Cases by Issue - Adequate Non-Federal Grounds for Decision

Lee v. Kemna - Oral Argument

Fri, 09 Jan 2009 14:50:26 +0000

Case:

Lee v. Kemna

Media File:

00-6933_20011029-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Bonnie I. Robin-Vergeer

Chief Justice Rehnquist: We'll hear argument next in No. 00-6933, Remon Lee v. Mike Kemna.

Ms. Vergeer.

Mr. Robin-Vergeer: Mr. Chief Justice, and may it please the Court: Remon Lee is serving a life sentence without possibility of parole for first degree murder without ever having had a chance to present testimony from witnesses who could have established his innocence.

I would like to begin by discussing whether Lee's failure to comply with two Missouri rules governing motions for continuance is an adequate State law ground to bar consideration of Lee's Federal due process claim based on the State trial court's denial of a brief continuance.

In the circumstances in which his motion for a continuance was made, the answer is no.

Under this Court's existing precedents, Missouri rules 24.09 and 24.10 are not adequate to bar review of Lee's due process claim because application of the rules in... in this case was arbitrary and serves no legitimate State interest where Lee lacked a reasonable opportunity to comply with the letter of the rules under the circumstances, where Lee supplied--

Chief Justice Rehnquist: You're... you're just summarizing now, I take it.

You're going to go into more detail as to why--

Mr. Robin-Vergeer: --Yes.

Chief Justice Rehnquist: --the rules are arbitrary.

Mr. Robin-Vergeer: Correct.

I was just summarizing for the Court the circumstances that made it so that there was no legitimate State interest served in this case.

Justice O'Connor: Well, at least as far as 24.10's elements are concerned, presumably those could have been addressed by counsel.

I mean, the... the different requirements could have been orally presented.

I would assume that 24.10 sets out certain information that is generally regarded by the State as... as crucial--

Mr. Robin-Vergeer: That's--

Justice O'Connor: --in making the decision.

Mr. Robin-Vergeer: --That's correct, and every piece of information required by those rules were before the trial court.

The Missouri--

Chief Justice Rehnquist: When you say before the trial court, you mean in the presentation made at that time orally by counsel?

Answer that yes or no, please.

Mr. Robin-Vergeer: --No.

Every element--

Chief Justice Rehnquist: Where... where else are you saying it came from?

Mr. Robin-Vergeer: --The opening statement by defense counsel.

Chief Justice Rehnquist: So, the trial judge is supposed to remember the opening statement by... by defense counsel when he passes on a motion for a continuance that's made at the end of the trial?

Mr. Robin-Vergeer: Let me clarify a few things.

Every element required by the rules was... was before... was stated by counsel or by the defendants on the stand--

Justice O'Connor: How about... I didn't find anything about that at all.

The sixth requirement was that the affiant knows of no other person whose evidence or attendance he could have procured at trial by whom he could prove the same facts.

Was that addressed?

I... I didn't find it.

Perhaps you could point me to where that was addressed.

Mr. Robin-Vergeer: --The discussion with the trial court was... bear in mind the discussion with the trial court occurred in an emergency situation where witnesses are suddenly gone and the... and counsel is now before the trial court explaining what had happened.

Everyone in the discussion knew who the witnesses were and why they were crucial to his defense.

This was a short trial--

Chief Justice Rehnquist: You... you say that the trial judge knew it too?

Mr. Robin-Vergeer: --Yes, and the trial court... even in the colloquy, you can see that the trial court knew who the witnesses were.

At one--

Chief Justice Rehnquist: And what their purpose was?

I... I didn't get that at all out of the transcript.

Mr. Robin-Vergeer: --At one point during the discussion... the only question that the trial court had for counsel was were these witnesses under subpoena, and counsel answered that question yes, twice.

Chief Justice Rehnquist: The counsel has to make a showing of his own.

It's not just responding to questions from the court.

Mr. Robin-Vergeer: When the... when counsel pulled out the subpoenas and starting reading from the subpoena and he read, Gladys Edwards is supposed to come on the last day of trial at 9 o'clock, the trial court responded, is she the mother, showing that the trial court understood who the witnesses were.

Bear in mind this was--

Chief Justice Rehnquist: But what... what the purpose was.

Mr. Robin-Vergeer: --There was only one issue in the case and that was whether the defendant was correctly identified by the eye witnesses or was he somewhere else.

This was the entire affirmative defense for Mr. Lee.

Three witnesses were his entire affirmative defense, and--

Justice Souter: Was that explained in the opening statement?

Could you elaborate on what was said in the opening statement?

Mr. Robin-Vergeer: --Yes.

In the opening statement, which occurred only the day before this exchange took place, counsel outlined for the trial court and the jury the fact that Minister James Edwards, Mr. Lee's stepfather; Gladys Edwards, his mother; and Laura Lee, his sister had traveled from California to testify that during the period of July through October 1992, Mr. Lee had been staying with them in California and was not in Kansas City.

And they... and his statement provided certain details that showed why they remembered when it was, that he had come out for the birthday parties for himself and for his niece and had stayed through the... up to the Halloween party.

And all of this was laid out in the opening statement and made it clear that these witnesses were crucial to his defense and is what his entire defense was based on.

Justice Scalia: This... this goes to the importance of those witnesses.

I find it extraordinary that you didn't get a neighbor or, you know, somebody other than his mother, his father or stepfather, and the sister to come and testify he was out there.

Nobody else saw him there?

He... he stayed in their home the whole time?

You know, if I was looking for people to... to bring to testify for an alibi... he was there for how long?

For the whole holiday season?

Mr. Robin-Vergeer: July through October.

The record is silent--

Justice Scalia: Nobody else saw him there that he could have brought in?

He has to bring in his mother, his stepfather, and his sister?

Mr. Robin-Vergeer: --I... I can't answer that.

The record is silent on who saw him.

Justice Kennedy: Well, let me tell you... let me tell you, counsel, what... what concerns me about your case.

Let's... let's assume that you can convince us that given the haste... the press of trial and the shortness of time that the counsel did about all he could... all he could do.

But there was a post-conviction new trial motion some 17 days or... or 2 weeks later, and at that point, the... the counsel made no specific showing as to why the witnesses... the mystery remained.

There was... A, there was no showing at all or even mentioned of the fact that a court officer might have misled them, and... and B, we never know why they left.

Whether... the counsel had 2 weeks to... to supplement that motion.

I... let me as you this as a predicate.

I assume that the State trial judge at the new trial motion had the opportunity and the right under State law to revisit his ruling denying the continuance.

Mr. Robin-Vergeer: Correct.

Justice Kennedy: Well, there was nothing new shown by counsel at that point.

So, even if you... if we concede that the press of trial and the surprise that attended the disappearance of the witnesses excused the counsel from doing anything more, he surely is not excused from this skimpy showing 2 weeks later.

That's what bothers me about the case.

Mr. Robin-Vergeer: Okay.

As for why, I was not trial counsel below.

I don't know why he didn't say more in the motion for a new trial.

But I can tell you that the Missouri rules governing motions for a new trial say that when a... when error is assigned at the motion for a new trial stage... and this is rule 29.11 of the Missouri Supreme Court rules... that... and a request is denied and then that's made a basis for a motion for a new trial, a short general statement reiterating that ground is appropriate in a motion for a new trial.

As for why he didn't say more, I can't answer that.

Justice Kennedy: Well, but you're... you're saying that Missouri, as a matter of due process, did not afford adequate opportunity for this attorney to explain the disappearance of his witnesses.

And even if I grant you that the rush of... that the press of time was such that we can excuse the performance at the... on the day of trial--

Mr. Robin-Vergeer: I have--

Justice Kennedy: --2 weeks later he had... he had all the opportunity in the world to explain this, I think.

Now, Judge, we were in a hurry when you denied the continuance.

Maybe you didn't understand him, and here's what happened.

He doesn't do that.

It seems to me that's the end of the case from a due process standpoint.

Mr. Robin-Vergeer: --I... I disagree.

I think that the ruling on the motion for a continuance is evaluated ex ante.

It's evaluated at the time that the motion was denied, and at the time that the motion was denied... and the standard has been stated in Unger v. Sarafite.

Quote--

Justice Kennedy: But Missouri gave to the attorney the opportunity to revisit the entire matter at the post-conviction motion for a new trial, and nothing further was adduced.

Mr. Robin-Vergeer: --The motion for a new trial restated his grounds for granting a new trial, the fact that the witnesses had come in... and it did... it did explain that they... these were the alibi witnesses from California... so that was clear in the motion for a new trial... and the fact that the trial court had denied that motion without giving him a short recess or without enforcing the subpoenas.

These witnesses were under subpoenas, and rule 26.03 of the Missouri rules states that when a witness doesn't... isn't there for a criminal trial, he's under subpoena, he's subject to arrest.

There's no special procedural rule that governs how that has to happen.

The judge took no effort whatsoever to enforce the subpoenas in this case, and we're talking about just a short... a few hours' continuance to try to figure out what happened and to get them in.

Justice Stevens: These were sequestered witnesses, as I remember it.

At the time of the motion for a new trial, did the lawyer point out that the bailiff, or whoever it was, had told them they would be excused for the... till the next day?

Mr. Robin-Vergeer: That was not stated in the motion for a new trial.

Justice Stevens: It wasn't until later.

Mr. Robin-Vergeer: It was in the rule 29.15 State post-conviction motion that that issue first came up.

