin: Because sometimes, Your Honor, the court needs to go outside of those documents to learn about the meaning of terms.

But when the court does that, it's hearing that information in the context of what the claim says and in the context of the specification and the prosecution history, and it is learning yet how the words are used.

Unknown Speaker: Well, why couldn't a fairly narrow instruction be submitted to the jury as to which of the... if there are two experts, as to which of the two experts you credit?

Mr. Griffin: I don't think it should get down to that, Your Honor, and I don't believe that it does get down to that because the question isn't one which is a typical issue of credibility of experts on the stand.

It's not a question where you're judging--

Unknown Speaker: Well, suppose in a particular case it is.

Supposing the judge says to himself, I know both these experts are qualified, but I think B is making up his story.

Had it been submitted to the jury, it would have been just the opposite; the jury thought A was making up his story.

Now, why should the judge's view prevail over the jury on a question of credibility like that?

Mr. Griffin: --If there were such an instance, that would be a difficult question, sir, but I don't believe that when you look at the meaning of the term within the context of the patent, the claim, the prosecution history, and the information that's received, that you will get to a point where credibility determinations are going to be what a word means to a specific--

Unknown Speaker: You know, they say figures don't lie, but liars do figure, and occasionally you do get experts whose credibility may be in doubt.

Mr. Griffin: --I think that that is something that happens quite often.

Unknown Speaker: Why shouldn't a question like that go to the jury?

Mr. Griffin: Because the issue is not... is one which is peculiarly for the judge.

It's not going to be an issue of credibility as far as the in-court testimony goes.

It's going to be the question of the logic of the testimony and the information--

Unknown Speaker: But why shouldn't it be a question of credibility of in-court testimony if the finder of fact, whether it's a judge or a jury, decides that one of the experts is simply lying?

Mr. Griffin: --That would be the same instance in a question of foreign law, sir, if there was one expert who was telling the court that the law of France meant one thing and another saying it meant the other.

Unknown Speaker: So, you see this as simply taken out of the normal factual review by a jury.

It's the same sort of issue as foreign law or jurisdiction, diversity.

Mr. Griffin: Yes, sir.

Unknown Speaker: Mr. Griffin, I was surprised to hear you say that, you know, there were really significant... didn't you say earlier if there were a significant credibility problem, it would go to the jury?

Mr. Griffin: I said... I was asked to assume that there might be.

I cannot believe that there can be a situation, Your Honor, when there can be a significant... in defining the terms used in a patent claim, as they are framed within the patent claim itself, illuminated by the specification, illustrated by the prosecution history, that credibility determinations among experts are going to determine what a term means to a relatively skilled community.

Unknown Speaker: You... so... but were that the case, you'd be willing to entertain the notion that a jury would decide it.

Mr. Griffin: No.

I don't think it was necessary for a jury to decide that.

Unknown Speaker: I thought that was your position, and I thought one of the reasons you said it has to be left to the judge is that if you leave it to a jury, you can get divergent results as to the meaning of one patent all around the country and no court would be able to reverse it because it could be a reasonable determination either way, and so you would have to affirm the jury finding.

Mr. Griffin: That's correct.

Unknown Speaker: And you have a patent that has different meanings throughout the country.

Mr. Griffin: Well, you would end up with a patent--

Unknown Speaker: Whereas if the judge decides it, ultimately if it's a question of law for the judge, it can be established as the rule nationwide.

Mr. Griffin: --Be established as a rule and would be reviewed de novo, and that is--

Unknown Speaker: Well, that is a very important factor it seems to me.

Mr. Griffin: --That is a policy reason... very much, sir.

It's a policy reason why this ought to be a matter of law for the court.

Unknown Speaker: What other cases are there in which you have experts with conflicting opinions called by both parties where the judge makes the decision?

The case is a difficult one because we're searching for analogies.

Mr. Griffin: Well, the best--

Unknown Speaker: In the malpractice case, I think we all would agree that it goes to the jury.

Mr. Griffin: --The best analogies that I can think of... and I don't believe that analogies really control in Seventh Amendment analysis, Justice.

The best analogies I can think of are foreign law--

Unknown Speaker: Which often can turn on credibility because the judge may not be able to read the language of the law.

So, he is informed by what each expert says and may make the judgment on the basis of demeanor, but that doesn't change the issue from one of law to one of fact.

Mr. Griffin: --That's correct, Justice Ginsburg.

I can also think of determination of the meaning of agency regulations, which was referred to earlier--

Unknown Speaker: Well, let's put it this way.

If you were to prevail, then in the patent area we would have more expert testimony being considered by the judge than in any other case that we know.

Mr. Griffin: --That is, Justice, if those who draft patents don't comply with the requirements of section 112 to make them definite and to define the terms which they use.

Unknown Speaker: Can you give me some idea of how often conflicting expert testimony is presented in a patent case on the issue of the meaning of the patent?

Mr. Griffin: I cannot from my own experience, although I can tell you from the suggestions that have been made by the petitioner that it is an issue in virtually every case.

Unknown Speaker: That's what I would have thought.

Mr. Griffin: The--

Unknown Speaker: So, your... I want to make sure.

I understand your argument.

I understood your reply to Justice Scalia in effect to be it should be an issue of law for the court because that's the only way we're going to get national uniformity.

Mr. Griffin: --Well, it should be an issue--

Unknown Speaker: Is that a fair summary of what you said?

Mr. Griffin: --That's one of the reasons why it should be an issue.

Unknown Speaker: All right.

Now, there was... at one point in your brief... and in fact a couple of times this morning... I thought you were making a different argument, and that is the very fact that patent specifications must be made or ideally should be made in unambiguous terms somehow means or results that you don't have the problems of construction in patent documents that you may have in contract documents.

Patent documents are somehow less likely to be ambiguous, less likely to be messy, and for that reason it makes sense to say there should be no jury questions in their construction.

I'll be candid to say that I didn't understand why that should be so, but I thought at one point you were arguing that.

Do you argue that?

Mr. Griffin: We argue that the distinction between patents and contracts is that the patent document is required by statute to be definite.

Unknown Speaker: Well, it's supposed to be.

Mr. Griffin: It's supposed to.

Unknown Speaker: You know, statutes are supposed to be definite too, and they're frequently not.

The fact that it... in an ideal world the patent documents would not be in any way ambiguous doesn't seem to me to address the question in the real world that we've got, and that is, how do you determine what they mean when you can't figure it out?

Mr. Griffin: The real world question of how do you determine what they mean when you can't figure it out is exactly what the patent statute is supposed to guard against, which is that it should be a definite claim, that it should be concise, that it should enable one skilled in the art to understand the metes and bounds of the invention so the public can stay away from that monopoly if the public chooses or the public can license that--

Unknown Speaker: Well, I understand that, but we get into court because there is a dispute about what a phrase means or a sentence means or a word means, or at least there is a claim of a dispute about that.

And when there is such a claim, why is it the case that patent documents are somehow different from contract documents or more like statutory documents?

Mr. Griffin: --Because a contract... with contract, the question is the subjective intent of the parties, and with a patent document, we're not dealing with a question of subjective intent.

We're dealing with the objective--

Unknown Speaker: Isn't the claim a matter of subjective intent?

Mr. Griffin: --Not as far as the public is concerned.

The public has--

Unknown Speaker: Are you saying because it's the PTO's job before it accepts the statement?

At least you have a Government officer whose job it is to see that the claim is as definite as it's supposed to be.

Now, that Government officer can err and, as you said, often does because you said this question comes up in almost every case.

Mr. Griffin: --Yes.

If it becomes a question of definiteness, Justice Ginsburg, that is a question of law for the court.

Unknown Speaker: So, it seems to me that your second reason, if you will, is basically a variant on the first reason.

Your second... if I understand what you're saying now, you're saying, look, patent documents are supposed to be written in a way that would not raise questions of subjective intent, that would be perfectly clear to people who read them, and so on.

And because that's the way they're supposed to be written, we should not treat them as if they were written in other ways, e.g., to involve questions of subjective intent.

And, therefore, in order to get the definiteness that patent law requires, we must treat this as a matter of law for judges only so that we can ultimately get uniformity.

Is that correct?

Mr. Griffin: That is correct.

Unknown Speaker: In other words, your... so, your first argument for uniformity is buttressed by, in effect, what you say is the intent of the patent statute and that is to provide some uniformity.

And this is the only way you can get it, and this is, therefore, the only way you ought to read the statute.

Mr. Griffin: That is correct.

Unknown Speaker: Yes, okay.

But that's somewhat contrary to the intuition one would get from the fact that apparently it's agreed that expert witnesses are necessary in almost every patent case.

Mr. Griffin: I think that is a result of patent practice, Mr. Chief Justice, and I don't think it should be the practice.

Unknown Speaker: How do you distinguish the questions of non-obviousness, enablement?

Are those also questions for the court rather than for the jury?

Mr. Griffin: If I can recall the question of... non-obviousness I believe is a question... my mind is... I don't know the answers.

Unknown Speaker: Because that's... one of the concerns is if you could narrow what the Federal circuit has done to the question of how do you read a term of the fact... of the claim when the overall scope of the claim is for the court, that's one thing.

It perhaps could be isolated, but then there are other questions of a similar nature, are there not?

Mr. Griffin: If we got to a question of what is the patent anticipated by prior art, that would be a question of fact.

If... there are questions of fact where what the focus is--

Unknown Speaker: But if the question is what does the term mean to someone ordinarily skilled in the art, okay, why shouldn't the obviousness question go the same way?

Would this invention be non-obvious to a person ordinarily skilled?

Mr. Griffin: --The issue would be what does the patent claim mean, and then with the other evidence of obviousness it becomes a question then of what... would it have been obvious to one skilled in the art.

What the Federal circuit did in this case was--

Unknown Speaker: Excuse me.

The one... so, you're saying the one is a matter of claim construction.

That's always a matter of law.

The other isn't a matter of claim construction, so maybe that would be open to jury findings?

Mr. Griffin: --That's correct.

Unknown Speaker: However, if you do leave it open to jury findings, what happens to uniformity?

The jury on the west coast says, gee, it seems perfectly obvious to us.

Why should he be protected?

A jury on the east coast says quite the opposite.

What happens to uniformity if you allow that exception?

Haven't you got to go the whole hog here and say all of the issues that go ultimately to the enforceability of the patent have got to be treated as issues of law because otherwise you lose your uniformity?

Mr. Griffin: If the only argument is the uniformity argument, that is correct.

Unknown Speaker: But can you distinguish this question of what does the term in the claim mean from non-obviousness as one?

Another one is enablement.

Could a person skilled in the art look at this patent and build a machine?

Mr. Griffin: Well, enablement I believe today is treated as a question of law.

It was at common law treated as a question of fact.

So, I think--

Unknown Speaker: What is the precedent that tells us that today it's treated as a question of law?

Mr. Griffin: --I believe that that is the holding of the cases, and I don't have them with me--

Unknown Speaker: How is that consistent with the Seventh Amendment?

How does the Seventh... I think Justice Kennedy and I are asking the same--

Mr. Griffin: --That would get me back to the... the Seventh Amendment analysis here, that is... is one of whether... we start with the proposition that this is a case which is tried to a jury, and so this Court's historic analysis and the cases, the so-called law equity cases, that the Court has dealt with in determining whether a jury trial itself is applicable is not necessarily determinative in a case where there is a jury trial of what issues will be eventually given to the jury and what issues will be reserved for the judge.

It is an indication of how one might project things, but it does not fix... this Court's precedent does not fix in time in 19... 1791 all of the incidents of the jury trial.

The Seventh Amendment requires that you preserve the essentials of it, which is that the jury decide those things which will be characterized as fact and that the... also preserves the role of the judge to decide those things which are characterized as law and--

Unknown Speaker: --That sounds like a very strange interpretation of the Seventh Amendment to me.

Are you saying that Congress could not confide more things to the jury as opposed to the judge than was done at common law in 1791?

Mr. Griffin: --Congress could and Congress in the patent setting could enact a statute which says that the... all questions of patent infringement or validity are to be tried by an Article I court and that would not violate the Seventh Amendment.

Unknown Speaker: Didn't the Seventh... I mean, if you go back to the English practice, my impression in reading this... but you know it better and will correct me... is that questions like originality or non-obviousness, et cetera, were quite close if they weren't directly the kinds of things that they did leave to a jury.

Mr. Griffin: That's correct.

Unknown Speaker: Is that right?

So, then the question would be if that's so, then they have to be left to a jury I guess for present purposes.

Is that right?

Mr. Griffin: I do not believe so.

Unknown Speaker: But is it the case that for you to win this case, we also have to decide the question of whether originality, et cetera, or non-obviousness is for a judge or a jury?

Mr. Griffin: No.

Unknown Speaker: Why not?

Mr. Griffin: Because the issue that's presented in this case is the question of whether the interpretation of the meaning of the words used in the patent claim--

Unknown Speaker: Yes.

Mr. Griffin: --is appropriately--

Unknown Speaker: And how do you distinguish it from all those other issues which probably were sent to the jury?

Mr. Griffin: --Because, well, in the first instance the juries in common law England were not asked to interpret the words of a patent, and that was for practical reasons as well as legal reasons.

Juries in common law England were often illiterate.

The courts reserved to themselves the interpretation of the written word.

What juries were asked to do in common law England, to the extent that you can discern it from the few cases that there are, is to decide whether this specification was the appropriate recipe for how you made this particular type of stuff up or whether it was able to teach somebody how to make the widget, whatever it may be.

And the testimony which was heard was not of anyone other than the artisan coming in and said I followed the recipe.

I did--

Unknown Speaker: So, what we'd like to find is someone who once went to an English judge in 1780 and said, judge, you're supposed to decide whether this document before you is non-obvious.

To do that, you have to know two things: what the document means and what the future world was like... previous world was like.

The second part is factual.

The first part is purely legal.

Judge, instruct the jury as to that first part.

No one ever said that.

Mr. Griffin: --I did not see anything like that.

Unknown Speaker: Could you give a sensible reason why you would put these things on different sides of the line?

Mr. Griffin: No.

Unknown Speaker: Wasn't that a major concern here that you've got something that is an action at law?

A patent infringement is an action at law.

And then you're going to take the issues one by one and take them away from the jury, and pretty soon you'll have nothing triable to a jury.

Mr. Griffin: I don't believe that that is a valid concern because the Federal circuit has taught us that there are a number of issues that are to be left to the jury.

But what it does raise the ultimate question, which isn't in this case, is whether there is a Seventh Amendment right to a jury trial in a patent case, and that's the other issue and that's not here.

Unknown Speaker: I thought that at least everybody in the Federal circuit agreed that there is.

Now, if Congress wants to concoct some entirely other regime like it can make what were once tort cases into workers' compensation cases, that's one thing.

Mr. Griffin: That's correct.

And as long as Congress has provided that patent infringement actions for damages are to be tried to a jury and the statute provides for that, there is a role for the jury in patent cases from the determination of issues of damages, as the Hilton Davis case says in the question of equivalence.

There are a number of issues which are appropriate for the jury.

And especially the jury deals with the ultimate question of infringement.

Does the accused device invade the metes and bounds of the patent?

That is the jury's ultimate job.

It's the court's job to tell the jury what the patent means, and this Court has said that on numerous occasions.

It's the court's job to tell the jury what the patent means and in the infringement case it's the job of the jury to find out whether that accused devise invades that monopoly, whether the patent reads on the accused device.

That is... that's the essence and that's the jury trial which we are entitled to in patent cases.

Unknown Speaker: Let me ask you another analogy question, and I should have done it before but I didn't think of it.

On the one hand, we've got the case of statutory construction, construction of agency regs, and so on.

We say that's always a matter of law.

It never goes to the jury.

The kind of... the limits of meaning, the rules by which we find meaning, the process by which we look for, quote, evidence, unquote, of meaning, those are all things for... that courts alone can do.

Easy case.

At the other extreme, you've got the question of contract construction, and as you pointed out, one of the issues in contract construction may well be an issue of subjective intent.

What did these people or one of them have in mind?

So, that makes it a classic kind of evidentiary question.

And you said, well, here in a patent claim, we don't have an issue of subjective intent simply because the objects of stating patent claims rule out that as a legitimate consideration, and I will accept that.

But isn't... and here is where I get to my question.

Isn't it also the case that the terms that are supposed to be used in these claims are terms which have meaning within the art in question?

So, therefore, the matter of meaning is something for which we can legitimately look outside the document.

And isn't there a strong analogy between looking for the understanding of the art or the trade, something outside the document, and looking for the subjective intent of parties, which is also outside the document?

The evidence bearing on them may be different.

But isn't the fact finder engaging in essentially the same kind fact finding?

In one case he's saying contracts, what did they specifically have in mind here?

In the other case, he's saying, what does this whole body of people mean by this term?

Isn't the analogy between those two questions a strong analogy?

Mr. Griffin: No.

I think it's a very weak analogy, Justice, in my--

Unknown Speaker: Would you explain that?

[Laughter]

You may explain briefly.

Mr. Griffin: --I think it is a weak analogy because the question of what a specific term used in a contract to the requisite community which is skilled in that is something which does not exist except for the patent documents themselves which frame the--

Unknown Speaker: Yes, you wouldn't use the term if you weren't writing a patent.

Mr. Griffin: --And it frames the inquiry.

And when you are hearing outside the patent documents from somebody, you have the documents themselves which are written in an objectively directed fashion to judge what that meaning is.

The parties can mean anything that they wish with their contracts as between only two sides, and the question of the subjective intent of the parties in a contract only gets decided by the jury in many jurisdictions if the judge concludes initially, after reviewing the contract, that he's not going to interpret it as a matter of law, or she's not going to interpret it as a matter of law--

Unknown Speaker: Well--

Mr. Griffin: --from the four corners.

Unknown Speaker: --Thank you, Mr. Griffin.

Mr. Mallin, you have 2 minutes remaining.

Rebuttal of William B. Mallin

Mr. Mallin: Quickly then.

The majority decided only the general issue.

That's the reason Mr. Markman lost his infringement verdict.

The court never reached the sufficiency of the evidence point.

It's not up.

There are all kinds of validity issues where the jurisprudence of this Court is clear that the underlying facts go to the jury.

And I don't have time to rattle them off, but it seems to me completely inconsistent with that that we would pick out this one term analysis which is very much the same and say it doesn't go to the jury.

And when you're dealing with credibility, it's artificial to say that you're not finding facts.

There have been Markman trials, so-called, after majority opinion.

We cite some of them in our brief where they talk about the professor, how much he's getting paid, how much he's getting in royalties for himself, all the typical things about whether he's to be believed or not, and what those judges say about whether they're deciding credibility and whether the witness is believable or not.

And as Judge Mayer pointed out before, when you decide the meaning of the term in an infringement case, most of the time you've decided the infringement.

The jury is essentially ejected out of the infringement analysis if they are not allowed to decide genuine issues of fact regarding the meaning of the term.

If the term is so vague that the patent ought to be invalid, that's another question.

Unknown Speaker: Well, surely--

Mr. Mallin: It would be held invalid.

Unknown Speaker: --Surely there's a separate issue of whether there has been an infringement or not.

I mean, there's not just the definition of the patent.

There's also whether the competing instrument was an infringement.

That's still left entirely to the jury, isn't it?

Mr. Mallin: That still could be the case but it's more theoretical than real.

Once you know what the term means... there is the accused device sitting there... you know whether it's common.

And that's all that... as judges on the Federal circuit--

Unknown Speaker: It seems to me a big question.

It seems to me a big question, indeed.

I don't think there's nothing left for the jury.

Mr. Mallin: --In most cases, I would suggest, Your Honor, that there is very little left.

Unknown Speaker: That's just like saying the contracts case is over once the court tells the jury what the contract means, and thereafter there's nothing left.

Of course, there's plenty left.

The jury has to decide whether the contract was complied with or not.

Mr. Mallin: There's a lot more left in a contract case, Your Honor, but it isn't the same thing in a jury case where the term analysis, what does that cover?

When that's determined, what is a genuine issue of fact, by the judge, there's really nothing significant left for the jury, as Judge Mayer pointed out.

Chief Justice Rehnquist: Thank you, Mr. Mallin.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Wooddell v. International Brotherhood Of Electrical Workers, Local 71 - Oral Argument

Fri, 09 Jan 2009 14:49:29 +0000

Case:

Wooddell v. International Brotherhood Of Electrical Workers, Local 71

Media File:

90-967_19911016-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF THEODORE E. MECKLER ON BEHALF OF PETITIONER

Chief Justice Rehnquist: We'll hear argument now in case No. 90-967, Guy Wooddell, Jr. v. International Brotherhood of Electrical Workers.

Mr. Meckler.

Mr. Meckler: Thank you, Mr. Chief Justice, and my it please the Court:

There are two questions presented in this case.

The first question dealt with the right to a jury trial under title I of the Labor Management Relations Disclosure Act, LMRDA, and that particular issue has been conceded by the respondent, and as a result, I don't intend to argue the merits of that issue.

Unidentified Justice: Do you want us to rule on it?

Mr. Meckler: Well, it seems to me the most appropriate thing to do--

Unidentified Justice: Well, what if we disagree with both of you?

Mr. Meckler: --Well, I understand that's possible.

I think the most appropriate thing to do is to remand, reverse and remand on that issue.

Unidentified Justice: Hold it, the court below disagreed with you.

Mr. Meckler: The court below did disagree with us.

I think there's a... the point I'm trying to make is that the matter should be remanded to the circuit court in light of the concession, and in light of Terry, let them reconsider the issue.

Unidentified Justice: Well, I think that we're wanting to deal right now with the argument before this Court.

I think you'd be quite justified in saying that you submit that matter on your brief and save a little time for rebuttal.

Mr. Meckler: Fine.

That's what I'll do, Your Honor.

Moving then to the second question presented, which is, does section 301 of the Labor Management Relations Act create a Federal cause of action under which a union member may sue his union for violation of the union constitution.

And this is a case where the words of the statute mean something.

And what they mean is that a cause of action is created in this particular situation.

Now, the language of the statute in pertinent part are as follows; suits for violations of contracts between an employer and a labor organization or between any such labor organizations may be brought in any district court.

The first question that must be answered, of course, is whether a union constitution is a 301 contract.

And that question has been answered already by this Court in the affirmative in the Plumbers case.

The second question which we then must move on to is, can a nonsignatory to a 301 contract between unions sue to remedy a violation of that contract, and can they sue under 301.

And in essence, I think the Court has also answered that question in Smith v. Evening News, and answered it in the affirmative.

Admittedly, Smith v. Evening News dealt with the other half of this statute, the two halves being contracts between a labor organization and an employer and contracts between labor organizations.

Smith held that when we're talking about contracts between a labor organization and an employer, a nonsignatory who in that case who had benefits arising out of that contract could bring suit against the employer in that case.

The same principle is just as applicable in this case.

There is no language in the statute that suggests any basis for differentiation in the treatment of collective bargaining agreements, the first type of statute... excuse me, the first type of contract defined in this statute, and union constitutions, the second type of contract defined in this statute.

Now the Smith court made it clear that the between language in the statute, that is between, in this case, any labor organizations referred to contracts and not suits.

The statute is very open-ended in its language.

It says, suits for violations of contracts between any such labor organizations may be brought in district court.

What we have here is a claim that there is a violation of one of these types of contracts.

Therefore, a cause of action, a Federal cause of action, exists to remedy that violation.

Now there are a number of policy reasons which I suggest to the Court lend weight to our position in addition to the language of the statute, which is clear, Plumbers, which is clear, and Smith v. Evening News, which is also clear.

What are some of these policy reasons to hold that union members may bring suit under 301 against their union for violation of union constitutions?

First of all, it's been long determined by this Court that when we are in the area of 301, 301 contracts, that substantive Federal law must apply.

That was this Court's determination way back in the Lincoln Mills case, and a long line of precedent following Lincoln Mills.

And there's good reason for that, particularly in this context, because of the uniformity that applying Federal substantive law brings to the process.

Uniformity in the context of the enforcement of a 301 contract, in this case a union constitution, brings to us predictability, it brings to us labor stability.

It's far better from a policy perspective to have decisions made on interpretations of union constitutions which may apply to as many as all 50 States, and in this instance, in this case it does, to be determined by a uniform policy of Federal law rather than determined by 50 different State courts.

If it were determined by 50 different State courts, we could have many different interpretations and we would be creating chaos.

The whole purpose of the Lincoln Mills concept is to do just the opposite of that.

Now in addition, the application of Federal labor law principles should not depend on who happens to file suit.

There are different... if that were to occur, and certainly under Plumbers, a local union has the right to sue an international union on a union constitution, an international union has the right to sue a local union on a union constitution under 301.

If that were to occur, and individual members were not permitted the right to sue under 301 on this situation, we would end up with different meanings for the same constitutional provision depending upon who happened to sue.

That would also lead, I'm sure, to forum shopping, which is something that we should try to avoid.

And it would lead to uncertainty and lack of predictability and a destruction of labor stability.

Now another policy consideration that I think the Court should look to is the fact that oftentimes in these kinds of cases, LMRDA claims, and that certainly, in this instance it's the same situation... LMRDA claims are intertwined with claims of a breach of a union constitution.

Frequently, in LMRDA claims, the question of constitutional interpretation, interpreting the union constitution, comes up in many instances.

The courts have always assumed that in rendering that interpretation, they must look to Federal law to make a determination.

Now if we're in a situation where there is no Federal cause of action in this context, are we going to have claims involving intertwined claims of LMRDA violations, union constitution violations, whereby on some of those provisions, in some instances the court makes a determination based on Federal law, yet on the same constitutional provisions, the court makes a determination based upon State law?

It seems to me that doesn't make a lot of sense.

Justice O'Connor: Mr. Meckler, do you think Congress had in mind when it passed section 301 an intent to Federalize internal disputes between unions and its members?

Mr. Meckler: Yes, I think it did.

And I say that because--

Justice O'Connor: I would have thought the evidence might be to the contrary.

Mr. Meckler: --Well, it seems to me the evidence, the main basis of evidence in that regard is the language of the statute itself.

And the language of the statute itself is very open, very open-ended.

It says if one of these 301 contracts is violated, then there shall be a Federal cause of action.

Now, had Congress chosen to exclude some type of 301 contract, or what is now a 301 contract, from that scheme of things, it could have easily chosen some language to do so.

It did not.

It left it very open-ended.

Unidentified Justice: If Congress has chosen to indicate a Federal policy, such as Justice O'Connor was inquiring about, to Federalize, they could have equally well done that.

Mr. Meckler: Well, I suppose that's true, but as the Court looked at in Plumbers, the... it's very clear that at the time of the passage of section 301 back in 1947, union constitutions were the primary form of contracts between labor organizations.

And it was well established at that time that union constitutions were contracts between labor organizations.

Congress chose those very words.

That choice of words, it seems to me, suggests congressional intent--

Unidentified Justice: You think the principal thing Congress had in mind in the Taft-Hartley Act when it defined the term were union constitutions?

Mr. Meckler: --I don't think that that was the principal thing.

Unidentified Justice: I thought from what you said a moment ago, maybe you did.

Mr. Meckler: No, Your Honor, I didn't mean to suggest that.

I think that it is one of the things that Congress had in mind when it chose the language that it chose in section 301.

And I might add there is some additional evidence of that in the statutory language itself, and that is section (1)(b) of the act, 29 U.S.C. 141(b), where Congress is talking about the purpose of the statute and indicates that one of the purposes is to protect the right of individual employees in their relations with labor organizations.

Now, the document that defines relations with labor organizations of individual employees, the most likely document, at least, is a union constitution.

So it seems to me that there is certainly evidence in the legislation itself to suggest that Congress intended to include these types of disputes.

Unidentified Justice: I take it under your view that if there were an auto lease or a lease for a building between one labor union and another, that that would be a 301 suit, or am I incorrect about that?

Mr. Meckler: Well, I think there's a question there, to be sure, but the question is a Federal question.

The question of whether there is some benefit that's included in the constitution from which the plaintiff derives some benefit, some term in the constitution--

Unidentified Justice: No, no.

Just suppose one labor organization sues another over an auto lease.

Mr. Meckler: --I believe that probably falls within the language of the statute.

Of course, here we're here on a union constitution, and this Court has already decided that a union constitution is a 301 contract.

The type of contract that Your Honor refers to certainly hasn't been decided by this Court yet.

Unidentified Justice: Mr. Meckler, how do you distinguish Lockridge?

I mean, the action that's alleged to have occurred here would certainly be a violation of the act in and of itself.

So why shouldn't the board have the first chance to pass on it... the Garmon preemption, in other words?

Mr. Meckler: Well, I distinguish Lockridge on a couple basis.

First of all, I think Lockridge in fact supports our argument in one respect, and that is that it suggests that matters such as this are matters that are to be committed to the Federal branch of government, not the State branch of government.

In that case, of course, it was the NLRB, not the Federal courts.

But the difference in Lockridge, it seems to me--

Unidentified Justice: But to be committed not as a contract violation, but as a violation of the act.

Mr. Meckler: --Well, yes, that's true, but I think the important thing there is that the Court indicated that it's a matter of Federal concern.

Now that's point number one.

Point number two is Lockridge preceded Plumbers.

I believe that Plumbers changes the landscape because Plumbers tells us that a union constitution is a 301 contract.

Now Lockridge never considered the question of 301 at all, never considered whether a union constitution was a 301 contract.

Now we know that it is.

And from that point of view, I would have to distinguish Lockridge on that basis.

But I think Lockridge in some respects supports our position.

Another point or policy reason, it seems to me, is that the idea of judicial efficiency... it seems a far better practice for a plaintiff in such a case to litigate the issues all in one forum rather than in two different forums.

Finally, I think we need to have a remedy here.

We have a union constitution which is the basic document defining the rights of union members, vis-a-vis their union.

And it's violated, at least plaintiffs... petitioners claim it's violated.

And the circuit court tells us there's no remedy for that violation.

They tell us on the one hand that there's no State contract claim because 301 preempts it.

They tell us on the other hand that there's no 301 claim.

There has to be a remedy for this kind of a contractual violation.

Otherwise the union constitutions aren't worth the paper they're written on, the protections that they may afford union members are worthless.

And as this case stands here before the Court today, there is no remedy.

Unidentified Justice: Well, maybe they were wrong about 301 preempting it.

Mr. Meckler: Well, maybe they were.

I don't understand logically their inference there.

But it seems to me if you look at 301 itself, it's clear that 301 includes this type of dispute.

301, as I said, the words of 301... as Your Honor was talking about earlier in some of the arguments this morning, the words of 301 I think are the key to this case.

Unidentified Justice: Does 301 mention a suit between a union and a member?

Mr. Meckler: No.

Nor does it mention a suit between an individual member or employee and a employer.

Nor does it mention a suit between an individual member and a union.

Unidentified Justice: It does mention a suit between two unions.

Mr. Meckler: It does mention a suit... well, it talks about... no, Your Honor, I beg to differ with you there.

It mentions a contract between two unions, and it says that suits may be brought for violations of such contracts.

Unidentified Justice: Exactly.

But it doesn't mention a contract between a union and a member.

Mr. Meckler: No, it talks about contracts between two or more labor organizations, I think, is the language of the statute.

Unidentified Justice: Exactly.

Mr. Meckler: And the point being this Court has already decided, in Plumbers, that union constitutions are that kind of a contract, are a 301 contract.

Therefore, it becomes a matter of 301 concern, it becomes a matter of Federal concern, Federal courts' concern.

There are benefits flowing, obviously benefits flowing--

Unidentified Justice: Would you be making the same argument if the 301 didn't mention contracts between two or more labor organizations?

Mr. Meckler: --I don't think so.

I mean I think that if it did not mention that language, then Plumbers never would have happened and we wouldn't be here today, probably.

Unidentified Justice: Why not?

Why not?

Mr. Meckler: Because the statutory language defines the bounds here.

And the bounds include contracts between labor organizations.

And contracts between labor organizations, by definition now, include union constitutions.

Unidentified Justice: Yeah, but it still doesn't mention contracts between a union and a member.

Mr. Meckler: It doesn't mention contracts between a union and a member, but I would suggest to the Court that a union constitution is a contract between labor organizations by virtue of its usage over years, and more importantly by virtue of Plumbers.

That's what Plumbers tells us.

I think I'm going to conclude my argument at this point and reserve the remaining time for rebuttal.

Unidentified Justice: Very well, Mr. Meckler.

Mr. Cloppert, we will now hear from you.

ORAL ARGUMENT OF FREDERICK G. CLOPPERT, JR. ON BEHALF OF THE RESPONDENTS

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

The issue before this Court is the intent of Congress in enacting section 301 of Taft-Hartley, specifically the provisions for suits for violation of contracts between any such labor organization and its applications to union constitutions in a situation such as we have here.

Unidentified Justice: You do concede the jury trial issue?

Mr. Cloppert: That is correct, Your Honor.

Unidentified Justice: Although the court of appeals ruled in your favor?

Mr. Cloppert: That is correct.

It was before this Court came down with the Terry decision.

Unidentified Justice: That's before Terry?

Mr. Cloppert: That is correct, Your Honor.

The state of the law in union constitutions is important.

In 1947, at the time the Taft-Hartley was passed, a union constitution defined two separate types of relationships.

It defined a relationship between the international union and a member, and it defined a relationship between the international union and its subordinate bodies, the local unions, and so forth.

And in both instances, these relationships were considered a contract.

So 11 years later, in Gonzales, this Court looked at a union constitution.

At that time a member had been discharged from the union.

He brought a breach of contract suit in California, and the contract being the union constitution.

The issue came up, well, was this preempted?

Should these issues be Federalized?

And the Court at that time said no, that issue should not be Federalized.

The next year in 1959, Congress enacted the first comprehensive regulation of the internal affairs of unions in the Landrum-Griffin Act.

There, for the first time, was mentioned union constitutions and any kind of regulation of union constitutions.

Approximately 12 years later, in Lockridge, this Court revisited Gonzales, essentially the same issue, the union constitution breach of State... breach of contract in State court.

And because there was impacted the union security provision in the collective bargaining agreement, the Court in Lockridge held that there should be Garmon preemption, NLRA preemption.

But both the majority and the dissent in Lockridge recognized that a breach of contract of the union constitution could be brought in State court except in this instance there was a possible conflict, and so the Court preempted it.

Then 10 years later, in Plumbers, this Court addressed the relationship between the union and its subordinate bodies in union constitution, and held that that relationship was a 301 contract.

And that is why we are here today, because of a footnote in Plumbers.

Crucial to deciding this case is understanding the nature of a union constitution.

It's not a collective bargaining agreement, it's not an employment contract, it's not a lease.

A union constitution is a charter of an organization, the same way you would have a charter of the YMCA, the YWCA, the Knights of Columbus, or another organization.

Parts of it define the relationship between the international union and the local unions, and part of it defines the relationship between the international union and the individual members.