But the question of why the witnesses ultimately left and whether the State was responsible for that is really a separate issue.

That goes to... well, that may go to cause, but it also goes to whether he has a separate due process claim on that basis.

It's not necessary to figure out why the witnesses left to evaluate whether or not the trial court's denial of a brief recess to try to figure out what happened to the witnesses was an arbitrary denial--

Justice Kennedy: Well, there's where I disagree with you because 2 weeks later, he didn't show anything more other than they were alibi witnesses.

And I'll... I'll assume, for purposes of this question that he knew that because of the opening argument.

Mr. Robin-Vergeer: --The reason why they left doesn't change the fact that the moment that the trial court ruled on the motion for a continuance, he didn't know where they were, counsel didn't know where they were, the prosecutor didn't know where they were.

At that moment, was it reasonable to deny him... I mean, the defendant only asked for 2 hours, just a few hours--

Justice Kennedy: Well, but what I'm saying is we don't need to have at that time because we have the benefit of hindsight 2 weeks later, and you had nothing new.

Mr. Robin-Vergeer: --There's nothing new in the motion for a new trial, but no new facts need to be adduced in the motion for a new trial.

It is appropriate in Missouri to bring facts that are outside of the record in a rule 29.15 post-conviction motion, and they were brought up in the rule 29.15 post-conviction motion.

There's no mystery here about why the State trial court judge denied the motion, and he denied it on the merits.

He did not deny it because the application was defective.

The prosecutor didn't object to the application, either the request for a continuance or the form in which the request was made.

Had the trial court or the prosecutor signaled some question... and again, bear in mind the emergency way that this came up... had signaled some question, he could have cured it.

And in a way, you have a kind of a reverse sandbagging where error is left embedded in the record and it isn't until the direct appeal 2 years later that anyone suggests there was something procedurally defective about the motion.

Justice Scalia: Do... do we know that if he had been given the couple of hours' continuance, which is what he asked for, you would have located the witnesses?

Where did they go?

I... I'm... that part of the story never comes out from this stuff.

They... they just disappear from the courthouse.

Is there any explanation of what happened to them?

Mr. Robin-Vergeer: Well, the affidavits of the witnesses don't state where they went when they left.

In the rule 29.15 post-conviction motion, it states that they went to a relative's house.

The defendant represented to the trial court at the time of the colloquy that he knew they were still in town because there was a religious event, and counsel provided the actual address of the relative's house, at which were believed to be staying, and told the trial court judge that they had no telephone there, which is why the girlfriend had gone out looking for them.

Justice Scalia: Where did they go?

I mean, had they gone to a movie?

I mean, if they were not back at the uncle's house, it wouldn't have made any difference unless it was a very short movie.

I mean, the couple of hours' continuance that he asked for... we have no reason to believe it would have been... it would have been enough, and that's all he asked for.

These witnesses just disappeared into thin air.

We still don't know where they went.

Mr. Robin-Vergeer: The--

Justice Scalia: Why do you say that, you know, if he had only gotten these couple of hours, everything would have been okay?

Mr. Robin-Vergeer: --The record doesn't establish for sure where it is that they went at the time they left or for a fact that they could have been brought in.

Again, I... I don't think that that's necessary to the ruling because it's evaluated at the time of the trial court's denial.

But if the Court disagrees, it could remand this for an evidentiary hearing to engage in more fact-finding about what the witnesses did.

The lower courts never got that far.

Justice Scalia: I think... I think that's your burden.

I think you have to show that there was an error that... that harmed your client, and... and if the refusal to... to give a couple of hours' continuance... if there's no reason to believe that... that it caused any harm, what's the difference?

Mr. Robin-Vergeer: There is nothing in the record that contradicts the representations made by counsel and the defendant to the State trial court that they were staying at a relative's house and that they were still in town, and the State has never offered--

Justice Scalia: There's nothing in those facts that suggests you could find them in 2 hours.

Mr. Robin-Vergeer: --Well, counsel's actual request for a continuance was... was until the following morning.

And if nothing else, even if counsel couldn't have found them, the State has an obligation--

Justice Scalia: I'm quoting... I'm quoting from your brief.

Lee asked his counsel to request a couple of hours' continuance to try to locate them.

Mr. Robin-Vergeer: --Correct, and then it's... and then--

Justice Scalia: Lee told the court that he knew the witnesses were still in town, blah, blah, blah, blah, blah.

Mr. Robin-Vergeer: --But then... but ultimately counsel asked for an overnight continuance.

And that's when the whole exchange with the judge takes place where the judge says, oh, Friday I'm going to be with my daughter in the hospital.

Then the lawyer says, well, what about Monday, and the trial judge's response is, I have another trial scheduled.

So, that's where that whole exchange takes place.

Justice Scalia: So, you... counsel did ask for a continuance until the following morning.

Mr. Robin-Vergeer: Correct.

Correct.

And the sheriff's office could have gone out.

Counsel also asked for arrest warrants... he called them capiases... arrest warrants to go out to find the witnesses, if necessary, if he couldn't have located them.

And that's... that's the least that the Due Process Clause and the Compulsory Process Clause would require, would be some effort to try... to try to bring in the witnesses--

Chief Justice Rehnquist: But it's... it's odd in a way, and perhaps this doesn't... that, you know, you would have to get a capias and arrest your... your father-in-law and your mother and your sister.

Mr. Robin-Vergeer: --You know, I think that is a backup suggestion by counsel to cover all bases.

They were under subpoena.

The defendant has a right to have witnesses under subpoena there.

They had mysteriously disappeared.

He had no idea why they left or where they had gone.

And he was covering all of his bases by asking the trial court for arrest warrants, if necessary.

It may never have come to that because the girlfriend wasn't even given enough time to get to the relative's house to see if they were there.

And just returning also to the circumstances in which this exchange took place, the trial court had created a real sense of rush and urgency in this trial.

I've quoted several instances in the opening brief.

It's footnote 9 where the State trial court had indicated to counsel that he wanted to move this case along.

Just before the lunch recess, in fact, he said, I want this courtroom cleared by 2:00 p.m. And that's trial transcript page 570.

I want this courtroom cleared by 2:00 p.m.--

Justice Kennedy: Counsel, please... please don't ask us to write an opinion where we tell judges it's wrong to tell counsel to hurry along.

Mr. Robin-Vergeer: --No.

[Laughter]

No.

And I'm not saying that the... the trial court doesn't have broad discretion in how to manage its docket and everything else.

But when counsel was before the judge and is explaining the situation that has occurred, the atmospherics that had arisen where the trial court judge is pressuring them to move along factor into how the colloquy went, especially given that this is an unexpected situation.

It's not that different from what happened in Osborne v. Ohio, although I think that case is less compelling than ours because there was no emergency situation.

But in Osborne v. Ohio, Ohio had a rule requiring that jury... that objections to jury instructions be made right before they're delivered.

Counsel didn't object to the lack of an instruction on lewdness, but this Court said that the pretrial motion to dismiss the indictment on First Amendment grounds was sufficient and--

Chief Justice Rehnquist: Well, the rules for reviewing that sort of thing in this Court have changed a good deal from the time of Osborne against Ohio I think.

Mr. Robin-Vergeer: --Well, the basic principles regarding when a State law ground is adequate haven't changed much.

This Court takes a functional approach to looking both to whether or not a litigant has a reasonable opportunity to preserve his claim and also to whether anything would be gained whether all of the purposes served by the rules have been fulfilled, such that there's some adequate State interest in enforcing a procedural default.

The purpose of these rules is to permit the trial court to pass on the merits of a motion for a continuance.

The trial court denied this motion on the merits, and we quarrel with the basis for the trial court's denial.

We think it was as arbitrary as arbitrary can be.

But there's no mystery here was to why the trial court ultimately denied that request and it wasn't because of any procedural defect in that motion.

Chief Justice Rehnquist: But the Missouri Court of Appeals upheld the denial on the basis that it hadn't conformed to rules what?

09 and 10?

Mr. Robin-Vergeer: Correct.

And... and there's... there's something anomalous about an appellate court coming in to enforce a procedural rule, in circumstances where there's an emergency situation, such that neither the trial court, the prosecutor, or the defendant believed that there was anything more that needed to be done.

Justice Kennedy: Well, I... I think it's fair to say... or maybe it isn't.

Maybe you can argue with this... that what the appellate court was saying that at least under 24.10, there was an insufficient showing, and that's exactly what the trial judge found.

The trial judge didn't cite 24.10.

He doesn't say I'm ruling against you because you're inadequate of showing under 24.10.

But it's clearly implicit in his ruling.

Mr. Robin-Vergeer: The only thing that could possibly be missing in the showing that was made during the exchange on the continuance was a failure to repeat the full opening statement regarding what the witnesses would have testified to.

Justice Scalia: No.

I think it was assurance that the witnesses would be provided within... within the time frame that... that they asked for.

I didn't see where that... that assurance was, and that's what... what.10 requires, and that's what I think the trial judge didn't... didn't have, and that's the reason he said, forget about it.

Mr. Robin-Vergeer: What rule 24--

Justice Scalia: One of the reasons.

Mr. Robin-Vergeer: --rule 24.10(b) requires the name and address--

Chief Justice Rehnquist: Where are you reading from?

Mr. Robin-Vergeer: --I'm reading from page 3a of the... the appendix to the opening brief.

It requires the name and residence of such witness, if known... that was given... and also facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time.

The showing that was made to the trial court during the discussion was both that they were still in Kansas City, Missouri.

They hadn't left for California, and that they had reason to believe they were still there because they had a religious event to attend.

If he had written out of amotion, he couldn't possibly have said more.

That is a sufficient showing under that ground.

Justice Ginsburg: And they had come voluntarily.

Mr. Robin-Vergeer: And--

Justice Ginsburg: They had not come by subpoena.

They weren't subpoenaed until they got to Missouri.

They came there voluntarily?

Mr. Robin-Vergeer: --That's correct.

They were subpoenaed in counsel's office when he was interviewing them.

Justice Scalia: They also skipped voluntarily just before they were supposed to be put on the stand under oath.

Mr. Robin-Vergeer: But we don't--

Justice Scalia: Doesn't one factor that into account as to whether these witnesses who suddenly vanish into thin air are likely to be found?

Mr. Robin-Vergeer: --No, because there was no factual basis at that moment before the State trial court judge to have any idea whether it was a medical emergency, a misunderstanding, they had gone to lunch and hadn't come back on time.

There was no information before the State trial court at that moment to form any assumption about why they left.

Justice Scalia: They were there under subpoena.

They knew that they were going to be testifying in an hour, and they left without apparently telling the person who had subpoenaed them, their... their son's counsel, or anybody else.

I mean, are those circumstances which would lead one to believe that it's going to be a cinch to find these people and bring them back within a reasonable time?

Justice Stevens: But you also have to factor in the fact they were sequestered witnesses not in contact with any of these people you're discussing.

Mr. Robin-Vergeer: Correct.

They were in a separate witness room, and during the time that they supposedly left, there were trial proceedings that were going on.

There was... they were in trial with witnesses at the point that they... that the witnesses left.

So, there wouldn't have been contact.

Justice Scalia: Did their sequestering prevent their leaving a message with the... with the clerk of the court or a marshal or someone saying, tell my son we're going because we had a medical emergency or, you know... or because, as the... as the later story comes out, some marshal told us to leave?

Mr. Robin-Vergeer: Well, if you credit the later story--

Justice Scalia: I find that so implausible that they should just walk out, not leave any word for... for their son for whom they were about to testify.

I... and I don't think, if I were a trial judge, I would have thought these witnesses are about to be found within... within a reasonable time.

Mr. Robin-Vergeer: --You have witnesses who apparently are unsophisticated.

They're not lawyers.

They're not schooled in the law, and if you credit their story that someone told them their testimony wasn't needed that day and they could leave--

Justice Breyer: Wasn't there a thing too that he's a minister, the father, and he was scheduled to give a sermon that night?

Mr. Robin-Vergeer: --Correct.

He had... he was a minister and he had a religious event in Kansas City that day and the next, which was the reason that was given for believing that they were still in town.

No one made any effort to track these witnesses down or to enforce the subpoena.

Justice Stevens: The defendant was in custody, was he not, during--

Mr. Robin-Vergeer: Correct?

Justice Stevens: --So, they didn't have actual contact with him.

They couldn't have gone in and said, hey, we're going to lunch.

Mr. Robin-Vergeer: Correct, correct.

Justice Ginsburg: There is a--

Justice Scalia: --But they could have told somebody to tell him, couldn't they?

And... and there was no reason to believe at that time... this story came up a lot later after the... much later than 2 weeks that... that in fact it had been some court personnel who told them that they were no longer needed.

As far as the trial court knew--

Mr. Robin-Vergeer: It actually makes the trial court's decision that much more arbitrary because at the moment that the trial court is faced with this question, you have witnesses who traveled voluntary from California, who are under subpoena, who actually appeared in the courthouse, were sitting in a witness room, and had suddenly disappeared, and no one knew why.

Justice Ginsburg: --Why did it take 17 months to bring out the... the information that a court official told these people their testimony wouldn't be needed?

Was it not needed at all or not needed till tomorrow?

That's unclear.

Mr. Robin-Vergeer: Well, with respect to your question regarding the delay, I think that's just a function of how the Missouri post-conviction process unfolded.

He... you know, he filed a... a motion for post-conviction relief later in '94.

Counsel was then appointed.

Counsel filed an amended petition, and so you had the passage of time.

Justice Scalia: Did he get in touch with these people before... before 2 weeks... I mean, before the motion for reconsideration of... of the denial of... of continuance came up?

Mr. Robin-Vergeer: I don't know whether he got in touch with them or not.

Justice Scalia: Well, that's extraordinary.

I mean, if they were so easy to find, one... one would have thought that he would have contacted them within the 2 weeks and they would have told him within those 2 weeks that a court personnel had told us to leave.

Mr. Robin-Vergeer: The record--

Justice Scalia: But he doesn't mention that--

Mr. Robin-Vergeer: --The record--

Justice Scalia: --2 weeks later.

Mr. Robin-Vergeer: --The record is silent on that.

I... I can't answer that.

Justice Scalia: I know it is.

Justice Stevens: Was the motion for a new trial filed by the same lawyer who represented him during the trial?

Mr. Robin-Vergeer: Yes, it was and in fact, he was relieved during the sentencing hearing that took place.

Justice Stevens: I know.

He wanted to get out of there because he wasn't going to get paid even for the notice of appeal.

It seemed to me he was anxious.

Mr. Robin-Vergeer: Correct.

Justice Stevens: And once he had gotten fee for what had been done, he sort of lost interest in the case.

Mr. Robin-Vergeer: That is an impression that the record gives.

Justice Scalia: So, you... you can't say that he... he got in touch with these witnesses who would have been so easy to find within a day.

You can't even say that he got in touch with them 2 weeks.

Mr. Robin-Vergeer: I don't know.

I don't know.

Getting back... just to return to the second... to this Court's cases because I think I was beginning to get into Osborne.

I think that Osborne supports our position here because the Court took a functional approach in Osborne to whether or not there was any... anything that would be gained by forcing counsel to repeat information that was already before the judge, and the Court said, no, there was no... there was no default.

Other cases in which this Court has found that procedural rules were applied with the phrase being pointless severity or whether there were arid rituals of meaningless form where technical niceties were not observed, but nonetheless counsel could substantially comply with the showings required by the rules, cases like Douglas v. Alabama where you didn't repeat a futile objection, cases like Staub v. City of Baxley where counsel challenged on First Amendment grounds an entire ordinance and didn't signal out particular... particular provisions to... to attack because it was clear what the... what the lawyer was challenging.

Wright v. Georgia and NAACP v. Alabama ex rel. Flowers where the claims weren't grouped exactly right in the... in the State court appeal, but this Court, nonetheless, found that no purpose would be served by finding a default in those cases.

All of those suggest... and... and also the fact, of course, that the defendant did not have a reasonable opportunity to comply with the letter of the rules, but nonetheless substantially complied with the rules.

All of those suggest there should be no default, and in the alternative, even if there was one, that there should be a finding of cause and prejudice.

And with the Court's permission, if there are any more questions, I'd like to reserve the remainder of my time.

Argument of Paul C. Wilson

Chief Justice Rehnquist: Very well, Ms. Vergeer.

Mr. Wilson, we'll hear from you.

Mr. Wilson: Mr. Chief Justice, and may it please the Court: Justice Kennedy... Kennedy, you are quite right to be disturbed by counsel's failure to provide the court any more information or better showing under... under rule 24.10 in the motion for a new trial that was filed 2 weeks after the events that the Court has been discussing than he did.

But what should trouble this Court much, much more than that is that 2 months following the last day of petitioner's trial, his new trial motion was heard, and the trial court asked counsel whether he had anything else that he would like to submit in consideration of the motion for a new trial, and counsel replied no.

Justice Breyer: Why... why do you think that might have been?

I mean, why... why do you think... I mean, I was wondering why it wasn't ineffective assistance of counsel not to put the thing in writing and not to comply with 10.

Mr. Wilson: First of all, for... for counsel to have represented the facts that 24.10 requires, counsel would have had to believe that they were true.

And one of the principal purposes--

Justice Breyer: He didn't say all that in the opening statement, did he?

Mr. Wilson: --Excuse me?

I'm--

Justice Breyer: I mean, I wonder why is there no ineffective counsel claim.

Why didn't the Federal court in this case say, well, look, you're the lawyer in the State court at the trial, didn't comply with rules 9 and 10?

My goodness, that was in effective assistance.

Why didn't the habeas court say that here?

Mr. Wilson: --The habeas court addressed the question of whether there was such--

Justice Breyer: Why didn't they say what I just said?

Mr. Wilson: --And because they... they said that claim was never raised to--

Justice Breyer: Now... now, that's exactly right.

Now I want to know why do you think that... that that claim wasn't raised at that hearing, namely, the after-the-trial hearing, the post-conviction?

Mr. Wilson: --First, how trial counsel conducts trial motions and post-trial motions is an area in which he... there is a broad discretion for the trial counsel.

Justice Breyer: Of course, and what I'm really driving at is, isn't the reason that they didn't raise rule 9 and rule 10 as showing ineffective assistance at that post-trial business is because nobody dreamt that the courts in that State of Missouri would apply rule 9 and rule 10?

Because up to that point, nobody had even mentioned them.

They didn't get mentioned until the appellate court, after this series of events, on its own raises rule 9 and rule 10.

Mr. Wilson: Justice Breyer, that's correct.

Justice Breyer: That's not--

Mr. Wilson: That is not correct.