So you have parts of a constitution that deal with a call to the convention in how you run your convention.

You have other parts that deal with the merger, consolidation, trusteeship of local unions.

You have other parts that deal with the finances of the international union, obviously something important and sacred to the union.

And it defines the per capita that a local pays the international and how those dues are to be allocated.

All these parts of the constitution go to that relationship between the international union and the subordinate bodies.

There are other parts of union constitutions that define the relationship between the union and its members.

There are provisions for qualifications for and admission to membership as well as the admission dues or initiation fees.

There are provisions that relate to the pension plan, to how many years a member must have to qualify for death benefits.

And finally, there are the duties of the local union officers to its members, and that's the part of the constitution that's at issue here.

Unidentified Justice: Well, which of the two categories does that fall into?

Does that deal with the relation between the international and members?

Mr. Cloppert: Yes, Your Honor.

Unidentified Justice: Or does it deal with the relationship between the international and its subordinate unions?

It deals with both, it seems to me.

It says what the subordinate unions have to do with respect to the members.

So it deals with the members and it also deals with the subordinate unions.

So maybe there's a third category.

Mr. Cloppert: The international constitution prescribes duties for the local union and the local union officers.

And among the duties that are prescribed is the business manager shall do such and such for his... the members.

Now that, to me, is a personal--

Unidentified Justice: So it does speak to the rights of the members of the union.

Mr. Cloppert: --Right.

That speaks to the rights of the members of the union, not to the--

Unidentified Justice: But it also speaks to the duties of the officers of the union.

Mr. Cloppert: --Those are the local union officers.

Unidentified Justice: Right.

Mr. Cloppert: Not the international--

Unidentified Justice: So therefore it does--

Mr. Cloppert: --Those are the duties of the local unions officers.

Unidentified Justice: --I understand.

Mr. Cloppert: And that's the relationship... that's almost a third kind of thing where you have a relationship that I'll get to later between the local union and its members.

You have the local union bylaws.

Justice Scalia: It seems to me it says the local union owes a duty to the international to do something for the members of the local union.

Right?

Isn't that what it basically says?

Mr. Cloppert: No, Justice Scalia.

I see that as an obligation in the constitution that governs the officer and the member.

It doesn't say anything about the international.

Now, if the member... if the officer doesn't do that, that's obviously a violation of the international constitution, but that doesn't express a relationship between that officer and the international union.

We're concerned here with the legislative intent.

And it's clear that section 301 of Taft-Hartley has been discussed.

It doesn't talk about internal union affairs, it talks about contracts between any such labor organizations.

And as this Court saw in the Plumbers case, there is just no legislative history to assist this Court.

With that in mind, I think the Court should then look at Landrum-Griffin, which was passed 12 years later, that was the first comprehensive regulation of the internal affairs of the labor unions that dealt with their members.

In section 103, in fact in three sections, it specifically said that we do not preempt preexisting rights.

And let me address a few of those because I think this is crucial with the understanding of what the state of the law was in '47, '59, and so forth.

Let's look at what Landrum-Griffin did as far as not preempting preexisting rights.

In section 103 it said, nothing contained in this title shall limit the rights and remedies of any member of the labor organization under any State or Federal law, or before any court or other tribunal, or under the constitution bylaws of any labor organization.

Section 403 has essentially the same provisions relative to union elections.

Then there is another savings clause in section 603 that provides, nothing in this act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal law or law of any State.

This understanding that there was no disturbing the preexisting rights was also had by the commentators at the time, and we have cited Professor Summers' article in our brief.

Professor Summers in that article says that one of the minor disputes in Landrum-Griffin during the congressional debates was between whether there would be a complete preemption of other rights or whether there would be a coexistence of rights.

And he said there occurred a coexistence of rights.

Justice Scalia: Mr. Cloppert, let me understand what your case is.

You're asking us to look at all union international constitutions and to divide their provisions into two types.

Mr. Cloppert: That is correct, Justice Scalia.

Justice Scalia: And you're confident that we can tell as to each of those which of them is type one that involves the relationship between the international and the local, and type two, which involves the relationship between the international and individual members of the local.

Mr. Cloppert: I have all that confidence in the Court.

If I may, Justice Scalia, we have a Federal system--

Justice Scalia: And just let me add, and you're confident that a provision that says, a member of the local is entitled to get certain service from a vice president of a local.

That falls into the first category... I'm sorry... yes, that falls into the first category.

That involves the relationship between the inter... no.

The second category, that involves the relationship between the international and the individual member, not the relationship between the international and the local.

Mr. Cloppert: --When you're dealing with the individual, those are individual rights.

When the international is merging, consolidating, putting into trusteeship, chartering, those are all rights between two labor organizations, and that's what this Court discussed in Plumbers.

Unidentified Justice: What other provisions of the constitution do you think are Plumber-type provisions?

I mean it seems to me almost everything in the constitution is ultimately designed for the benefit of the individual union member.

Mr. Cloppert: The per capita dues, that's the support of the international union--

Unidentified Justice: That involves what?

That's type (a)?

That's a Plumber-type provision.

Mr. Cloppert: --Right.

It requires the local unions to pay $5 per head to the international for the international support.

Unidentified Justice: That's an easy one.

I agree with that.

I can see that one.

Mr. Cloppert: I think our analysis takes care of many of the concerns that counsel mentioned here of the law being different depending on whether it's an individual member bringing the lawsuit or it's an organization.

For example, let's go back to the Plumbers case.

What if some members in that local that was being consolidated in New Jersey brought the lawsuit instead of the local?

Well, you're affecting the relationship of the international and its local, and that's a Plumbers case.

The issue should not be who is bringing the lawsuit.

And this Court, you know, decided that in Smith, that it's not who's bringing the lawsuit, but it's the nature of the rights or the nature of the relationship.

And that's what the Court should focus on.

Justice Scalia: And what is your touchstone?

Is your touchstone as to which category it falls into?

How do you figure that out?

You ask yourself, is the purpose of this duty that is imposed on the local, is the purpose of this duty to benefit a particular member of the local?

Is that the criteria?

Mr. Cloppert: The only way I can say it, Justice Scalia, is does it deal with the relationship between the international and the subordinate bodies?

And if it does, it's a Plumbers case.

If it deals... the relationship between the international and its individual members, that is an individual right claim, and that's something that, you know... for example in Gonzales, Lockridge, except the Court found a Garmon preemption in Lockridge... fines in Allis-Chalmers, the union sued to enforce fines in State court.

And the... under the union constitution.

That's individual kind of rights.

Unidentified Justice: What about a provision that the local elections shall be conducted in a certain fashion?

That's an individual rights one?

Mr. Cloppert: If it regulates... right, elections.

Just as petitioner has indicated, there could be a judicial nightmare if you would accept the distinction that Justice Scalia and I have been discussing.

We think there is potential for a great nightmare or quagmire if you accept their argument where you Federalize every claim based on a union constitution.

Most international unions have intermediate bodies called district councils.

The State of Kentucky might be a whole district council, a place such as Ohio might have three or four district councils.

District counsels have bylaws.

There are generally 5, 10, 15 local unions within the confines of that district council.

Do the district council bylaws then become a 301 constitution?

What about the local union bylaws?

One of the claims in this case is not only for breach of the international constitution, but also for breach of the local union.

The constitution of the IBEW provides that this constitution shall become a part of all local union bylaws.

So then all the local union bylaws throughout the country that the IBEW has, are they then considered to be 301 contracts that this Court's going to be required to address?

Now there are some independent local unions out there.

Would the Court look at the relationship between that independent local and its members?

Since there's not another union involved, would that not be a 301 contract, and would those be the only union constitutions that would be enforceable in State court?

We also have the issue of the union suing members.

If they're going to Federalize every claim under union constitution, then a claim such as this Court saw in Allis-Chalmers, where the union was enforcing fines imposed for crossing a picket line, the union could go into Federal court and enforce all of those.

In Allis-Chalmers they were State court claims.

We think there is more problems if the Court makes what appears to be a simple cut and Federalizes this whole thing rather than making a determination based on the relationship.

Unidentified Justice: Was that an international in Allis-Chalmers?

Was that the international suing for the fines?

Mr. Cloppert: Yes.

Yes.

We think the touchstone should be does it deal with the relationship between the international union and the local unions.

And those are Plumbers-type cases, those are 301 collective bargaining... let's call them 301 collective bargaining contracts because I want to distinguish it from the 301... I'm sorry.

Those are 301 constitution claims, so I can distinguish it from the collective bargaining.

And acts that deal with the relationship between the union, whether it's an international or local union, with the members, those are claims that should be considered in State court.

If there are any other questions, I thank you for your time.

Unidentified Justice: Thank you, Mr. Cloppert.

Mr. Meckler, you have 9 minutes remaining.

REBUTTAL ARGUMENT OF THEODORE E. MECKLER ON BEHALF OF THE PETITIONER

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

I just want to touch on a few points.

First of all, with respect to the question that Justice Scalia asked about provisions relating to governing union elections.

It seems to me that is a perfect example of a type of provision that the interest flows in all sorts of different ways.

I think the international has an interest in local unions' elections being conducted properly.

Certainly the local itself has an interest in that.

Certainly the members themselves have an interest in that.

It goes all three ways there.

Unidentified Justice: There wasn't always an interest in it, of course, or it wouldn't be in the constitution.

Of course, it always have an interest.

But I think it is perhaps possible to draw a line between those in which its interest is purely a selfish one, namely I get $5 a head, for example, for all of your local members, how much the international is entitled to as membership fees from the local, and those provisions which are not just for the benefit of the international, but really, it's the international being beneficent to the members of the local.

You will treat your members this way, that way, and the other way.

Can't one draw that distinction?

Mr. Meckler: I think you're going to get into all sorts of problems drawing those distinctions, number one.

Number two, when we have a union constitution and we know it's a 301 contract, it seems to me it's a Federal question what those categories are, if in fact we can make those kinds of categorizations, and I don't think you can.

Because things don't fit into neat labels here.

Let me also point out, and--

Unidentified Justice: Give me an example of one that really is the hardest to categorize, doesn't fit into a neat one.

I'm sorry, I should have thought you would have guessed that somebody might ask you.

Mr. Meckler: --Well, okay, and I probably should.

Let me try to clear my mind a second and think of one.

I can think of one where there's a provision in a local... in a constitution, that requires before a referendum vote is held, before a referendum vote is held, a mail ballot referendum vote, that the local must conduct a meeting.

The members must discuss the issue and vote on whether or not that referendum vote should be authorized.

Okay?

It seems to me if the local were then to go ahead and conduct a referendum for whatever reasons contrary to that provision, that local members would certainly have an interest in that.

Certainly the local itself would have a clear interest in that.

And the international which would want its local to be run according to one, the written constitution, and two, in an appropriate manner, would have a very strong interest in that.

I litigated a similar case like that, and that happens.

That kind of stuff happens all the time.

And it seems to me that that kind of situation shows us how unworkable these kinds of categorizations are.

Let me just make another point as far as that goes.

It seems that the proposition put forth by the respondents in this case is directly in contradiction to Smith.

Because what Smith tells us is there's you know, there's lots of different provisions in collective bargaining agreements, too.

Some of them may flow directly to the union, between the union and the company.

Some of them may flow to the individual employee.

In Smith, the Court found that the provisions in question flew... I mean flowed, excuse me, to the individual employee.

Now they're suggesting that if they flow to the individual employee, there's no Federal cause of action; if they don't flow to the individual employee, then there is a cause of action.

Smith says just the opposite.

Unidentified Justice: Yes, but Smith was... when you're talking about collective bargaining agreements, you kind of have a presumption based on the whole history of labor law that all collective bargaining agreements have an impact on interstate commerce.

I'm not sure the same presumption applies to every provision of every union constitution, or every contract between two unions.

Mr. Meckler: Well, it seems to me Plumbers answers the question and tells us that union constitutions are contracts within the meaning of 301.

And I think, as I understand your question, Justice Stevens, it really goes to the dissent that you wrote in that very case.

Justice Stevens: It goes to positions being rejected.

That's right.

But I think the arguments that were made in that dissent would be much stronger in case like some of the hypotheticals that have been talked about where it's more clearly... there's a much more clear absence of legislative history suggesting it.

In other words, I can see contracts between unions resolving jurisdictional disputes and so forth would fall right into the whole... same kind of Federal interest involved in collective bargaining agreements.

But when you're talking about leasing arrangements, such as Justice Kennedy identified, and some of these more or less minor disputes, it is kind of hard to see the Federal interest.

I guess you argue also there's a Federal authority to create common law in interpreting the relationship among unions and their members.

Mr. Meckler: Well, that's correct, although I think the question presented here is a little more limited than that, really.

Justice Stevens: I know, but once you get... if you win, then that's the next step, obviously.

There will be a Federal common law in this whole area of union versus member relationships.

Mr. Meckler: I would have to agree with you there.

You know, Justice Stevens--

Justice Stevens: Let me just ask one other--

Mr. Meckler: --I'm sorry.

Justice Stevens: --Are you limiting your position to cases in which the union constitution actually defines the relationship between an international or a national and locals?

You wouldn't make the same argument if you just had a union which had no subdivisions, would you?

Mr. Meckler: I'm not sure... you mean like an independent local?

Justice Stevens: An independent local has its own constitution.

Mr. Meckler: Well, I think you probably fall outside the language of the statute because we've got to back to the language of the statute.

The language of the statute says between labor organizations.

Justice Stevens: Right, and your labor organizations are the parent and the subsidiaries, or the--

Mr. Meckler: That's right.

There are, to just answer your question about, you know, the effect on interstate commerce.

It seems to me there are plenty of provisions in constitutions that clearly do have effects on interstate commerce.

For example, provisions, I know like in the Teamsters' constitution, there's provisions that govern the ratification of collective bargaining agreements.

Obviously those are going to have an effect on interstate commerce.

There's provisions that govern hiring halls in this constitution and many other constitutions.

Those certainly have an effect on interstate commerce.

And, you know, this Court has recognized many cases in the context of collective bargaining agreements, BOCA-type cases in the context of collective bargaining agreements, where I suppose an argument could be made that they really don't have an effect on interstate commerce.

We're generally talking in the garden variety BOCA-type case of a discharge of one individual.

That's generally what we're talking about.

And it seems to me it works both ways with both constitutions and collective bargaining agreements, we have to treat them the same way.

If there are some things in there that aren't quite as wide in their reach and what happens because of the language of the statute, they're brought in anyhow.

Unidentified Justice: --I grant you Plumbers said that there could be a suit on a contract between two unions and that union constitutions are contracts.

But the only kind of a suit that 301 authorized with respect to union constitutions was a suit on a contract between two unions.

Mr. Meckler: That's true.

Unidentified Justice: Well, it didn't mention a suit on a contract between a union and a member.

Mr. Meckler: We're not going to a contract between a union and a member.

We're going to a union constitution, which Plumbers has told us is a contract--

Unidentified Justice: All right, it is a contract, but call it a constitution or a contract... and it is a contract, Plumbers held that, but 301 doesn't authorize a suit on a contract between a union and its members.

Mr. Meckler: --Well, I go back, to answer your question, Justice White, to the language of the statute itself, which talks about the between language, which Smith addressed, modifies contracts and not suits.

It's suits for violations of contracts between these various entities.

And... I think I've answered your question.

I hope I've answered your question.

I see my time is up.

Chief Justice Rehnquist: Thank you, Mr. Meckler.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Lytle v. Household Mfg., Inc. - Oral Argument

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

Case:

Lytle v. Household Mfg., Inc.

Media File:

88-334_19900108-argument.mp3

Related Transcript:

1989_88_334_argument.xml

Transcript:

Argument of Judith Reed

Chief Justice Rehnquist: We'll hear argument now in Number 88-334, John S. Lytle v. Household Manufacturing, Inc.--

Ms. Reed.

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

Petitioner John Lytle filed a complaint in Federal district court alleging that he had been fired for racially discriminatory reasons and that the Respondent employer had subsequently retaliated against him for racially discriminatory reasons.

Petitioner sued under both 1981 and Title VII.

His complaint therefore alleged both legal and equitable claims.

He made a timely demand for a jury trial.

Notwithstanding the presence of those legal claims, the district court dismissed the Section 1981 claims on reasons that everyone concedes were erroneous and proceeded to trial on the equitable claims, ruling against Petitioner and in favor of Respondent.

Respond... Petitioner subsequently attempted to correct that error in the court of appeals.

While the court of appeals held that it was error to dismiss the 1981 claims, it found that it was powerless to reverse and remand, for it held that the judge's findings, if not clearly erroneous, could collaterally estop Petitioner from litigating his claims before a jury.

Thus, the import of the holding of the court of appeals is that because the district court proceeded to make findings, his original error in denying a jury trial was unreviewable, meaning therefore that orders denying the jury trial are not reviewable after trial.

Unknown Speaker: Ms. Reed, these were findings in connection, of the sort that are ordinarily made in connection with a bench trial, findings of fact?

Mr. Reed: The findings on Title VII.

There were findings of fact on whether Title VII had been violated.

The issue in this case, then, is at what point a party is entitled to appeal an improper denial of a jury trial.

Under the view of the respondent, and apparently in the view of the Fourth Circuit, Petitioner lost his right to appeal that order denying a jury trial on the first day of trial when that demand was extinguished and the bench trial begun.

Such a holding has serious consequences for both litigants and the Federal courts, for if a party is in danger of losing his right to a jury trial, he must proceed by mandamus or take an interlocutory appeal.

Such an order would now fall within the confines of the Cohen doctrine, addressed by this Court in Lauro Lines v. Chasser and Midland Asphalt.

The practice of this Court for well over 100 years, as we discuss in our brief, and that of all other circuits, has been to reverse and remand upon a finding that the denial of the jury trial right was erroneous.

What the Fourth Circuit has done, in effect, is to create a new category of interlocutory appeals.

Until now, one would have thought, one had a right to appeal that denial at the conclusion of the proceeding.

Indeed, if Petitioner had taken an interlocutory appeal, under its prevailing view, it is likely that such an appeal would have been dismissed.

Certainly Petitioner could have proceeded by mandamus, but--

Unknown Speaker: Interlocutory appeal under 1292(b) by certification?

Mr. Reed: --Well, either that or because it now fell within the Cohen doctrine, because it would be effectively unreviewable after trial, which is what we say the import of the Fourth Circuit's holding is.

Unknown Speaker: I just want to make sure I under... you said it is likely that it would not have been dismissed?

Mr. Reed: I... we believe that under the prevailing view of the law, had he attempted to take an interlocutory appeal, that appeal would probably have been dismissed because it was thought the jury trial orders were not appealable until the conclusion of the trial.

Unknown Speaker: I see.

Mr. Reed: Now, Petitioner certainly could have proceeded by mandamus, but he was not required to do so at peril of forfeiting his right to ever appeal the denial of the jury trial.

That has simply never been the law.

Now, the court of appeals did this under an erroneous view of collateral estoppel.

Now, collateral estoppel is not like law of the case, which is used to maintain consistency during the proceedings of a single case.

Collateral estoppel is not applicable in the course of a single proceeding.

It is certainly not applicable on direct appeal.

The Fourth Circuit's use of collateral estoppel on direct appeal to preclude review of an obviously erroneous order is simply unprecedented.

Now, collateral, by its terms, would appear to mean a separate proceeding.

What the court of appeals seems to have done is some sort of new kind of estoppel that one might appropriately term bootstrap estoppel.

Petitioners cannot correct the denial of the jury trial, according to Respondent, because the district court made not one error but two errors.

It is a somewhat circular argument.

It ends up meaning that two wrongs may make a right, that because the district court proceeded to make findings after his error, Petitioner cannot get review of that.

Now the consequence of this ruling is that a party must seek and be granted interlocutory review of all rulings that might possibly infringe on a right to the jury trial.

Now that is contrary to the Federal system as we know it, and it would be highly disruptive.

It raises the specter of trials being ended before they start, of counsel being required to simply walk out of the court room.

And indeed such a rule would not foster the values of repose that collateral estoppel is designed to foster.

It would, to the contrary, generate additional litigation, generate additional appeals, because it would force counsel to take protective appeals.

Now, Respondents secondly argue that because the court would have directed a verdict for Respondent, a remand in this case is not required.

Now, our first response to that is that is not what the court of appeals held in this case.

The court of appeals did not hold that no reasonable jury would ever hold for Petitioner, or could ever hold for Petitioner.

The court of appeals simply viewed the findings under a sufficiency of the evidence standard.

Second, the record shows that there was considerable evidence on the... on both the issues that Petitioner raised to submit this case to a jury.

And if the district court could have found for either party there can't be a directed verdict.

Now, in our briefs we cite several examples from the record showing why in this record there was sufficient evidence to submit the case to a jury.

The court could grant a directed verdict only when no reasonable fact finder could have decided for Petitioner.

In the instant case the court decided the issues under Rule 41(b).

And under that rule the judge could indeed do what he did.

The judge could make rulings on disputed testimony.

The judge was free to make inference.

The judge was free to decide whom he believed.

But not so under Rule 50.

In accordance with this Court's decision in Anderson v. Liberty Lobby, the judge was required to allow the jury in this case, had one been empaneled, to weigh the evidence, make inferences and come to a conclusion as to whether or not Petitioner had been discriminated against.

And we think that the trial judge indicated that by his own words in the trial transcript, as we point out in our briefs.

When Petitioner's counsel recited a view of the evidence that could support Mr. Lytle's claim, the district court responded that that was indeed a reasonable view of the evidence.

That single statement, especially coupled with the earlier denial of a summary judgment motion, puts to rest any claim that a directed verdict could have been granted in this case.

What was okay under Rule 41(b) for the judge to do, we contend, was... the judge was precluded from doing under Rule 50(a).

Accordingly, this Court should reverse the decision of the court of appeals and remand for a jury trial.

You... in... indeed, the practical case, the practical issue in this case is when a party is supposed to appeal the wrongful denial of a jury.

Now, our position--

Unknown Speaker: Well, in this... in this case the judge didn't rule on the... on the question of the right to jury trial.

His ruling, that you claim was error, was that there was no cause of action at all.

He didn't rule that there was not a jury trial if there had been a cause of action presented.

So this is not really a case in which we must be concerned that the jury trial right will be stifled because judges will erroneously rule that a jury is not required.

This is just... there is, the fortuity here is an erroneous ruling of law by assumption.

And I don't see how that is much different than having a previous hearing by the SEC.

Mr. Reed: --Well, if you are referring to Parklane, it is a very different case, Justice Kennedy.

The reason... the sole reason that Petitioner was entitled to a jury trial was because his claim... his complaint raised legal claims, and the 1981 being that claim.

The respondents don't pretend to--

Unknown Speaker: But you see my point.

The judge didn't err in ruling that the seventh... in ruling on the scope of the Seventh Amendment.

Mr. Reed: --The judge... we contend the judge erred, and indeed all parties agree that the district judge erred in dismissing the 1981 claims.

The 1981 claims were what brought into play the right to a jury trial.

By dismissing that claim and the judge then saying we will not have a jury; we will now proceed to trial in front of the bench, that is... is the denial of the jury trial.

It seems to me that it begs the question to decide that there wasn't explicitly an order striking a demand, as opposed to dismissing a claim, because it... you still are left with a category of cases barring direct review of an erroneous decision of the district court.

Now, we contend that in this case there is one single, very important practical issue, and that is when is a party supposed to appeal the wrongful denial of a jury.

Now, our position is clear.

Plaintiff or defendant, if aggrieved by the grant or denial of a jury trial, can appeal that order at the end of trial, no matter what the reason for the order.

Now we don't understand what Respondent's position is--

Unknown Speaker: You mean you can appeal, you can appeal from the judgment entered against you and assign that as a ground of error.

Mr. Reed: --Absolutely.

Unknown Speaker: Yes.

Mr. Reed: That would be our position, that after the conclusion, after final judgment was entered on direct appeal, you could appeal any of the errors that you contend were made, including the error denying the jury trial.

Now, we have raised that issue in our briefs, and Respondent has not answered that question.

And we don't understand exactly what Respondent's position is.

I would like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Thank you, Ms. Reed.

Mr. Dennard.

Argument of H. Lane Dennard, Jr.

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

We may disagree with some of what the petitioner said about the background facts in the case, but we don't believe there is any disagreement about what Mr. Lytle's claims are, and we feel that the claims themselves are important for the Court's initial consideration.

Mr. Lytle claims that he was discriminated against because of his race when he was terminated for violating the company's rule on unexcused absences.

He next... in other words, he claims the discriminatory application of a company rule or policy.

Next, Mr. Lytle claims that he was retaliated against or discriminated against because he filed an EEOC charge when the company gave out references to perspective employers that included only the job title and length of employment.

Again, we are talking about the discriminatory application of a company policy, and in this instance the alleged basis of discrimination is the fact that Mr. Lytle filed an EEOC charge.

From the very start of this case Schwitzer has taken the position that both claims, retaliation claim and the discharge claim under Section 1981, should be dismissed because Title VII covers this conduct.

This is an... important for the Court to consider initially because the Court can avoid the constitutional issue that is urged by the Petitioner by considering the application of this Court's decision last term in Patterson to this case.

Unknown Speaker: This is a ground that you think you are entitled to press as a respondent?

Mr. Dennard: We do, Your Honor, because we feel like we have raised the issue below, and that's what we intend to argue, and that--

Unknown Speaker: But you, did you--

Mr. Dennard: --certainly records adequately developed--

Unknown Speaker: --Have you cross-petitioned?

Mr. Dennard: --No, Your Honor.

Unknown Speaker: Well, isn't this different relief than you... than you got below?

Mr. Dennard: Well, this is... of course Patterson was decided after that, but it is our position that we adequately... raised these issues, as far as the coverage of Section 1981, so that we can make this argument at this stage.

Unknown Speaker: You argued it before the Fourth Circuit?

Mr. Dennard: We argued before the Fourth Circuit and in the district court that... that the retaliation claim... it's a little bit different argument with both claims.

But with the retaliation argument, we specifically argued that Section 1981 does not cover retaliation.

Unknown Speaker: Well, had Patterson been decided then?

Mr. Dennard: Patterson hadn't been decided then.

Unknown Speaker: But you nevertheless were arguing that point?

Mr. Dennard: We were arguing the point, and what our position here today is is that we have developed the record on that and that we have adequately raised Pat... the issues that are covered by Patterson--

Unknown Speaker: And the court of appeals rejected that.

Mr. Dennard: --Well, the court of appeals did not rule on that.

They ruled on another grounds, but they did not specifically reject that, Your Honor.

They... I think they mention in the decision that they will not rule on the other grounds that were presented by both sides.

Unknown Speaker: Would the relief you get under... under your Patterson theory be precisely the same as the relief that you are seeking to defend?

Mr. Dennard: That's... well, the relief from the standpoint of Section 1981 not covering discharge and retaliation would be the same.

Unknown Speaker: Well, what was... the court of appeals ruled on collateral estoppel, didn't it?

Mr. Dennard: That is correct.

Unknown Speaker: Well, that certainly is different than saying 1981 doesn't cover this.

Mr. Dennard: Well, we would contend, Your Honor, that as--

Unknown Speaker: It may be in result... it may be in result that you, that there just isn't any 1981 claim for one reason or another.

But it isn't the same reason.

Mr. Dennard: --Well, we would contend, Your Honor, that as an appellee we would have the right to defend on any matter that was raised in the record.

Unknown Speaker: As long as it doesn't give you more relief than you would have had.

Mr. Dennard: Well, I think the relief would be the same.

I mean, we are talking about--

Unknown Speaker: All right.

So, yeah.

Mr. Dennard: --The additional... the additional point is that... this consideration of an appellee relying on matters that are developed in the record, or raised in the record, is even stronger when there is an intervening decision like the Patterson case.

Unknown Speaker: Wouldn't you have to amend to get under Patterson?

Mr. Dennard: Amend?

I don't understand.

Unknown Speaker: Your pleadings, your original pleadings.

Realize that the case was before Patterson.

Mr. Dennard: Well, we feel that we would have a right to present the issue at this point in time to the Supreme Court because we've raised the issue below and because the record is adequately developed to consider it, without any amendment.

Unknown Speaker: But you didn't raise the Patterson issue.

Mr. Dennard: Well, we didn't raise the Patterson issue--

Unknown Speaker: xxx.

Mr. Dennard: --per se.

Unknown Speaker: I see.

But just the same.

Mr. Dennard: But we took the position that Section 1981 could not be added to Title VII claims in this case for both discharge and retaliation, and the Section 1981 claims were dismissed based on that argument.

Unknown Speaker: The certiorari papers in this case were filed before we heard and decided Patterson on rehearing, weren't they?

Mr. Dennard: That is correct.

Given the status that we're... of the record that we have, we feel that we stand in a better situation than someone simply arguing the retroactive application of Patterson, although I think it's clear that Patterson should apply retroactively, because... and that has been the majority... that has been the result in the big majority of cases that have considered it in the lower courts.

The Sixth, the Seventh, the Ninth and the Eleventh Circuits have all applied Patterson retroactively to pending claims at this point in time.

We cite the Ninth Circuit or the Seventh Circuit and the Ninth Circuit opinion in our brief, and the Eleventh Circuit decision in McGinnis v. Ingrahm Equipment Company is at 888 F. 2d at 111, considered the application of Patterson to a pending case and considered the plaintiff's argument in that case that Patterson couldn't be raised because it hadn't been perfected on appeal.

And the Eleventh Circuit concluded that Patterson would have to be considered because it actually restricted the subject matter of the court to consider claims under Section 1981.

Unknown Speaker: We granted certiorari on the question of whether the violation of the Seventh Amendment was... at what time it should be reviewed on the question presented by the petitioner's question.

And if you are asking us to decide the case on a ground... kind of an alternative basis to what the court of appeals decided it on, you really have to show us some reason why we ought not to reach that question, don't you?

Mr. Dennard: Well, the point... the reason not to reach that question is because it, you have to consider a constitutional question there.

Unknown Speaker: What is the constitutional question?

Mr. Dennard: The constitutional question is the Seventh Amendment right to a jury trial.

That's... the question that was presented in the petition for certiorari, it was... that's the way it was grounded.

Unknown Speaker: But I... the Seventh Amendment, obviously, is a provision of the Constitution, and it guarantees the right to jury trial in a civil case.

But what we are talking about here is how a decision claimed to have wrongfully denied that right should be reviewed, and collateral estoppel, and that's... now, those aren't necessarily constitutional questions.

Mr. Dennard: Well, that is the view that we've taken, and that's the grounds for the Court considering.

And of course the other basis is because we feel like we have raised the issue and the record is adequately developed so that we can have the issue considered under... under those principles.

Unknown Speaker: Well, was there ever a denial of the motion for new trial, in so many words?

I mean, for a jury trial, in so many words?

Mr. Dennard: There was... what there was--

Unknown Speaker: All there was was a dismissal.

Mr. Dennard: --a dismissal of the Section 1981 claim, which carried with it the right to a jury trial.

Unknown Speaker: Even if you are right about the, this being a constitutional claim that the petitioner has raised, I don't think that the avoidance of constitutional claims is something that we pay much attention to and a question where we have granted certiorari on the question.

We could grant certiorari on a very important constitutional question that we think there is a conflict in the circuits on that needs decided.

The respondent could come in and say well, look, you could decide this on a statutory ground.

Our answer in the past has been we don't want to.

We choose to decide the case, if we can, on the basis that the petitioner has presented.

Mr. Dennard: Well, we have the additional course, Your Honor, we feel like we have developed the issue and that the... the record is adequately developed.

And as an appellee we have a right to present those grounds.

Unknown Speaker: You certainly have a right to present them.

But you do have some burden, I think, to persuade us that we ought to go that way and more or less abandon the question which we granted certiorari.

Mr. Dennard: Well, the additional basis would be the argument that we have with the avoidance of deciding the... a question with constitutional dimensions to it.

Unknown Speaker: Mr. Dennard, the petitioner argues in a brief that he was wrongfully denied a promotion, discriminatorily denied.

Now, would that survive Patterson as a Section 1981 claim?

Mr. Dennard: Under... of course, under the reasoning in Patterson, some promotion decisions would be subject to coverage.

But I don't think the promotion issue has really been preserved up the line.

In Patterson the Court really considered the question of the overlap coverage between Section 1981 and Title VII and concluded that there could be a rational, common sense interpretation of the language of Section 1981 to make and enforce contracts that would yield an interpretation that wouldn't frustrate the congressional objective to the preference of conciliation over litigation in Title VII cases.

And with the... they looked at the... the court looked at the terminology to make and enforce contracts, and to make a contract extends only to the formation of a contract, and not to subsequent conduct, like the... even if it amounts to the breach of a contract or the imposition of discriminatory working conditions.

The right to enforce contracts, on the other hand, would extend to the legal process and protection of the legal process.

So our position on the Patterson case would be that we would urge the Court to apply Patterson in this case to uphold the dismissal of both the retaliation and the discharge claims, because this is post-formation conduct.

The discharge is obviously post-formation conduct.

It actually involves the discriminatory application of rules.

It's very analogous to the situation in Patterson where we were talking about alleged discriminatory working conditions, harassment, sweeping the floor and this type thing.

Unknown Speaker: I wonder if it wouldn't be advisable to let that question, the extent to which Patterson governs these particular claims, go back to the lower courts in the first instance and just deal with the question we thought we were going to deal with on certiorari.

Mr. Dennard: Well, that... Your Honor, we would say that we feel that we have adequately developed these issues along, that would give us a right to have that considered at this point in time.

Unknown Speaker: I guess your point is that we have no power to reverse the lower court and to remand it, if... if in fact the Patterson issue should be resolved your way.

Mr. Dennard: Well, the... the question of collateral estoppel doesn't even come into play unless you assume that, the error in the case.

Unknown Speaker: We certainly don't have to reach Patterson, you would acknowledge this, if we... if we... we don't have to reach Patterson if we find for you on the other point, on the jury trial point.

If we affirm the court of appeals, you would never get to Patterson.

Mr. Dennard: Well, in that situation you would have to consider the constitutional question and consider the--

Unknown Speaker: Well, but aren't you defending the court of appeals' judgment or not?

Mr. Dennard: --We are.

We are.

Unknown Speaker: It seems to me you have two points, and you are not... you are not separating them.

Your one point is that we ought to take the Patterson issue first.

And that seems to have met some... some resistance.

Your... you have a second point, though, don't you, and that is if we don't take the Patterson issue first, and find against you, then we must take the Patterson issue, because we have no basis for reversing the court of appeals.

Mr. Dennard: I believe that's correct, Your Honor.

Unknown Speaker: Let me just test that out.

You mean we don't have the power to reverse and send it back and say take a look at this issue?

Is that what you're saying?