First, these are published rules of court that were in the book long before petitioner's trial, and the cases applying these rules, in fact, comparable to these and in others, are... it's an unbroken string of precedent.

So, counsel was either aware of those or was certainly deemed to be aware of those.

Justice O'Connor: --Well, at least--

Mr. Wilson: And second--

Justice O'Connor: --we know that the... the trial judge did not deny the continuance on the basis of a failure to comply with those rules, did he?

Mr. Wilson: --He didn't say because I find that--

Justice O'Connor: There's nothing in the record to indicate that the trial judge said, well, I can't grant that.

You didn't file it in writing.

You didn't supply this information.

That's not in the record, is it?

Mr. Wilson: --No, Your Honor.

He did not cite that.

Justice O'Connor: The trial judge denied it because he wanted to go to the hospital with his daughter on one day and he had another trial in another case starting the day after.

Mr. Wilson: I don't believe that's correct.

Justice O'Connor: Isn't that right?

Mr. Wilson: I don't believe that's correct, Justice O'Connor.

I don't believe that a fair reading of the record indicates that that is why he denied the motion.

Justice Souter: What... what does it indicate?

I mean, I... I read it the same way Justice O'Connor did, and I... I don't... what is your reason for--

Mr. Wilson: I... I think the record clearly shows that the reason he denied the continuance is because, as Justice Scalia suggested, he determined, on the circumstances that had been presented to him, that these witnesses abandoned the defense.

Justice Souter: --Then why did he get into his daughter's hospitalization and his Monday schedule?

Mr. Wilson: The... the continuance that was requested was till the following morning, and it was in that context... and... and it is a single sentence utterance there, that... that he noted that he was not going to be in the courthouse--

Justice Souter: Well, why if he... if he was denying the motion on the ground that there had not been the specifications that rule 10 required, why get into his daughter's medical condition?

Mr. Wilson: --The trial judge could have been responding to the idea that even though you've not made a sufficient showing, I'm not going to cut a break for this because--

Justice Kennedy: Yes, I assume... I assume there are a number of factors that go into the judge's decision.

One is that... the... the court's own schedule.

The other is the reason these people have gone.

He says it looks like your... you folks... I think he said you folks have been abandoned by these witnesses.

And so, he gives a number of reasons, all of which are exactly what he has to do under 24.10 even though he doesn't cite 24.10.

Mr. Wilson: --He found that an insufficient showing had been made, and there are other factors that he would have been considering.

First, counsel had committed to this trial schedule.

Second, defense counsel had announced himself ready to proceed and had put on part of his case.

Third--

Justice O'Connor: The witnesses were there, we're told.

They... they, in fact, were there and subpoenas had issued.

They were there.

And it is, I think, somewhat unusual that in the strange circumstances of their disappearance, that there wouldn't be some small amount of time given to find out what had happened.

Mr. Wilson: --Except that the circumstances that were presented to the trial court, Justice O'Connor, I believe supported his conclusion that they had left--

Justice Stevens: May I just interrupt?

Isn't it orrect that the witnesses were sequestered, and the one person who would know where they were would be a court employee who had... in charge of the sequestered witnesses?

Mr. Wilson: --There was a court employee in contact with them and also trial counsel was in contact with them and the defendant.

Justice Stevens: No.

Trial counsel was in court.

Mr. Wilson: But trial counsel went and checked on them at 10 o'clock when the State rested its case.

He was back one subsequent time I believe the record shows.

But at least he says in the new trial motion... he says with clarity and particularity that he went there at 11 o'clock and they were gone.

So, from the time he knew that they were gone, 2 hours elapsed before they were back in front of the trial court.

And it is important to note that the... the colloquy that occurs.

Justice Kennedy: Well, they might have gone down to get an apple out of the vending machine.

I mean, the counsel has got a lot to do.

He's got his closing... his opening statement for the defense.

He's got his witnesses.

He goes down.

They're not in the room.

I don't... I don't attribute much to that.

Mr. Wilson: But if these are the witnesses that stand between this young man and life in prison without parole, it is absolutely to be presumed that trial counsel did what trial counsel would do in that circumstance and say, you are under subpoena.

You don't leave this courtroom unless I tell you... you don't leave the courthouse unless I tell you it is okay.

Our case is now beginning.

It will proceed--

Justice Ginsburg: Why would he have any reason to think that witnesses who had come on their... by their own expense all the way from California and who were in the courtroom that very morning... they were there at 8: 30, as I understand, and at 10 o'clock they're still there.

Why would he have any reason to think they would leave?

Mr. Wilson: --Justice Ginsburg, he may not have believed that they would leave or... or suspected they might leave, but these are the sorts of instructions that trial counsel give their witnesses whether or not they think that that might happen because the circumstances can be very dire if they do leave.

Justice Souter: Well, if... if we're... if we're going to make an argument based on what trial counsel could be expected to do, why isn't it equally fair to make an argument about what trial judges could be expected to do?

And I would have supposed that if the trial judge was denying that motion based on rule 9 or rule 10 grounds, he would have said I'm denying your motion because you haven't conformed with rule 9 to put it in writing, if that was the case, or rule 10, to specify what you're supposed to specify.

And he didn't do that.

And I am also supposing that if he had done anything like that, counsel would have said, gosh, judge, please give me a piece of paper and let me write this out.

So, why... why isn't it a... a fair inference, when the judge says nothing about these rules, that the judge in fact is not relying on those rules in any way?

Mr. Wilson: First, the judge did ask, following the discussion about what had happened, whether counsel intended to file a motion for a continuance.

It seems clear in that that he expected or at least had reason to believe that counsel would be providing a writing.

Second, this trial judge was a very well-respected court of appeals judge in the State of Missouri, and in fact he sat on the panel that decided State v. Settle, which is cited in our brief, which was a case that determined that a showing... where the 24.10 showing was not made, either by affidavit, but also by substance, that the motion... that the denial of the motion could be affirmed on that basis alone.

Justice Scalia: Even... even where it wasn't... the denial wasn't based on that basis.

Are any of the other Missouri cases involve a situation where the trial judge did not rely on 9 or 10, but nonetheless, his action was affirmed on the basis of... of failure to comply with 9 or 10?

Mr. Wilson: I don't know any of the dozens of Missouri cases that are cited in the briefs that applied the rule that a failure to comply with those rules will foreclose appellate review where they cited that the trial judge had made a specific finding 24.09 has been or 24.10 has been violated.

Instead, that's the... the review that the appellate court undertook.

Second--

Justice Ginsburg: The question was--

Justice Breyer: --on that... I... I mean, they have a lot of cases.

You know, and in their reply brief they have... the other side has some that seem pretty much on point against you.

But there's no case that I can find directly on point.

Direct.

Mr. Wilson: --Justice Breyer--

Justice Breyer: So... so, if that... maybe you can suggest one, but I'll go back and read it.

But the... the rule... the standard I thought might be useful is the standard in respect to that, that did the lawyer have fair notice that the rule exists and applies in the circumstances.

Now, maybe since... and it was written in an amicus brief that favors your side... maybe you approve of that standard.

And I'd like to know, A, do you or not?

And if you do approve of that standard, but I come to the conclusion here that that trial judge did not have fair notice that the Missouri rules would apply in these circumstances where he was suddenly surprised by the loss of witnesses and nobody in the courtroom said a word about 9 or 10.

And nobody said anything about 9 ever, and the appellate court went and applied it for the first time on its own.

That's a big question, but it has two parts, and I'd like an answer.

The standard and the application of it.

Mr. Wilson: --The standard that you gave me, Justice Breyer, I don't believe differs materially from the standard in Ford v. Georgia which is firmly established and regularly applied.

It's important to note that regularly applied does not mean precisely applied to these exact circumstances in a published case prior to the defendant's trial, but rather regularly... regularly enforced.

And so, I believe that the standard you articulate is a good one, and this rule meets it because, A, it's published, and B, there were an... an unbroken string of precedents both before defendant's trial and since that time, and not one of them excuses a default under 24.09 or 24.10, reaches the merits of a request for a continuance, and finds that the denial was error.

Justice Breyer: The reason the... the three aspects of it that suggest maybe this lawyer did not have fair notice that the rule would apply in the circumstances are, first, the lawyer was surprised by his loss of witnesses.

So, he didn't have time to prepare anything in writing in advance.

Second, he's in the courtroom talking to the judge and he knows full well that everyone in that courtroom knows every single thing about what rule 9 and rule 10 require.

There was no missing fact.

The judge knew it.

The prosecuting attorney knew it, and he knew it.

And third, there is no Missouri case that says that we're going to require a useless act in the circumstance where the lawyer has suddenly been surprised by his loss of witnesses and everything is going on orally in front of the judge anyway.

Now, those are the three that I think cut against you, and so I'd like your reply.

Mr. Wilson: Surprise, Justice Breyer, was not present.

He went to the witness room at 11 o'clock in the morning before the lunch break, substantially before the lunch break, and discovered that they had left.

From 11 o'clock then until just after 1 o'clock is the amount of time he had to conduct his investigation as to where they had gone, but also to prepare a writing.

But leave aside the writing requirement, which may or may not have operated with any purpose in this situation... I believe that it did.

But more importantly, he did not gather the information and present it all at once to the judge that 24.10 requires.

Second--

Justice Stevens: Could you just tell me on that, what could he have told the judge that he knew that he didn't tell the judge?

Mr. Wilson: --He did not tell the judge that these witnesses could be located in a reasonable amount of time and that they would give the testimony that it has been suggested they would give.