That if we reverse them on the only thing we granted cert. to decide, and we decide you are wrong there, we could not send the court case back to the court of appeals and say take a good hard look at the Patterson issue?

You don't think we have power to do that?

Mr. Dennard: I believe you have power to do that.

If the Court does consider the... if the Court does consider the collateral estoppel issue, or if it is addressed, we urge the Court to uphold the Fourth Circuit's decision that Mr. Lytle was collaterally estopped from relitigating issues under his Section 1981 claim.

And reaching the result that the Fourth Circuit reached, they relied on an earlier decision, in that case in Ritter v. Saint Mary's College.

And in that case there had been dismissal of age discrimination act and equal pay claims that were combined with Title VII claims, and this is the decision.

The Ritter decision really contains the rationale that the Fourth Circuit has for applying collateral estoppel.

The Fourth Circuit looked at the conflict that was involved, on the one hand the denial of the plaintiff's right to have his issues relitigated before the jury, and on the other hand the policy as to underlying collateral estoppel, the economic... economical resolution of cases, and concluded that Park... this Court's decision in Parklane Hosiery had already tipped the scales in favor of applying collateral estoppel--

Unknown Speaker: xxx this 1981 suit and the court, for some reason or another, denied a jury trial and then tried the 1981 suit itself.

Mr. Dennard: --That would... we would submit that would be a different situation, Your Honor.

Unknown Speaker: Well, but then on appeal the--

Mr. Dennard: On appeal then that could be reversed, but that is not our situation.

Unknown Speaker: --Why isn't it?

Mr. Dennard: Because our situation is the situation where you have Section 1981 claims combined with Title VII claims.

The Section 1981 claims were dismissed.

There is a good-faith dismissal of those claims.

And the courts, faced with Title VII--

Unknown Speaker: Well, you don't claim that the... you don't claim that the correctness of the dismissal of the 1981 suit wasn't appealable?

Mr. Dennard: --We don't claim; we realize that--

Unknown Speaker: That is reviewable in that case... in this case.

It was reviewable in the court of appeals.

Mr. Dennard: --That is correct.

Unknown Speaker: And it was all part of one suit.

Mr. Dennard: But it's still a different situation--

Unknown Speaker: It isn't... wasn't two different suits, though, was it?

Mr. Dennard: --No, not two different suits, but it is--

Unknown Speaker: And Parklane was two different suits, wasn't it?

Mr. Dennard: --Parklane was two different suits.

And the Fourth Circuit looked at that, and that was of course the argument that the plaintiff made in the Ritter case, that this was different because there is a separate suit involved.

And the Fourth Circuit reasoned that the separate suit really didn't make a difference because that was just because collateral estoppel [inaudible]--

Unknown Speaker: But you say because there were two... because there were two counts in the... two counts in this complaint, collateral estoppel applies, whereas if it had just been a 1981 suit which was lost, then--

Mr. Dennard: --If it was just a 1981 suit and the court proceeded to just try that case before the court, without a jury trial, then that would be a direct violation of the right to a jury trial, and it would be subject to--

Unknown Speaker: --Well, I know, but in the court of appeals the court says well, we agree, the trial judge arrived at exactly the right conclusions on the facts of the case, but we have to reverse.

There is no collateral, no estoppel, because it should have been tried by a jury.

Mr. Dennard: --Well, that's the only... the distinction we have is that we have two different claims involved.

And in our case it is not a situation where there is a direct denial or trying of an issue before the court that should be considered by the jury.

It was a situation where the legal claims were dismissed and they were... there were pending equitable claims remaining that, under Title VII, that required the court to proceed with a bench trial.

In the separate suit type argument, too, another point to make would be that Parklane specifically recognized that the major premise with Beacon Theatres is that... is a rule that unless legal claims are tried first, prior to equitable claims, then the judge's factual findings on the equitable claims would collaterally estop the jury's redetermination of these issues.

And the two quotes that we would like to point out, or two portions of the opinion in Parklane that establish that... this premise is established by the following language that is in Parklane at page 334.

Recognition that an equitable determination could have collateral estoppel effect in a subsequent legal action was the major premise of this Court's decision in Beacon Theatres.

And then quoting the Court's earlier decision in Katchen v. Landy, both Beacon Theatres and Dairy Queen recognize that there may be situations in which the court could proceed to resolve the equitable claims first, even though... even though the results may be dispositive of the issues involved in the legal claims.

So certainly Parklane and Katchen establish that Beacon Theatres rule that normally equitable or legal claims should be tried first as a general prudential rule, and that an equitable determination can have collateral estoppel effect in subsequent legal proceeding--

Unknown Speaker: Do you think that would be the routine result if... suppose the trial judge here said... said well, I think you state a good cause of action in both 1981 and 19... and Title VII.

I am going to try the Title VII claims first.

Mr. Dennard: --Well, that wouldn't be our case.

Unknown Speaker: Well, I know, but what if, what if he had said that?

It violates Beacon, doesn't it?

Mr. Dennard: I believe it would.

Unknown Speaker: Then it would not be collateral estoppel.

Mr. Dennard: Because it violated the Beacon principle.

But that's not our situation, the distinction that we have.

We are not a situation in which there is a direct violation of the right to jury trial, that... we have a situation where the district court judge made a good-faith dismissal of legal claims and was faced with a statute that required the court's determination before the bench.

Unknown Speaker: Well, what do you mean by a good-faith dismissal?

I would assume that most... in fact I can... it is hard to conceive of a district court dismissing an action.

Even though it's erroneous, it was not done in good faith.

Mr. Dennard: Well, the Petitioner claims, I think, that the judges, district court judges, would be inclined to dismiss legal claims based on administrative and personal convenience, which we're distinguishing it certainly from that situation.

Unknown Speaker: You're really arguing for something of an extension of that language in Parklane.

That language just says that there are some situations where you can try the equitable claim first.

You are not arguing that this is such a situation.

But you are saying where it has been mistakenly tried first, the same philosophy that says there are some practicalities that sometimes make it triable first also dictate that that's water over the dam, that it was mistakenly tried first and we will give it collateral estoppel effects.

Mr. Dennard: That is correct.

Unknown Speaker: But that is an extension of Parklane, of even the dictum in Parklane.

Mr. Dennard: Well, we agree that it is not, you know, directly within Parklane, that it's... but within the rationale of Parklane.

From the standpoint of the harm involved, though, I mean, the defendants in Parklane were denied the right to a jury trial, the same as we have in our situation.

To summarize the argument or conclude--

Unknown Speaker: The only thing that makes that... that argument difficult is... and the Court keeps pressing you on this... I don't see why it wouldn't be just as true if the lower court erroneously denied a jury trial.

You... surely you would be able to say the same thing.

You know, well, yeah, they should have done it first, but, as Parklane shows, we do take practical considerations into account--

Mr. Dennard: --Well, that would fly right in the face of several decisions that... that [inaudible].

Unknown Speaker: --Well, so did this dismissal, which is why it was reversed.

Mr. Dennard: To conclude on Parklane, our position would be that in Parklane the court found that the defendants had a full and fair opportunity to litigate their claims in the prior lawsuit, and that they were therefore collaterally estopped from relitigating factual issues in a second lawsuit.

The court found that this application of collateral estoppel did not violate the Seventh Amendment.

Likewise, Mr. Lytle had a full and fair opportunity to litigate his claims in the Title VII proceedings.

From the standpoint of looking at the principles of judicial economy, the same principles that applied in Parklane apply here, the dual purpose of protecting litigants from relitigating an identical issue and of promoting judicial economy by preventing needless litigation.

To summarize our final argument, it's clear that the Court need not address the collateral estoppel issue if a directed verdict would have been proper, since the dismissal of the 1981 claim in that situation would have constituted harmless error.

We realize that the standards are different for a Rule 41(b) motion and that there is some weighing of the evidence that is allowed there, but the standard for directed verdict would include a situation where there is an absence of proof on an issue material to the cause of action.

With both the discharge claim and the retaliation claim, the district court judge ruled that the defendant, or the plaintiff did not establish a prima facie case.

Unknown Speaker: But, under Rule 41, the trier of fact is entitled to weigh the credibility of the witnesses and make those sort of determinations that the trier isn't entitled to make under Rule 50, isn't it?

Mr. Dennard: We recognize that there is a difference in those standards, and... but our position would be that... that we met the directed verdict standard in... by what the judge really did.

He ruled that as a matter of law the plaintiff did not establish a prima facie case in either situation.

Unknown Speaker: Well, this was after a bench trial on the Title VII action?

Mr. Dennard: That's correct.

Unknown Speaker: Well, why, why would a district court be saying that as a matter of law?

Mr. Dennard: Well, he didn't... the district court didn't say that, Your Honor, we say--

Unknown Speaker: That's the kind of--

Mr. Dennard: --that the evidence that was presented would meet that standard.

Unknown Speaker: --Well, but you... the district court wasn't engaged in that sort of an inquiry, was it?

Mr. Dennard: That is correct.

Unknown Speaker: So you are asking us now to reweigh the evidence and to... or to weigh the evidence, decide that you should have gotten a motion for a... for dismissal or summary judgment?

Mr. Dennard: Well that, you know, even the circuits courts, like Hussein, that apply the opposite rule in this situation, would look at the evidence to determine if it would have in fact gone to the jury.

And that is what we are asking--

Unknown Speaker: But we don't ordinarily make that sort of determination here.

Did the court of appeals make that determination?

Mr. Dennard: --No.

No, sir.

Unless there are further questions, that concludes my argument.

Unknown Speaker: Thank you, Mr. Dennard.

Ms. Reed, you have 18 minutes remaining.

Rebuttal of Judith Reed

Mr. Reed: Respondent urges that this Court avoid a constitutional issue by deciding on the Patterson grounds.

Now, on that matter we agree with the Chief Justice on this question.

Whether an ordinary collateral estoppel rule will prevail and a determination as to when a petitioner may appeal the denial... the wrongful denial of a jury trial, does not depend on the... the fact that the jury trial right stems from the Constitution.

The issue would be the same whether it was a statutory right to a jury trial or that it came from the Seventh Amendment.

We think this Court... this question is important, and the Court ought to decide the issue upon which it granted cert.--

There is the conflict, as the Court recognized, between the Fourth Circuit and the Seventh Circuit on this issue.

Unknown Speaker: Excuse me, you wouldn't feel free to argue if we came out the wrong way on the jury trial thing, that by denying you either interlocutory appeal or vindication here we have denied you your constitutional right to a jury trial?

You don't think that that constitutional right is involved?

Mr. Reed: Well, oh... the constitutional right to a jury trial is implicated here.

My point is that the... the decision that this Court must make as to the collateral estoppel issue doesn't turn on that.

We believe that--

Unknown Speaker: Well, no... I mean, suppose we said collateral estoppel is perfectly fine.

Wouldn't we... as a matter of statutory law and common law, wouldn't we then have to say but, in this area of the Sixth Amendment, isn't there some special restriction upon it?

I mean, I am just not sure I agree with you that you can possibly avoid saying that we have to ultimately say would it violate the Sixth Amendment for us to apply collateral estoppel here.

Mr. Reed: --Well, I think what the court did constitutes a violation of the Seventh Amendment, don't get me wrong.

However, the issue of when a party gets to appeal a wrongful denial does not turn on whether the, the jury trial right stems from the Constitution.

So the... I don't think you... the necessity for avoidance of a constitutional... deciding on a constitutional issue is really implicated here.

Now, there are... Respondents state that they argued below the same thing that they raise here, that is that retaliation is not covered under 1981, for the grounds that are set forth in Patterson perhaps.

The argument they made below was a very different one.

Now, we don't deny that they can get to raise the Patterson questions on remand.

We think that would be entirely appropriate and that that is what should occur.

This record is not in the condition for this Court to resolve the Patterson question.

What Patterson means is that there are fact-specific issues that would be appropriately redressed, addressed on remand, including retroactivity and including whether discharge and retaliation are within the scope.

As Justice White pointed out, if we had by-passed Title VII and sued only under Section 1981, Respondent would concede that the denial of a jury trial would have been reversible error.

We don't think the Court should adopt a collateral estoppel rule that encourages or perhaps even requires a by-passing of Title VII remedies.

Finally, Respondents urge that no remand is necessary because of the directed verdict possibility.

Now, certainly on remand, whether a directed verdict is appropriate can also be considered.

In closing, I would like to state that indeed the Patterson issues are relevant now and they may be raised by both parties on remand, and we would urge that this Court reverse the Fourth Circuit's ruling and remand this case.

Unknown Speaker: Thank you, Ms. Reed.

Mr. Reed: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Teamsters v. Terry - Oral Argument

Fri, 09 Jan 2009 14:49:20 +0000

Case:

Teamsters v. Terry

Media File:

88-1719_19891206-argument.mp3

Related Transcript:

1989_88_1719_argument.xml

Transcript:

Argument of J. David James

Chief Justice Rehnquist: We'll hear argument next in No. 88-1719, Chauffeurs, Teamsters and Helpers v. Terry.

Mr. James.

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

The question presented in this case is whether there is a right to a jury trial in a case where an employee sues his union alleging a breach of the duty of fair representation whenever he seeks also some type of monetary damages, which in this case are the back pay.

Unknown Speaker: It doesn't sound very interesting.

Mr. James: It certainly didn't draw the crowd that the first one did.

[Laughter]

It is, however, important for not only these parties, but for the large number of cases that this raises.

We contend that there is no right to a jury trial in such a case, and we do that based upon the historical analysis that this Court has set forth we should follow in Seventh Amendment questions.

We have to go to the Seventh Amendment because, like everybody agrees, there is no statutory right to a jury trial and so the question turns on if there is a right to a jury trial, it could be found only in the Seventh Amendment.

The first, and this Court has set out that that's a two-pronged test, look at the historical analog to see if this is more like an equitable or a legal action, and then turn to the more important issue, what are the types of remedies asked for in the case, the nature of those remedies and are they more legal or equitable in nature.

We say, turning to the first prong, that this, while not recognized in... at the time the Constitution and the Seventh Amendment was enacted... the duty of fair representation action was not recognized then... that the duty of fair representation action does have its origin in the traditions of equities law trust.

And we have discussed that our brief... in our briefs at some length, how the union in a duty of fair representation case is much like a trustee situation that was found prior to the enactment of the Seventh Amendment.

A union, like a trustee, is given discretionary power to be exercised for the benefit of certain employees.

In Steele v. L&N Railroad, this Court recognized that the union, like a trustee, must act on behalf of these employees non-arbitrarily, must act in good faith.

The relationship that we find between a union and the employees that it represents is very much like that between a trustee and beneficiaries that it represents.

The union has broad discretion, just like a trustee has broad discretion.

The trustee, or a union, can represent employees or beneficiaries with divergent, even conflicting interests.

That's unlike the lawyer/client relationship where the client controls and tells the lawyer what he has to do and can withdraw, have other counsel, if he does not like what the attorney is doing.

With a union, an employee cannot insist that the union take any specific action.

It... the union, like a trustee... has discretion to decide itself what to do.

And as long as it stays within the certain bounds allowed by the courts in that discretion, the employee cannot force the union, just like a beneficiary could not force a trustee to take any particular action.

Thus, we say that the duty of fair representation action is very similar to the trust action which was found prior to the enactment of the Seventh Amendment, and it's clear that those trust actions were developed solely in equity, that they were not recognized in law courts.

And we say that, therefore, if you look at the nature of the duty of fair representation action, it is most like that trust analogy and it's thus equitable.

That's particular seen in the sort of hybrid action that we have here where a union is sued by an employee who claims that the union did not take some action properly and at the same time the employee claims the company that it... is its employer also acted improperly.

That is very similar to the old trust actions where a... an... a beneficiary of a trust would say the trustee should have taken some action against a third party but... and it was an abuse of its discretion, the trustee's discretion, not to take that action.

And, therefore, in equity courts... not in law courts, could not do it there... but in equity courts the beneficiary would go in and say to the court, the trustee has acted improperly in not taking this action against the third party, and the third party has acted improperly.

Give me a remedy against them.

That is something that it is clear could not be done in law courts.

Unknown Speaker: What sort of a remedy would the chancellory court give in that situation?

Mr. James: In that situation it was not unusual for the equity court to give money damages as a remedy.

It was... they could give the traditional equitable remedies also, but they also gave money damages against a trustee.

And we've cited some cases and cited some authorities about that so that if actions of the third party were harmful to the beneficiary, caused it to lose some money, and because of running the statute of limitations or some reason that money could not be recovered from the third party, it could be recovered from the trustee.

Or, it could be recovered from both.

But, in any case, it was a money damage recoverable in equity.

Unknown Speaker: Yes, but is... aren't those cases in which, had the trustee acted properly in the first instance, the trustee would have recovered money damages in a jury trial from the... from the third party?

Mr. James: No, they don't... you don't... if the beneficiary in that situation wanted to... thought that the trustee had not acted properly, he couldn't go to the law court.

He couldn't--

Unknown Speaker: The beneficiary couldn't.

But I'm assuming a case in which the third party caused some injury to the trust, embezzled some money or something like that, for which the trustee, suing on behalf of the trust, would have had a remedy at law.

There would be such--

Mr. James: --There are cases where the trust would have a remedy at law, yes.

Unknown Speaker: --Which would be something like... sort of like a derivative suit where it--

Mr. James: It's not like a derivative suit.

Unknown Speaker: --Well, that the corporation might have a remedy at law and the shareholder in... before the merger of law and equity, and all the rest, the shareholder could have had, you know, had an equitable proceeding which would have brought something comparable to the damages that you describe here.

Mr. James: Let me tell you why I think it's not the same.

Unknown Speaker: Because I know perfectly well--

Mr. James: Is that in those shareholder derivative suits you had basically the shareholder standing in the shoes of the corporation asserting the corporation's claim.

Here, this is not a claim of the trustee.

These are rights that the beneficiary claims it has.

If... if there is a recovery, it doesn't go to the corporation, like in the shareholder's derivative action.

It goes directly to the beneficiary.

And in those shareholder derivative actions, they came about, as this Court explained in Ross v. Bernhard, because of procedural problems that they could not be brought in the law court.

And so... but that procedural problem is not here.

The law courts didn't recognize the beneficiaries' rights at all.

Unknown Speaker: --Well, but there is an analogy in this sense.

That the member of the labor union may not directly sue the employer because of the collective bargaining agreement there.

So he has to really basically... basically has to rely on the union as the intermediary to process grievances and all of that.

Mr. James: But he doesn't stand in the shoes of the union the way he does in a shareholder's derivative suit, because in a shareholder's derivative suit he stands in the shoes and he recovers a benefit for the corporation.

Here, he doesn't stand in their shoes.

He recovers a benefit for himself and in fact can recover it directly from the union.

In a shareholder's derivative suit--

Unknown Speaker: I understand.

Mr. James: --he wasn't getting it from the corporation.

That's why I think they are different.

And because the shareholder's derivative suit was this procedural device used by the equity courts to get to it... that's not a procedural device here.

This is just a pure equity claim against... against... like the equity claim like against the trustee.

Unknown Speaker: Mr. James, we're not talking about any tort-like recovery here, are we?

Are we only talking about giving to the union member a fixed monetary sum that would have been his but for the action of the union, or are we talking about some smart money against the union or some tort-like--

Mr. James: Well, I don't think we're talking about smart money.

That goes to the second prong of the test dealing with what remedy is available.

I think in this case that it is not a fixed set sum that is sought.

It is a sum that the court in its discretion can decide how much or how little to give.

Unknown Speaker: --Well, I know, but is it... well, but to make it really analogous to those trust actions don't you have to say that what this individual is getting is precisely what the union would have obtained had it acted... would have obtained on his behalf had it acted properly?

Mr. James: Well, I think--

Unknown Speaker: And that no element of it is... is a sort of tortious recovery against the union.

Mr. James: --Well, I think that if you look at the... the duty of fair representation actions, they talk in terms that you are to get only a make whole relief.

You are not to get something beyond what would make that employee whole.

You are not to recover... for instance, in Faust you do not recover punitive damages.

Unknown Speaker: Well, what does making whole consist of?

Does it consist of the... the employee's pain and suffering, his emotional upset at not... any of those elements ever included?

Mr. James: I would say that it does not.

This Court has not specifically passed on that issue, but I would say that it does not include those.

Unknown Speaker: It only consists of what he would have gotten from the employer had the union acted... acted properly?

Mr. James: And it may include some additional damages for legal fees and things like that to make him whole.

What he had to spend to get to... to get to that position.

That's what I'm talking about... about make whole relief.

The Respondents argue that Beacon Theatres and Dairy Queen and Ross v. Bernhard do say that these are legal issues, ultimate legal issues and that, therefore, this is a legal case.

I'd say that those cases do not say that.

They say that if there are purely legal claims that are being raised, then you cannot be denied your right to jury trial.

But we're--

Unknown Speaker: So, to prevail you really have to show that none of the claims in the case are triable by jury under the Seventh Amendment?

Mr. James: --I believe that's correct, Your Honor.

If they are legal claims triable to a jury, then... that those would... there would be a right to a jury trial under the Seventh Amendment for those.

But we assert they are not, these legal claims.

Of course, there's the two prongs.

The first prong would be not as important as the remedy section, but we think that under that first prong that these claims are purely equitable claims.

They were recognized only in the equity courts and not legal claims at all.

There are some factual inquiries that are found both in legal courts and equitable courts.

But when this issue is raised in the equitable court, the equitable court passed on those factual inquiries as the... factor... finders of fact.

And it was because the claim was purely an equitable claim that it had to do that.

Therefore, because we think those are purely equitable issues, we do believe that the first prong of the test, that the nature of the claim shows that there is no right to a jury trial.

Which leads us, then, to the second prong of the test which, of course, this Court has said is the more important, which is the nature of the remedies.

The only remedy sought here, which the plaintiffs claim is legal rather than equitable, is the back pay remedy.

There was a claim made for punitive damages, emotional distress damages, but that was dismissed by the trial court.

Those claims are not in this... found that those were not appropriate in duty of fair representation cases, and that is consistent with the decisions of this Court and other courts.

Unknown Speaker: xxx suit solely against the employer?

Suppose there was a breach of duty by the union and the employee thinks that the employer breached the contract but I don't want to sue the union, I'm just going to sue the employer.

And if he can prove a breach of duty by the union, the employer must respond.

Mr. James: That's correct.

I don't think the issues are--

Unknown Speaker: Then... then--

Mr. James: --are any different in that situation.

Unknown Speaker: --So you think that no jury trial then either?

Mr. James: No jury trial there either.

Unknown Speaker: Because of the... because you have to prove a breach of trust first?

Mr. James: You have to show the same breach of duty in that case that you do if you're suing the union.

The issues are identical in both cases.

Unknown Speaker: Well, I... I thought in trust law that if the... if the... if the beneficiary thinks the trustee hasn't acted properly and hasn't collected something from some third party he asks the trustee to sue and the trustee doesn't... says no, and he goes and sues the third party directly.

Mr. James: I believe he can.

Unknown Speaker: Yes, but he gets a jury trial.

Mr. James: No.

That... that is not my understanding.

If he is a beneficiary and he is suing claiming that there is a relationship between the trustee and this third party and the trustee isn't doing what he wants, he cannot go into the law courts and bring that.

He could only go into the equity courts and bring that action.

That's my understanding as it was back--

Unknown Speaker: And you say the same thing applies here, therefore, even if he sued the employer alone?

Mr. James: --Yes, I believe it does.

I believe since the issues that he would have to prove in both the suit against the company or against the union, or both, are the same, then the same rules would apply across the board.

The plain... the respondents in this case argue that the back pay is always legal.

That is, upon a proof of a breach of the duty that there is an automatic and mandatory requirement that they receive this back pay.

We say that that's just not true, that there is a discretionary element.

When they cite in their brief a quote that generally at equity, money judgments were allowed only when ancillary to traditional equity relief, we say, while that's generally true, it's not always true, and we've given you the specific example in the trust situation where money damages were recovered.

And that was recognized by this Court, I think, in Curtis v. Loether where it says that just because it's monetary damages you don't say that that always makes it legal relief.

So you have to look beyond the fact that it's money damages and look at those money damages and the nature of those damages to make this determination.

And on that the issue is, is there discretion in awarding these monetary damages or is there not?

If there's no discretion, then it's a legal type relief.

If there is discretion, it's equitable.

I think the respondents in their brief concede that that's the line, that that's the test to be followed.

And if you follow that test, you find that these... there is this discretionary element and thus these are equitable type remedies.

I think that most clearly can be seen by comparing the duty of fair representation remedies with those found... found in Title VII.

When you find Title VII, you find that those remedies are based upon the NLRA, the National Labor Relations Act, that there is a discretionary element in this damages.

This Court has held that there is that discretionary element.

Unknown Speaker: I suppose that in a suit against the union alone to prove a breach you don't have to prove that the employer breached a contract.

You just have to prove that the--

Mr. James: In this particular kind of duty of fair representation case you certainly do have to prove that the employer--

Unknown Speaker: --Well, yeah, you're--

Mr. James: --had breached the contract.

Unknown Speaker: --going to have to prove... you're going to have to prove the employer breached it in order to get... to get any--

Mr. James: Relief.

Unknown Speaker: --to get the damages... to get back pay--

Mr. James: That's correct.

Unknown Speaker: --or whatever you want to call it.

Mr. James: That's correct.

Unknown Speaker: But you can prove the duty, breach of the duty, without proving the breach by the employer.

Mr. James: My understanding of the breach--

Unknown Speaker: Because if... but if it's... but if it's a... if it's a case that should be then taken to arbitration, the union... and the union doesn't take it, the union's breached its duty, whether you... whether it turns out that an arbitrator would have held for the employee or not.

Mr. James: --Well, my reading of the cases says that you have to prove both of those things in this sort of situation before--

Unknown Speaker: Well, you can--

Mr. James: --you could recover.

Unknown Speaker: --Well, you're going to have to prove the breach by the employer to get--

Mr. James: Relief.

Unknown Speaker: --to get the kind of relief you want.

Mr. James: That's correct.

Back, just a minute, to the Title VII where this Court has held that those Title VII remedies are discretionary because they're based on the NLRA, and under the National Labor Relations Act remedies are discretionary.

In Phelps Dodge, this Court has said that they're not to be mechanically complied with, but are entrusted to the discretion of the NLRB.

Likewise, the duty of fair representation remedies are derived from the National Labor Relations Act.

This Court has held that the remedies in duty of fair representation cases must effectuate the policies under the Labor Act, just like in Title VII.

The remedies in Title VII are make whole remedies.

That's what you talked about in Albermarle Paper.

Here they're make whole remedies.

Unknown Speaker: Well, really, this kind of hybrid action isn't based on the National Labor Relations Act the same way that the ADA... the ADEA is.

I mean, it patterned after it... by statute.

Mr. James: Well, you talk in Faust, though, that the remedial policy... the remedies given under... for duty of fair representation breaches... must effectuate the policies espoused by the Act.

And I think that that, sort of by implication, does the same thing you found in Title VII.

Unknown Speaker: But all we held in Faust was that no punitive damages, wasn't it?

Mr. James: Yes, but in getting to that position you did talk about how the remedial policies... remedies available for DFR, duty of fair representation cases, must be such that effectuate the policies underlying the Act.

And you found that punitive damages did not effectuate those policies in that case.

Unknown Speaker: But we certainly didn't find that ordinary damages would not?

Mr. James: It wasn't presented in that case.

No, Judge, it has not.

The--

Unknown Speaker: Can you give me an example of... of where discretion would be exercised not to... not to give a--

Mr. James: --Well, there's a... there's a case cited in our brief called Navigation... American Navigation, or something like that.

It's an NLRB case.

And in that case, they found that the employer had violated... had committed an unfair labor practice but did not award back pay remedies to the employee because the employee in the midst of the compliance proceedings had lied, had said, well, we didn't work here or did work here.

Had lied about what money it had earned.

And so the board said, we're going to exercise our discretion.

We're going to deny you back pay relief in that situation.

Unknown Speaker: --And you think that in a... in a duty of fair representation case you could similarly not... not award any relief against... against the union on the basis of--

Mr. James: I believe that's true.

If you look at our brief, we talk at length about how the parties in these agreements really negotiate for a decision by an arbitrator and give an arbitrator wide discretion as to what relief is given.

It is not at all unusual for an employee who is discharged to go to arbitration and be found that the company has improperly discharged it.

But then be placed back at work without back pay.

It is not at all unusual to have that sort of remedy come in an arbitration proceeding.

If the idea is to make whole the employee, not give him a windfall, then I think that you have to look at what were the possible remedies he could get in an arbitrator's decision but for this DFR breach.

And if that's true, then there is this wide range of discretion given to arbitrators that I think carries over into the DFR area as well.

And because you have that wide range of discretion which is applicable not only to the arbitrator's decision, not only applicable for the board, but also by the courts in the duty of fair representation area, the remedy, the nature of the remedy, is an equitable remedy and not a legal remedy.

When you take that prong, the stronger of the two prongs, and it clearly says that the remedies are equitable, and attach it to the first prong which says that the nature of the action was basically an equitable... like an equitable... not exactly the same, but like the old trust action... then I conclude that the action here, the duty of fair representation action in this sort of hybrid situation, is an equitable action, does not call for a jury trial under the Seventh Amendment, and that the district court was incorrect below when they denied our motion to strike their jury trial demand.

Unknown Speaker: --May I ask one question, Mr. James?

I'm just not... just to show my ignorance.

But, just as a general practice in this kind of litigation, have there been a fair number of jury trials or... are these cases often tried to juries?

Mr. James: I think it would be fair to say there often have been jury trials in these areas in the past.

Unknown Speaker: Thank you.

Mr. James: And, as you would see from the cases cited, it's slowly building through the circuit.

Some say yes, some say no.

Unknown Speaker: There are different... different views among the circuits.

Mr. James: That's right.

Unknown Speaker: Yeah.

Mr. James: If you have no further questions, I'll just reserve the remainder of my time.

Thank you.

Unknown Speaker: Thank you, Mr. James.

Mr. Elliot, we'll hear now from you.

Argument of Robert M. Elliot

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

May it please the Court:

The question in this case is whether there are legal issues and remedies involved in this case which must be tried before a jury.

If there are, this Court has said in its past decisions, that the Seventh Amendment applies and that my clients, or respondents, are entitled to a jury trial.

Now, in response... or in his argument, the petitioner states, or tries to wrap the entire action in a trust cloak, so to speak, and tries to say that because this action has some resemblance to a trust, that that analogy should pervade the entire analysis and go off over to the second prong of the Ross test.

And, therefore, since there maybe some resemblance to a trust, that the remedy sought in this case should be considered trust remedy.

We contend that that analogy does not fit for a number of reasons.

It's important to remember at the outset that in this case are talking at this point in time about an action against the union alone.

The company is bankrupt and we have an action against the union saying that the union breached its duty of fair representation and as a result, a direct result of that breach, we have lost the opportunity to earn wages.

Compensatory... traditional compensatory monetary relief.

In... I would like to begin with--

Unknown Speaker: How much are you going to ask for?

How are you going to measure your damages?

Mr. Elliot: --Our damage will be... damages will be measured by what these respondents would have made in... in their wages if they--

Unknown Speaker: Back pay.

Essentially back pay.

Mr. Elliot: --if they had been successful in arbitration.

Yes, sir.

Unknown Speaker: But no... no other damages and no punitive damages?

Mr. Elliot: At this point there are no other damages involved.

There are some moving expenses which may classify as compensatory relief as well.

Unknown Speaker: If the employer had not been bankrupt and had still been in the suit, would our analytic problem here today be the same?

Mr. Elliot: I think the answer should be the same.

But perhaps it's not quite as clear.

In a case against the union, this more clearly can be analogized to a legal malpractice case because we have no company to pay the damages and we're going against the union, and that's where the focus is.

Unknown Speaker: Well, why wouldn't... if the employer were here, why wouldn't it just be a breach of contract case?

Mr. Elliot: Well, that... one side of the Vaca standards would be satisfied by a breach of contract issue.

And there is clearly a legal issue there.

The--

Unknown Speaker: I'm not sure how it changes just because the employer is either here or not here.

Mr. Elliot: --The only way it changes... I don't think it really changes the constitutional analysis.

But it does change the analogy to some extent because since we are suing the union only in this case at this point in time as a representative, then it's more analogous to a legal malpractice case where you are suing the lawyer for failing to represent you before a court or an arbitration panel.

And our damages all flow in this case, at this point in time, from the breach of the union agent in failing to represent us.

And since we are not suing the company at this time, our damages are not flowing from the actual breach of contract.

I would like to set out some of the facts before I get too far along.

But before I do so, I think it's important to keep in mind, especially in considering this trust analogy, the various roles that a union plays as an agent of its members.

It's not always in this, quote, "trustee's discretionary role".

Obviously, as a negotiator in negotiating a collective bargaining agreement, a union is playing a role that requires expertise and requires a great deal of discretion in considering all aspects of the labor management relationship.

Unknown Speaker: That's all very true, but the only... the only element of the union's role at issue in this case is its... is its obligation fairly to represent its employees.

Mr. Elliot: That's my point, Your Honor.

My point is that in this case we're not talking about a great discretionary duty.

We're talking about an absolute duty to these union members to represent them on a grievance, which is a duty much more akin to the duty of a lawyer than it is to the duty of a trustee.

The facts bear this out.

The essence of our case is discrimination.

The change of operation procedure was designed to allow my clients the right to follow their work to Winston-Salem.

At the time they followed their work they were supposed to have some seniority preferences because they were following their work, theoretically.

The order of recalls and layoffs after that were in direct violation of that procedure which had been devised by the collective bargaining procedure.

At that time we have alleged that the union, in direct discrimination or blatant discrimination against my clients, sided with the locals, the local inactive people who had been off the board, to try to bring them back on the board, at which time they would dovetail in my clients seniority.

Unknown Speaker: What is the... what is the board, Mr. Elliot?

Mr. Elliot: The... the active employment.

The active board in this case would be the list of truck drivers who were actually getting calls.

According to the change of operations procedure, my clients were supposed to have seniority over the people who were actively working... I mean, over the people who were not actively working, regardless of their continuous company seniority when they came in.

We have contended that the union in this case discriminated, that they sided with the locals to try to get the locals back on the board... the active employment... so that they would all dovetail and my clients would lose their rights.

That was the first aspect of our case, and everything... flowed from there.

Then the first decision was decided, which decided exactly that.

The order of recalls had been a violation, and a clear violation, of the change of operations procedure in the contract even though the union... the union had gone along with that... that interpretation and that order of recall.

And the grievance committee found it was a clear violation.

A week later the union and the company got together and decided that we are going to do exactly what the decision said, we're calling back the... the foreign drivers... my clients who were laid off in direct violation of the agreement.

We'll call them back... that's 30 drivers... and we're going to lay off the 30 local drivers who had not been active.