Justice Stevens: Well, he... the judge knew what testimony they were going to give.

You don't question that, do you, that there--

Mr. Wilson: I... I do question that, Justice Stevens.

Justice Stevens: --Didn't... didn't the lawyer announce it in his opening statement to the jury?

Isn't that one reason it was so... so prejudicial that they didn't show up?

Mr. Wilson: The... the... a lawyer's statements and opening statement are not evidence and they're not evidentiary.

Justice Stevens: But the judge heard the statement.

Mr. Wilson: He did hear the statement, but what's--

Justice Stevens: He knew what the witnesses were intended to testify to, didn't he?

Mr. Wilson: --But 24.10 requires more than that, Justice Stevens.

Justice Stevens: Well, he did know that much, don't you agree?

Mr. Wilson: I do, but... but it requires someone to attach their credibility to the proposition that they will actually give that testimony.

Justice Kennedy: And, of course, I suppose the lawyer knew what the family would testify to before they heard the strengths of the prosecution's case, which was that there were four witnesses that put him in... in the city.

Chief Justice Rehnquist: I don't suppose a lot of judges concentrate intently on opening statements the way they do perhaps motions that they have to decide or something like that.

If... if some... in the rare instance where opposing counsel objects to an opening statement, the judge... but certainly he doesn't pay attention to that the way he would to lots of other things in the case.

Mr. Wilson: Your Honor, that might be true as a general proposition, but we don't need to rely on a general proposition in this case because this judge told these lawyers in this lawsuit the following.

Quote: I don't have a lot of faith in what's said in opening statements anyway.

That's the trial--

Justice Breyer: Are you going to tell me right now... we both read this record.

And are you going to tell me that in your opinion, the judge did not know that these witnesses were here to say that the defendant was in California at the time?

Mr. Wilson: --The judge knew that he did not have anybody in that courtroom who was willing to stand up and say on my credibility, that's what these witnesses--

Justice Scalia: He did not know that he had the lawyer's assurance of that.

He did not know that he had the lawyer's assurance of that.

Mr. Wilson: --Or any other--

Justice Scalia: Because in fact he did not have the lawyer's assurance.

Mr. Wilson: --That's correct.

Justice Souter: But he did--

Justice Breyer: --Actually I asked the question that I'd like an answer to.

The question that I asked you was whether you're prepared to say right now that the judge did not know that the purpose of these witnesses was to testify that the defendant was in California at the time.

I didn't ask you the question that Justice Scalia asked.

I asked you my question.

I'd like to know the answer to my question.

Mr. Wilson: I believe that the... that the judge knew what had been said... what had been attributed to them in the opening statement.

I... that is not the test that 24.10 requires.

That's not the--

Justice Breyer: That's a different... well, if you're... you're willing to say, which I think is fair and I think correct, that on the basis of this record, the judge knew that the point of these witnesses was to testify that the defendant was in California at the time.

Mr. Wilson: --At the most--

Justice Breyer: The answer to my question is yes.

Is that right?

Mr. Wilson: --Yes.

At the most what he knew was counsel expected that to be their testimony the day of--

Justice Souter: Well, he knew something more than that, didn't he?

He knew that counsel, who was an officer of the court and need not be sworn in making representations in that courtroom, had represented as a matter of fact to the judge and to the jury that that's what the witnesses would testify.

Mr. Wilson: --No, I don't believe that that's correct.

I don't believe that that's what you can say his statement and opening statement means.

I think that it means that standing there... at... at the most, what you could say is, standing there in front of the jury... and he's addressing the jury and not the judge... that his best expectation of the best the evidence will be out of the witnesses' mouths is as he stated it.

I don't--

Justice Souter: What... I presume what he stated was not if things go as well for me as possible, these people will say as follows.

I presume what he said is, I have these three witnesses.

He described their relationship, their location, et cetera.

And they will testify that the defendant was in California at the time.

I presume that's what he represented in open court.

Isn't that correct?

Mr. Wilson: --That is what he told the jury.

Justice Ginsburg: --because we have the transcript that shows exactly that.

He told the jury these are the three witnesses.

They will testify that he was in California.

He described the witnesses and he said, they will testify.

Mr. Wilson: Yes.

Justice Ginsburg: He didn't say, the best thing that you might infer from what they testify.

Mr. Wilson: But counsel's statements to the jury in opening statement are not held to the level of a representation of an officer of the court to the judge--

Justice Ginsburg: But the judge was fully apprised that the defendant was expecting to put on witnesses and that hey were alibi witnesses.

There's no doubt about that, is there?

Mr. Wilson: --The judge knew facts... knew those facts from the opening statement only.

But 24.10 requires someone to attach their credibility to those propositions when they are asserted as the basis for an interruption in the orderly conduct of a criminal trial.

Justice Kennedy: Is it your experience that witnesses ever have second thoughts about giving their story after they've heard the strength of the prosecution's case?

Mr. Wilson: That... Your Honor, I believe that that does happen.

And I believe especially it can happen in a case such as this one where the defense counsel did not know the strength of the State's case as accurately as he might have because instead of the--

Justice O'Connor: But were these witnesses in the courtroom to hear that testimony?

I thought they had been sequestered.

Mr. Wilson: --They had been sequestered.

That's correct.

Justice Ginsburg: So how would they know?

How would they know the strength of the government's case if they hadn't been there to hear it?

Mr. Wilson: I don't know that they did know, but I know that they visited frequently with the defendant and with defendant's counsel.

I don't know that they did know.

And... and it isn't for us 9 years later--

Justice Stevens: They did later file affidavits substantiating what the... was said in the opening statement, didn't they?

Mr. Wilson: --Excuse me?

Justice Stevens: They did later file affidavits consistent with what the counsel had said in his opening statement.

Mr. Wilson: Yes, 4 years later they did, 4 years--

Justice Breyer: What about the third part which is... I... I take it as well that you would agree that the judge heard that this... the missing witness is a minister who's there for a religious event that's taking place that evening.

All right.

So, we know that 9 and 10 were not literally complied with.

Now, but they might have been substantially complied with.

And so, at this point, when everybody knows in the room what's going on, was the lawyer fairly apprised that what we had to do was perform what he might have thought of as a useless act?

And the case that's the strongest for your yes answer, he had to go through the form even though the substance was right there in the case of the surprise witnesses... your strongest case or two under Missouri law is?

Mr. Wilson: --Missouri v. Cuckovich and other cases cited in the... in the dissent in the Eighth Circuit where he quite candidly categorizes and admits that Missouri rules of 24.09 and 24.10 applied prior to trial, at the outset of trial, and during trial.

They apply... they apply--

Justice Kennedy: Well, you don't want us to decide this case on the fact that he didn't make an affidavit, do you?

I mean, that's so easy.

The judge puts him under oath or gives him 2 minutes to write something out.

You're not resting on that, are you?

Mr. Wilson: --Your Honor, I am not--

Justice Kennedy: --24.10 I would... I would think.

Mr. Wilson: --I'm not going to stand on the formality, and we didn't stand in the court of appeals on a formality of a writing or even the formality of an affidavit.

But there was no one in the courtroom at the time this issue was being decided who was willing to attach their credibility to these assertions, who was willing to say to the judge, if you stop this trial, I believe there is a reasonable probability that I can produce these witnesses and that they will give this defendant an alibi, that they will say on the date and time of this murder, he was not within 1,000 miles.

Justice Breyer: So, if I read through the transcript and I came to the conclusion that everyone in that courtroom in that very short trial, in the circumstances given what was said, would have very clear that this lawyer does mean to tell the judge, one, these are my own witnesses that make a difference.

Two, they're alibi witnesses.

Three, they're going to say he's in California.

Four, I don't know why they left.

Five, give me a couple of hours or at least till tomorrow morning.

He's giving a sermon downtown and I'd like to try to find him.

Now, if I come to the conclusion that any one reasonable person in that courtroom would have thought that was... the lawyer was saying that in the circumstances, I could hold against you.

Is that right?

If I think that the circumstances were such in the courtroom that anyone would have... any reasonable person would have come to the conclusion that this was in effect what the lawyer was telling the judge.

Mr. Wilson: In effect, what the lawyer was telling the judge by reference, implied or otherwise, to the entire body of trial is not what 24.09 or 24.10 require.

They require that that showing be made in the application for the continuance.

Now, if we say that an oral application is fine, okay, but you still have to present the facts and you have to present them in a way that makes them believable because what's being asked for is a serious imposition on the trial court and its conduct of this criminal trial.

Justice Ginsburg: Mr. Wilson, at the time of the new trial motion, the transcript was available to the judge of the proceedings?

Mr. Wilson: I don't know, Justice Ginsburg.

The new trial motion was filed 2 weeks after trial, but the new trial motion was heard 2 months after trial.

Justice Ginsburg: My concern with your position is you suggest twice in your brief that counsel ought to have scribbled out this 24.09 notice.

He could have had a legal pad and scribbled it out.

That seems inconsistent with your answer that you're not seeking to the form.

Here is... is a man on trial for a very serious offense.

The lawyer is faced with the absence of the only witnesses he has.

He's got to do his best.

Should he be thinking about scribbling anything on a piece of paper?

Should he be... have all of his attention trained on how can he do the best for his client under these extremely horrible circumstances?

Mr. Wilson: Justice Ginsburg, that argument in the brief is... is not made to show what a reasonable lawyer would do or what every lawyer could do, but rather to show that it was neither impossible nor impractical... impracticable to comply with the rule.

Chief Justice Rehnquist: Well, I... I... 29.09.

I was surprised to see the Missouri Court of Appeals interpret it to apply to things like a motion for a continuance arising during trial because it... well, it's very difficult, I would think, for a lawyer, suddenly faced with an emergency like this, to... you know, you obviously... you can't go back to your office and dictate a motion, and to simply write out something in longhand when perhaps he can simply make the statement orally.

Mr. Wilson: It may be surprising that... that the court of appeals and the Missouri Supreme Court have done that, but they have done it.

And that is the Missouri law and... and it has been so for some time.

And the mere fact--

Justice Ginsburg: We don't know... we don't know that... that the idea of you have to scribble something in the court has been around for some time because, as you said, there's no case that presents precisely that situation where the motion is in the... in the heat trial something unexpected happens.

You have no precedent that says, even so, under the Missouri rules you must sit there in your seat at counsel table and scribble out a motion.

Mr. Wilson: --Well, the... no.

The... the precise circumstances of this petitioner's case have not arisen in a published case in Missouri.

That's correct.

But there is... it was clear that in the midst trial and even in some exigency, the courts of appeals and the Missouri Supreme Court had held 24.09 and 24.10 to require a writing and a sufficient showing in the past.

And... so, if this counsel... as soon as this colloquy was concluded and the motion had been denied, they turned immediately to the... to the petitioner's counsel's motion for judgment of acquittal at the close of all of the evidence.

He made that motion orally, but because he knew that in order to preserve his right to appeal any of the points therein, he asked the judge, and the judge gave him permission, to file the writing later.

The same is true with this rule.

Because anybody who had read the cases applying 24.09 and 24.10 would know that you are forfeiting your right to appellate review of a denial if you have not put the sufficient showing before the judge and done so in writing.

Justice Scalia: Mr. Wilson, I thought you weren't going to rely very much on the... on the not written part, but let's talk about the other part, that all of these... even if all of these factors of substance that had to be in the motion were somewhere in the trial transcript and even if you could say that this trial judge knew it, you couldn't say, could you, that the court of appeals knew it, that the court of appeals could look back to this motion without searching the entire transcript and asking itself, I wonder what, under this transcript, the trial judge knew?

The... the court of appeals in Missouri could not look at the motion and say, well, he set forth what he had to say... set forth.

That... that's clear, isn't it?

Mr. Wilson: Yes, that is clear.

Justice Scalia: The court of appeals would have been constrained to review the entire trial record, which it is one of the purposes of... of.10 to avoid.

Mr. Wilson: Yes, it is.

24.10... one of the--

Justice Scalia: It is not purposeless, even if you assume that the trial judge knew that... that in fact the lawyer was... was making the affidavit that he... that he had to make.

Mr. Wilson: --Yes.

The purpose would be to provide a meaningful appellate review by bounding the relevant facts in a credible fashion and presenting them not just to the trial judge, but also to the court of appeals.

Justice Souter: But, of course, I suppose the court of appeals is entitled to rely upon the trial judge's reasons when it reviews the adequacy of those reasons for granting the motion.

So, if the trial judge's reasons do not look... do not reasonably refer to rule 10, then I suppose on anybody's theory, the court of appeals wouldn't have to search the record.

Isn't that so?

Mr. Wilson: No, I don't believe so because the... the very purpose of the appellate rule is that they will not do exactly that.

If 24.09 and 24.10 were not complied with, then it doesn't really matter.

Justice Souter: No.

All I'm... all I'm saying is that I thought what the... the State court of appeals would review would be the... the reasons given by the trial judge for ruling as he did.

Isn't that correct?

Mr. Wilson: No, I don't believe so.

I believe... I believe that what is appealed from is the decision and not the reasons for the decision.

Justice Ginsburg: Mr. Wilson, in... in answer to Justice Scalia's question about hunting through the whole record, wouldn't counsel, notified about the 24.10 requirement, say, judges, you don't have to read through the whole record?

I'm putting it all in front of you, the exact words.

It will maybe be two or three pages, but not a whole record.

Shouldn't the attorney be able to, in this very case, in a matter of a few pages say where... where it was in the transcript?

Mr. Wilson: Except that compliance with 24.10 doesn't... doesn't require you to be able to trace it through the record, but rather that you presented it all at once to the trial judge and that you did so with some credible reason to believe that what was being asserted was so.

Your Honors, 2... 2 months after this... after the denial of the continuance occurred, they appeared before this very same trial judge to hear the motion for a new trial.

No explanation was given to that judge.

No better or further showing was provided.

Even the simplest fact like the... like that they were available and able to testify the very next day in Kansas City was not offered to this trial judge.

There was no due process claim before this trial judge either at trial or on the motion for new trial, and he had no facts to believe that he had done anything other than what was fundamentally fair under that circumstance on the circumstances as they had been presented to him in the context of the motion for a continuance.

Thank you.

Rebuttal of Bonnie I. Robin-Vergeer

Chief Justice Rehnquist: Thank you, Mr. Wilson. Ms. Vergeer, you have 3 minutes remaining.

Mr. Robin-Vergeer: Just a few quick points.

With respect to the proffer and somebody being willing to put their credibility on the line, the defendant actually took the stand during the... the colloquy on the continuance.

He was sworn, which actually you would think is a superior form of proof to an affidavit, and there he was subject to cross-examination by the prosecutor, if there had been any questions.

She didn't have any other than to clarify that the witnesses had been under subpoena, which they had been.

And... and so, I... I think that the... that whole like of inquiry about whether somebody is willing to sort of swear to facts in support of the motion sort of falls by the wayside because he was on the stand.

In addition, in terms of what... what all the players in the sea knew about... about these witnesses, there's a rule.

It's rule 25.05 of the Missouri rules that requires a notice of an alibi to be given.

Apparently one was given because the prosecutor came prepared in her opening statement to address briefly the fact that there was an alibi defense that she expected to be presented.

And in addition, the detectives interviewed these witnesses while they were in Kansas City and took statements from them, and if there was any question later, as the record developed further in Federal court, about whether these witnesses really would have said what... what they said they were going to say, the State had whatever notes or statements that was taken from the interviews that were done with these witnesses.

Justice O'Connor: Ms. Robin-Vergeer, was any due process argument ever raised at the motion for a new trial level?

Mr. Robin-Vergeer: At the motion for a new trial, the defendant argued the denial of the brief continuance and the denial of the arrest warrant to enforce the subpoenas... argued that that denied the defendant a fair trial.

Due Process Clause was specifically mentioned in the post-conviction motion and on appeal in the Missouri Court of Appeals.

Justice O'Connor: Well, in the post-conviction proceeding, as I recall, what was raised was ineffective assistance of counsel primarily.

Mr. Robin-Vergeer: Actually, it... it was both.

In the amended post-conviction motion and... and the relevant passage is on page 56 of the joint appendix and it continues through page 58... the defendant specifically argued that movant was denied his rights to due process of law and to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments when... and then it sort of recites, and it... and it goes along and says... and talks about, A, the fact that someone told the witnesses to leave and, B, that the trial court overruled the... the defense motion for a continuance.

So... so, the Due Process Clause is... is explicitly stated there and... and thereafter.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Ms. Vergeer.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Longshoremen v. Davis - Oral Argument

Fri, 09 Jan 2009 14:48:31 +0000

Case:

Longshoremen v. Davis

Media File:

85-217_19860225-argument.mp3

Related Transcript:

1985_85_217_argument.xml

Transcript:

ORAL ARGUMENT OF CHARLES R. GOLDBURG, ESQ. ON BEHALF OF APPELLEE

Chief Justice Burger: Mr. Goldburg, I think you may proceed whenever you're ready.

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

In this case the ILA attempted to organize a group of ship superintendents, and the union is alleged to have told the men it could get them their jobs back if they were fired for union activity.

The first issue to consider is whether the defense of federal preemption is waivable.

In the Garmon case, this Court said that when an activity is arguably subject to Section 7 or Section 8 of the Act, the states are deprived of subject matter jurisdiction.

Since the defense of federal preemption deprives the Court, the State Court of subject matter jurisdiction, the defense should be nonwaivable.

Among the factors that the Court noted in Garmon in reaching this conclusion is that the LMRA is not merely a matter of substantive law.

Congress created a tribunal, the National Labor Relations Board, with specially designed procedures, and the Court recognized that a variety of local procedures and attitudes could lead to inconsistent adjudications just as easily as inconsistent rules of substantive law.

Justice Rehnquist: Then it is your submission, Mr. Goldburg, that a defense like this could have been raised even for the first time on appeal?

Mr. Goldburg: That is correct, Justice Rehnquist.

Justice Rehnquist: And what if the judgment had finally become final, could you collaterally attack the judgment because of lack of jurisdiction?

Mr. Goldburg: No, I do not believe that the judgment could be collaterally attacked.

It is my understanding that the Court has held that subject matter... well, in a sense, it... I'm sorry.

The question then would be a matter of full faith and credit, and I believe full faith and credit does not preclude inquiry into jurisdiction.

Justice Rehnquist: I got the impression from your brief that some of your arguments about subject matter jurisdiction were based on the idea that it can be raised, or based on cases arising in the federal courts.

Why should those be carried over to a state court system?

Mr. Goldburg: Because in Garmon I believe that this Court held that Congress deprived the states of subject matter jurisdiction to rule on this type of a controversy.