Unknown Speaker: What's this got to do with the issue we've got to--

Mr. Elliot: Well, Your Honor, the point I'm trying to get to is... is that at that point in time the union played a role as lawyer.

It accepted a grievance that this was a subterfuge and that this was a circumvention of the decision.

And from then on, it took that grievance to the grievance committee and we say acted perfunctorily in representing our clients on that grievance because--

Unknown Speaker: --Sometimes the trustee has to play a role as lawyer... I mean, when he has a claim on behalf of the trust against someone that he fails to prosecute, either by prosecuting it himself if he's a lawyer, or hiring a lawyer, you have a cause of action against the trustee, but it's purely an equitable cause of action.

Mr. Elliot: --I think in that case the trustee would have to get a lawyer, and the trustee would not be acting in the role of the lawyer but in the role of a client.

Unknown Speaker: Well, that may well be, but you'd still... the decision of whether to prosecute or not is a decision of the trustee and he'd be... he'd be suable in equity.

Mr. Elliot: That... that is--

Unknown Speaker: If the lawyer did a bad job in prosecuting this suit, I guess that... you might have a malpractice action against him, although I'm not sure that that wouldn't have to be brought in equity too.

But the problem here is not that he was a bad lawyer.

The problem is he didn't bring a lawsuit.

Mr. Elliot: --He did bring the lawsuit, Your Honor.

He... he filed a grievance on my clients' behalf, that the actions of the company and the union a week after the first decision was a subterfuge.

And that's the words that are used.

It had circumvented the decision because it had just turned everything right where it was before the decision applied.

At that time he filed the grievance.

Unknown Speaker: The employer was entitled, under his contract, the collective bargaining contract, the employer was entitled to rely on the decision of the arbitrator or the arbitrating... whoever it was that decided the grievance... unless the union breached its duty.

And if the union breached its duty, then the employer could not rely on his... could not rely on the board's decision.

Isn't that right?

Mr. Elliot: Yes, sir.

Unknown Speaker: Now, you say that that a... if you're going to set aside a contract, isn't that sort of an equitable action?

Mr. Elliot: Your Honor, we're not trying to set aside anything in this case.

We're suing the union directly for--

Unknown Speaker: Well, I know.

Mr. Elliot: --for its breach.

Unknown Speaker: Yeah, yeah.

I know.

But the employer... to stick the employer, you've got to prove a breach by the union and you say that... that the union's duty is... should not be analogized at all to a trust operation, to a trustee.

It should be analogized to a... to a--

Mr. Elliot: Lawyer.

Unknown Speaker: --to a lawyer.

Mr. Elliot: In that respect.

Now, you know... and there are other... there are certainly other characteristics of this action which are not so close to a lawyer, and I'm not denying that.

But I'm just saying that's probably the best common law analog to the case in its posture before the Court at this time.

But there are several other reasons the trust analogy does not fit.

Trust, as I understand it, was created by the courts of equity because courts of law did not recognize the distinction between legal and beneficial title.

Therefore, beneficiaries... beneficiaries had no rights before courts of law and the re... courts of equity recognized rights... that there was no adequate remedy at law.

So these trusts... beneficiaries had to go to courts of equity.

There's no property in this case.

And that was it... an absolute essential element of a trust, that there be a corpus.

Now the petitioner tries to argue that the contract rights was property in this case.

But I'd contend that the only thing about this case that resembles the trust relationship is the relationship itself.

And that relationship is recognized and was recognized at law just as well as it was at equity.

It's... it's the confidential relationship between these parties.

It's no different from the relationship between the director in the corporation in Ross... there's no difference between that relationship and the relationship we have here.

And if the only thing that resembles a trust is the relationship which was also recognized at law, the trust analogy loses... loses its force, its persuasive force.

That relationship, as this Court found in Ross, could be the focus of an illegal action.

In Ross the case... the legal issues that were found were negligence and breach of contract by a director who owed a fiduciary duty to his corporation.

Another issue was breach of fiduciary duty.

So, the union membership... the union member relationship in this case does not magically convert this action to a trust action any more than the director's relationship did in Ross.

Even beyond the derivative stockholder standing issue, the relationship itself is the same.

Going to the second part of the Ross test, the nature of relief, in this Court's... it's clear that this Court has recognized on a number of occasions that, generally speaking, monetary relief is traditional legal relief because there was an adequate remedy at law.

And that's what we have here in DFR actions.

But more importantly, when this Court has been... has decided cases involving statutory rights to a jury trial, the Court has looked at statutory intent on the specific statute at issue, such as Title VII or the ADEA in the Lorillard case.

We contend that in deciding the issue in this case there is no statutory intent because it's a judicial action.

But this Court should look at the judicial common law, the federal common law which has evolved over the years in DFR actions.

And that... the number of decisions decided by this Court in the DFR... 301 DFR area indicates that this... that monetary damages is a form of legal relief.

Even the Steele case said that.

The Steele decision, while saying it was a grant of power to act on behalf of another... which inferred some relationship not necessarily trust, Steele also said that the full range of judicial remedies should be available to a victim of the breach of duty of fair representation, including injunction and damages.

The Vaca court underscored that in talking about the compensation principle.

The Faust court, while striking punitive damages, again emphasized the compensation principle and the very distinction between this kind of action and the action before the NLRB on an unfair labor practice.

That this type of action that's involved is focused on the individual, the private right of the individual.

And I believe this Court underscored that principle once again in its decision yesterday in the Breininger case, that there are two different types of actions, two different sets... at least, to some extent, two different sets of policies and two different sets of rules because one was created or implied... or one was recognized by the board according to a statute and the other was recognized by this Court and implied... developed by this Court.

And in the Faust case I think it becomes even clearer in the concurring opinion by Justice Blackmun.

Justice Blackmun stated, along with three other members of this Court, that punitive damages... there should be no per se rule against punitive damages because Steele recognized the full range of judicial remedies.

And that should include punitive damages.

Now, this Court, as a matter of federal labor policy, the majority decided to strike punitive damages at least in that kind of action.

But the fact remains that while limiting the range of remedies, this Court has always at least implicitly recognized that we're dealing with legal relief.

And for that reason, this case is very distinguishable from the Title VII case and the cases under the NLRA.

The last point I'd like to make on the second part of the Ross test is that the other theories on which back pay in various types of actions has been found to be equitable relief has to do... is whether it's restitutionary, whether it's ancillary to or incidental to equitable relief or whether specific performance.

As Justice Marshall I think stated in Curtis, for the same reason restitution was not an appropriate theory in that case, it's not in this case.

This... this... we're not trying to discourage the company or the union from any kind of unjust enrichment.

We're not trying to follow money.

We're trying to seek compensation for what we've lost.

In conclusion, we contend that these individuals who've alleged that their union sold them out in effect, and discriminated against them in favor of the other members, have a right to a jury trial on this case which presents legal issues and monetary relief.

Unknown Speaker: Could you... you mentioned at the outset that part of your claim includes moving expenses.

Mr. Elliot: Yes, sir.

Unknown Speaker: What... what do they consist of?

Mr. Elliot: According to the change of operations procedure, Justice Scalia, our clients were moved into Winston-Salem.

The company picked up some of those expenses but our client picked up the rest of them in moving their family and reestablishing themselves in a new location.

Unknown Speaker: But they would have been moved anyway.

I mean, how can you get both the wages and the moving expenses?

Aren't the two inconsistent?

If you would have gotten the wages, you would have incurred the moving expenses.

Mr. Elliot: Well, that... that's correct.

There is... there is some inconsistency there.

We have asked for those expenses.

At this point... you know, even in view of the district court's ruling on our other compensatory relief, those claims are still viable.

Thank you.

Unknown Speaker: Thank you, Mr. Elliot.

Mr. James, you have six minutes remaining.

Rebuttal of J. David James

Mr. James: We did not seek to have that claim for moving expenses struck at the same time we did emotional distress damages and punitive damages.

In hindsight, we should have.

It was just one of those things.

We never could understand that claim, and we always thought it was inconsistent.

They never said it once before, and so we didn't make that motion at that time.

But I think he's right, it is inconsistent.

I've never understood.

There's no contract breach about that.

They got what the contract was... required about the moving expenses, and so I've always ignored that in this case.

I do want to say that we think that the trust analogy is much more apt than the legal malpractice analogy principally because of the discretion given the union to act on behalf of these employees.

An attorney does not have that discretion.

It... an attorney cannot represent conflicting views.

A union does do that all the time and so did a trustee who had beneficiaries with conflicting interests, directly conflicting.

And that's why we say that the trust analogy is more apt in this case than is that legal malpractice action.

In fact, a union doesn't have any duty to file the grievance.

If it files it, it doesn't have to take it to arbitration.

it can even refuse to take something to arbitration because it's too costly if in its exercise of discretion yet in good faith determines that for the best interests of everyone in that group this grievance should not be taken to arbitration.

An attorney doesn't have that.

He can't make that choice.

He's specifically prohibited from making that--

Unknown Speaker: Well, an attorney's duty is the standard of care.

Mr. James: --That's correct.

Unknown Speaker: But the trustee has a similar duty.

He really wears two hats.

Mr. James: The trustee's duty is somewhat different than... than the... than the attorney's.

I've seen someplace... some people call it the standard of conduct rather than the standard of care.

That doesn't help me a whole lot to understand the difference.

But with a trustee and with a union, they have this discretion... discretion of whether they should bring this claim or not.

If a client comes to an attorney and employs and attorney and says, I want you to bring this claim, and the attorney just doesn't, well, he breaches his standard of care.

He can't make that decision.

The union can make that decision.

The trustee can make that decision.

That's why we think that analogy is more apt.

It's also... the rights of the employee in this case are not equal to simple contract rights against the employer.

The employee must rely upon the union, like a beneficiary must rely upon the trustee.

And the rights the employees have are like the rights beneficiaries have.

That is, they come from this trust relationship.

All of that leads us to conclude that this is more analogous to the trust situation.

Finally, just one point.

In talking about whether the... he mentioned in Ross how there was a claim of a breach of fiduciary duty there.

This Court specifically reserved the question and did not say that... whether that had a right to a jury trial on that issue or not.

The only issues in Ross that it found it... was a right to a jury trial were the clearly legal issues.

And as we've said, these are not those clearly legal issues.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Elliot.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Granfinanciera, S. A. v. Nordberg - Oral Argument

Sun, 06 Feb 2011 03:45:43 +0000

Case:

Granfinanciera, S. A. v. Nordberg

Media File:

87-1716_19890109-argument.mp3

Related Transcript:

87-1716_19890109-argument.xml

Transcript:

ORAL ARGUMENT OF ADAM LAWRENCE ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-1716, Granfinanciera v. Nordberg.

You may proceed whenever you're ready.

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

May it please the Court.

In the 1984 Bankruptcy Act, Congress has neither intended to nor has it in fact abrogated or modified any of the Petitioners' Seventh Amendment rights.

We feel for this reason that this Court need not explore the limits or the margins or the interstices of Congress' power to legislate outside the Seventh Amendment.

This case can be resolved neatly and completely, we submit, with a consideration of just two matters.

The first matter is the unified jurisdictional structure and court organizational system created in the 1984 Bankruptcy Act.

The second consideration is the entirely legal nature of the cause of action asserted by the Trustee in his complaint and the type of relief he asked for.

Turning to the 1984 Act, what's significant, highly significant, about the Act is that it does not create a separate jurisdictional or juridical entity called the bankruptcy court.

What it does create are a group of bankruptcy judges who are denominated a "unit" of the district court invested with the power of judicial officers of that court.

What Congress has not done very specifically in the 1984 Act is create out of these... out of these bankruptcy judges an administrative agency, a specialized court of equity or specialized court, a court of any type, or a legislative tribunal.

Congress has specifically left these judges as dependent, non-autonomous adjuncts or units of the plenary United States district court.

Now, it wasn't always this way, and I think a historical look is instructive here.

Unidentified Justice: Excuse me.

My Constitution says that the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior.

Mr. Lawrence: Yes, sir.

Unidentified Justice: And yet you say these bankruptcy officers who don't hold their offices during good behavior are members of an inferior court of the United States.

Mr. Lawrence: Well, I... the... the intent of Congress was to create these judges obviously not as Article III judges, but as adjuncts to an Article III court.

Unidentified Justice: I'm saying that intent is unconstitutional if that was the intent.

Mr. Lawrence: Well, if that is the... if the Act is unconstitutional, I don't think that necessarily impacts on our right to a jury trial.

Unidentified Justice: Or else it wasn't their intent.

I mean, that's another alternative.

Mr. Lawrence: Well, if the... if the intent of Congress was to do an unconstitutional act, obviously an interpretation must be arrived at that permits a constitutional construction.

It seems to me, though, that the... that the precedent of this Court allows Article III type issues or public rights issues or issues arising out of... out of legislation that Congress enacts to be decided in an adjunct fashion.

Unidentified Justice: By a non-Article III court, correct.

Mr. Lawrence: Yes.

Unidentified Justice: But you're saying it's being decided by an Article III court with non-Article III judges, as I understand your argument.

Mr. Lawrence: Well, my argument is that initially... if I could develop it historically, the argument is... and from the 1984 Act... that Congress is investing jurisdiction initially and in the first instance in the United States district court judges and the United States district court.

Under the 1984 Act, that jurisdiction need not be shared.

The United States district court judges, in whom a proceeding is emplaced, may or may not choose to refer that proceeding on to their non-Article III adjuncts.

They may retain jurisdiction completely within themselves and resolve this issue to completion.

In the 1978 Act, for example--

Unidentified Justice: The... the... under your theory, the decision that these adjuncts make is a decision of a United States district court, as I understand your... your theory.

Mr. Lawrence: --I think that was the intent of Congress and that's... yes, that's what I would have to argue here that I believe... I believe that was the... the purpose.

Unidentified Justice: I... I don't see how that can be.

Mr. Lawrence: Well, I think Congress intended, by creating a variety of supervisory techniques that are set forth in 28 157 and in 1334, to so control these adjuncts as to make their decisions essentially fall within the decisions of this Court that... allowing such... such adjudications by judges who themselves are not Article III judges, but are so subject to the control of Article III judges as to meet the requirements of Article III.

The... the 1984 Act created a bankruptcy system in which judges need not refer these proceedings.

They may hear the concept of a plenary suit under the 1898, of a summary suit under the 1898 Act, to use those terms which I think will arise in this case.

Unidentified Justice: When you say judges need not refer these things, you're referring to the bankruptcy judges.

Mr. Lawrence: I'm referring to the United States district court judges.

Unidentified Justice: You're referring to the district judges.

Mr. Lawrence: Yes, sir.

Under the 1898 Act and under the 1978 Act, there were distinct bankruptcy courts created, and they were invested with specific jurisdictions.

Under the 1978 Act, all that jurisdiction was passed through to the bankruptcy court judges and not vested in the district courts.

Under the 1898 Act, United States district court judges were vested with what was called a plenary jurisdiction and bankruptcy judges or referees with a summary jurisdiction, and there was very little cross-fertilization between the two.

Now, of course, all prior historical distinctions are erased.

All that jurisdiction is vested, summary and plenary, in United States district court judges who may hear a... a case and proceeding to completion.

They may decide claims.

They may distribute the last dollar of the estates, and they may decide traditional plenary actions such as avoidance actions.

Unidentified Justice: Well, traditional plenary actions under the 1898 Act could be brought in state court.

Mr. Lawrence: That's true too, yes.

Unidentified Justice: So, it wasn't just a question of vesting federal... federal district judges.

They were just the kind of lawsuits that you try in courts of first instance, the same way we do lots of other lawsuits.

Mr. Lawrence: That's absolutely correct, and that's my point that there were... that there are ordinary civil or equitable proceedings, legal equitable proceedings, that fell under the rubric of... of plenary and that there were summary or traditionally administrative type equitable proceedings that were exclusively the realm of the bankruptcy judges or referees.

Now, of course, those distinctions... I think it's critical to understand in the 1984 Act... are erased.

These cases may be... proceedings may be referred to the bankruptcy judges, all or part of a proceeding, and a district court judge may withdraw all or part of a proceeding and choose to hear it himself.

Another important jurisdictional aspect of the 1984 Act is found in 28 1334(d).

In that section, Congress has stripped from the bankruptcy court judges any power that they possess over the bankruptcy res, over the property of the debtor, over the property of the estate, and vested exclusive jurisdiction of that property in United States district court judges.

By doing this I think Congress plainly manifested in its intent that the old concept of summary jurisdiction of the 1984 Act is no longer applicable here.

The basis of summary jurisdiction, as that term is used and as some people have equated it to core jurisdiction under the 1984 Act, is that a bankruptcy judge is precisely a judge of equity because of his ability to control the res, to control equitably the access to the res.

Unidentified Justice: You're referring now to summary jurisdiction as it existed at what... under what act?

Mr. Lawrence: Under the 1898 Act, Your Honor.

The... I think the... the analogy is relevant and... and it's necessary for me to... to erase the... the possibility that summary jurisdiction is the same as core jurisdiction because--

Unidentified Justice: No.

Summary jurisdiction under the 1898 Act was possession... property that was in the possession of the trustee or where the... the claimant had submitted a claim.

Mr. Lawrence: --That's... that's correct, but the notion of summary jurisdiction went further than that I think under the 1898 Act.

The idea of a bankruptcy referee or a bankruptcy court as a court of equity was based in large part on the... on the conception that it had control, equitable control, over creditor and claimant access to the res.

What the 1984 Act has done is eliminate that traditional power of bankruptcy judges and vest it entirely in a plenary court, the United States district court, a court of complete legal and equitable jurisdiction.

Now, the core distinction under the 1984 Act is a significant one.

In the 1978 Act, Congress, as it did in the 1984 Act, vested entire jurisdiction initially in the United States district court and then passed it through en masse to the bankruptcy judges.

This Court in Marathon stated that that type of wholesale jurisdictional abdication was... was impermissible, that at least as to state-based causes of actions, that type of investiture of jurisdiction in non-Article III judges without the consent of the parties, with only normal appellate review as... as an Article III control over those judges, was... was insufficient.

Congress, it seems to me, responded to Marathon and to that... to that Article III criticism by creating the core/non-core distinctions, and in the core/non-core distinction, Congress placed in the... in the non-core category all those cases which were of concern to this Court under Article III, that is, cases with state-based causes of action.

By default, Congress had to create a second category, which it labeled core, in which it placed all other types of proceedings, including the types of avoidance actions for preferences and fraudulent transfers that... the latter of which is the subject of this proceeding.

The... the point I think here is significant, and that is that the core/non-core distinction was not an Amendment 7 driven distinction.

There is nothing in the response of Congress in the core/non-core category that... that suggests any intention to affect the right of jury trial of litigants in bankruptcy-related disputes in Seventh Amendment matters, to abrogate the right, to modify the right, to touch it in any way.

And you can see in the legislative history of the 1984 Act, to the extent there is a legislative history, that the history is rife with statements about Marathon, about whether bankruptcy judges should be Article I judges or Article III judges.

There's no apparent discussion in the legislative history of... of Amendment 7 or of an intent to affect Amendment 7 rights or of a desire to limit access to a jury in traditionally plenary or common law causes of action, such as the one we're dealing with here.

xxx.

Unidentified Justice: Well, can a non-Article... a non-Article III court can provide a party with the party's Seventh Amendment right, can it not?

Mr. Lawrence: Yes, I think it can, and I think this Court, for instance, in Pernell assumed that it could.

That was a District of Columbia court in... in a Seventh Amendment case.

This Court had no apparent difficulty with a non-Article III judge providing an Article VII jury trial.

And I suspect there are other precedents as well.

Unidentified Justice: In... in this case did you object to the transfer of the case to the bankruptcy court?

Mr. Lawrence: No, sir.

No.

The case commenced, of course, as Your honor knows, in United States district courts.

Unidentified Justice: Was the bankruptcy... was that on the understanding that the bankruptcy court would conduct a jury trial?

Mr. Lawrence: I don't know if there was any understanding at that time.

Unidentified Justice: Because the rules prevent that.

Mr. Lawrence: Well, at that time, the rules didn't.

At that time Rule 9015, which was only abrogated in August 1987, envisioned jury trials in bankruptcy, and there was an in-place mechanism.

There would have been no reason for the litigant... and there was none in this case... to suspect that a transfer to district court... I mean, to the United States... to the United States bankruptcy judge would have divested him of a right of access to a jury.

It was later that that question was raised and the mechanism was removed from the... from the bankruptcy scheme.

Unidentified Justice: So, you don't say that... you don't... you don't say that there's any independent bar to a non-Article III court hearing this issue?

Mr. Lawrence: As I read the decisions of this Court, no, sir, I don't.

Unidentified Justice: You just say that... so, your jury trial is your only focus.

Mr. Lawrence: Yes, it is.

And whether this Court decides that under the setup that Congress created a bankruptcy judge could not hear this matter with a jury, at least in the Seventh Amendment sense, is not of particular importance to us since we're entitled to a jury trial, and presumably if this matter was remanded, reference could be withdrawn and the matter could be heard before the United States district court judge with a jury.

Unidentified Justice: Well, what... I don't... I don't understand what's left of the Seventh Amendment then which says

"in suits at common law, the right of trial by jury is preserved. "

You're saying... you're saying it's still a suit at common law even though you... you give it to... to a non-Article III forum.

Mr. Lawrence: Well--

Unidentified Justice: And you can willy-nilly give suits at common law to non-Article III forums.

Mr. Lawrence: --Well, I have to repeat my... my last response was that with sufficient control, such as the controls that this Court suggested and which Congress implemented in state-related causes of action, certainty in congressional-related causes of action, the same type of oversight by an Article III court over a non-Article III court would satisfy Article III concerns.

The--

Unidentified Justice: I don't understand.

What kind of oversight are you talking--

Mr. Lawrence: --The oversight is, A, the ability not to refer the case at the inception; B, the ability to refer all or part of the proceeding; three, the ability to withdraw all or part of the proceeding; four, the ability to make rules and regulations governing procedure in the bankruptcy adjuncts and coupled with the right of appeal.

I think that package of controls by an Article III court over its non-Article III adjunct is sufficient--

Unidentified Justice: --To enable all common law suits to be returned to non-Article III adjuncts.

Mr. Lawrence: --Certainly bankruptcy-related suits, yes.

We're dealing here with an action created under Title 11 of the bankruptcy laws.

It's... to the extent it was a congressional creation, I... don't see any conceptual difficulty or at least absolute impediment in this... in a referral and in a sustained--

Unidentified Justice: This then is not like the action that was involved in the Minnesota trial in the Marathon case.

Mr. Lawrence: --No, completely distinguishable, Your Honor.

That was a state-based cause of action.

One must, I suppose, be concerned about the various dichotomies this Court drew, public and private rights and the like.

We're dealing here with a... with a congressional enactment and presumably the power of Congress to have something to say about the forum in which it... it will allow that right to be adjudicated.

Unidentified Justice: Well, of courses, we were dealing with a congressional enactment in Marathon too.

Mr. Lawrence: The... the suit by the litigant there was, of course, a state-based cause of action.

Unidentified Justice: So, you mean here we're dealing with a cause of action created by Congress.

Mr. Lawrence: That's correct.

Unidentified Justice: Preference.

Well, suppose that the parties just proceeded under the Statute of Elizabeth and under state law in a federal court.

That would have to under your analysis then remain on the Article III side of the court?

Mr. Lawrence: Well, I'm not... I'm not sure I follow a distinction between an Article III side and a non-Article III side.

Do you mean... by side, do you mean remain in the United States district court--

Unidentified Justice: Yes.

Mr. Lawrence: --as opposed to being referred on?

To the extent that there's no federal codification of the Statute of Elizabeth that forms the underlying cause of action, yes.

Unidentified Justice: So... so, anytime that the federal statute codifies the common law, there's--

Mr. Lawrence: I'd say arguably that--

Unidentified Justice: --there's no jury right?

Mr. Lawrence: --I--

Unidentified Justice: It seems to me you would be arguing the opposite.

Mr. Lawrence: --No.

I'd say anytime a... a non-bankruptcy-related... that is, in the... in the... in the mold of the types of causes of action that states have jurisdiction to create... is presented to a bankruptcy court, that that would fall under the non-core... probably non-core jurisdiction and be subject to the... the particular procedural constraints of the non-core category; that is, that bankruptcy judges could make findings of fact and recommendations and the ultimate, final decision would have to be made by a... a United States district court judge.

I would have... if there was a... I have difficulty I guess with the idea of an independent codification of a... of a state law right, but ultimately I think they may amount to the same thing in terms of bankruptcy district court control.

Whether it initially starts out or ends up as a non-core proceeding or whether it starts... or whether it ends up as a core proceeding is of less importance, it seems to me, under the 1984 Act where everything has to start with the United States district court judge and then is parceled out or withdrawn after reference appropriately.

Unidentified Justice: Mr. Lawrence, if we view this cause of action as an equitable one, there is no Seventh Amendment right I suppose.

Mr. Lawrence: If you do view it equitably... as an equitable cause of action, that's correct.

But I don't see how, without overruling Schoenthal which specifically addresses this question, this Court could conceivably either view the demand for relief or the judgment entered or the cause of action as... as an equitable one.

Schoenthal speaks directly to this issue in a preference matter which is now under 547.

We're under 548 of Title 11, but for Seventh Amendment purposes, we'd suggest that these two monetary... that monetary avoidance actions under either section are indistinguishable.

Schoenthal clearly referred back to pre... to 18th century English common law, found that assignees under bankruptcy acts at that period of time were suing for monetary preferences under well-recognized common law forms of actions, such as indebitatus assumpsit, a cause of action for money had and received, and that this tradition has persisted, and that the Seventh Amendment requires a trial by jury of a money judgment where only a money judgment is asked for in an avoidance action.

So, I'd say Schoenthal is directly dispositive of the equitable or legal nature of this cause of action.

The distinction between core and summary I think is necessary to be alluded to again.

Core actions are not the same as summary actions, and I think that the circuit court decision improperly confused the two, and I think that the Respondent is perpetuating that type of an approach.

Core actions were not in their inception deemed to be the same as summary actions, and I think, first, there is no stronger indication of that than Congress stripped the bankruptcy judges under Section 1334(d) of authority over the property of the res.

Secondly, the idea of summary jurisdiction only has meaning when there's plenary jurisdiction and summary and plenary jurisdiction only have meaning when there are... when there's a bifurcated or fractionalized jurisdictional scheme in bankruptcy.

There is no longer a fractionalized scheme.

It's as... as metaphysically irrelevant as speaking of the concept of lightness when there is no concept of darkness.

Everything today is in a unified district court judge.

Let me... let me allude to another factor, Justice O'Connor, in the legal versus equitable area.

I perceive the Respondent is having difficulty with the... with the power and directness of Schoenthal, and he suggests several things as a way of circumventing that decision.

He first suggests that really what we're dealing with here is a restitutionary cause of action, not a compensatory cause of action.

Well, I think historically the distinction is a meaningless one since, first of all, the causes of action for money had and received was precisely a restitutionary remedy which 18th century English courts adopted as their own and provided for a jury trial for.

It was, in essence, a cause of action for money had and received that this Court was dealing with in Schoenthal and found no difficulty in locking through that... that apparent definition and saying, well, it's a money judgment that's sought, and that's sufficient to activate the Seventh Amendment.

Unidentified Justice: How do you deal with the case of Katchen v. Landy?

Mr. Lawrence: Katchen v. Landy, Your Honor, had relevance at a time when bankruptcy jurisdiction was bipartite jurisdiction.

There was, prior to the 1978 Act and certainly prior to the 1984 Act, a real possibility when faced with facts such as those unique to Katchen that the bankruptcy scheme could be dismembered or dismantled, that a... that an equity plaintiff who was both a... a creditor, against whom a preference objection was imposed and who also might be a litigant in... in an independent plenary action to recover the preference, had a right to have a continuous and fair proceeding not punctuated by having to cross the hall or having to cross the street to invoke or be subject to a judge with different jurisdiction.

So, there was a chance at that time of an unfair result, and I... I view the Katchen doctrine as a product of that equitable regime in an attempt to avoid that statutory dismantlement.

But just as plainly, Congress has not created that... that bifurcated jurisdiction under the 1984 Act.

Everything could be accomplished now.

Unidentified Justice: But Katchen did say the bankruptcy court without a jury could adjudicate that preference.

Mr. Lawrence: Yes, sir, it old.

Yes, We, of course, don't have the--

Unidentified Justice: And you don't... you don't... you don't suggest that Katchen rested on a waiver, do you?

Mr. Lawrence: --No, sir.

No.

Unidentified Justice: Well, that was a case, though, where the creditor had submitted his claim--

Mr. Lawrence: That's true.

Unidentified Justice: --to the trustee.

Mr. Lawrence: Yes, I think this Court recognized the difficulty of a waiver of consent argument in that lengthy footnote.

We don't base our view of Katchen on waiver or non-waiver.

Unidentified Justice: Well, where did the Court get the power to adjudicate the preference without a jury?

Mr. Lawrence: Precisely in what Section 1334(d) now takes away and that is the power of a court of equity over the res.

It's in that power that this Court has equitable jurisdiction to control access to--

Unidentified Justice: So, then you say that the source of it was... the statute gave... clearly gave the Court the statutory right to adjudicate that, and you say that because it was equitable, no jury trial.

Mr. Lawrence: --That's... that's true.

Unidentified Justice: Katchen doesn't depend, at least as I read the opinion, on the fact that there was a res in the possession of the trustee.

The... there was simply a submission of a claim, was there not?

Mr. Lawrence: Well, Katchen I think depends on two things.

It depends on the underlying supposition that a bankruptcy referee exercising summary jurisdiction is essentially sitting as a court of equity which leads back to the idea of what makes a bankruptcy judge, at least for preference and avoidance actions and fraudulent transfer actions, a court of... a court of equity.

It's precisely the control over the res.

A bankruptcy referee or judge with no control over the res could not avoid... could not call himself a judge possessing summary jurisdiction in the historical bankruptcy since... since he would have no control over those causes of action.

Unidentified Justice: Wasn't the claim submitted in Katchen one where there was property... based on one where there was property in the possession of the trustee?

Yes, yes.

Justice White says the--

Mr. Lawrence: Well, It's... It's a--

Unidentified Justice: --Well, he tiled his claim.

Mr. Lawrence: --That's true.

Unidentified Justice: And he wanted a piece of the res.

Mr. Lawrence: That's true.

Unidentified Justice: Well, what res?

Mr. Lawrence: The res... bankruptcy... the Bankruptcy Act I believe at that time, as it does today, defines the inchoate right to recover a preference or avoidance as a form of property of the estate.

And so, it's not I suppose strictly accurate to call it property within the jurisdiction of the court, but constructive--

Unidentified Justice: No, but under the 1898 Act, had there been no claim filed, the creditor could have told the trustee to go whistle and bring a plenary action.

Mr. Lawrence: --That's true.

Unidentified Justice: Still can.

Mr. Lawrence: Yes, yes.

That's true.

The... I'd like to reserve, if I may, the balance of my time for rebuttal.

Unidentified Justice: Just one... one more question so I understand you.

Section... Subsection H of 157 in your view is then void?

Mr. Lawrence: Excuse me, Your Honor.

Unidentified Justice: Which says proceeding... the bankruptcy courts can try proceedings to determine, avoid, or recover fraudulent conveyances.

Mr. Lawrence: That that's void because of 1334(d)?

Unidentified Justice: Yes.

Mr. Lawrence: No.

Unidentified Justice: Well, it's void because there's no jury trial.

There's no jury trial permitted by a rule.

Mr. Lawrence: Well, I... I hadn't articulated the argument that way I... I... I don't know that I could object to that whether it's void or not.

I--

Unidentified Justice: But you have to say that, don't you, if... if no jury trial is permitted in the bankruptcy court and this statute permits that action to be tried in the bankruptcy court, then the statute is void.

Mr. Lawrence: --Well, there is a way I suppose of avoiding that construction by saying that this is the type of case that shouldn't be referred in the first place.

I know that renders perhaps irrelevant a section of the Act, but there is a role for bankruptcy... for district judges to be sensitive to what can and can't be tried in bankruptcy.

Of course, with 9015 in place at that time, I don't think anyone's attention was specifically directed to the Article III issue of what could or could not be heard by an non-Article III judge, the bankruptcy judge.

Unidentified Justice: Mr. Lawrence, I'm just curious.

Is Medex an instrumentality of the Colombian government?

Mr. Lawrence: No, sir, it's not.

Unidentified Justice: What is it?

Mr. Lawrence: It's, as far as I know, a private Colombian banking institution.

That was not nationalized.

Unidentified Justice: Incorporated where?

Mr. Lawrence: I think Colombia, but I'm not sure, Your Honor.

It has been referred to as a Latin American banking institution.

I know its headquarters were in Bogota, and so it might be reasonable to assume it's Colombian, but I don't know that.

Unidentified Justice: It's like referring to a corporation as a North American corporation.

Mr. Lawrence: I know.

Unidentified Justice: Very well, Mr. Lawrence.

Mr. Tribe, we'll hear from you now.

ORAL ARGUMENT OF LAURENCE TRIBE ON BEHALF OF THE RESPONDENTS

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

There is, of course, no Marathon issue here because there was no objection of a timely kind to the reference to the district court.

And by the time that objection had been made and when it was rejected, they did not appeal to the Eleventh Circuit on that issue so that whatever question the Court might some day have about the limits of power under the 1984 Act to refer matters for binding decision under Section 157 by these bankruptcy judges who, as Justice Scalia says, are of course Article I entities, is not here.

And it is important to recognize that this decision against Granfinanciera was not, despite their effort to reconstrue it, rendered by the district court in drag, as it were, sitting as a kind of Article I body in violation of the Constitution... the decision was rendered by the bankruptcy judge or referee subject only to review by the Article III court.

And the question really is whether they are entitled under the Seventh Amendment to jury trial.

They would have that question, even if it had, indeed, been decided by the Article III court, but then they would, as Justice Scalia suggests, be in quite a different position because then at least one could understand what they meant by saying that this had been a suit at common law.

The reason that they want to make it look as though the decision was rendered by an Article III court is somehow to bring the Seventh Amendment in closer proximity to their client.

So, I think the puzzle posed by the case is how the Seventh Amendment comes to apply at all.

I do think it's useful to go back for a moment to the Chief Justice's question about Katchen because, as I understand their position... and this makes it in a way more puzzling... if the Petitioners had been among Chase & Sanborn's actual creditors and if the $1.7 million transferred to them on the eve of bankruptcy had been a partial repayment, then they concede they'd have no right to a jury trial about the facts surrounding the transfer.

But, you see, they concede they were not creditors.

They say it was nonetheless appropriate to shift this money to Granfinanciera because of favors that it had done for the father of the principal officer of the bankrupt corporation, an officer who incidentally is serving now 15 years in the federal penitentiary for bank fraud.