Congress took the subject matter jurisdiction away, and therefore the states have no--

Justice Rehnquist: Well, of course, the Supreme Court of Alabama answered that by saying that our trial courts of general jurisdiction have jurisdiction to try in this representation case.

Mr. Goldburg: --But the fact that... well, I think all states have courts of general jurisdiction, and if merely by the state giving one of its trial courts general jurisdiction they could overrule Congress on a decision to take subject matter jurisdiction away, national labor policy would be frustrated.

Justice Rehnquist: Well, does the term... does the Garmon case use the term subject matter jurisdiction?

Mr. Goldburg: It says jurisdiction?

Justice Rehnquist: Yes, but why do you use the term subject matter jurisdiction?

Mr. Goldburg: Well, I think that's the only jurisdiction that the Court could have been talking about because the Court was very concerned with a variety of local procedures being applied by the states and a variety of attitudes being possessed by the states on labor controversies, and I think the only way that Congress could ensure that these types of issues were submitted to the Board and that the conduct that Congress intended to be protected under Section 7 would be protected would be if state courts did not have the jurisdiction to reach the merits of this type of controversy.

Justice Rehnquist: Well, do you know why this point wasn't raised until after trial in this case?

Mr. Goldburg: I think it was purely inadvertence.

I don't think there was any strategic motivation.

Justice Rehnquist: It wasn't... well, I suppose the Alabama courts could look at it as an effort to get a favorable judgment on the merits, and if you don't get that, then you raise this point afterward.

Mr. Goldburg: But I just don't see how we can infer a strategic motivation because we... you say favorable judgment.

It was a jury trial.

It wasn't like the union was hoping there would be a favorable decision written.

It seems to me that--

Justice Rehnquist: Well, you know, I agree that it's perfectly possible, I suppose, the union could win the case before the jury, wasn't it?

Mr. Goldburg: --Well, if the defense of federal preemption had not been upheld, say, on a pretrial motion, they still would have gotten a jury trial.

I just don't see any reason for a union or the lawyer who was trying the case to hold back on a defense and risk waiver.

I mean, if they had thought of the defense, I don't think they would have risked waiver.

It would have been very simple for the trial court to raise federal preemption on its own, sua sponte, because the allegations of the complaint show that the alleged misrepresentation arose from organizational activity.

Justice Rehnquist: Well, that would be a rather strange rule of law to require a trial court to raise an issue that a party was in a far better position to raise than the trial court.

Mr. Goldburg: Well, under the Alabama rules of civil procedure, the court is to raise subject matter jurisdiction sua sponte.

It's the same as the federal rules as far as that's concerned.

Justice Rehnquist: Well, yes, but presumably, you know, you have your typical generalist trial court judge has to be familiar with a number of different areas of law, to expect him to raise it when a party in whose interest it is to raise it doesn't know enough to raise it would be a rather strange rule.

Mr. Goldburg: But I think this Court said in Lockridge that the Court designed the arguably protected standard so state trial courts could very easily police themselves in this area.

They don't have to be right because if they make the wrong decision, the issue will go to the state appeals court or ultimately this Court on appeal, but they can satisfy any interest in efficiency, in integrity and in finality of the trial court proceeding by raising the issue sua sponte.

Indeed, in this particular case I don't believe there was any waste of trial time at all because the Alabama Supreme Court indicates in its opinion that even if they didn't think the defense was waivable, they don't think federal preemption applies on the merits, and it's clear from that that even if the defense had been raised say, on a motion to dismiss, and the trial court had granted a motion to dismiss, the Alabama Supreme Court would have sent the case back for trial because they said in their footnote they didn't think it was preempted.

Justice Stevens: Mr. Goldburg, can I ask you, do you think it makes any difference what kind preemption it is?

In other words, some of the cases we say there is actual... it's actually prohibited or actually protected, and others arguably prohibited and arguably protected.

Would you say that the matter, even if it's just arguably protected or prohibited, that it still defeats subject matter jurisdiction on the state part?

Mr. Goldburg: Justice Stevens, as I read Garmon, the same standard applies for arguable or actual.

Justice Stevens: Well, if you take that view, supposing you had a case in which you had an arguable remedy before the labor board so that you can't go forward in the state court, and the party went before the labor board and then lost and determined that it no longer was arguably prohibited?

Would then jurisdiction be revived in the state court or would it still be preempted?

Mr. Goldburg: Yes, I think once there has been a clear determination by the labor board, not just the regional director, by at least general counsel of the labor board, once there has been a clear determination, that supervisors are involved, I believe at that point that the states could apply their law, that they would have jurisdiction.

Justice Stevens: So it is conceivable that there is a temporary total foreclosure of jurisdiction rather than just sort of a defer to the--

Mr. Goldburg: Yes.

Unidentified Justice: --But there has to... don't you think there has to be some opportunity to get the arguable question before the board?

Mr. Goldburg: Well--

Unidentified Justice: How could this plaintiff have proceeded before the board?

Mr. Goldburg: --He could have filed a charge under Section 8(a)(1) or Section 8(a)(3)--

Unidentified Justice: About what?

Mr. Goldburg: --That his discharge was coercive, that is, that the other superintendents in the unit were discouraged--

Unidentified Justice: He files it... he files it under... he files against the company?

Mr. Goldburg: --Yes, file against the company under 8(a)(1) or 8(a)(3).

Unidentified Justice: How about against the union?

His suit is for misrepresentation.

Mr. Goldburg: Yes, but--

Unidentified Justice: Can a union misrepresentation be an unfair labor practice?

Mr. Goldburg: --A union misrepresentation can generally be an unfair labor practice.

We concede that this particular representation could not have been an unfair labor practice for the simple reason this was a representation--

Unidentified Justice: Well, then, what... how can you possibly argue that this plaintiff should be foreclosed from a state court suit when there is no way that he could get any remedy against the union before the board?

Mr. Goldburg: --Well, if he had followed his procedure before the board, he wouldn't have needed a remedy as far as the ILA was concerned.

If the board had found that he was an employee, the board could have reinstated him with back pay.

If, on the other hand, the board had found that he was not an employee, I believe at that point he would have had a remedy against the union.

However, at that point we reach our argument that the Alabama claim of its strict liability should be preempted at that point, and that once there has been a finding that he is a supervisor rather than an employee, I think a malice standard should apply in terms of the representation that you would make.

Unidentified Justice: Well, that's way down the line.

Mr. Goldburg: Yes.

We are talking about misrepresentation which is, granted, a law of general application here, but the Court has held that state tort law can be preempted because tort law is indeed a method of controlling policy.

The ILA was engaged in organizational activity so we are at the core purpose of the LMRA.

The Section 7 includes the right of union officials to discuss organization with employees.

Unidentified Justice: Mr. Goldburg, could I go back to the question I asked you a minute ago?

Mr. Goldburg: Yes.

Unidentified Justice: Because I'm still trying to think your position through.

Supposing the statute of limitations had not yet run on a state cause of action that is... that there's an arguable remedy before the labor board, and so they file suit and you come in and dismiss and say there is no jurisdiction, and the employee goes ahead before the labor board.

Could the state court keep the case pending in order to toll the statute of limitations, or under your view would it have an absolute duty to dismiss the case for want of jurisdiction?

Mr. Goldburg: Well, my view is they would have to dismiss the case without prejudice since they wouldn't have any subject matter jurisdiction.

Unidentified Justice: Without prejudice, and then, I take it, if they then come back later after losing before the labor board, you would be able to plead the statute of limitations.

Mr. Goldburg: Well, I... many states have an extension of the statute of limitations for that type of a situation where, say that the first action is dismissed on a technical ground that doesn't make--

Unidentified Justice: It's not a technical ground.

It's one of subject matter jurisdiction.

Mr. Goldburg: --But subject matter jurisdiction is addressed to the jurisdiction of the court.

Unidentified Justice: Right.

Mr. Goldburg: It's not addressed to the question of whether substantively plaintiff would have had a course of action if the court had jurisdiction.

So many states have extensions of the statute of limitation for that type of situation.

I believe my state has a six month extension of the statute of limitations for that type of situation.

We are involved with organizational activity.

It is important for the union to be able to solicit argual employees in this type of situation so that the employees can learn the advantages and disadvantages of organization from others.

In the Hanna Mining case, this Court held that, or it was stated that organizing supervisors is not even arguably protected, but in... the critical distinction in Hanna Mining, there had been a clear determination that supervisors were involved, there had been an appeal from the regional director to general counsel.

There has been no clear determination in the present case, and therefore these people are arguably employees.

Unidentified Justice: What... was there a collective bargaining contract?

There wasn't a collective bargaining contract at all.

Mr. Goldburg: No, the parties did not proceed to the point of collective bargaining although the superintendents signed authorization cards; the union never got to the point of sitting down with the employer, perhaps once the coercive discharges of Davis and Trione took place, the organizational drive really fell apart.

I believe that in this case the state interest in applying its law is exceedingly weak.

The superintendents, after all, made a Section 7 decision that they would affiliate with the union and authorize the union to engage in collective bargaining for them.

Obviously the State of Alabama has no interest in regulating this Section 7 decision that the superintendents made.

The state also has a very little interest here in protecting the employment relationship of these people that were fired for union activities because the Alabama state law is that it is a hiring at will, and the employer could fire them for really any reason whatsoever.

The statement that was allegedly made by the union that the superintendents could get their job back embodies with it an opinion that the men are being told that they are employees rather than supervisors.