So, it appears that their position is that because they make no claim on the assets of Chase & Sanborn, they fall outside the bankruptcy claims jurisdiction and therefore they're entitled to a jury before being ordered to turn the $1.7 million over.

So, the paradox is that because they have no legal claim, they're entitled to more process, not less.

Now, of course, sometimes Congress or the Constitution mandates odd results.

But I do not think that a persuasive argument has been made that that result is mandated here.

Unidentified Justice: How do you distinguish Schoenthal?

Laurence Tribe: Well, we believe, Mr. Chief Justice, that Schoenthal was simply a decision under the 1898 Act which said that when Congress chooses, as it old in the 1898 Act, by requiring the bringing of a plenary suit in an ordinary common law court... when it chooses to do that, to force the trustee to sue for damages at law on the law side of the district court, then as long as there existed a common law analogue, you're entitled under the Seventh Amendment to jury trial.

We think that that's entirely correct.

But we do not think that Schoenthal stood for the proposition that the Seventh Amendment entitles you to the kind of forum that Congress happened to provide in that case.

That is, the real question is whether there is in the Seventh Amendment a constitutional rule preventing Congress from placing matters of the kind that Justice Kennedy asked about, namely, 157(b)(2)(H), fraudulent conveyance matters, in the decision power of a bankruptcy judge who is not an Article III court.

That's the question in this case.

And the statutory scheme in Schoenthal is not before us.

But I will--

Unidentified Justice: It's also the issue in Katchen.

Laurence Tribe: --And in Katchen, the Court clearly held I think that there is no Seventh Amendment right in that circumstance.

One odd way of reading Katchen--

Unidentified Justice: In that... in that case, in Katchen, the creditor had to file the claim and submit it himself in a way... at least to the trustee, in a way that was not done here.

Laurence Tribe: --That's right.

But I suppose, Mr. Chief Justice, the question would be what alternative choice did the creditor have.

In Kras v. United States, the Court elaborated the debtor/creditor situation by stressing the giving the debtor a means of discharging the bankruptcy is a kind of privilege, and you take the bitter with the sweet.

If there's a filing fee, you may have to pay it.

But the Court went out its way in Kras to say that the situation of the creditor is really quite different.

The creditor has no alternative, given the automatic stay of Section 362.

The creditor's property interest or contract interest can be vindicated only by submitting.

And it would be an odd regime in which you say, well, you have a... a right to a Seventh Amendment forum, but you must give that right up in order to protect your property.

The Court avoided that reading in Katchen.

Unidentified Justice: xxx very well-accepted regime under the 1898 Act, at least in my own practice.

You know, if... if you wanted to file a claim in bankruptcy and, you know, get part of the assets--

Laurence Tribe: Uh-hum.

Unidentified Justice: --in the hands of the trustee, you submitted yourself to the jurisdiction of the bankruptcy court.

If you thought your security of it wasn't--

Laurence Tribe: Right.

Unidentified Justice: --possessed by the trustee was more valuable, you just stayed out of the bankruptcy court.

But no one doubted that you had to fish or cut bait.

Laurence Tribe: Oh, I agree, Mr. Chief Justice.

You had to fish or cut bait, but that was because you didn't have a constitutional right to the fish.

That is, there was no constitutional right to a Seventh Amendment forum and, therefore, Congress could put you to the choice.

If you want a jury trial on the fraudulent conveyance claim or the preferential transfer claim, then don't file here.

But that was--

Unidentified Justice: xxx some of the reasoning in Schoenthal suggests a fraudulent conveyance claim was the type of thing that was tried to juries at common law.

Laurence Tribe: --Well, Mr. Chief Justice, it was tried concurrently at common law both in law and in equity, but before I think we need to reach that issue, which is an alternative ground for supporting the result in this case... before we need to reach it, there is the anterior question of whether in the forum that was involved in this case, which was a specialized bankruptcy forum, whether in that forum there is a Seventh Amendment right to jury trial.

Unidentified Justice: Well, suppose the district judge had just kept the case for himself or herself.

Laurence Tribe: It would be perhaps a harder case, but we believe that Congress in 1984 still created with respect to the bankruptcy core, the matters listed in 157... the matters listed in Section 157(b)(2), a specialized equitable jurisdiction.

It was not crucial to that specialized equitable jurisdiction that there be physical control of a res.

That really isn't the points.

The point is that the bankruptcy jurisdiction, the jurisdiction to reassemble the estate and ratably distribute it is one that Congress could, under the Bankruptcy Clause, constitutionally entrust to a specialized equitable procedure.

Unidentified Justice: Would you--

--Well, it seems--

--Would you... go ahead.

It seems to give very little force to the Seventh Amendment to say that the district court can, by deciding either to retain the action itself or submit it to the bankruptcy court, affect the jury trial right.

That gives very little content, it seems to me, to the Seventh Amendment.

Laurence Tribe: Justice Kennedy, that's why I'm inclined... that's one of the reasons why I'm inclined to think that neither by statute nor under the Seventh Amendment would there be a right to jury trial on this fraudulent conveyance matter even if it had been retained.

We don't think there's any evidence in the statute or in the legislative history to suggest--

Unidentified Justice: So, then it is the nature of the action and not the nature of the forum that controls.

Laurence Tribe: --Well, in this case we have both.

In this case the nature of the forum and the nature of the action point away from a jury trial.

Unidentified Justice: Would you say that in the Tull case that Justice Brennan wrote a couple years ago Congress could have referred that sort of a dispute to the EPA and if the EPA decided it wouldn't have to give a jury trial and then simply go to the Court of Appeals on appeal?

Laurence Tribe: Well, under the Atlas Roofing case, it seems to me the Court suggested that as long as Congress acts within its substantive power with respect to matters of either environment or employee safety... in that case, it was an OSHA regulation... the power of Congress--

Unidentified Justice: Tull was going to be acting within its substantive power or its actions are invalid for another reason.

Laurence Tribe: --Well, that's right, but when you look, Mr. Chief Justice, at all of the cases in which this Court has said that cases that used to be brought at common law can be transferred to an agency, landlord-tenant disputes in Block v. Hirsh in 1921--

Unidentified Justice: Well, how about Curtis v. Loether?

Laurence Tribe: --In Curtis v. Loether, Congress hadn't decided... and therefore the issue wasn't presented there and isn't... and wasn't presented in many of these other cases... to create a specialized jurisdiction.

But the question that's presented... since their brief concedes that Congress has not by statute preserved the jury trial right, the question that's presented is whether Congress' power... and I admit you can put extreme cases that test its limits, but whether Congress' power under the Bankruptcy Clause extends to the provision of equitable bankruptcy jurisdiction without juries as fact finders, whether in a specialized Article I body or as in Katchen in the Article III court itself, to the process of recovering a bankrupt estate's improper eve-of-bankruptcy transfers as well as to the process of ratably distributing the reassembled assets.

And it seems to me that nothing is more closely related to the effective functioning of a system of resolving the problem of a failed business than as Congress recognized, first to reassemble the assets and then to distribute them.

Indeed, in 1983 in a unanimous decision called U.S. v. Whiting Pools, this Court stressed that Congress in the 1978 Act, which in this respect hasn't changed, was eager to make sure that the trustee would be able to get a turnover order for property that ought to have been in the possession of the estate, whether it happens to be now in the possession of a custodian and therefore reachable under 543, or whether it is out of the estate because of a preferential transfer and therefore reachable under 547, or as a result of a fraudulent conveyance and thereby reachable under 548.

Unidentified Justice: Mr. Tribe, can I... I'm not sure what your... your colleague's position on this is.

I think, though, that his position is that the Seventh Amendment right to a jury goes together with the Seventh Amendment right to an Article III court.

Is that your... do you concede that you can have a jury trial right even though you're in a... in a non-Article III forum?

Laurence Tribe: Well the... the Court in Bombola suggested in dictum that if you were in an Article I ordinary territorial court... and in Pernell it held that in a District of Columbia court, as long as it's an ordinary court of law, the Seventh Amendment right may apply although the Court has never settled on whether you can ever have a Seventh Amendment right clearly in something that is an... is nothing like an Article III court without life tenure.

But the two inquiries are really quite different.

That is, in cases like Katchen, there was no question that Article III was complied with.

The question was whether the Seventh Amendment is complied with.

It is also quite possible to violate the... violate Article III while providing a jury trial.

The whole point in Marathon is that one of the tasks that perhaps should not have been given to these Article I bankruptcy referees was the task of presiding over a jury trial so that the two issues are quite separate.

But in this case, we have really both elements.

We have a forum that does not use and has not traditionally, historically used juries as its fact-finding arm.

Under the rules applicable at the time of the trial, as Justice Kennedy says, there was no provision for a jury trial.

So, what they're really asking for through the back door is a reference back to the district court, exactly the same kind of dismemberment of the statutory scheme that the Court objected to in Katchen.

And in Katchen it is true--

Unidentified Justice: xxx proceeded to carry out in Marathon.

Laurence Tribe: --Well, there was some dismemberment I think in Marathon, but it was a very different kind of case, a garden variety contract action created by state law.

And whether or not the refinements of Marathon in CFTC v. Schor and Thomas v. Union Carbide leave that in place is unclear.

But what does seem clear is that the restructuring of debtor/creditor relations which the Supreme Court ever since Barton v. Barbour in 1881 has recognized as a central exercise of congressional power to put matters in the specialized authority of a special tribunal that does collective justice and not necessarily piecemeal justice... what is clear is that that I think does not raise grave Article III questions even if the issue had been properly preserved here, which it is not.

But if we are right that, for example, in Katchen it was within the power of the Congress, despite the 1898 scheme that was at issue in Schoenthal... within the power of Congress to force a creditor to submit the preference claims, as well as his own claim as a creditor, to non-jury resolution, we don't think that it would make any sense to read the Seventh Amendment to point to a different result when one is a fraudulent transferee rather than the recipient of a preferential payment as a creditor.

That is, the two go hand in hand.

Indeed, one of the more remarkable things is that the Petitioners in their brief at page 12 and again in the oral argument stress that for Seventh Amendment purposes there is no justification for treating differently the situation of a preferential transfer or the situation of a fraudulent conveyance.

They make the point... and I think it's quite right, and it has been recognized all the way back to Chancellor Kent and to Justice Story... that the basic policy of nondiscriminatory distribution that underlies the bankruptcy law is equally frustrated... the basic public purposes of the bankruptcy law equally frustrated by both kinds of transfer.

And therefore, the constitutional power of Congress to place in the hands of a specialized non-jury utilizing tribunal the authority to undo the eve-of-calamity wrongs that were done is really coextensive with respect to the kind of preferential treatment of a favored creditor that was involved in Katchen and the kind of out-and-out gift, as it were, that's involved in... in this case.

In fact, it's quite interesting to take a historical perspective.

In all of the bankruptcy laws Congress has passed, it has never distinguished for purposes of whether something falls within the central bankruptcy process or whether one must bring a plenary action... it has never distinguished preferential transfer claims from fraudulent conveyances.

That is, during the 1890... under the 1898 regime in both of these cases, there was a requirement by statute that you go to the law side of an ordinary court and bring a lawsuit as the trustee although I think a careful reading of the statutes of 1800 and 1841 and 1867 suggests that that was not always so.

But Congress has never created the anomaly that the Petitioners' reading of Katchen would create, an anomaly which says that you have a Seventh Amendment right to a jury trial if you simply receive a completely unjustified, under-the-table payment on the eve of bankruptcy, but no Seventh Amendment right to jury trial if you are a creditor and must go into bankruptcy in order to collect the remainder of the debt, part of which was preferentially paid on the eve of bankruptcy.

It would make no sense in terms of the Bankruptcy Clause or the Seventh Amendment to reach any such conclusion.

But let me suppose for the moment, to go back to Justice Kennedy's question... let me suppose that we were in the district court and we didn't have any additional mileage out of the fact that this was decided by a specialized tribunal of the sort, Mr. Chief Justice, that in your Park Lane dissent you stressed Congress could set up, despite the Seventh Amendment, to resolve bankruptcy and other kinds of special claims.

Suppose we were in the district court.

And suppose we did not want to make the existence of a Seventh Amendment right to jury trial turn on the decision of the district court to refer the matter for final decision to an Article I body.

Even there it is simply not the case, as the Petitioners suggest, that an action to recover a fraudulent transfer is somehow inherently legal and therefore jury triable.

In their brief, they make the following quite remarkable statement about late 18th century English law.

They say equity would not entertain an action for the return of fraudulently transferred money or goods, and they cite principally two cases: Hobbs from 1788 and Scudamore from 1796.

And what's remarkable about those cases is they show the very opposite.

In those cases the chancellor said equity will entertain such actions if it's equitable to do so.

And in both cases on the facts the chancellor sent the creditor to the law side saying it would not be equitable in this particular case to grant that relief.

That's why Judge Friendly--

Unidentified Justice: Well, may I interrupt right there?

Laurence Tribe: --Certainly.

Unidentified Justice: Isn't it always not equitable to do so if there's an adequate remedy at law?

Laurence Tribe: Well, in the regime--

Unidentified Justice: Isn't that--

Laurence Tribe: --pre-1938, Justice Stevens, before law and equity merged in the federal district courts, and certainly under Section 267 of the Judicial Code which was in force at the time of Schoenthal--

Unidentified Justice: --And that's what Schoenthal relied of--

Laurence Tribe: --Schoenthal... there was a kind of preference for law.

And Congress has a right to--

Unidentified Justice: --Well, it's more than a preference.

It was a rule of law that there is no equity jurisdiction if there's an adequate remedy at law.

Laurence Tribe: --In that case a statutory rule.

And when--

Unidentified Justice: But was that also not a common law rule?

Laurence Tribe: --Well, the... under the Statutes of Elizabeth going back to 1571, the fraudulent conveyance situation was much more, should I say, agnostic on the ordinary choice.

That is, in most areas it is true that in the choice between law and equity, there was an overwhelming preference for law with equity being seen as a last resort.

But the observation was made by Chancellor Kent, quoted then by Justice Story in 1836, that when it comes to fraudulent conveyances, since it may so often be the case that an execution at law will not quite do, there ought to be a generally available equitable remedy to order a return of the assets or of the property.

And even though there is some historical dispute about the various periods in which the preferences went one way or the other, what is clear is that in Section 550 of the Bankruptcy Code and in 551, Congress in codifying the law with respect to fraudulent conveyances did not put the preference on the law side.

It said that you should get a turnover order or, if necessary, an award in the amount of value involved.

Unidentified Justice: Mr. Tribe, is what was referred to as 267 of the Judicial Code in Schoenthal... is that still in effect?

Laurence Tribe: It's current analogue.

I don' t know what the number is, but it's still in effect.

When you seek an injunction, for example, you have to show that there is no adequate legal remedy.

But under the substantive statutes governing bankruptcy, if you seek a turnover of property, you do not have to show that money might not do.

In this case the reason the decree was as broad as it was and the reason it said shall turn over the $1.7 million is that, of course, Granfinanciera and Medex commingled the assets.

It would have been pointless to insist, as I guess, Justice Scalia, you suggested in... in a... in a footnote in Bowen v. Mass, maybe these were peculiar coins or something and you really need these very ones back and therefore law won't do.

The regime in fraudulent conveyance law doesn't operate in that way.

The regime in fraudulent conveyance law, going back to 1571, did not have the requirement that when you want to return something to the res or to the estate, that you show that money won't be sufficient.

But in any event that wouldn't be a fruitful inquiry here because it is the duty of the trustee in bankruptcy ultimately in a situation like this where it is a liquidating trustee to reduce everything to money.

And what I think is happening is that the Petitioners are engaged in a kind of play on words.

They are suggesting that because one couldn't find the particular wire transfer that had gone to Granfinanciera or the particular checks that had gone to Medex that it, therefore, follows that because one was ordering restitution of money, that that was the same as money damages.

Now, there may be some contexts as the dissenters, the three dissenters in Bowen v. Massachusetts, suggested where the play on words is the other way and where it's just a cute thing to describe something as restitution where really one is getting the payment of a past due sum, as you suggested in that case, Justice Scalia.

But here it is as clear as anything could be that the Respondent was not asking for the payment of a past due sum.

The Respondent was asking for a restoration of the status quo, for a reversal of an improper eve-of-bankruptcy transfer that ought never to have occurred.

Unidentified Justice: Of course, that was a factual question, wasn't it, that would have been decided either by the jury or by the court?

Laurence Tribe: Well, I suppose the ultimate decision by the bankruptcy judge in April of 1986 to fashion the remedy as he did and not to issue or to refer the matter back to the district court so that it could issue an injunction did rest on the bankruptcy judge's factual determination of what was practical.

Unidentified Justice: If you're right, anytime the trustee claims that there was an improper payment from... to someone, that will not... that person will not be entitled to a jury trial.

Now, in some cases undoubtedly there was an improper payment; in some cases there won't have been.

But the question here is however it comes out on the merits, do you get a jury trial.

Laurence Tribe: Certainly, Mr. Chief Justice.

I don't intend to bootstrap anything on what we know after the fact, but it is the case that the underlying nature of the action, both the remedy sought and the nature of the action, focus on an attempt to get back what you allege was wrongly taken from an estate that ought not to have been dismembered piecemeal on the eve of bankruptcy.

Of course, if that allegation is rejected, and if all you have left is a claim that somehow the way you were treated caused damage, that would be an ordinary legal claim to which the jury trial right might attach.

But I'm suggesting that independent of the forum that an attempt under the Statutes of Elizabeth or their successors to... to reverse a fraudulent transfer has long been treated as cognizable in equity.

Let me just say--

Unidentified Justice: May I just interrupt?

Laurence Tribe: --Sure.

Unidentified Justice: I'm... you're kind of fast for me.

I want to be sure I stay with you.

Are you saying that if the trustee had made a claim, he spelled it out in detail in his allegation and said this money was fraudulently transferred, it was placed into a bank account and commingled with millions of dollars and transferred to another bank account, so it would be impossible to trace the particular funds and therefore he asks for a money judgment in the equivalent number of dollars, he would then have a jury trial right?

Laurence Tribe: No, no, Justice Stevens.

Unidentified Justice: Then what are you arguing?

Laurence Tribe: That is... the point really is that unlike some other cases where one is using a sort of an equitable request as a way of circumventing a jury trial... take Beacon Theaters or Dairy Queen or Ross v. Bernhard where a trick of pleading and of sequencing evades jury trial.

What I'm suggesting is that's not involved here.

The decision to commingle was Granfinanciera and Medex' decision, not that of the trustee or of the bankrupt corporation.

The fact, in other words, that predictably in a case of this kind one might be able at best to get the equivalent value should not be a reason to treat this as a legal action in disguise.

Unidentified Justice: No, but would it not be clear that in 18th century England it would therefore have been a clear action at law, and there would not have been an equitable remedy?

Laurence Tribe: Actually, Justice Stevens, the way the chancellor analyzed the matter in Hobbs in particular doesn't confirm that.

What the chancellor in Hobbs said was that there would be peculiar hardships attending an equitable decree and therefore you ought to go to law.

That's why Judge Friendly in Damsky v. Zavatt in 1981 cited the Hobbs case which the Petitioners use to prove that an action will not lie in equity, cited it to precisely the opposite effect to show that an action to avoid a fraudulent conveyance and to rescind it is quintessentially equitable in character even if in the end the particular relief has to be dollars.

In Katchen, this Court said that equity courts generally have power to decree complete relief and for that purpose may accord what would otherwise be legal remedies.

That's really all we have here with the fact that it was an award of a specific amount of money so that it's stretching a great deal to treat this as an action at law.

It's stretching even more to treat this command to disgorge as though it were somehow a legal rather than an equitable remedy.

And every circuit that has construed the matter has seen turnover orders as essentially injunctive, enforceable in appropriate cases by contempt if one has personal jurisdiction.

And so the fact that in this particular case what one has is a judgment for money does not make it an action at law.

Unidentified Justice: Of course, turnover orders aren't always for money.

I mean, there are chattels and things like that.

Laurence Tribe: That's right although sometimes bank accounts have been subject to them.

Unidentified Justice: Yes.

Laurence Tribe: But it seems to us that there are two independent reasons apart from the nationalization of Granfinanciera, which as to that Petitioner, pretty clearly eliminates a right to jury trial... two independent reasons for saying that the effort by Congress to comply with Marathon, whatever else may be said about it, did not violate the Seventh Amendment either on its face or as applied in this case.

And we, therefore, believe that the judgment which was entered against the Petitioners, not by an Article III court which affirmed the bankruptcy judge's decree, but by a specialized bankruptcy tribunal is not infirm on the ground that they were denied a jury which, by the way, they would never have been able to claim had they been in the more equitable position of a creditor.

Thank you.

Unidentified Justice: Thank you, Mr. Tribe.

Mr. Lawrence, you have two minutes remaining.

REBUTTAL ARGUMENT OF ADAM LAWRENCE

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

On the issue of money damages, there are certain similarities here between compensatory remedies and what was sought and achieved in this case.

First of all, the... the award under 548-550 is not a discretionary remedy.

If you prove the criteria for avoidance which isn't a separate, independent equitable action in and of itself, you're entitled to that amount of dollars without any intercession of a... of the discretionary mind of a jury or a... or a judge.

The... the payment here was of sums which will go to compensate creditor claimants for common law torts committed against them, for common law breaches of contract committed against them.

In a very real sense the use to which these... this judgment will be put, if it's recovered, is to compensate those who have state law claims who are essentially, I gather, unsecured creditors for a variety of state law claims that characterize claimants in bankruptcy.

To the extent the trustee recovers money in avoidance actions, he... he pays off people who are seeking damages in the classical legal sense.

To the extent he doesn't recover dollars, these people go uncompensated in classical legal sense.

I think it's deceptive to speak of the dollars in dispute here as not being compensatory at least in the final analysis.

Secondly, I think it's... it's unnecessary and unwise to base the Seventh Amendment jurisprudence on the arcane distinctions between a compensatory dollar and... and a restitutionary dollar when those terms, as we all know, can be intermingled and... and... and converted from one to the other.

Seemingly, in response to Justice Stevens' questions, I think the proper basis of equity jurisdiction and legal jurisdiction is still... is the judgment... is to relieve something that's uniquely within the power of a court of law to grant.

Money judgments and whether the dollar composing the judgment is a compensatory dollar or a restitutionary dollar is still a traditionally legal cause of action.

And I think that's the basis on which a Seventh Amendment jurisprudence should... should rest, not this confusion definition between compensatory and restitutionary.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Lawrence.

The case is submitted,--

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Blanton v. North Las Vegas - Oral Argument

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Blanton v. North Las Vegas

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87-1437_19890109-argument.mp3

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Transcript:

ORAL ARGUMENT OF JOHN J. GRAVES, JR. ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-1437, Melvin Blanton v. The City of North Las Vegas.

Mr. Graves, you may proceed whenever you're ready.

Mr. Graves: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court:

Blanton and Fraley were arrested and charged with driving under the influence in the City of North Las Vegas, Nevada, in July and June, respectively, of 1986.

Blanton made a written demand for a jury trial in the municipal court, and that demand was denied.

We took a petition for a writ of mandamus to the district court, our court of general jurisdiction, and that request was denied.

And we took an appeal to the Nevada Supreme Court.

Mr. Fraley, in the North Las Vegas municipal court made a written demand for a jury trial that was denied.

He entered a plea of guilty to the charge.

He took an appeal of trial de novo to the district court and the demand for a jury trial was granted.

From that granting of the demand for a jury trial, the City of North Las Vegas took an original writ of certiorari to the Nevada Supreme Court.

Unidentified Justice: The Nevada Supreme Court made no point about Fraley having pleaded guilty.

Mr. Graves: No, sir, they did not.

The Nevada Supreme Court construed the Baldwin case rather strictly, wouldn't we... woodenly we think, and stated that the Baldwin standard of six months and $500 was the only standard that it would stand on.

And as a result of that, the request for a jury trial in driving under the influence cases was denied.

In its decision it also indicated certain policy reasons.

Part of this was expense of the jury trials, general inconvenience in rural areas, non-lawyer/judge problems.

And it finally concluded by suggesting that it was up to the legislature to resolve this problem.

Unidentified Justice: Well, it didn't stand that strictly on it because wasn't the fine... wasn't the possible fine here more than $500?

Mr. Graves: Yes, sir.

It was $1,000, but it--

Unidentified Justice: So, it wasn't really all that wooden.

Mr. Graves: --Sir?

Unidentified Justice: It wasn't all that wooden.

Mr. Graves: No, sir.

The $1,000 fine has been in the law in the State of Nevada for several years now, but I think that in most of the lower court cases I believe that the fine of $500 has been abandoned by most of the courts.

I think even in this Court.

I think in Muniz v. Hoffman you indicate that it's not talismanic.

So--

Unidentified Justice: Selectively wooden.

Mr. Graves: --It was partially wooden, yes, Your Honor.

All right.

As this Court knows, this country is at war with drunk drivers.

In the State of Nevada that offensive has taken this shape.

Upon conviction of a first offense, there is a mandatory fine of $200 and a maximum of $1,000.

There is a mandatory incarceration of two days or 48 hours of community service while dressed in distinctive garb identifying the person as a DUI violator.

And with the permission of the Chief Justice and the Court I would ask to be able to show you this distinctive garb here today.

It has been described in our brief at pages 14 and 15.

Unidentified Justice: Go ahead.

Mr. Graves: Thank you.

This is the front of it.

It looks much like a prisoner's uniform.

Property of North Las Vegas Court.

We received the permission of the city, by the way to leave this with the Court.

Property of North Las Vegas Court.

On the back is a rather large circle, DUI offender, with a skull and crossbones and a bottle of liquor with it looks like a hatch mark thing... you, you can't... you can't drink.

Not exactly a designer, but--

Unidentified Justice: And how long do you wear it?

Mr. Graves: --For 48 hours, sir.

It's not as if it were just two days, but it says--

Unidentified Justice: You could stay at home, couldn't you?

Mr. Graves: --No, sir.

You'd want to stay at home with this.

Unidentified Justice: Well, I know, but where do you wear it?

Mr. Graves: You wear it in the community where you're working the 48 hours of community service.

Unidentified Justice: Oh, I see.

I see.

Mr. Graves: It's actually like six eight-hour days or eight six-hour days.

It's actually 48 hours.

It's not like two eight-hour days.

Unidentified Justice: But--

Mr. Graves: So, while you're working typing or whether you're sweeping the road or whether you're sweeping a hall in a public building--

Unidentified Justice: --But, Mr. Graves, do you... do you... if you get a jail sentence, do you also have to do this?

Mr. Graves: --No, sir.

Unidentified Justice: So, this... but your position is... is this even worse than six months in jail?

Mr. Graves: Most of my clients want to go the jail time.

They don't want to be caught--

Unidentified Justice: They'd rather go to jail for six months than wear this for 48 hours?

Mr. Graves: --Not for six months, but for the two days.

First offenders normally don't go to jail for six months.

They'll... normally just the minimum--

Unidentified Justice: But... but how is this a more severe penalty than six months in jail?

Mr. Graves: --I'm not sure that this is a more severe penalty than six months in jail.

I think that--

Unidentified Justice: Well, if they got six months in jail, that would be the maximum under the statute, wouldn't it?

Mr. Graves: --Yes, sir.

Unidentified Justice: Then why... why isn't this case squarely controlled by Baldwin?

Mr. Graves: Well, it's our position that... I'm not sure that we can make that analogy exactly, Your Honor, because most of the time in most of the offenses that I have anything to do with, it's two days in jail or the 48 hours wearing this particular uniform.

xxx.

Unidentified Justice: But that's... that's the choice of the defendant, isn't it?

Mr. Graves: Yes, sir.

It is the choice of the defendant generally.

The courts would prefer... most courts... it's a mixed bag.

Some of the courts have said that they are going to make the choice and the defendant will do the community service because they would rather have the defendant out in the community working as opposed to sitting in jail.

And that's the decision that most of the courts make, although sometimes the defendant can make a choice of going to jail for two days.

Unidentified Justice: But supposing the statute made the maximum penalty two days in jail or, alternatively, wearing this for two days, would that violate... would you then be entitled to a jury trial?

Mr. Graves: That would be a little bit closer case.

I think that this is a badge of dishonor.

Unidentified Justice: Well, I understand that, but you... what, what's your answer to my question?

Do you think you would be entitled to a jury trial?

Say that was the only penalty.

You have to wear this thing for two days.

Mr. Graves: If this was the only penalty and you had to wear that for two days?

Unidentified Justice: Yes.

Mr. Graves: I don't think so.

Unidentified Justice: Well, isn't that what the only penalty is for most people?

Mr. Graves: No, sir.

You've got a mandatory minimum fine of $200 up to $1,000.

Unidentified Justice: Well, say there was... this... wear this for two days plus a $1,000 fine.

That's the maximum penalty.

Would that entitle you to a jury?

Mr. Graves: That would be a closer case.

That might entitle to us to a jury trial.

Unidentified Justice: You think so?

Mr. Graves: Because it's just... it's, it's just something that most of my clients don't want to be seen in, and it's a badge of dishonor.

Unidentified Justice: Well, I... I sympathize with that, but I... you're telling me something new now.

I thought that under these statutes you couldn't force anybody... a judge could not force anybody to wear that, that it's... it, it has to be at the defendant's option.

Mr. Graves: Not always, sir.

The courts are split on that.

Sometimes a judge will require the defendant to do community service.

Sometimes--

Unidentified Justice: Well, what does the statute say?

Doesn't it... I thought the--

Mr. Graves: --It just has an option, Your Honor.

I don't think it specifically says who has the power to require--

Unidentified Justice: --It just says it's an option.

It doesn't say who has the option?

Mr. Graves: --I don't believe so.

The courts have construed it in different ways.

Unidentified Justice: When you say the courts, you mean the various courts in Nevada--

Mr. Graves: Yes, sir.

Unidentified Justice: --the district courts?

Mr. Graves: I say the lower courts that are dealing with this problem on a daily basis.

There is--

Unidentified Justice: xxx.

Mr. Graves: --There is normally a choice.

I have had clients... I don't want to try to mystify you on this, but I have had clients that have wanted to serve the two days in jail as opposed to wearing the uniform, and the courts have allowed them to do that.

It's not a hard and fast rule, but they must do one or the other.

Unidentified Justice: Where is the statute?

How does it read?

I'm sorry... this point is important to me.

I'm... where--

I think we have a different case if, if somebody can be forced to wear this thing for however long.

At least I think it's different.

0....

Well, if it's going to take a lot of time, you, you can do it on rebuttal if you like.

I, I didn't mean to... I thought you'd have it right at hard.

Mr. Graves: Thank you, Your Honor, if we can do that, please.

I just can't lay my hand on it right away.

In any event, with the mandatory fine, the mandatory incarceration, or dress for 48 hours in this distinctive garb, there is as well a mandatory education course on alcohol abuse.

There's also a, a mandatory license revocation for 90 days, the second 45 days of which a driver may request a hardship or restricted license.

Of course, additionally this particular crime is hedged around with the additional conditions of being non-negotiable by the prosecutor and, of course, the court has no jurisdiction to reduce the jail time of the incarceration.

Unidentified Justice: You, of course, don't recognize the rule that any charge that is less than six months does not need a jury trial.

You, you just don't recognize that rule?

Mr. Graves: No, sir.

We, we recognize--

Unidentified Justice: xxx?

Mr. Graves: --We recognize that rule and we in our briefs have indicated to the Court that we don't think you need to abandon that rule because it has served well for 20 years and we don't want to--

Unidentified Justice: Now, explain to me again why this is different.

Mr. Graves: --Because what the State of Nevada is doing is that they're pecking underneath the line.

Your rules have said and the State of Nevada has said it's six months.

You puncture that particular incarceration, and then you go into a serious crime.

The State of Nevada is staying underneath the line, but it's increasing the punishment so that all they have to say is, well, ladies and gentlemen of the Supreme Court, all... we don't have more than six months.

All we have is six months.

What we're saying is that they're pecking under the line and making other kinds of penalties that will... ultimately, especially in this kind of case, that will require a jury trial.

We, we don't ask you to abandon your--

Unidentified Justice: Well, would six months and two days of house arrest be bad?

Mr. Graves: --I'm sorry, sir.

I did not understand you.

Unidentified Justice: Two... six months and two days of house arrest.

Mr. Graves: Would that require a jury trial?

Unidentified Justice: Yes.

Mr. Graves: That probably would require a jury trial.

Unidentified Justice: It's... what's the difference between that and this one, because he can stay at home with that.

He doesn't have to wear that.

Mr. Graves: Well, he can't.

In the State of Nevada, he can't go... he can't go home.

He must go to a jail for two days.

Besides, there are additional penalties here.

Unidentified Justice: But didn't you say he could wear that for two days?

Mr. Graves: Yes, sir, but he has to do community service.

Unidentified Justice: But he doesn't... he has to be out on the street.

Mr. Graves: Yes, sir.

You can't be at home doing this.

You can't be dusting your furniture.

Unidentified Justice: And so, that's enough for a jury trial?

Mr. Graves: Yes, sir.

I think so.

Unidentified Justice: That is the only difference.

Mr. Graves: Not the only difference, no, sir.

There are other penalties here.

One of the other penalties is a--

Unidentified Justice: Let me have them.

Mr. Graves: --Sir?

Unidentified Justice: Let me have the other penalties.

Mr. Graves: The additional penalties are loss of your license for 90 days, 45 days of which are non-suspendable and you cannot drive for 45 days.

The other 45 days, at the tender mercies of the Department of Motor Vehicles in Nevada, you can have a restricted license.

Unidentified Justice: May I ask on that suspension?

If you go to jail for six months, can you have the 90-day suspension concurrent with the time in jail?

Mr. Graves: There is no provision for that that I'm aware of.

Unidentified Justice: You mean--

Mr. Graves: The penal and the administrative are different.

No, sir.

Unidentified Justice: --But... but say you're convicted on January 1 and the judge enters an order, sends you to jail for six months.

When will your license be suspended?

Mr. Graves: It will be... it'll be probably suspended even before you go to trial or even before you enter a plea of guilty.

They are very, very rapid--

Unidentified Justice: So, you... the suspension... what I'm trying to find out, the suspension would have been completed before you finished your six months in jail.

Mr. Graves: --Yes, sir, under one way or the other.

Yes, sir, it would.

Upon his second conviction of driving under the influence in the State of Nevada within seven years, it's a 10-day mandatory jail time and a $500 mandatory minimum fine and a one-year loss of license.

And there's no restricted license there.

The third conviction within seven years is one year to... to six years in the Nevada State prison.

It's a felony.

It carries a mandatory minimum $2,000 fine and three years' loss of license.

Unidentified Justice: But we're speaking only of the first conviction in this case.

Mr. Graves: Yes, we are.

But what we're suggesting is that the second and third convictions are conditions and provisions that this Court can take into consideration to gauge the seriousness of this crime in the minds of the people of the State of Nevada through their legislators.

Unidentified Justice: Well, It is pretty serious, of course.

Mr. Graves: Yes.

Unidentified Justice: Incidentally, your statute is in the petition for cert, if you need it.

Mr. Graves: Thank you.

Just a moment.

This Court has historically used two types of tests for gauging the seriousness of a crime.

One of those is nature of the offense, and the other is the penalty of the offense, and then there is sort of a subtest which is the actual numbers of states which--

Unidentified Justice: Mr. Graves, didn't the Baldwin case really move to a... a more bright line test?

Mr. Graves: --Yes, ma'am, it did.

Unidentified Justice: And why should we get away from that?

Mr. Graves: You don't have to get away from the bright line test except that this case doesn't have a bright line holding.

You have gotten away from bright line tests in the past in your Franks case... in the Frank case.

Unidentified Justice: Well, this meets Baldwin in a sense.

Mr. Graves: It does.

It meets baldwin, and if... if the Court sends a message to the states that you can have other penalties besides the six and five, which is what we used to call it when I was in municipal court, six months in jail and a $500 fine, then we're going to have all sorts of things that are going to be happening underneath the line because as long as the state doesn't puncture the line and move into the serious area, then we can have all sorts of penalties underneath.

Unidentified Justice: Well, don't you think we have to adjust the $500 for inflation?

When did... when did we... what's the inflation rate since we picked $500?

I mean, I know the Constitution says how many dollars for a... for a civil... civil jury, but I really don't think our Court opinions are as written in stone as the Constitution is.

Mr. Graves: I don't think so.

Unidentified Justice: So, $500... maybe $1,000 is the equivalent nowadays of $500 before now.

Mr. Graves: I... I do not stand on the fact that the... the $500 is written in stone.

It could be $1,000 or it could be even $2,000.

I just... again, I agree with the Court.

I don't think it's talismanic and we... we really don't hold to that.

Unidentified Justice: Baldwin didn't say anything about a fine, did it?

Mr. Graves: No sir.

I think it was pretty much the incarceration factor.

Unidentified Justice: Six months.

Mr. Graves: And I think you pretty much stood on that.

But the nature of the offense.

The bright line test lived in Baldwin and in... and in the Duncan cases.

But you've got a residuum test that lives beyond that, which is the nature of the offense of the test, and the lower courts have found... many lower courts have found... there are some that have not... have found that this is, in fact, a serious crime, that the nature of the offense is serious.

In Baldwin, for example, in footnote 6, any incarceration in excess of six months carried the right to jury trial.

And in that footnote, per Justice Whiter there was no overruling of Clawans or Colts.

And in Duncan, which preceded it by two years, sentences up to six months if the offense otherwise qualifies as a petty offense.

And even as late as 1976, in Ludwig v. Massachusetts, it's a petty offense usually defined by reference to the maximum punishment.

And as far as the nature of the offense, of course, although it's sui generis, this Court still uses the nature of the offense in contempt cases.

So it's certainly a test that is viable and is usable.

And we have cited cases that the lower courts have found driving under the influence to be a malum in se crime.

It was not apparently indictable at common law, although there was one case, United States v. Hart--

Unidentified Justice: I, I assume you'd be satisfied if the penalty was a minimum of 25 years and you were given a jury trial.

Mr. Graves: --I would not be satisfied with that, sir.

I wouldn't want this to get out of hand.

Unidentified Justice: Well, I was just wondering the way you were going with your argument.

Mr. Graves: Well, sir, I don't... I can't make a general statement.

I just know that under the... the statute that we have here, sir, that we feel that this particular crime is serious not only because of the nature of the offense, but also because of the penalty and because 30... or 43 or 44--

Unidentified Justice: xxx.

Mr. Graves: --Sir?

Unidentified Justice: If it's serious, then the penalty should be more.

Mr. Graves: Yes, sir.

And in--

Unidentified Justice: Is that your argument?

Mr. Graves: --No, sir, I'm not--

Unidentified Justice: Well, we can't raise the penalty.

Mr. Graves: --I'm not suggesting, sir, that the penalty ought to be more and then grant us the right to a jury trial.

I'm suggesting that the crime per se carries the right to a jury trial because it is malum in se and has been so held by the lower courts.

What I'm suggesting to the Court is that 20 to 22 states, in fact, do punish first offense driving under the influence by one year: New York, Alabama.

There are places that punish driving under the influence first offense by one year, and they give you a right to a jury trial.

And if the Court reviews its cases in this regard... and you take Callan, for example, 1888.

Is... it is an offense of a grave nature affecting the public at large.

That's DUI.

Schick, 1904 it is a crime true of moral delinquency.

That's DUI.

Colts, 1930, it is a grave offense.

That is DUI.

And then when you take a look at the mala prohibita crimes, the Colts in 1930... for the Court to characterize reckless driving, or in this case DUI, as a petty crime, would be to shock the general moral sense.

And this... this Court may write a decision that says that driving under the--

Unidentified Justice: In fact, this is a malum prohibitum, isn't it?

What's the alcohol level here?

Is it the case that everyone who has this... this amount of alcohol in his blood is necessarily impaired?

I thought the level was set at such a point where someone could be, and so even if you have a greater immunity, the effect of alcohol on some other people, if you get picked up, it's your tough luck.

And I would consider that a malum prohibitum.

I mean, to be fall... falling down drunk when you're driving is malum in se, but to have your alcohol level above a certain point where someone else might be affected but you aren't, do you consider that malum in se?

Mr. Graves: --Well, yes, sir.

But I'm not sure that you can make the distinction between an alcohol level and whether somebody else is going to react differently to alcohol than anybody else.

In the State of Nevada--

Unidentified Justice: Well, you're saying it's malum in se to have point whatever the... the thing in your blood is?

Mr. Graves: --Well, what I'm saying is that that is the, the considered judgment of the legislature of the State of Nevada that there are two ways to convict in the State of Nevada for driving under the influence.

One is.10 or greater, and that's per se.

It's presumptive that you're driving under the influence.

The second one are the factual, that if you refuse a test, for example, then if you're weaving down the road and if your... your breath is wreaking of alcohol and there are other physical attributes, then... I think that in any event, that it's malum in se.

Unidentified Justice: Is it--

Mr. Graves: The same penalties.

Unidentified Justice: --You're saying if the legislature makes it unlawful, it's malum in se.

Mr. Graves: No, sir.

No, sir.

Unidentified Justice: Well, then, then, then you have to convince me that having.10 in your blood necessarily... that, that no reasonable person, no... no honorable person would consider driving with.10.

I don't know that that's true.

I think that's... that's a number picked with a good deal of, of, of safety margin to... to embrace some people who may, indeed, not be affected at that level.

Mr. Graves: Well, as a practical matter, they are tried together.

The.10 and also the physical characteristics, of course, are all tried together.

But in any event, the.10 and the driving under the influence both carry the same penalties.

So, no matter how you prove the case, you're still subjected to the same sentence and the same conviction of driving under the influence, and I don't think that the.10 or whether it was a.15 would make that much difference in, in the analogy.

Perhaps I... I'm missing the question, but I don't--

Unidentified Justice: xxx I'm trying to figure out I guess how heinous this, this crime is viewed by, by the citizenry and if to be convicted means you were falling down drunk when you were driving, yes, I'd say that's pretty... a pretty heinous thing.

But suppose the state passes a law that says we don't want people on the roads who have had anything to drink and they set the level, you know, real minimum.

You shouldn't drink any alcohol within three hours before you drive.

Now, would you consider that malum in se to violate that law?

Mr. Graves: --I'm not... just for the fact of driving three hours before... or drinking three hours before you--

Unidentified Justice: That's right.

The state says we're taking no chances.

Nobody should have any alcohol in the blood.

No drinks within three hours of driving.

Mr. Graves: --So, any amount of alcohol in the blood then is going to be a malum in se?

Unidentified Justice: Yes.

Would that be malum in se?

Mr. Graves: I don't think that that would be malum in se.

Unidentified Justice: Well, then you've got to tell me why.10 is... you, you have to convince me that.10 really means that, that the average... at least the average person is, is seriously impaired--

Mr. Graves: Are we talking about driving and drinking at this time, the three hours before?

All I can tell you, Your Honor, is that the... the State of Nevada has picked.10.

Thirty-nine states have picked that level as presumptively under the influence, and that's the standard that we have to work with.

And I'm sorry that I can't answer your question any more specifically, but if we're moving back from the area of driving under the influence to drinking three hours before you get onto the road and that is going to be a crime, just drinking three hours, that is a petty crime.

That's malum prohibitum.

But once you get behind the wheel, then you trigger this offense.

There is no driving impaired in the State of Nevada.

It's just driving under the influence.

Unidentified Justice: --[inaudible] call it driving under the influence would be any alcohol in your blood.

Mr. Graves: That... that probably would be a malum prohibitum crime because it is just too low.

After three hours it would be in any event.

The penalty provision... the... of this crime is not just the fine and incarceration as in Baldwin.

As the Court has seen, the State of Nevada has moved away from just the fine and imprisonment and has moved on to other areas.

Basically, what the state wants is to have their cake and eat it too.

One of the, the penalties that I think is the most important of this particular crime is losing your license because you're losing the right to use the public highways.

And the State of Nevada... and we're only talking about the State of Nevada.

Unidentified Justice: Is your license revoked in the criminal proceeding, or is it a separate administrative proceeding?

Mr. Graves: It is a separate administrative proceeding.

Unidentified Justice: Well, that really isn't a criminal penalty then in many senses of the word.

Mr. Graves: Yes, sir, it is because as soon as you are convicted of driving under the influence, then the court sends notice to the Department of Motor Vehicles and they will automatically revoke your license.

Unidentified Justice: Well, I, I thought you said a moment ago that your license could have been revoked before trial.

Mr. Graves: Yes, sir, it can.

There are two provisions in the State of Nevada.

One of the provisions administratively is that as soon as you are arrested, if you have.10 or greater blood in your... of, of alcohol in your blood, then your license is revoked because of that.

Then later on--

Unidentified Justice: That doesn't make... that doesn't make it a criminal proceeding.

Mr. Graves: --No, sir.

Unidentified Justice: Not so far.

Mr. Graves: No.

No, sir.

And then we move on to when there is a conviction.

And then when you are convicted, they revoke your license on the basis of the conviction.

Now, they do give you credit for the time that you served over here.

So, if your blood was.10 or greater and you got a 90-day suspension, you're convicted, and then over here you have a revocation because of the conviction.

You are given the credit for the 90 days you have here over here.

But there's still a penalty involved because you've got... the actual revocation is on your record at the Department of Motor Vehicles.

So, they've got two chances to revoke your, your license, but we don't particularly speak about the first one since that really doesn't have anything to do with the criminal case unless you're actually convicted.

In summation, I would... I would advise the Court that we think that you should apply all three tests and not to abandon the Baldwin standard.

Now, it may be presumptively petty if the Baldwin standard is not breached, but we feel that in this particular case that all three should be utilized by the Court for this particular offense.

My own opinion is that driving under the influence is really sui generis.

There is no other crime of which I am aware that is really vying for serious status... none.

And I've been in this area for probably six or seven years, and although, of course, defense attorneys always try to get jury trials as a... as, as a practical matter, they don't get them.

This case... the lower courts... this type of offense... the lower courts are riddled... riddled... with instances where the, the courts have given jury trials in these types of cases.

And, of course, this Court has said that there is, indeed, a commitment to jury trials.

I mean, when you consider the types of offenses that this Court has denied jury trials in... the Clawans case; selling the unused portions of railway excursion tickets; and the Schick case, failure to stamp the oleomargarine; Natal, a private market six squares from a public market... those are trifling offenses.

This is not a trifling offense.

The cost of this--

Unidentified Justice: Now, when you say the courts are riddled with these cases, you're speaking of Nevada courts?

Mr. Graves: --No, sir.

I'm talking about... no, sir.

Unidentified Justice: Let's talk about Nevada, shall we?

Mr. Graves: All right.

The State of Nevada... there is no right to trial by jury in a driving under the influence case.

Now, in the lower courts, state and federal, many courts have allowed the right to jury trial in DUI cases.

That's what I'm saying.

If this Court were to rule for us, for the Petitioners, and allow a jury trial in the State of Nevada, this is probably what's going to happen.

The state legislature is going to move this offense into the district court.

Just like Ludwig v. Massachusetts, you're going to move it right... it's going to be moved right up there.

There's a great waiver factor.

I mean, we've shown that in our opening brief that there's a great waiver factor, not only in misdemeanor cases generally, but in DUI cases in particular.

And it is also true in the Baldwin case.

I mean, even in the State of Nevada, they're giving DUI jury trials in Washoe County, but we don't have them in Clark and the rest of the surrounding areas.

So, even in the State of Nevada itself, we're granting jury trials.

And lastly, I think that since the Court has ruled on punishment other than incarceration--

Unidentified Justice: Washoe County granting jury trials after the opinion of the Supreme Court of Nevada in this case?

Mr. Graves: --Yes, sir.

It's my understanding from the ACLL's amicus curiae brief that... that in fact they are... I'd have to defer, but I think they're still granting jury trials.

They just feel that it's coming, and they're going ahead and preparing of it... for it.

And I think in 1987 they only had 12 at a cost of $4,000.

Unidentified Justice: We can't take judicial notice of facts in an amicus brief, can we?

Mr. Graves: No, sir.

Unidentified Justice: Well, what are you telling us that for?

Mr. Graves: Well, I'm just... I'm just indicating to the Court that I feel that... that may be true.

I cannot persuade the Court otherwise, but that's just what I'm led to believe.

But in any event, I would sincerely urge the Court to grant us jury trials in driving under the influence cases in the State of Nevada.

And I would reserve the rest of my time if I could.

Unidentified Justice: Thank you, Mr. Graves.

Mr. Zalaoras, we'll hear now from you.

ORAL ARGUMENT OF MARK L. ZALAORAS ON BEHALF OF THE RESPONDENT

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

At the outset, I wish to point out that the issue raised earlier with regard to the DUI punishment provisions in Nevada is set out... the statute, the punishment statute in full, is set out in the Nevada attorney general amicus brief, Appendix A, pages la and 2a.

And essentially what that provides is it is the court's discretion whether to allow the defendant, the convicted defendant, to perform 48 hours of community service wearing the distinctive garb or whether to serve the minimum two-day jail sentence.

That is literally what the statute provides.

In, in--

Unidentified Justice: Why, why, why do you think they have that... wear that distinctive garb with that thing on the back of it?

I... isn't that great indication that this is a shameful thing?

Mr. Zalaoras: --I think it's a--

Unidentified Justice: I mean, you... it wouldn't mean anything to have somebody wear that kind of a thing and it says I sold the unused portion of a railroad... railway ticket.

That wouldn't--

[Laughter]

That wouldn't get, get anybody to think less of you particularly, would it?

Mr. Zalaoras: --No.

It... clearly it serves a couple a functions, one of which is--

Unidentified Justice: It's shameful, isn't it?

Mr. Zalaoras: --deterrence to the others.

I would submit it would be to the person wearing it, yes.

Unidentified Justice: It's shameful.

Now, what if a state decides we're not getting enough conviction... convictions in child molestation cases because the, the young witnesses get intimidated by the courtroom and the jury and all of that, and we think that the real punishment in a child molestation case is just being convicted because that will ruin you.

So, we're going to reduce the sentence from five years to six months and we're going to provide for trial of all child molestation cases without a jury.

We're sure we'll get a lot more convictions, and that will be worth it.

What do you think?

Could a state do that?

Mr. Zalaoras: Is Your Honor's question would that offense still a serious offense in the--

Unidentified Justice: That's right.

Mr. Zalaoras: --constitutional context?

Unidentified Justice: Yes.

Mr. Zalaoras: Not under the rulings from this Court, no, it would not.

Unidentified Justice: You think... do you think that's what we'd hope... we'd hold?

Mr. Zalaoras: I believe that's what the Court would hold under the present--

Unidentified Justice: You would like that result that, that people could be convicted of child molestation without a jury trial.

And you think--

Mr. Zalaoras: --Not particularly.

Unidentified Justice: --that's what the Framers really thought they were doing.

Mr. Zalaoras: Not particularly, but I seriously doubt, although I accept your hypothetical, that a state would make such a serious offense... if I may, by way of analogy to the state statutory scheme in Nevada, we have a misdemeanor annoying a minor offense, and that characteristically is prosecuted where there was no physical harm or no physical touching of the child other than perhaps exterior.

We then have more opprobrious offenses providing a higher punishment than the six-month misdemeanor line.

So, by way of example to the Nevada statutes, I believe what Your Honor is referring to is child molestations where there's some physical violation of--

Unidentified Justice: You would acknowledge that if I don't think that I would hold that way in the case of a child molestation statute that's reduced from five years to six months, then my concern in this case would be more than just the six months.

It would also be whether this is a shameful crime or not, wouldn't it?

Mr. Zalaoras: --I, I don't see that that is analogous to this situation when you make it with reference to the distinctive garb.

I would respectfully submit that it's not.

Unidentified Justice: Just arguing about how shameful it is.

Mr. Zalaoras: Well, clearly it's shameful, but there are many misdemeanors for which a penalty such as provided in Nevada in the DUI law are also shameful.

I would submit that domestic battery, for example, is a shame... shameful conduct.

So is... in Nevada we have a scheme by which possession of drugs can be given misdemeanor treatment.

That's shameful.

Petty larceny, a crime of moral turpitude, is shameful So... and there's more moral turpitude in the mens rea involving a petty larceny offense than there is in a DUI offense.

The Respondent submits that the decision below was compelled by the holding in logic of this Court's decisions in Duncan, Frank and Baldwin.

There are three major points to this presentation.

First, the bright line test of Baldwin established six months' incarceration as the threshold between petty and serious offenses.

This rule is easily identified and ready... readily applied.

It lends itself to uniform application throughout the--

Unidentified Justice: May I interrupt for just a moment because is the quest... the constitutional question I guess is whether this is a criminal prosecution within the meaning of the Sixth Amendment.

Mr. Zalaoras: --That's correct.

Unidentified Justice: That's where the... what, what we're boiled down to.

The six months was the decision in the Baldwin case.

And your position is this is not a criminal prosecution.

Mr. Zalaoras: Oh, no, Your Honor.

It's clearly a criminal prosecution under Nevada law, but it does not break the threshold established in the Baldwin case, which necessitates under the command of the Constitution, as this Court has interpreted it, for a jury trial.

Unidentified Justice: Now, it would be a criminal prosecution within the meaning of the Sixth Amendment if the right to counsel were at stake, wouldn't it?

Mr. Zalaoras: The Sixth Amendment right to counsel that Your Honor alludes to clearly applies.

Unidentified Justice: To this case.

Mr. Zalaoras: Yes, it does.

Yes, it does.

Unidentified Justice: Because it's a criminal prosecution--

Mr. Zalaoras: No.

Unidentified Justice: --because that's exactly... the Sixth Amendment begins in all criminal prosecutions these different rights obtain.

Mr. Zalaoras: That's true, but more specifically because there's jail time that in fact has to be imposed.

Unidentified Justice: But what you're really saying is that there are some criminal prosecutions that, that... some prosecutions are criminal within the meaning of the Sixth Amendment for one purpose but not for another.

So, the same words have different meanings depending on what the right you're asserting is.

Mr. Zalaoras: No.

The level of the criminal offense, as defined by the severity of the maximum authorized penalty, determines the jury trial question, not whether it is or is not a criminal prosecution.

Unidentified Justice: Well, but that's not, of course, what the text of the Sixth Amendment says.

Mr. Zalaoras: That's true.

Unidentified Justice: Perhaps you could refer justice Stevens to the reasoning of the court in the Argersinger case to explain why the word "criminal prosecution", at least in the eyes of the court, could be read differently for one purpose than for the other.

Mr. Zalaoras: The... there is a parallel... and this is a point I wish to make in my argument... between the Sixth Amendment right to counsel and the Sixth Amendment jury trial right.

That parallel... the key factor is incarceration.

There is a distinction between the two as they are... have been accepted in our interpretation of those provisions.

First, the right to counsel... it has been held that that is a key element whether the offense is a minor one, such as a misdemeanor in Nevada would be, or whether it's a more serious offense where a jury trial would come into play, that the accused is entitled at least to understand the nature of the proceedings and have the assistance of counsel.

It's more important in the incarceration area... excuse me... the... where jail time is in the offing than it is when you get to the Sixth Amendment right to jury trial.

There is great historical precedent that even predates our country for having non-jury adjudications where classified as petty offenses.

This is the teachings of this Court's case precedent.

The second point to which I refer this Court is that there is no constitutional mandate to provide jury trials for persons accused of drunk driving.

To create such a right would extend the present limit of the Sixth Amendment right to jury trial, as applied to the states via the Fourteenth Amendment Due Process Clause, beyond the scope of that imposed upon the federal courts.

Unidentified Justice: May I ask one other question along justice Scalia's lines?

Supposing the... the judge had the authority under this statute to... not to put anybody in jail for six months, but just, say, make them wear this... this jacket for six months, do you think they'd be entitled to a jury trial?

Mr. Zalaoras: No, clearly not.

And that I submit is an appropriate... although whether one personally agrees with it or not, I think it's an appropriate sanction that a state may impose.

Unidentified Justice: What if they asked him to wear it for seven months?

Mr. Zalaoras: No, because incarceration... that is, the deprivation of liberty... is the essential point to the Six... Sixth Amendment jury trial right, and that does not provide deprivation of liberty, for the same reason the fine amount is not a significant factor in the determination of the jury trial right.

Unidentified Justice: Six... six months and a million dollar fine, which would pretty much pauperize whoever is, is hit with that.

That would not entitle you to a jury trial.

Mr. Zalaoras: Would that even be the case, the court... no court demands a million dollar payment or a hundred dollar payment on the spot at the moment of conviction.

I would submit that a million dollars excessive.

Whether it calls under the jury trial issue or not is another question.

And I respectfully submit that's not before the Court at this time.

However, to answer Your Honor's question, even that exorbitant fine is ameliorated by the ability of the defendant to pay it in installments or to work it off in community service.

However, in Nevada... and this is why the million dollar fine, if worked off in terms of community service, would, would not match the million dollar amount.

It's because the community service is limited to 120 hours in a misdemeanor.

Unidentified Justice: I'm not talking about the particulars of Nevada.

I'm talking about the principle you're asking us to adopt.

I mean, we, we... we've said six, six months as a general matter, but you're saying that six months in prison is the only test.

No matter what else you do to somebody, a fine of enormous amounts, making them wear jackets or anything else, no... nothing counts except six months in jail.

Mr. Zalaoras: That is the primary or the most relevant criterion--

Unidentified Justice: Why?

Because we've said that.

Mr. Zalaoras: --No, because it... the Court has focused on deprivation of liberty.

The restraint on liberty is the key that triggers the Sixth Amendment jury trial right, just as it triggers the right to counsel under the Sixth Amendment.

That is the key.

Unidentified Justice: How about the liberty to wear what kind of shirt you want?

Mr. Zalaoras: Well, I would submit that that is... it pales in significance to incarceration of the person where they're forced to wear the jail garb and their, their liberty is, is confined to the cell in which they reside at the time of their incarceration.

The Petitioners collateral consequences approach... and this is my third major point I wish to make... in reliance on the nature of the offense test are untenable.

These concepts lack definable boundaries.

They fail to provide courts with a clear-cut guideline to follow, and this is because of their vulnerability to subjective interpretation.

The bright line test established six months as the maximum term of incarceration beyond which the jury trial right is triggered.

Below that, the Court has held, a jury trial right is, is not invoked by the constitutional provisions.

In Duncan, this case extended that jury trial right to the states through the incorporation doctrine of the Due Process Clause of the Fourteenth Amendment.

However, there is a limitation on that extension.

It applies to the states only to the extent that that jury trial right is imposed in federal courts.

Should this Court rule in Petitioners' favor, in fact, there will be extended a greater constitutional right broader in scope than that that is imposed upon the federal courts.

This is in direct violation to the Duncan ruling.

It also--

Unidentified Justice: Why... why do you say it will be greater than that imposed for the federal courts?

Mr. Zalaoras: --Because the Petitioners have relied upon not the six-month incarceration rule, but these collateral consequences of the conviction.

In the federal courts, the... well, this Court has determined that in a federal case, Frank v. The United States, that a three-year probationary term, which has more onerous restraints or the defendant than does the statutory scheme of DUI in Nevada, resulted in the Court finding in Frank that it was not a serious offense in the constitutional context of that term.

Unidentified Justice: So, what, what, what you're saying in effect is that if we rule for the Petitioner here, we will, in effect, overrule the Frank case?

Mr. Zalaoras: That's correct, and, and the Duncan ruling.

The application of Duncan, that Duncan made of the Sixth Amendment to the states, is limited to the extent to which it is applied in federal courts.

I submit that that... that would be the only alternative.

You'd have to overrule... you'd have to extend it beyond that provided to the states.

Now, I think Frank illustrates the point.

Frank was a federal criminal contempt matter.

And the court in sentencing... rather, suspended sentence on Ben Frank and instead imposed a three-year term of probation with, and I wish to note, the specific probationary conditions imposed on Mr. Frank.

First, he was not allowed to travel outside the state without permission of the probation officer.

He was required to work regularly, secondly.

Thirdly, he has required to report any changes in his work schedule with his probation officer.

He was told he could only associate with law-abiding persons.

And he was to maintain reasonable work hours.

I submit that those conditions placed on the probationer in the Frank case are much more forceful restraint on liberty than are the collateral consequences to which the Petitioners rely.

I believe this puts Petitioners, in, in essence, in a checkmate position on their argument out of which they cannot come without overturning that... the basic ruling of Duncan.

Again, the critical distinction in the Sixth Amendment jury trial and Sixth Amendment right-to-counsel cases is the deprivation of liberty, the punishment.

Specifically, with regard to some of the collateral consequences to which the Petitioners allude, I think a short analysis is appropriate and especially in comparison with the probationary provisions in the Frank case.

The mandatory jail provision is ameliorated by the fact that the defendant could perform the 48 hours of community service.

It's further ameliorated by the fact that characteristically courts credit the individual for the time he served in jail at his arrest and do not require an additional two days, if in fact he served two days before he came before the magistrate for his initial appearance.

Secondly, Petitioners have referred to the enhancement aspect of the DUI statute; that is, that for second and third offenses, the penalty rises, and on the third offense it would become a felony.

That is not an unusual statutory scheme, because of the habitual criminal act we have in Nevada and that many states provide.

For example, after the third petty larceny, it becomes a felony upon prosecution and conviction of the fourth petty larceny if the, the district attorney determines to file it as a felony.

And that calls for a mandatory minimum of ten years in prison with a maximum of 20 years.

Moreover, in the petty larceny realm still, after the fifth petty larceny conviction... that is, upon the sixth petty larceny... the statute provides for life imprisonment in Nevada.

Cannot the same argument be made, unlike what I think counsel for Petitioners has suggested, that someone may come before this Court, if they're able to reach this level, and argue in a petty larceny case that, well, I'm subject to enhanced penalties, and if I commit five more petty larcenies, I'll go to prison for life, therefore, it's serious in the constitutional context?

I believe this is analogous to their argument regarding enhancement.

It also holds true for the domestic battery situation, with regard to enhancement and also with regard to the claim that the social program that accompanies the conviction for DUI is somehow significant enough to elevate what is otherwise a petty offense into the serious category.

For example, in domestic battery in Nevada, the officer must make an arrest if there was a battery committed between persons who are related by blood or marriage and there is some other evidence, such as physical evidence, to indicate that that crime has occurred.

That person cannot make bail for 12 hours.

It's a non-bailable offense, which at this point of, course, is merely an accusatory stage.

In addition, there are other collateral consequences.

Once a, a battery conviction results, the court has the ability to require the person to attend a counseling program, and if the victim is over... is 65 years of age or older, the Nevada statutes provide for, in effect, a doubling of the punishment, in which case it would arise into a serious offense and a jury trial right would have to be provided.

But what these illustrate, these examples I've explained, is the fallacy in taking the Petitioners' approach of viewing the nature of the offense.

The clear-cut guideline established by the objective approach that Baldwin indicates by looking to the maximum authorized penalty is, to paraphrase the Frank decision, the only objective criterion by which a line could ever be drawn on the basis of the possible penalty alone is how we separate petty from serious offenses.

Unidentified Justice: May I ask you one other question about the way the statute works?

The statute provides, I gather, the judge can sentence him to two days in jail, no, no... not less than two or more or to perform 48 hours of work for the community while dressed in distinctive garb.

Could, could the judge pick the distinctive garb that the judge thought appropriate, or is there a statutory description of it?

Mr. Zalaoras: There's no statutory description for it.

What is in the statute is all we have in terms of guiding the court.

Unidentified Justice: So, if the judge thought that this wasn't distinctive enough, the judge could maybe add a dunce cap and a few other foolish looking things to the uniform?

Mr. Zalaoras: Well, as I say, the statute doesn't speak to it, so in theory, yes, it could.

I would hope that some decorum would be engaged by any court in such a... such an endeavor, however, And--

Unidentified Justice: But supposing the judge really took something, the most outrageous... made people work in their underwear with a dunce cap or something crazy, that would still be... that wouldn't trouble you either I suppose.

Mr. Zalaoras: --It may trouble me as a prosecutor and an officer of the court.

It certainly would.

But it does not call into question the jury trial right.

Unidentified Justice: Was the defendant... were either of these defendants sentenced to this particular form of... of punishment?

Mr. Zalaoras: Bianton is... is still not in a convicted status.

Fraley is, and I don't recall offhand if his two-day jail sentence was a matter where he was given credit or if he chose community service.

He took an appeal, so in fact the... the conviction... the judgment following the conviction has never been enforced.

Unidentified Justice: Well, has the Supreme Court of Nevada ever approved the sentencing of someone to do their two days' community work in this kind of an outfit?

Mr. Zalaoras: No, it hasn't addressed the issue.

Unidentified Justice: And the statute says nothing about it.

Mr. Zalaoras: That's correct.

The opportunity I suppose existed in the decisions below, but it was not addressed as the type of garb that was worn.

Regarding the nature of the offense test and the... the reason I think why it's too subjective is best illustrated by language from Clawans which was reiterated in the Frank opinion, wherein it stated that doubts must be resolved not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.

One other point I wish to make with regard to the national standards test to which Petitioners refer, and that is what I call the head count of states.

I don't believe that has constitutional significance.

Although it appears as though 44 states provide jury trials for persons accused with a first-offense DUI, they do so for one of three reasons.

First off, their state constitution requires it; or secondly, their state statutory scheme requires it; and thirdly, the other reason why they provide jury trials is because the maximum authorized penalty exceeds six months.

It exceeds the Baldwin bright line anyway.

So, I don't believe that that is... it's in essence a red herring to argue that 44 states provide it and therefore Nevada should in this case.

Morever, in Martin v. Ohio, this Court held that there was no constitutional dimension to the fact that 48 states had a particular approach to a criminal procedure, in that case the self-defense argument, and which side has the burden of proof.

In that instance, Ohio and South Carolina were recognized as the only two states that placed the burden of proving self-defense on the defendant.

And the Court there found that there was no constitutional dimension to the fact that 48 states did so.

Without further questions, I thank the Court.

Unidentified Justice: Thank you, Mr. Zalaoras.

Mr. Graves, you nave two minutes remaining.

REBUTTAL ARGUMENT OF JOHN J. GRAVES, JR.

Mr. Graves: Thank you, Your Honor.

I'll be brief.

Unidentified Justice: You'll have to be.

Mr. Graves: Yes, sir.

This Court has ruled in several cases, not per se on the jury trial issue, that the offense of driving under the influence is, is quite serious.

Justices White and Rehnquist, now Chief Justice Rehnquist, of course, in that decision, Welsh v. Wisconsin, and in other cases have found--

Unidentified Justice: Could you speak up a little bit, Mr. Graves?

Mr. Graves: --I'm sorry, sir.

Have found... this Court has, has painted the offense of driving under the influence in very somber tones.

Responding quickly to the clear-cut guideline test, the only thing that I can tell the Court is that the lower courts have been applying all three tests for years.

Even in the Landry v. Hoepfner case in the Fifth Circuit, which does not rule in our direction, applied all three tests.

And I think with respect to them that it was afraid not to because you can't just say, well, it doesn't apply to Baldwin or it doesn't fit the Baldwin rule and therefore we... we're going to deny the right to jury trial.

The--

Unidentified Justice: Do you want us to change Baldwin?

Mr. Graves: --No, sir.

No, sir, not at all.

Baldwin has worked well.

Counsel spoke about the Frank case and having to overrule Frank.

I would think that losing a driver's license is more serious than living the life of a normal citizen in the community.

If you lose your license for 45 days, you may lose your job.

And if you don't get a restricted license, you're going to lose it for 90 days.

And I think that's... that's pretty serious.

Unidentified Justice: Yet, you can use... lose your driver's license by just driving with a... an expired license.

I mean, it wouldn't have to be a criminal proceeding at all.

Mr. Graves: No, sir, that's true.

But in, in this... in this particular case... and I'm out of time.

In this particular case, it is a direct result of the penalty.

Chief Justice William H. Rehnquist: Thank you, Mr. Graves.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Tull v. United States - Oral Argument

Fri, 09 Jan 2009 14:48:28 +0000

Case:

Tull v. United States

Media File:

85-1259_19870121-argument.mp3

Related Transcript:

1986_85_1259_argument.xml

Transcript:

Argument of Richard N. Nageotte

Chief Justice Rehnquist: Mr. Nageotte, you may proceed whenever you're ready.

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

The constitutional issue for decision in this case this afternoon is whether a citizen of the United States who finds himself to be the defendant in a suit brought by the federal government in a federal court, that is a federal district court, under a federal statute, subjecting that citizen to a substantial civil penalty, whether that citizen is entitled to trial by jury under the Seventh Amendment.

The facts briefly stated in this case are that in July 1981, the federal government, the Department of Justice, filed suit in the United States District Court in Norfolk alleging that Mr. Tull had filled properties, had developed properties and in some cases had sold those properties, in some cases more than five years prior to filing this suit.

In all cases at least more than six months last property having been filled and partially sold in December, 1980.

The complaint in that case, while it did ask for a conclusionary injunctive relief, the primary thrust of that case was to impose substantial civil penalties.

Interestingly in this case, Mr. Tull, in 1976, in order to avoid just this result, upon the advice of his attorney had asked for a jurisdictional inspection to be made by the District Engineer who is charged with enforcement of the statute.

This jurisdictional inspection was made in July of 1976 by no less than the District Engineer and eight key people of this department, including several department heads and two attorneys.

And the attorney's specific job was to make jurisdictional determinations to determine whether or not permits were required.

Mr. Tull proceeded with his activity after having been told that in only two locations were permits required.

Unknown Speaker: Mr. Nageotte, we granted certiorari only on the jury trial issue in this case.

Mr. Nageotte: Yes, Your Honor, I'm simply trying to briefly summarize the facts.

Mr. Tull demanded a jury trial.

That jury trial demand was denied on the, and the basis of the trial court's denial was that all issues in this case were equitable or in regards to opinions requested from the court.

The case today falls squarely within the case of Curtis v. Loether, the only distinction being that in that case the issue, the legal relief was punitive damages and in this case it is civil penalties.

We would point out that the government suggests that this case involves disgorgement of profits as a form of equitable relief.

Say to the court that the complainant in this case made no mention of disgorgement of profits or profits in any regard.

In both counts one, two and three of the complaint filed in this case, the government asked for the imposition of civil penalties under that provision of the statute, 33 U.S.C. 1319(d).

Unknown Speaker: Mr. Nageotte, if the language of the statute had made clear that the so-called civil sanction was to be related to disgorgement of economic benefit for example, would you think the Seventh Amendment would then guarantee a right to trial by jury?

Mr. Nageotte: That would really depend on the precise language used.

Of course, disgorgement, if properly disgorgement under the equitable principles of disgorgement could be an equitable remedy bestowed in this statute by Congress in any number of ways.

But whether or not it is in fact an equitable remedy, in other words what I'm saying is--

Unknown Speaker: Well, you would concede that it could be an equitable remedy?

Mr. Nageotte: --Yes.

I don't like the term disgorgement.

I don't think that's particularly correct, but restitution is probably a more appropriate term.

Restitution has always been a form of equitable relief that is to put the parties into the same position that they would have been in but for the action.

Unknown Speaker: Well, is it possible that we could interpret this statute as essentially one for that type of relief even though it's not express?

Mr. Nageotte: Justice O'Connor, I don't believe that that could be done in this case for this very specific reason.

Justice Marshall, in his opinion in Curtis v. Loether, pointed it out and Chief Justice Rehnquist in his concurring opinion in Albemarle Paper pointed it out.

The distinction between an equitable remedy and the discretion of the equitable court is whether or not under the statute the imposition of relief is discretionary, irrespective of the act of the violation.

And in this particular statute you don't have that.

I believe Justice, Chief Justice White's exact words were to the extent that discretion is replaced by words which follow as a matter of course.

If 33 U.S.C. 1319(d), which is the civil penalty provision of the Clean Water Act, it requires that on a finding of a violation of the statute that a civil penalty be imposed, so for that reason I say it's no longer, it's not discretionary.

Now, of course, if that whole wording was changed then perhaps, but that's--

Unknown Speaker: Would you clarify one thing factually for me?

Was your client offered an opportunity to repair the damage or fill in the canal in lieu of a penalty?

Mr. Nageotte: --Yes, Your Honor, he was.

But it really was not an option because as the trial court noted this ditch, which the court called a canal, had been filled in as much as five years before this suit was brought and the government watched this whole thing being filled in.

It stood, stayed back and did nothing, notwithstanding an affirmative obligation of the District Engineer to issue a cease and desist order.

But irrespective of that, Mr. Tull had already filled, developed and sold each and every one of those lots that that ditch went through.

And he had sold them to third parties; he could not get them back.

The court recognizes, the trial court recognizes that numerous points in the trial which we cite in our brief and in addition to that we came in after the trial and asked for an option to restore the ditch in a different location because he could not restore it in the original location.

So the, it's a very long answer to your question, but the answer is that if he still owned it, perhaps he could, but he couldn't in this case and so that restoration really didn't come into it.

It was a remedy that was moot at the time it was offered.

Unknown Speaker: Mr. Nageotte, do I understand you to say that there is no discretion as to whether or not a civil penalty shall be imposed under the statute?

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

If you look at the statute--

Unknown Speaker: Says that any person who commits a violation shall be subject to a civil penalty.

Mr. Nageotte: --Yes, sir.

Shall be.

Unknown Speaker: Yes, shall be subject to.

Mr. Nageotte: Shall be subject, I read the words, "shall be" to require the imposition of some penalty and that's the government's position in most of these cases, that it's not a discretionary item, that the court must impose some civil penalty in each case.

Unknown Speaker: If someone is subject to deportation, it means he must be deported.

If someone is, if someone who commits a particular crime is subject to death, it means the death penalty must be imposed?

I don't read the phrase, "subject to" that categorically.

Mr. Nageotte: Well, if you read, if you read it together with the criminal penalties which are provided in 33 U.S.C. 1319(c), the criminal penalties provide for a willful or negligent violation.

So the civil penalties are imposed even in cases where there's no willful or wrongful intent--

Unknown Speaker: I agree that you're subject to them.

I'm just... do you have any case that says that, that a penalty must be imposed, that the court has no discretion not to impose a penalty in this case?

Mr. Nageotte: No, Your Honor, these are... this is simply from my experience in trying these cases at the district court level.

That's the position the government takes in argument to the trial court that there is no discretion, based on that language in the statute.

The, getting to, back if I could to this disgorgement of profits as equitable relief as raised by the government, first of all I would point out that in all three counts of the complaint the relief sought specifically by the government in each count was civil penalties under the civil penalty provision of the statute.

There were no other either specific statutory allegations or factual allegations which would lend themselves to a position of disgorgement of profit.

I went back through after reading that in the government's brief and looked at the closing argument of the government.

With respect to Eel Creek the closing argument of the government was that there was one day of violation; they were entitled to a $10,000 fine equating a day of violation to a day of fill.

With regard to Mire Pond I, they said there was ten days of filling, they were entitled to a $100,000.

With respect to Ocean Breeze they said there was a hundred days of filling and for Ocean Breeze they were entitled to a $1,000,000 in civil penalties.

I also checked their post trial brief and the post trial brief specifically said the United States seeks a mandatory injunction against the defendant for restoration, a permanent injunction against further filling on the island without first checking with the Army Corps of Engineers to determine whether the location is within the jurisdiction of the Corps and civil penalties for every day of violation.

There was never at any time throughout this case any suggestion that what the court sought was disgorgement of profits.

I'd also take issue to the government's position that the court in this case could of, that somehow the civil penalties were transformed into some type of equitable relief from legal relief and that this constituted, or was within equity's power to provide complete relief.

The... as I see it, the government's position on that is not founded by the case law.

It's clear from the cases of this court and the point the government seems to miss is that an item such as penalties, forfeitures, and punitive damages, and we submit that in this case civil penalties are most closely analogous to punitive damages, that in those situations equity never had jurisdiction in the first place and never could award that type of relief.

So, when you talk about equity granting complete relief you're talking about things like perhaps in those cases where it takes, where it took, before merger at least, money of some fashion to make the parties whole and Porter v. Warner Holding Company made that clear in that case the restitution of rent money was all right but they said that the civil penalties were a wholly different matter--

Unknown Speaker: --Well, if Congress had vested the authority in an administrative agency to impose a civil fine, I don't suppose you'd be here.

Mr. Nageotte: --That's absolutely correct, Your Honor.

As Your Honor's opinion for unanimous court in Atlas Roofing said that if it's in an administrative agency there's no Seventh Amendment right to a jury trial.

Unknown Speaker: And so you are in effect saying Congress made its choice.

It's put the collection of penalties in the court and they're stuck with it.

Mr. Nageotte: Well absolutely, Your Honor.

I'm not sure I'd use the term, "stuck with it"--

Unknown Speaker: Well, xxx but is there a jury trial.

Mr. Nageotte: --Yes, Justice White, and it was, and they knew, I mean they knew, we have, what we have is a coin that has heads and tails.

On the heads side is your opinion in Atlas Roofing and the tails side is Justice Marshall's opinion in Curtis v. Loether, both unanimous decisions, different sides of the coin.

In this case the federal government opted for trial in the district court and so fully must of intended the Seventh Amendment to apply when civil penalties were sought.

I'd just like to, if I could, point out that this court in Elizabeth--

Unknown Speaker: Is there any administrative mechanism for imposing civil penalties under the Clean Water Act?

Mr. Nageotte: --No, sir.

not at--

Unknown Speaker: None at all?

Mr. Nageotte: --not in this context in this case.

The Clean Water Act covers numerous things that have to do with other areas like NPDS permits and that type of thing.

But in the context of filling wetlands that comes clearly within this one which is just simply the various forms of relief.

And I think that distinction is important to bear in mind while we discuss Congress' intent, because you see unlike the statute, the Title VIII statute in Curtis v. Loether where the cause of action and all of the relief including the injunctive relief which was equitable and the legal relief in the form of compensatory and punitive damages were a part of the same section of the same statute.

In this case Congress went out of its way to break apart the legal and equitable relief.

The equitable relief is provided in 33 U.S.C. 1319(b); criminal relief in 33 U.S.C. 1319(c); and legal relief in the form of civil penalties in 33 U.S.C. 1319(d).

Now if the follow the government's argument to its logical conclusion then the criminal penalties of 33 U.S.C. 1319(c) are magically transformed into equitable relief because all three flow from one cause of action, violation of the Clean Water Act.

And, that's the same thing that Justice Marshall dealt with in Curtis v. Loether.

The punitive damages and compensatory damages flow from the single cause of action, violation of the Fair Housing Statute.

The--

Unknown Speaker: Would you be satisfied with an advisory jury?

Mr. Nageotte: --Justice Marshall, as a trial lawyer, I would never be satisfied with any advisory jury because I... well, I have to say as a trial lawyer I take anything I can get, but I don't think that the advisory jury can supplement the Seventh Amendment requirement for a jury because we have issues out of chancery in which there are--

Unknown Speaker: Well that's the usual chancery rule xxx called it an advisory jury.

Is that right gone, or is it still there?

Mr. Nageotte: --It's... well, it's rarely, I just have to say from my own experience in Virginia it's not granted very often anymore because the trial court just usually doesn't grant it.

If you can show a very clear situation in which there's a direct conflict of evidence which needs to be resolved or something like that perhaps you can get them, but it doesn't help a, it doesn't help a defendant because it does exactly what the Seventh Amendment was designed not to do and that is to put back in the hands of a judge or the government, whether or not the citizen gets a trial by his peers, a jury.

And that's precisely what the Seventh Amendment sought to avoid.

And it doesn't help the defendant in federal court or any court if you say, well, you can have a jury if we decide we'll give you one, but you can't have one as a matter of your right under the Constitution.

The cases, Elizabeth v. American Nicholson said that punitive damages could not be awarded in an equity court.

And also, and more importantly in Livingston v. Woodworth this Court says that punitive damages are incompatible with the principles and practices of equity and for the same reason civil penalties are incompatible with the principle and practice of equity, because equity courts were never designed to punish and that's what civil penalties do.

That's what punitive damages do.

They punish.

I point out, if I could, that the government statement in Mugler, that the Seventh Amendment did not apply to causes of action which were nuisance and tryable inequity.

That's certainly the true test of the law, but Mugler like all of the other cases cited by the government did not hold that an equity court can impose penalties, fines, forfeitures of punitive damages.

That's the distinction.

Unknown Speaker: Isn't Mugler a state court case?

Mr. Nageotte: Yes, Your Honor.

Unknown Speaker: So the Seventh Amendment wouldn't be involved there anyway.

I mean, that wouldn't be precedent against the use of the Seventh Amendment.

Mr. Nageotte: Well perhaps, but most clearly, most clearly there was, jury trial was never even an issue in Mugler.

Unknown Speaker: And even if it had been the Seventh Amendment has never been held to guarantee jury trial in state courts.

Your client was tried in a federal court.

Mr. Nageotte: That's correct.

That's correct, Your Honor.

The, I had prepared a, quite a detailed analysis of Curtis v. Loether versus this case, but I won't have time to give it.

I certainly would ask that the Court consider the petitioner's brief in Curtis v. Loether against the government's brief in this case.

They precisely mirror on all of the points that the government seeks, and as we point out this Court unanimously rejected those positions.

I would state that the, it's important to discuss for a moment this business of equitable relief whether it's incidental to, or part of the equitable clean up doctrine for just a moment for this reason, it's very important to trial lawyers and trial judges that we don't go back to the old rule which has since been discarded by Dairy Queen, Beacon Theatres and Ross v. Bernhard for this reason.

Under the requirements of notice pleading only in the federal court, when you have to decide somewhere along in the trial whether equitable relief is really incidental to the legal relief sought which is the main case, or the legal relief is merely incidental to the equitable relief as you go along through the trial.

And on the other hand you have to make your jury trial demand with the first, at the beginning of the case.

You have to do these things.

What's going to happen if we ever go back to that old rule, you're going to end up half way down the line in a trial and find out that based on the evidence that came in because there was notice pleading that you may have to go back and redo the whole thing and then afford a jury.

It's better to leave it the way it is with Dairy Queen and Ross v. Bernhard to insure that that doesn't happen.

Simply have the civil penalties, or punitive damages or forfeitures be the legal relief which is split off from the equitable relief tried first as to issues of fact and the relief and then the court can provide whatever additional equitable relief might be necessary in the case.

I'd like to point out that in this particular case it's clear that when you apply the three element test which Justice White set out in Ross v. Bernhard, it's clear that the civil penalties require a jury trial.

Those three elements are: What was the pre-merger custom with reference to such questions.

Now as we point out there's no question here in this case that as to civil penalties the pre-merger custom would have been trial by a jury because equity courts simply, even though they had jurisdiction to award complete relief, never had jurisdiction to award penalties or punitive damages.

Second, I'd also point out that in the case of Hepner v. United States, and I acknowledge to some extent the character of that, of those statements that of course, they were entitled to have a jury summoned.

I've seen it written as dictum, on the other hand that's pretty strong dictum when you cannot impose, or when you cannot get to the underlying question, which in those cases were whether or not a directed verdict could be granted, whether that would, whether that would violate the Seventh Amendment.

In the government's brief, their own brief, their own brief in that case said that it is evident therefore that the distinction between civil action for penalties and technical criminal prosecution was an old distinction in common law, well-known at the time of the adoption of the Constitution, as we cite in our brief.

Penalty actions were well known at that time.

Secondly, in their supplemental brief at Page 7 and 8 in Hepner the government said, we answered that such a suit is not a criminal prosecution, that the defendant is not entitled to a jury at all, except be it under the Seventh Amendment as to civil actions and then in such actions the court can direct a verdict.

Last, I'd simply point out that in this case the civil penalties are clearly, when you compare them, with punitive damages, clearly on all fours match punitive damages.

Even in the EPA guidelines they say, and these are guidelines of June 3, 1977, and civil penalties bear similarities to punitive damages.

They were imposed in this case as punishment.

Last--

Unknown Speaker: Now is there, if a government cleans up a site or something and spends money for it does it have a cause of action to recover from the, from a private party, the cost of the clean up?

Mr. Nageotte: --Not in--

Unknown Speaker: Is there an action like that under the Clean Water Act?

Mr. Nageotte: --Under the Clean Water Act, no, Justice, I would say under this particular section of the Clean Water Act, it's different than RECWA and the answer is no.

They can have injunctive relief, they can have civil penalties and they can have criminal relief, but there is no suit for compensatory damages as such.

Unknown Speaker: If there were would you suppose a jury trial would be required?

Mr. Nageotte: Well, I would have to see it in that context but I would suspect--

Unknown Speaker: Well, it just says, when the, if the government undoes the pollution they can sue the party responsible for the costs of undoing it.

Mr. Nageotte: --Well, if what resulted was a judgment, an enforceable judgment--

Unknown Speaker: Yes.

Yes, for money, yes.

Mr. Nageotte: --for money, then I would say that the Seventh Amendment would apply.

If it were some other category and that's the distinction, is that it's a money judgment?

Unknown Speaker: It just isn't disgorging?

Mr. Nageotte: Well, I wouldn't see where clean up costs would be disgorgement in that sense.

Disgorgement presupposes that I have taken something from you and won't give it, unlawfully, and I won't give it back and therefore you have to force me to give it back to you.

Unknown Speaker: Well, you may have taken it, but you've done something to me and I refuse to pay you for it.

Mr. Nageotte: Well now that's a, now that's a different story when, if it's an action in debt--

Unknown Speaker: Yes.

Mr. Nageotte: --or an action in assumpsit then you have a little different situation.

That's not disgorgement, that's not disgorgement, that, otherwise we could simply wipe it up with Seventh Amendment xxx.

Unknown Speaker: But the key is not whether it's a money judgment.

Because you get a money judgment in disgorgement and you get a money judgment in restitution which you acknowledge is equitable relief.

Mr. Nageotte: Yes, sir, Justice Scalia, but what I'm saying is that it takes more, I was answering it strictly in the frame of--

Unknown Speaker: Yes.

Mr. Nageotte: --Justice White's question if it was a money judgment to get X dollars because I went out and had to do something.

That's the same as a breach of contract action.

If I agree to you sell you widgets and I breach and I won't sell, you have to go buy the widgets somewhere else.

Unknown Speaker: But, the key is what it's for--

Mr. Nageotte: Yeah.

Unknown Speaker: --not that it's a money judgment.

Mr. Nageotte: That's correct.

But, being a money judgment is one of the factors involved because there are judgments other than money judgments.

Last was the practical limitation of juries.

I've just stated that it's obvious that juries routinely hear antitrust, medical malpractice, products liability.

They can handle those cases.

There is no practical limitation for a jury to hear a Clean Water Act case.

Thank you.

xxx.

Unknown Speaker: Thank you.

Thank you, Mr. Nageotte.

I'll hear from you now, Mr. Wallace.

Argument of Lawrence G. Wallace

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

I'd like briefly to address some questions that were raised from the bench before proceeding with my argument.

With respect to whether penalties are mandatory under the Act, we have addressed that briefly in Footnote 23 of our brief, Justice Scalia, on Page 29.

We do not take the position that penalties are invariably mandatory although some government counsel have made that argument in the past.

It's only in preparing this brief that we focused on that issue.

Unknown Speaker: You haven't addressed it at all.

You've just said some penalty ordinarily is assessed xxx--

Mr. Wallace: That is what has been held and that is the xxx.

Unknown Speaker: --Have you addressed whether it must be assessed.

Mr. Wallace: I'm addressing it right now.

Unknown Speaker: Good.

Mr. Wallace: And, I've said that we don't say that it has to be assessed in every case.

The discretion we rely on is not the discretion of whether or not to assess a penalty.

It's the fact that the penalty under the Act is not for a fixed sum or a readily ascertainable sum, but it's a penalty to be arrived at through the exercise of discretion on the part of the judge.

That is the discretion on which we rely.

Unknown Speaker: Forever to the expense to the government for cleaning up?

Mr. Wallace: Well, under this statute the government doesn't undertake to clean up.

It may through collateral proceedings.

I don't say that it's unfettered discretion, Justice White, but I do--

Unknown Speaker: Well does it have, is it, should it have some relation to the cost of undoing the pollution if you're ever going to undo it?

Mr. Wallace: --It has relation to various factors which I plan to discuss in connection with the legislative history of the statute, but there still is a--

Unknown Speaker: Is willfulness one of them?

Just sheer willfulness?

How much warning the individual had?

Mr. Wallace: --Yes, that is it.

Unknown Speaker: And he went crashing ahead--

Mr. Wallace: Yes, that is it.

Unknown Speaker: --and even though he caused--

Mr. Wallace: That is a factor.

Unknown Speaker: --little damage to the government you'd hit that kind of an individual a lot harder?

Mr. Wallace: The penalties have a--

Unknown Speaker: Right.

Mr. Wallace: --deterrent component.

They're intertwined with the other remedies which are injunctive and restorative.

Unknown Speaker: Well, what were you arguing in the district court was the $1,000 a day, I gather from your opponent.

Or, $10,000 a day.

Mr. Wallace: For the particular violations we specified that those penalties were available.

We asked for penalties.

But the remedy--

Unknown Speaker: Mr. Wallace, that doesn't sound like it has anything to do with restitution.

That sounds like it's a penalty or a fine, you know, thirty days/$30, something like that.

Mr. Wallace: --Well, that is the statutory maximum which is what was referred to for purposes of the complaint.

When the plan was submitted during the course of the trial in proposing a remedy, we've summarized the plan briefly in Footnote 31 of our brief on Page 38.

The plan, the main features of the plan were to provide for restoration and mitigation through the converting of other properties to wetlands when some of those that had been unlawfully filled could not be converted because of the need to protect innocent third parties, and--

Unknown Speaker: But, in addition to the plan you also asked for these civil penalties.

Mr. Wallace: --We also asked for civil penalties and the penalties that were provided in all instances except with respect to the filling in of a navigable canal, Fowling Gut Extension, they were calculated on the basis of disgorgement of the net profit.

I'm not talking about what was asked for, but I'm talking about what the judge actually ordered.

On Page 60 (a) of the Appendix to the Petition for Certiorari we have the rationale used by the judge in deciding on various components of the penalty and in the very first full paragraph on page 60 (a) the judge said that he realized approximately $5,000 net profit per lot with respect to the lots that the court was then considering and thus for the filling of wetlands lots 120, 121, etcetera, there were seven of them if you count those numbers, the court is assessing a penalty of seven times $5,000, or $35,000.

Unknown Speaker: Mr. Wallace, in this case, he may have done that.

Do you think he was required to do that?

Mr. Wallace: He was required to take that factor into account.

Unknown Speaker: Could he of--

Mr. Wallace: He isn't limited to that.

Unknown Speaker: --Having computed $5,000 per lot could he have also said, well, this fellow had notice over and over again, he deliberately did things we told him not to do, he's a bad man for all sorts of reasons so I'll add an extra $1,000 per lot.

Could he have done that?

Mr. Wallace: Yes, he could have done that.

xxx--

Unknown Speaker: Then the measure is not limited to the same remedy with the inequity, is it?

Mr. Wallace: --It's not limited to disgorgement.

It's a discretionary remedy but it's intertwined--

Unknown Speaker: Couldn't the trial judge in a criminal case decide an appropriate fine would be measured by the amount of money the person stole or something like that?

And that wouldn't make it disgorgement would it?

I mean I suppose you can always take it into account.

Unless you're required to take it into account, why is that legally relevant?

Mr. Wallace: --We're looking for historical analogues to the modern statutory action.

There was no precise action, there was no Clean Water Act at common law and no precise action such as we have here.

So--

Unknown Speaker: But we're looking for analogues to the action, Mr. Wallace, not to analogues to what happened to have been done by the judge in this case.

Mr. Wallace: --That is correct.

And I was--

Unknown Speaker: The disgorgement if not an analog to the action.

Mr. Wallace: --Well it is a component part of what is supposed to be considered with respect to the penalty remedies which are a part of the remedies that may be imposed under the action.

Unknown Speaker: On Page 61 (a), the page right after, when you--

Mr. Wallace: Yes.

Unknown Speaker: --the judge goes on to say for the unlawful filling of a navigable waterway of the United States, the Defendant shall pay a fine in the sum of $250,000.

Mr. Wallace: Right.

Unknown Speaker: He doesn't seem to say there that that's tied into any restoration costs.

Mr. Wallace: It is not.

That portion of the penalty order, Mr. Chief Justice, is in the alternative.

If he has the choice of restoring this navigable canal or paying $250,000.

Since he filled in lots and has sold them on this waterway, in order to restore the navigable canal he would have to re-purchase those lots so that the penalty, which is not, incidentally, anything that we asked for in the case, the penalty serves in effect as a cap on the expense that he would be required to go to, to repurchase those lots.

I mean, since the court could not order the new owners to sell the lots, if the court simply ordered him to restore the canal regardless of the costs, the new owners would be in a position to charge him as much as they could possibly get for them.

As it is this serves as a cap on what he will have to pay for the lots plus the work of restoring the canal.

And if it comes to the point where it exceeds $250,000 he will have the choice of paying the $250,000.

This kind of equitable adjustment of the remedy to the needs of the case is part of the reason why--

Unknown Speaker: xxx... but you also had the order to restore.

Mr. Wallace: --In that case he had the alternative with respect to Fowling Gut Extension.

He could either restore or pay the $250,000 under that paragraph of the order.

Unknown Speaker: Well I know, but what was the, and what were the fines imposed?

Mr. Wallace: The other fines were imposed on the basis of $5,000, his average profit per lot for the number of lots that he unlawfully filled in.

Unknown Speaker: Oh, I xxx.

Mr. Wallace: In this case, that was the way the fines were imposed.

Unknown Speaker: I know, but he could, he had never recovered those fines.

Mr. Wallace: Well he's ordered to pay them.

They're--

Unknown Speaker: Oh, ordered to pay them and to restore?

Mr. Wallace: --And, to do some--

Unknown Speaker: So where does that leave--

Mr. Wallace: --restoration work where it needs to be done.

Unknown Speaker: --Well so how does, where does that leave these fines that he can't get out of?

He has these fines to pay but he also has to restore.

So the fines can hardly be to represent the cost of restorations since he's going to have to do that again.

Mr. Wallace: No, those fines were not designed to represent the cost of restoration.

Unknown Speaker: So they are just plain old fines.

Mr. Wallace: They are more in the nature of disgorgement of profits.

If one looks to the history of the Clean Water Act, after all the inquiry into an historical analog that's required under this Court's Seventh Amendment jurisprudence is basically a two-step process.

If one, the first step is to identify with some care the particular modern statutory right and remedy that are at issue--

Unknown Speaker: xxx--

Mr. Wallace: --and only then can the historical comparison meaningfully be drawn.

And the statutory provision at issue here is the civil remedy provisions of the Clean Water Act which are applicable to all violations of the Clean Water Act, whether they involve the filling of wetlands as in this case, and it's a mistake to concentrate too much on the filling of wetlands, or whether they involve discharges of pollutants into rivers or other waters of the United States by industrial discharges, etcetera.

Those are the statutes that we are dealing with here.

This is the remedial provision.

And the Clean Water Act originated as the Federal Water Pollution Control Act of 1948, without any civil penalty provisions.

It embodied only an embatement remedy.

The Clean Water Act embodies a series of numerous amendments that were designed to strengthen that law over the years and the civil penalty provisions were first added to the statute in 1972.

Prior to that time the abatement remedy was quite cumbersome and relatively ineffective to the point where the United States attorneys were more frequently relying on the old Rivers and Harbors Act remedy when they could.

Either the civil injunctive remedy or the criminal provisions but that had certain disadvantages in that it didn't apply to sewage discharges at all or to discharges into the tributaries of streams that were navigable in fact.

The Clean Water Act has a broader reach in that respect.

And the basic purpose of adding the civil penalty provision in 1972 was a purpose that this Court identified in the Albemarle Paper Company opinion as one of the purposes of the back pay remedy under Title VII of the Civil Rights Act.

The need to have an incentive, or a spur or catalyst to bring about compliance with the Act.

Experience showed that this was needed because otherwise somebody could profit from discharging pollutants into the waters and just wait to be sued and for an abatement remedy to be issued.

But, if--

Unknown Speaker: --What if they used a criminal penalty for that purpose, you wouldn't be here arguing that you don't need a jury trial xxx--

Mr. Wallace: --The criminal penalty was added at the same time as the civil penalty provision in 1972.

Prior thereto there was no incentive in the Act to bring about compliance and the criminal provision is sometimes resorted to in the case of willful violators.

Of course, we have a higher burden of proof--

Unknown Speaker: --What, my point is, what does that have to do with what I understand everyone agrees is the issue before us, whether in 1791 this would have been essentially an equitable or a legal action.

Mr. Wallace: --But, what it has to do--

Unknown Speaker: Anymore than the fact that it added the criminal penalty later to achieve the original goals of the act has anything to do with whether that's a criminal action now.

Mr. Wallace: --What it has to do, it's essentially a recognition that this was one ball of wax added to in order to accomplish the original purpose of the Clean Water Act, which is defined right in the statute and has been quoted by this Court to restore and maintain the chemical, physical and biological integrity of the waters.

That is the focus of relief and what is sought to be xxx.

Unknown Speaker: Well that's very interesting, but that's the purpose of the criminal penalty too.

Mr. Wallace: Well, that's--

Unknown Speaker: I just don't see what it has to do with the point before us.

Mr. Wallace: --What it has you see, the civil penalty provision is an adjunct to that purpose.

This is not a statute designed to secure revenues for the federal treasury.

It's a statute designed to preserve and maintain and restore the waters in their ecosystem.

Unknown Speaker: Is that what penalty provisions normally are?

Civil penalties are mainly designed to raise revenue.

They may not be.

In an another statute--

--They're usually designed to--

Mr. Wallace: --to either but, we're talking about this statute and whether the fact that the penalty provision is part of the remedies changes the nature of the equitable action that was available prior to the 1972 amendments because this additional remedy has been added.

Unknown Speaker: --Nobody is arguing that the nature of the other action, which is equitable, is altered.

The issue is not whether the nature of that action is altered the issue is whether this action for--

Mr. Wallace: This is not a different action.

Unknown Speaker: --civil penalties is equitable.

Mr. Wallace: This is not a different action, Mr. Justice.

It is the same cause of action.

It is just an additional remedy that's available to the court at its option under the same cause of action.

Unknown Speaker: But, you had both set of--

Mr. Wallace: It's not an additional action.

That's our point.

Unknown Speaker: --Mr. Walsh, you had those same kind of things in Beacon Theatres and Dairy Queen and the court said where it's equitable you go without a jury, but where you add in something that is legal then you get a jury trial.

I don't think the whole ball of wax argument works.

Mr. Wallace: Those two cases both involved a combination of two causes of action with overlapping factual controversies whereupon a collateral estoppel effect would control the legal cause of action if the facts were determined in the equitable cause of action.

Unknown Speaker: Well, but I'm sure it could have been argued that it was all one ball of wax and that sort of thing, but the court said, No, you don't get off that way.

Mr. Wallace: The court recognized that it was two causes of action rather than one cause of action with two remedies.

Unknown Speaker: Well, do you think this turns on whether we decide that these claims on the complaint on the Clean Water Act are "one cause of action" or "two causes of action"?

Mr. Wallace: Well I don't think it's our only argument, but I do think that the distinction between the Beacon Theatres/Dairy Queen line of cases and what some people take to be a line of cases in conflict with that the Porter line of cases which we discuss in our brief is--

Unknown Speaker: Well, the Porter case never referred in any place to the right to jury trial.

I just re-read it.

Mr. Wallace: --And Mitchell against DeMario Jewelry, they did say that remedies otherwise available at law could be given by a court of equity.

Unknown Speaker: But, I don't think you can take that phrase or that dicta and apply it to the jury trial situation when there was no question of jury trial rights in Porter.

Have you prevailed on this claim before any other Court of Appeals?

Mr. Wallace: No Court of Appeals has ruled to the contrary and I--

Unknown Speaker: This is the first time it's ever come up in a Court of Appeals, the right to jury trial on a civil penalty under the Clean Water Act?

Mr. Wallace: --There is another case pending before the court on petition from the Eleventh Circuit, the MCC case in Florida which is being held for this one, in which we also prevailed.

It was not a wetlands case.

Unknown Speaker: And you take the same view towards the Court of Appeals Case, Judge Friendly's case, as the Fourth Circuit did in this case where he said--

Mr. Wallace: The J. B. Williams case you're speaking of?

Unknown Speaker: --Yes.

Mr. Wallace: Yes.

Well, we have taken the point of view that that case while it--

Unknown Speaker: Just out of--

Mr. Wallace: --apparent conflict with our two holdings under the Clean Water Act did not have a persuasive answer to the point that the remedies under this Act are discretionary and require the exercise of equitable discretion.

Unknown Speaker: --Judge Friendly didn't understand the one ball of wax doctrine.

[Laughter]

Mr. Wallace: Well, I don't want to belittle a very scholarly opinion on his part.

He later wrote an opinion that we cite called Securities and Exchange Commission against xxx--

Unknown Speaker: I don't think the Chief Justice was belittling it, I don't think it--

Mr. Wallace: --I know, I think he was hinting that we might be, and that is far from our mind.

There was a dissenting opinion in that case which is also of some persuasiveness, but Judge Friendly later wrote the opinion in Securities and Exchange Commission against Commonwealth Chemical Securities in which he rejected a claim of a right to a jury trial for disgorgement of profits in an action by the Securities and Exchange Commission in federal court.

He said that that was equitable in nature and has been recognized as such.

Unknown Speaker: --Well, think of how efficient it would have been to have an administrative agency to collect these fines.

Mr. Wallace: That was precisely the question during the 1977 Amendments, although no one ever thought that it would effect whether there was a right to jury trial, but these were the amendments at which the policies of how to calculate the penalties were most specifically considered by Congress.

And at that time, the Conference Report said that they had decided against giving EPA an administrative remedy for the penalties but expressed approval of EPA's enforcement policy and said that they were going to wait and see whether it will have success

"in implementing its penalty policy through the courts. "

Unknown Speaker: When was that?

Mr. Wallace: That was the 1977 Amendments, the Conference Report, which appears in Volume 123 of the Congressional Record... we have cited this... at Page 39190.

And appended to this committee report then is a letter from the EPA to Senator Muskie, responding to his request for the agency to elaborate upon the agency's policies with regard to the calculation of civil penalties which it had developed for purposes of entering into settlements under the statute.

And what the agency points out is that the penalties should be utilized first of all to at least remove any economic gain achieved by non-compliance and emphasized it was important to do so in order to relieve competitive inequities between industrial polluters for example, who would profit by violating the law for several years as against their competitors who were complying with the law.

Unknown Speaker: Mr. Wallace, are you saying that the government is only going to seek that degree of penalty in the future, only disgorgement?

Mr. Wallace: Well it's not only disgorgement in these policies that were approved by Congress.

I am saying that these are guidance to what we seek and what the courts should give.

But they added on that when the degree of environmental harm is great or the degree of willfulness something should be added, then of course, they discounted it by the likelihood of success.

They were talking about settlements.

In some cases they would defer or reduce it because the payment of the full amount would render it too difficult for the source of the pollution to install the required pollution controls, et cetera.

This requires a balancing of equities of considerations such as these which is equitable in nature and which is not unfettered in the discretion of the district court.

But it still is in the district courts a proper exercise of discretion and the application of the penalties would be subject to proper appellate review.

That is what the court held in Albemarle Paper Company, that ordinarily the back pay remedy should be awarded.

It isn't up to a district court to decide without basis not to award the back pay remedy quoting from Chief Justice Marshall's opinion sitting on Circuit in the Aaron Burr case that when a matter is committed to the discretion of a court that means that it is committed not to its inclination but to its judgment and that judgment must be based on sound legal principles.

So there is some statutory guidance in the legislative history of the 1977 Amendments for the way the penalty provisions should be applied in the exercise of discretion.

But we had in this case something difficult to foresee in any guidelines... the need to put a cap on the remedy that was required because of the filling in of a waterway, of a navigable waterway.

There are other possibilities there.

As Counsel for the Petitioner mentioned there was a subsequent hearing in December of 1983, and this appears in Volume 21 of the Court of Appeals Appendix, in which petitioner asked instead to be allowed to re-route this canal through other areas where he still owned the land and the court said it couldn't hear that claim at that time because he did not substantiate his request with any scientific evidence and didn't have an expert witness with him who could substantiate it.

But that possibility remains open for possible modification of the decree.

The basic purpose of the remedy, as in administration of the statute in general, was to try to protect these wetlands which are on the eastern flyways and the ecosystem of these wetlands.

And the penalty is very much ancillary and adjunct to this and used to assure there will be an incentive to comply and to bring about the purposes of the Act, which are to protect the waters.

We think that the proper historical analog, when the Act is understood this way is to the common nuisance or public nuisance cases that are well-recognized in opinions of this court, such as Justice Frankfurter's concurring opinion in the steel workers and in the English Common Law.

We have discussed it in some detail.

The petitioner's reply brief takes issue with our reading of one of the English cases and I would like to refer briefly to that.

On page 4 of the Reply Brief, in Footnote one there is a quotation from the English case which we pointed to as particularly close to ours in which petitioner contends that the case turns on the fact that the Crown claimed ownership of all tidal lands including harbor lands.

As we read the case, we don't think that's what it turns on.

The italicized sentence in this excerpt is where the question is of nuisance only and the evidence doubtful there may be a need for a jury which probably referred to the advisory jury that was used by the Chancery.

But this is not a case where the question is of nuisance only.

This is a case, as it goes on to say of purpresture and nuisance, purpresture being a form of common or public nuisance where there is an obstruction of a common waterway, so the detriments of many people and not just a nuisance to the particular land owner.

Unknown Speaker: Well, Mr. Wallace,--

Mr. Wallace: That is the--

Unknown Speaker: --In order to win your case and cases like this, in this particular case were there real factual disputes?

Mr. Wallace: --There were some factual disputes.

There was no dispute that filling occurred, et cetera, but there was some factual disputes.

Unknown Speaker: And would it be a really serious matter for a jury, those factual disputes?

I take it there is some claim on the other side that the jury would have to determine the penalty also?

Mr. Wallace: Yes, well we think that there is no basis for that and we cited the appropriate--

Unknown Speaker: Right, right, but--

Mr. Wallace: --case law on that.

Unknown Speaker: --Put that aside--

Mr. Wallace: Yes.

Unknown Speaker: --put that aside.

You think in the run of the mill case like this it really wouldn't be a terrific burden on the government to have a jury because of the complicated facts or what?

Mr. Wallace: Well, the jury's--

Unknown Speaker: It would cost money wouldn't it?

Mr. Wallace: --Yes, and the juries might not always be sympathetic with this kind of enforcement action.

It would be the same kind of facts that the court would determine in issuing an injunction.

These aren't facts that a court can't ordinarily determine.

Unknown Speaker: Thank you, Mr. Wallace.

Mr. Nageotte, you have two minutes remaining.

Rebuttal of Richard N. Nageotte

Mr. Nageotte: Unless there are any questions from the Court I really have nothing further to add.

Unknown Speaker: Mr. Nageotte, are you really serious in your claim that the jury would have to set, if you have a right to jury trial, you have a right to have the jury set the fine?

Mr. Nageotte: Yes, Your Honor.

Both find the facts and to set the amount of the civil penalty, the same as they would in a case of punitive damages, where they would set the amount of the punitive damages using the same grace factors.

Chief Justice Rehnquist: Thank you, Mr. Nageotte.

The case is submitted.

Attribution:

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Featured:

Mcmillan v. Pennsylvania - Oral Argument

Fri, 09 Jan 2009 14:48:36 +0000

Case:

Mcmillan v. Pennsylvania

Media File:

85-215_19860304-argument.mp3

Related Transcript:

1985_85_215_argument.xml

Transcript:

ORAL ARGUMENT OF LEONARD N. SOSNOV, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: Mr. Sosnov, you may proceed whenever you are ready.

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

The principal issue before this Court is whether Pennsylvania's Mandatory Sentencing Act violates due process of law because it provides for proof by only a preponderance of the evidence of the legislatively specified defense-related facts which require the imposition of a mandatory sentence of imprisonment.

The Mandatory Act provides that if a defendant is convicted of one of the numerated list of felonies, the Commonwealth may give notice of its intention to proceed under that act rather than Pennsylvania's discretionary sentencing scheme.

Unidentified Justice: Do you suggest that that particular provision goes to anything other than the sentence, the penalty?

Mr. Sosnov: Yes.

This type of sentencing scheme is totally different from any other type of nonmandatory sentencing scheme.

In fact, the proceeding under the Pennsylvania Mandatory Sentencing Act is essentially a trial.

There is only one issue at that proceeding.

The Commonwealth gives notice of its intention to proceed under the Act.

A hearing is required by the Act.

At that hearing there is but one issue, the same issue that is normally at a criminal trial, and the issue is did the defendant commit the prohibited conduct which the state wishes to punish?

In this case, the question is did defendant visibly possess a firearm during the commission of criminal activity.

At that hearing, the Commonwealth has the burden of proof by only a preponderance of the evidence.

If the Commonwealth establishes the facts by preponderance of the evidence, a sentence of imprisonment of five to ten years must follow.

Justice Marshall: I think what the Chief Judge is driving at, if the arm, the pistol was in evidence at the trial itself and was Exhibit A, what more do you need?

Mr. Sosnov: As a matter of state law--

Justice Marshall: Yes.

Mr. Sosnov: --If at the trial the pistol was exhibited in evidence, and even if defendant was convicted of an offense such as possession of an instrument of a crime, it is irrelevant under this statutory scheme.

This statutory scheme is set up so that the hearing is held separately, and that if a defendant--

Justice Marshall: Well what hearing do you need more than to look at the pistol?

Mr. Sosnov: --Justice Marshall, we would not be here, we would have no complaint if in fact the factual determinations, visible possession of a firearm during the commission of an offense, had to be proven beyond a reasonable doubt at trial and that defendant had a right to a jury trial.

The deficiency with this statute is that those factual determinations do not have to be made at trial, and that defendant--

Justice Marshall: Well, suppose the jury in a special verdict said he did shoot the man, he did rob the man with a pistol?

Mr. Sosnov: --If the jury was given, under Pennsylvania procedure--

Justice Marshall: Yes.

Mr. Sosnov: --special interrogatories that provided the question: did the defendant visibly possess a firearm during the commission of the offense, and the jury was instructed you must find that beyond a reasonable doubt, defendant had a right to a jury determination of that under Pennsylvania law, there would be no constitutional claim.

Unidentified Justice: Did you ask for that instruction?

Mr. Sosnov: We could not ask for that instruction.

The Act is clear.

Unidentified Justice: You could not?

Mr. Sosnov: We could not because the Act is clear.

As a matter of state law--

Unidentified Justice: Well, wait a minute, wait a minute now.

The First Amendment, if nothing else, would guarantee you the right to make any objection you wanted to.

The statute has nothing to do with that.

The statute might control how the judge would rule, but it would have nothing to rule with what kind of an objection you could make to raise it.

And for all you know, the judge might have said that he was going to read the statute that way.

Mr. Sosnov: --If the judge did that, he would be violating state law.

In other words, the judge would be making rulings that were directly contrary to what is required by this statute.

This statute is very specific, It states the applicability of this section is to be determined at sentencing, so that if the judge decided on his own I want to have this determination made at trial, I want all four of the factual issues determined at trial: did the defendant possess a firearm visibly during the commission of an offense, if I wanted to do that at trial, a judge would be violating state law.

The reason we are here is because this--

Unidentified Justice: You would still, you would still have to make the determination at sentencing, I take it, under state law, even if the judge went ahead and wrongly decided he would also find it at the trial.

Mr. Sosnov: --Not only that, the finding at trial would be irrelevant and nonbinding because the Act is clear that the procedure is one to take place at sentencing, and that the burden of proof is by only a preponderance of the evidence.

That's why the verdicts are irrelevant at trial.

In fact, there was a recent case... it is not in my brief.

It was just reported last week, Commonwealth v. Storm, at 502 Atlantic 2d, 215, a Superior Court case where defendant pled guilty to robbing a bank at gunpoint and the judge proceeded to impose the mandatory sentence of five to ten years.

The Superior Court reversed because the Superior Court held that under this statutory scheme, the defendant was denied the hearing at sentencing where either side could present evidence, and the determination as to be made whether there was proof by a preponderance of the evidence.

We would have no complaint if this statute, like all the other statutes across this country, I have attached as appendixes to my brief, the way this is normally done in every state in this country, the way it has always been done, when this factual determination determines a more severe punishment, proof beyond a reasonable doubt is required, and it doesn't matter what form such a statute takes, whether it is explicitly an element of the offense, such as an armed robbery statute, or whether it's a separate offense, such as a prohibition against committing a felony with a firearm, or whether it's part of a penalty provision, for example, Section 924 of Title 18 of the U.S. Code that's entitled "Penalties" and it provides for increased punishment if a defendant committed an offense with a firearm.

Under all these kinds of statutes, historically and consistently it's been recognized proof beyond a reasonable doubt is required, and that's because this is an essential, critical fact in the manner in which the crime was committed which in the eyes of the legislature, the legislature has determined makes the offense more serious and which makes the penalty for the offense more serious.

Pennsylvania and New Jersey, which has passed a similar act, stand alone.

These are the only two states in this country that have ever had this legislatively specified factual determination and not required proof beyond a reasonable doubt.

They require proof by only a preponderance of the evidence.

As I said, they stand alone.

In each of the cases before this court, there was no hearing held pursuant to the Mandatory Sentencing Act because after the Commonwealth gave notice of its intention to proceed under the act, the lower court judges held the act unconstitutional.

Unidentified Justice: May I ask this question?

Do you agree that each of your petitioners was lawfully convicted of the offenses for which they were charged?

Mr. Sosnov: Yes, they were lawfully convicted for the offenses which they were charged with.

Unidentified Justice: So you are only debating the enhancement of the sentence?

Mr. Sosnov: I am only debating the application of the Mandatory Sentencing Act, that that act is unconstitutional.

Unidentified Justice: And is it not a fact that each of the petitioners could have been sentenced to more than the mandatory add-on sentence if the Court had so decided?

Mr. Sosnov: No.

As a matter of fact, as to three of the four defendants, under the discretionary sentencing scheme, the sentence of five to ten years in prison mandated by this act is the maximum for that offense, and for one of the defendants, the maximum penalty was greater than five to ten years.

What they have lost, of course, under a scheme like this is they have lost the opportunity for a much lesser sentence, and there's nothing wrong with a state having a mandatory sentencing act.

Unidentified Justice: How would they... how would they get that, by proving that there was no firearm involved?

Mr. Sosnov: To get a lesser sentence?

The defendant would not have that burden.

Normally--

Unidentified Justice: No, since the state was claiming it, would... if I win a defense, he would be free, or they, any one of them would be free to shore that there was no firearm involved.

Mr. Sosnov: --Any defendant would be free in any criminal prosecution to cite, to prove anything, but the question here I believe is what burden of proof the state has to meet to provide for a more severe punishment.

In effect here, what Pennsylvania has done is create two classes of felonies.

Right now, aggravated assault, for example, carries one punishment while aggravated assault with a firearm carries a more severe punishment.

That is exactly what has been done here.

I have set it forth in a table in my reply brief.

The penalties are vastly different now for whether you commit an offense with a firearm or without a firearm.

Justice O'Connor: Well, Mr. Sosnov, you take the position that the due process clause requires the invalidation of this scheme, right?

Mr. Sosnov: That is correct.

Justice O'Connor: What is the defendant were to be sentenced by a judge who simply takes the position that if somebody commits an assault with a firearm, by gum, I'm going to give him five years?

Is that a violation of due process because the judge determines that for himself and imposes the sentence?

Mr. Sosnov: Do you mean under a discretionary scheme, Justice O'Connor?

Justice O'Connor: Sure.

Mr. Sosnov: It would depend on how that arose.

If a judge took it on his own under a discretionary scheme to in every case, ignoring all the individual circumstances of the case, the background and character of the defendant, the other factors concerning the crime, and the judge said in every case that comes before me where defendant possesses a gun, I'm going to impose five to ten years imprisonment, that would be an abuse of discretion.

That's been held by... it will be reversible on--

Justice O'Connor: If he says at least five years.

Mr. Sosnov: --If he says, if he isolated the one factor and ignored his duty to consider all the discretionary factors, he would be committing an abuse of discretion.

It would be reversible on that ground, and additionally, it may be a violation of due process of law because, in effect, he'd be ignoring the state's discretionary sentencing scheme.

The difference, I think the key difference between a scheme like this--

Unidentified Justice: Mr. Sosnov, in these cases do we know what sentences would have been imposed apart from the mandatory statute?

Mr. Sosnov: --Yes, we do, because each of the defendants in this case, because the lower court judge concluded that the Mandatory Act was unconstitutional, in each of these cases the judge imposed a sentence based on the discretionary scheme.

We have sentences here ranging from 11 1/2 to 23 months imprisonment on the low end, to four to eight years.

Each of the four defendants has received a sentence below that mandated by the Mandatory Sentencing Act.

The essential difference between a discretionary sentencing scheme where a judge considers a whole host of factors, indeed, must in deciding on a proper sentence to impose, and this sentencing scheme, is it is nothing like these other sentencing schemes.

It is simply like a trial.

There is only one issue.

The issue is did the defendant commit the prohibited conduct?

In essence, what Pennsylvania has done here is they have set up a bifurcated trial proceeding.

You first determine at trial, for purpose of this act, beyond a reasonable doubt did the defendant commit a robbery, and then you take the tradition element of the offense, was he armed, and you determine that after trial by a preponderance of the evidence.

That is all that has happened here.

Once we get beyond the label of sentencing, it's a lot like the Winship case.

In Winship there was a claim it's a juvenile adjudication.

It's only civil.

Therefore there's no need for the reasonable doubt standard, and what this Court did is it examined the operation of the statute, and the operation of the adjudicatory scheme for juveniles was that a juvenile was accused of committing conduct which the state wished to punish, essentially a criminal act.

And if those facts were found, if those facts were established, then confinement could result as a proof of those facts.

That is exactly what we have here.

We have only one issue at this hearing, the issue, did he do it?

Did he commit the conduct the state wishes to punish?

And if in fact those facts were established, the Judge has no choice the inevitable consequences follow just like at a trial, five to ten years imprisonment.

If in fact in a situation like this the constitutional line is not drawn here and Pennsylvania is permitted to do this, Pennsylvania and New Jersey, aside from the whole trend of our jurisprudence, there is really no place to draw the constitutional line because in essence, and in Mullaney v. Wilbur, this Court emphasized this, this Court emphasized the problem that a state might take the traditional element of the offense, the state might transpose that traditional element of the offense into a sentencing statute where it had the exact same effect on the defendant.

Unidentified Justice: Well, counsel, what if in this case the elements of the crime had not included committing it with a gun and at the sentencing stage the judge says, well, I notice in the probation report here that you had a gun when you committed this assault, and I always take that into consideration in sentencing someone, so I am giving you three years instead of six months, would that be a violation of anything in the federal Constitution?

Mr. Sosnov: The judge, as long as the judge did his duty, as I responded before to Justice O'Connor's question, as long as the judge did his duty, considering all the factors, he certainly could consider this factor, and the difference between a proceeding like that an this proceeding is there are no legislatively specified facts which have to be determined by the judge and which have inevitable consequences which follow.

As this Court said in Bullington v. Missouri, in both the majority opinion and the dissenting opinion, the normal sentencing proceeding is not a search for facts.

It is a question of looking at the character of the defendant, his conduct, his past background, and meting out just desserts, considering a whole host of factors.

Unidentified Justice: Well, aren't those facts?

Aren't all those factors facts?

Mr. Sosnov: That's right, but the process is completely different because the process, unlike a trial, the process is not a search for legislatively defined issues, and they don't have inevitable consequences which follow just like at a trial.

In other words, to impose... if this Court, for example, said there must be proof beyond a reasonable doubt for every fact at a sentencing proceeding, that wouldn't make much sense for a lot of reasons.

One reason is it would be impractical.

In other words, in every sentencing proceeding, the factors that a judge considers in the characterization of the defendant will vary.

There will be a whole host of different factors in every sentencing proceeding.

It would be impractical to have a minitrial on each fact, each incidental fact which went into a judge's consideration of sentencing.

Again, it would be impractical to have a shifting burden of proof to examine every sentencing hearing, look at that sentencing hearing and decide, well, on this sentencing hearing I've got--

Justice Marshall: I know you answered it a little while back, but just once again, this trial, a gun is in evidence, is Exhibit A, there are 87 witnesses that testify that he held up the person with the gun, and the jury finds that he held up the person with the gun, my only question now is what evidence could he give to save himself?

Mr. Sosnov: --In some cases, obviously unless we had this hearing where a preponderance of the evidence was the standard, the separate hearing, in some cases defendant is going to lose.

In other words--

Justice Marshall: Well, I mean... just give me the evidence that any person you can imagine would give.

Mr. Sosnov: --In that particular situation?

Justice Marshall: Yes.

Mr. Sosnov: I would think if he wanted to he might come up with some countervailing evidence, but he would probably lose, but that's true with any burden of proof.

Justice Marshall: But you agree, you agree there was no way he could escape being said to have had the gun.

Mr. Sosnov: There would be--

Justice Marshall: Is there any way?

Mr. Sosnov: --In that hypothetical, in that hypothetical, it would be very difficult, even if the proof burden was beyond a reasonable doubt, for that defendant to have a chance of prevailing and winning at it.

Justice Marshall: Well, what good would the hearing do?

Mr. Sosnov: The same, Justice Marshall--

Justice Marshall: I mean, I've given you whatever hypothetical you could imagine.

Mr. Sosnov: --Justice Marshall, but the same... I think the problem with that hypothetical is the same hypothetical could be given for trial.

In other words, a man approaches trial and there are 87 witnesses who say they saw him commit a robbery, that he visibly possessed a firearm and he committed a robbery, 87 witnesses, the defense has no witnesses to offer, would this Court, if the jury was charged or state law provided that a conviction could be by preponderance of the evidence, this Court would not tolerate that.

It's not a question of retrospectively looking back at the facts in a particular case and saying in that particular case what would have been that defendant's chances of winning at a higher standard of proof.

The burden of proof regulates--

Unidentified Justice: I understood, I understood Justice Marshall's question to be directed at in the second hearing, what would you prove to offset the evidence in the case in chief?

Mr. Sosnov: --That will vary from case to case.

Unidentified Justice: Well, take this case, then.

Mr. Sosnov: I will take, for example, in Mr. McMillan's case, given this statutory framework, in Mr. McMillan's case, Mr. McMillan was convicted at trial of aggravated assault, of shooting another individual.

He was tried by a jury.

There was one witness against Mr. McMillan at trial, and that witness had a criminal record, and that witness first told the police, I don't know who shot me.

He was the sole witness against Mr. McMillan, the jury was out quite a long time.

Mr. McMillan wanted to testify at trial that he didn't do it, but because he, too, had a criminal record and the judge ruled that the criminal record would be admissible at the trial, Mr. McMillan decided not to testify at trial.

Mr. McMillan at sentencing again said he didn't do it.

If Mr. McMillan had had a separate hearing, a hearing with a burden of proof by more than preponderance of the evidence, a burden of proof beyond the reasonable doubt, Mr. McMillan may indeed prevail before the judge at that hearing.

In other words, the judge could be faced with conflicting versions of the same event by two different people.

Justice Marshall: Well, in order to do that, would the judge have to say I was wrong in convicting you?

Mr. Sosnov: No.

Justice Marshall: Well, how could he?

Mr. Sosnov: First of all--

Justice Marshall: He's going to say one, he had a gun, another time he didn't have one?

Mr. Sosnov: --In this, in this, Mr. McMillan's case, the jury was the factfinder, so the judge did not find the facts.

And Pennsylvania law has provided that indeed that's the procedure.

The procedure is that at the hearing there is a separate determination, and at that separate determination, either side shall present whatever evidence they wish to offer.

Justice Marshall: If we rule with you, what outcome will you and your clients get other than a hearing?

Mr. Sosnov: If you rule our way, our clients will be sentenced as they are pursuant to a valid, discretionary sentencing scheme.

Justice Marshall: They would still go to jail.

Mr. Sosnov: They've all gone to jail.

Justice Marshall: Yes.

Mr. Sosnov: They've all gone to jail.

We have no complaint about them going to jail.

We are asking that they be sentenced pursuant to a valid discretionary scheme rather than a constitutionally invalid scheme, and in this Court in Hicks v. Oklahoma said that defendant certainly has a due process liberty interest in being sentenced pursuant to a valid discretionary scheme.

Unidentified Justice: --Well, isn't what you want a... you want this second hearing all over with a different burden of proof?

Mr. Sosnov: It does not have to be a second hearing.

Every state in this country... we are not asking for two trials with a jury.

Unidentified Justice: You don't want a hearing with the burden of proof beyond a reasonable doubt?

Mr. Sosnov: We are saying that Pennsylvania does not have to do it as a second hearing with proof beyond a reasonable doubt and a jury trial; Pennsylvania can provide that all this be done at trial.

In other words, if Pennsylvania provides that proof beyond a reasonable doubt of visible possession of a firearm during the commission of the defense is to be determined by the jury trial, like--

Justice O'Connor: But that isn't what Pennsylvania did.

So what Pennsylvania wants done is to have it done at the sentencing hearing.

Mr. Sosnov: --By a lower burden of proof and without a jury trial, and that's why it is violating the Constitution.

Justice O'Connor: You started your argument, Mr. Sosnov, with the assertion that, well, this only involves Pennsylvania and New Jersey, but what about the states that require by legislative action that restitution be ordered to victims of crimes where there's been a pecuniary loss, and that the sentencing judge determine by a preponderance of the evidence how much is to be repaid by the defendant in restitution, would your argument reach those cases as well?

Would that be invalid?

Mr. Sosnov: I don't believe... I don't believe it would be governed because--

Justice O'Connor: Why?

It's a legislatively mandated fact that has severe consequences for the defendant.

Mr. Sosnov: --For one, it does not have the legislatively mandated deprivation of liberty that is involved in this case.

Unidentified Justice: --It might have if he doesn't pay what's ordered, off he goes to jail.

What about, and what about the enhancements for repeaters?

Mr. Sosnov: That I think presents separate issues because it is not offense related.

Unidentified Justice: Well, at sentencing some states impose the enhanced... determine whether he's a repeater at the sentencing, a separate hearing by a judge.

Mr. Sosnov: I think there are key differences there, and that is that this Court has always held, in Winshin, in Mullaney, that proof beyond a reasonable doubt is required for offense related facts, the question what did he do, what offense did he commit.

Historical facts such as his background, his prior record, have always been recognized as sentencing determinations.

We have no risk in that situation of the state taking elements of the offense and, putting them in a statute at a lesser burden of proof.

There's an entirely different set of circumstances because, as this Court recognized in Oyler v. Boles, whether somebody is a recidivist is essentially independent of the crime which the defendant is accused of committing which the state is trying to punish.

With the Court's permission, I would like to reserve my remaining time for rebuttal.

Thank you.

Chief Justice Burger: Mr. Cooperstein?

ORAL ARGUMENT OF STEVEN J. COOPERSTEIN, ESQ. ON BEHALF OF RESPONDENT

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

First, to clarify one fact about this statute at issue, it is not an enhancement statute at all.

The statute sets forth a mandatory minimum sentence for certain violent felonies that is at all times within the pre-existing legislative range of authorized sentences, so this is not an add-on; this is merely... all this statute does is remove discretion from the sentencing court to sentence at the low end of the already legislatively determined scale, so that we don't have the risk that the Pennsylvania legislature has tried to increase a defendant's penalty by hiding an element of a crime and labeling it a sentencing factor.

Unidentified Justice: Mr. Cooperstein, let me give you a hypothetical that keeps running through my mind.

Supposing you define the crime of homicide as the killing of another human being, and the sentence for that shall be anywhere from one year to life at the discretion of the judge: and in the second paragraph you said if it is proved at the sentencing hearing by a preponderance of the evidence that the killing was willful, there shall be a minimum sentence of 15 years, and that's it, would that be permissible?

Mr. Cooperstein: No, I don't believe that would be permissible.

That comes very close to Mullaney v. Wilbur--

Unidentified Justice: Doesn't it also... isn't that precisely this case?

Mr. Cooperstein: --No, it's not precisely this case.

The reason for that is that the state has not tried to distinguish between essentially grades of an offense, let's take robbery.

The Pennsylvania legislature--

Unidentified Justice: Well, it's distinguished between robbery without a gun and robbery with a gun.

Mr. Cooperstein: --But each one... the key fact is how the state views the blameworthiness of an individual crime.

The state by setting for robbery, by setting a 20 year maximum, shows that it considers the crime of robbery at Knifepoint just as blameworthy as robbery at gunpoint.

It's just that someone who commits a robber at gunpoint has no entitlement to a lenient sentence.

He may--

Unidentified Justice: Why can't a state treat all homicides as blameworthy, just as it treats all robberies as blameworthy, justifying a penalty up to life?

Mr. Cooperstein: --Because in Your Honor's hypothetical, if the state considers the mental element to be a distinguishing factor between one sentence and a greater sentence, the mental element is so basic to all definitions of crimes that that is beyond the power of the legislature to rearrange.

The legislature may not take something so fundamental to the definition of what a crime is as intent and rearrange that.

That's not what the Pennsylvania legislature has done here.

All it--

Justice Marshall: Mr. Cooperstein, I doubt that you know the answer, but why did they just limit it to firearms and not knives and other deadly weapons?

Mr. Cooperstein: --I don't know the answer to that.

There is a separate guideline scheme in Pennsylvania where if this mandatory sentencing scheme is not applicable, the sentencing judge must add 12 to 24 months to the minimum sentence if the defendant used any weapon.

Now, the judge has some discretion to get around that, but that's any weapon.

Unidentified Justice: Any weapon--

Mr. Cooperstein: Yes.

Unidentified Justice: --May I ask this question as to how the statute actually operates?

One of the petitioners, I think it was Mr. Smalls, was sentenced to four to eight years--

Mr. Cooperstein: Yes.

Unidentified Justice: --Apply the minimum mandatory sentence to just what the actual sentence was initially.

Mr. Cooperstein: That is what the... the judge in that case and in all four of these cases declared the Mandatory Act unconstitutional and sentenced as if it did not exist.

Unidentified Justice: I understand, I understand that, but on remand, and if we should affirm, if we should affirm the Supreme Court of Pennsylvania, what would the sentence for Smalls be?

Mr. Cooperstein: The sentence would be a minimum of five to ten years.

In Pennsylvania--

Unidentified Justice: Minimum would be five to ten?

Mr. Cooperstein: --Yes.

In Pennsylvania, each judge must set a minimum and a maximum.

The minimum sets the parole eligibility date.

This statute speaks only to the minimum sentence, to the parole eligibility date, and says that it must be at least five years.

Unidentified Justice: In other words, he must serve five years, but he could be required to serve another five?

Mr. Cooperstein: Yes.

Unidentified Justice: Why beyond the eight that he was initially sentenced to?

Mr. Cooperstein: Because the... one missing fact is that under Pennsylvania law, the minimum sentence must be no greater than one half of the maximum, so that when it sets a minimum to be a mandatory five years, it in effect sets the maximum at a mandatory ten yeas.

Unidentified Justice: Am I right that Peterson was sentenced from one to six year?

Mr. Cooperstein: Yes, Peterson.

Unidentified Justice: What would his sentence be on remand?

Mr. Cooperstein: Her sentence would he five to ten.

Each of these defendants would receive a five to ten year sentence under, under if they were sentenced pursuant to this mandatory scheme.

Unidentified Justice: So they would have five years they have to serve but the next five they could be paroled.

Mr. Cooperstein: Yes, that is correct.

Not only has the Pennsylvania legislature not increased the sentence available to any of these defendants, it also has not changed the definition of any crime.

It has retained as a separate crime possessing an instrument of the crime for which a defendant may be sentenced to five years in addition to whatever he is sentenced for his basic offense.

Of course, the prosecution maintains the burden of proving such a crime beyond a reasonable doubt, so that it has not--

Justice O'Connor: Mr. Cooperstein, what are the limits on the state's power to take something that looks a lot like an element of a crime in most states and label it a sentencing consideration in your view?

What are the limits in your view?

Mr. Cooperstein: --Well, I think the limits are, one limit is clearly intent, that the state may not move around intent and put the burden on the defendant or give the prosecution a lesser burden.

Unidentified Justice: The mens rea element?

Mr. Cooperstein: Yes, yes.

Of course, there are exceptions for regulatory offenses.

Unidentified Justice: May I test that with a question?

Supposing the crime of intentional stealing, call it larceny, whatever it might be, is punishable by a year to five... a year to ten years, say, and then they say, but if the amount stolen is over $1000, there shall be a minimum sentence of three years, and that amount could be proved by just a preponderance of the evidence, an old fashioned distinction between petty larceny and grand larceny?

Mr. Cooperstein: Yes, I believe--

Unidentified Justice: The same intent in both cases.

I suppose they could rearrange that under your scheme.

Mr. Cooperstein: --I believe the state would be free to rearrange that, yes, and if I might continue answering your question, Justice O'Connor, I believe that Patterson v. New York makes it clear... gives some examples of the type of thing that a legislature may not do.

It may not declare a defendant presumptively guilty, and I think that goes beyond just a mere declaration.

A court can look at the way in which the legislature has defined its crimes, any way in which it has rearranged its crimes and determine what is it really sentencing the defendant for.

Here in this case it's obvious that what the legislature has done is sentence... is declare sentencing practices for robbery, for aggravated assault, and for the other crimes.

It is clear that the legislature has not tried to impose a sentence for possession of a weapon and lightened the prosecution's burden.

Justice O'Connor: I hear the words, but I don't have a clear picture in my mind of what the constitutional line is in your view--

Mr. Cooperstein: Well, I think--

Justice O'Connor: --that this Court has drawn.

Mr. Cooperstein: --I think that one has to look at several different factors.

One that I think is primary in this case is that the legislature has not given the authority to increase any sentence, that as long as it's within the existing statutory maximum, it has not tried to lighten the prosecution's burden.

I don't think that there is one fact that it is possible to point to and say anything over that line is too far and anything inside that line is fine.

I think that all of the... the whole statutory scheme has to be looked at.

Justice O'Connor: Well, could this statute have put the burden on the defendant to prove that he didn't have visible possession of a firearm?

Mr. Cooperstein: I believe that that would have been permissible under the reasoning of Patterson v. New York, yes.

I might also add that when you look... one of the things to look at is the purpose behind the statute.

This was passed as an amendment to the sentencing code.

It was passed along with two like statutes, one of which imposed a mandatory minimum sentence for crimes committed on public transportation and the other is a recidivist section for these violent felonies so that it's... when you look at what the Pennsylvania legislature did here, it's quite clear that it was a bona fide sentencing statute, it was not some attempt to lighten the prosecution's burden because it had difficulty obtaining convictions.

Unidentified Justice: Well, what if... I take it you would... you probably would come out the other way if the statute had said, had set ten years for ordinary robbery but if it's done with a gun, the sentence is twenty years.

Mr. Cooperstein: I believe that sets a much more difficult question.

Unidentified Justice: Well, and the judge determines whether the... just like he would under this case, he would be permitted to find whether a gun was present by a preponderance of the evidence.

Mr. Cooperstein: But in one--

Unidentified Justice: What's the real difference between those two cases?

Mr. Cooperstein: --Well, I think Patterson makes clear that the way in which a state defines its crimes is entitled... is the dividing line, that when the state seeks to treat one class of robber different from another, it has taken upon itself the burden--

Unidentified Justice: But if the judge determines at the sentencing hearing that the robbery was done with a gun, he shall impose twenty years.

Mr. Cooperstein: --However--

Unidentified Justice: You think that's just really just adding an element to the crime?

Mr. Cooperstein: --I'm not saying that that statute would be unconstitutional.

I said that that is a much more difficult question than this, than the statute at issue here.

I think under Patterson it may be a constitutional statute, the one that you have posed to me.

I might also add that, as I think was adverted to in Mr. Sosnov's argument, a holding that this burden of proof is unconstitutional would have a widespread effect on sentencing.

Every sentencing judge acting responsibly is going to take into account the nature of the crime for which the defendant is convicted, and certainly a primary fact about that is what... how did the defendant accomplish its crime.

All the crimes in this Pennsylvania statute involve force or the threat of force.

All that is done here is the legislature has told each sentencing judge, if that force was accomplished by means of a firearm, this is how you shall weight that particular factor, so that this is not a radically different sentencing scheme; it merely directs the Court to make one factfinding and limits the judge's discretion accordingly depending on what fact he finds.

Unless there are any other question, I will rely on its brief.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Sosnov?

ORAL ARGUMENT OF LEONARD N. SOSNOV, ESQ. ON BEHALF OF PETITIONERS -- Rebuttal

Mr. Sosnov: Yes, Your Honor.

I would like to make a few points briefly.

First of all, it is not a factor: it is the factor, and that is why in essence Pennsylvania created two classes of felonies.

There's inevitable consequences just as at trial when that additional fact is proven.

The line suggested by the Commonwealth of mens rea being the only element of an offense that cannot be switched to a sentencing statute, a mandatory sentencing statute, is ridiculous.

It's no line at all.

If the Commonwealth is correct, then our robbery statutes can be rewritten just like this statute to provide that beyond a reasonable doubt is required for proof that a defendant stole something, but the penalty of five to ten years would be mandated if at sentencing it is shown that there was force, physical force used in the taking.

They could take every traditional statute, take an aggravated assault statute which provides that the elements of the offense are that somebody struck somebody and serious bodily injury occurred.

According to the Commonwealth's theory, since that did not involve mens rea the seriousness of the injury, you could take that fact out and put it in a sentencing statute; it would have the exact same effect on a defendant but on a lower burden of proof.

I think if we talk about a slippery slope here, the slippery slope is if this act is upheld because then basically, constitutionally, anything goes.

It will not affect in any way traditional discretionary sentencing hearings for this Court to hold this act unconstitutional.

A judge will be free, as he always has been free, and as the judges in these very cases did, to consider at sentencing every important factor, including if defendant had a gun.

Each of these cases the judge considered all of the factors mandated by a discretionary scheme, and in each case the defendant received a sentence of imprisonment.

However, what he did not receive is a mandated sentence of imprisonment based on proof by a preponderance of the evidence without a jury determination to critical facts.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The honorable Court is now adjourned until tomorrow next at 10:00.

Attribution:

The OYEZ Project

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