Based on the federal policy of free debate that this Court recognized in the Linn and Austin cases, I believe these type of opinion statements should be protected.

Further, Section 8(c) of the act which, although by its terms it applies to written communications, I think goes on to say that views, arguments or opinions are not evidence of an unfair labor practice and therefore should be arguably protected.

In this case, as I have said, the plaintiff did not seek his remedy before the NLRB.

Instead, he filed a state misrepresentation action in which an essential element of the cause of action was the falsity of the representation on the part of the ILA.

The jury had to find that Davis was in fact a supervisor to conclude that the representation that the ILA made was false.

Now, this issue, whether or not the man was a supervisor, has been entrusted to the NLRB.

Davis could have filed an unfair labor practice charge under Section 8(a)(1) or 8(a)(3).

If he was an employee, the discharge by the employer was coercive or discriminatory.

Now, as a result, what is implicated here is the primary jurisdiction of the NLRB.

If this is a Section 7 case, we claim arguable protection; however, we also implicate the primary jurisdiction of the NLRB, the jurisdiction of the board to rule on this employee-supervisor question.

Since Davis could have invoked board jurisdiction, the Sears case is distinguishable because Sears turned on the inability of the aggrieved party to seek board jurisdiction.

Here the supposedly aggrieved party could have sought board jurisdiction and could have gotten a ruling--

Unidentified Justice: But only against... only against the company.

Mr. Goldburg: --Yes.

The board could only grant damages against the company, but if the Court granted damages, he wouldn't need a remedy as far as the ILA was concerned.

Justice Rehnquist: But that's rather scant relief.

The man says I have a complaint against the union for misrepresentation, and you say, well, you've got a remedy against the company for something else.

Mr. Goldburg: Justice Rehnquist, I don't believe it's scant relief at all.

It is a reinstatement and back pay.

I think that's everything.

I mean, this is a man who himself is engaged in organizational activity.

If the board could reinstate him and give him back pay, I think that's everything.

Justice Rehnquist: Well, if... it is scant relief, I suggest, to a plaintiff who says I have a complaint for misrepresentation against B to tell him, well, you can't sue B for misrepresentation but you can sue A for something else.

Mr. Goldburg: But if he gets complete relief, I think that satisfies the state's concern.

Justice Rehnquist: Well, I would assume that Alabama feels it has a concern to protect its people against misrepresentation, and part of that is making plaintiffs whole, but part of it is mulcting defendants and damages.

Mr. Goldburg: But I don't think that the state can properly focus on the union's activity until there has been a clear determination that it's supervisors as opposed to employees that are--

Justice White: Well, why do you say that the only... under our cases, that the board is the only agency that is entitled to decide whether somebody is a supervisor or an employee.

Mr. Goldburg: --Well, in... there's a case, I believe it's the Perko case, that this Court said that the issue is wisely entrusted to the NLRB because--

Justice White: Well, if it's entrusted, it is entitled to decide it, that's right, but exclusive of any other thing?

Mr. Goldburg: --Well, as I read Hanna Mine and also the Beasley case from this Court... I believe it is Beasley v. Food Fair, I believe that what the Court was saying there is that the states cannot apply their law to--

Justice White: Well, what if this employee, this superintendent, had gone to the board saying I was illegally fired, I was an employee, and he files it with the regional director, the regional director says you're a supervisor, friend; you have no protection, and he appeals it to the general counsel, the general counsel says the same thing.

Then he sues the union, He sues the union and he says misrepresentation.

But for him to win, the jury has got to find that he was a supervisor.

Mr. Goldburg: --But at that point, the Court--

Justice White: And would you then... wouldn't you then say that the state court... certainly you think it is bound by what the board said?

Mr. Goldburg: --That is an issue of collateral estoppel which would be up to the state court at that point.

Justice White: Yes, but... yes.

But you certainly would say that you would not be collaterally estopped, wouldn't you?

Now--

Mr. Goldburg: Yes--

Justice White: --I mean, the only way that a collateral estoppel issue could come up is if you brought it up, and the only... and if you say the court could, the state court could adjudicate it, it can adjudicate whether somebody is a supervisor.

Mr. Goldburg: --My argument at that point would be that I wouldn't be collaterally estopped by the board determination because there is no opportunity for judicial review.

However, I will concede as far as the Court is concerned at this point, that is a matter of state evidentiary law.

It really doesn't matter as far as the issue of preemption is concerned.

Justice White: I know, but there would be the issue, the state court would have to decide it.

Mr. Goldburg: But one--

Justice White: Was he a supervisor or wasn't he?

Mr. Goldburg: --But once there's been a clear determination, the state only has jurisdiction to rule on that issue once there's been a clear determination.

In other words, once the board has--

Justice White: You mean once the board's opportunity to decide it has been exhausted.

Mr. Goldburg: --Yes.

And at that point, once there has been a clear determination, the issue which is raised is whether the state court must apply a malice standard as this Court held in Linn, or whether this... or whether the Court would be preempted from allowing liability based on a strict liability theory.

In the present case--

Justice White: What if... what if these gentlemen had gone to this, had gone to a lawyer, had gone out and hired a lawyer and said can we organize, and the lawyer says of course you can organize, but if you are a supervisor, you have no protection.

But I don't think you're a supervisor at all.

I think you're an employee.

If you're fired, I can get your job back for you.

This is just a private attorney.

And they persist in organization and they get canned, just like they did here, and he sues the lawyer, sues the lawyer for malpractice, claiming that he gave him very bum advice, and the issue then turns on whether he was... whether there was any grounds for thinking he was a supervisor or an employee.

Now, do you think that state court wouldn't have jurisdiction to decide that issue?

Mr. Goldburg: --That's a--

Justice White: Would they have to say sorry, take the supervisor question to the board?

Mr. Goldburg: --Justice White, that's a stronger case for the plaintiff.

Perhaps because--

Justice White: Well, why is there a difference between the union and that lawyer?

Mr. Goldburg: --Because I don't think there's a fiduciary obligation between the union and the prospective--

Justice White: There isn't?

Mr. Goldburg: --I don't believe that the... that Mr. Davis was a member of the union at that point.

He was solely an employee that was being solicited by the union at that point.

I believe that the union has a Section 7 interest in soliciting the employee at that point.

It's not a fiduciary--

Justice White: Well, that cuts both ways, too, doesn't it then?

I mean, you mean because they have a Section 7 interest, they are completely... they have no duty to avoid misrepresentation?

Mr. Goldburg: --But because there's a Section 7 interest, the union is entitled to more leeway than that which an attorney would be.

There is no federal statute--

Justice White: And this is you sole answer to my... to you are trying to distinguish between a union and that lawyer I was talking about a while ago.

Mr. Goldburg: --Because there's a federal statutory right involved that grants the union more leeway than an attorney would have because there is no federal statute protecting the right to practice law.

In this particular case there was a general verdict, so we can't tell whether the jury based its verdict on malice, on intentional theory or on a strict liability theory, and as a result, I think that the union should be entitled to at very least a new trial based on the submission of the strict liability.

I also suggest that the $75,000 verdict here was excessive in view of the fact that the trial evidence was that the man only lost three months worth of work.

Unidentified Justice: Well, is that a federal question?

Mr. Goldburg: I believe that there are several cases, Linn and Farmer, where this Court said that--

Unidentified Justice: Well, we would have to extend that, those cases, to this situation, to say malice.

You have to have malice for punitive damages.

Mr. Goldburg: --Yes, but in Linn and Farmer, this Court also held that the state trial court must be under a strict duty to make sure that the damages awarded are not excessive, so the excessiveness, I believe, would be a federal question.

Unidentified Justice: Did you raise this argument before the Supreme Court of Alabama?

Mr. Goldburg: Yes.

Unidentified Justice: Did they pass on it?

Mr. Goldburg: They didn't reach it per se because they felt that the issue of federal preemption had been waived.

So they did not speak as to the excessiveness of the verdict.

Unidentified Justice: They say at the end of their opinion, we have carefully reviewed the appellant's alternative state law grounds for reversal and find each of them to be without merit.

Justice White: I am surprised that they didn't at least mention your Linn argument if you had made it.

Mr. Goldburg: Well, I think that in their footnote they said that even if the defense had not been waived on its merits, they didn't think that there was any merit to the defense of federal preemption.

Justice White: Well, suppose we agree with you that the defense wasn't waived and the preemption issue here, you think the state court has actually decided the issue, and that if we agree with you, we also then have to face the preemption question.

Mr. Goldburg: That's correct, Justice White, based on their footnote.

Does the Court have any other questions?

Chief Justice Burger: Mr. Biles?

ORAL ARGUMENT OF BAYLESS E. BILES, ESQ. ON BEHALF OF APPELLEE

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

It is Larry Davis' position in this case that this Court should dismiss this appeal.

We feel that the Supreme Court of Alabama decision was based upon an adequate and independent state ground.

This Court has consistently refused to decide cases which rest upon state court decisions which rest upon adequate and independent state grounds.

The Alabama Supreme Court in their opinion specifically held that they were basing their opinion upon their interpretation of the Alabama Rules of Civil Procedure, Rule 8(c) and upon a 1983 Alabama case, Powell v. Phenix Savings wherein the Alabama Supreme Court had previously decided that federal preemption in Alabama did not go to the subject matter jurisdiction.

Unidentified Justice: If they were wrong on that, however, I take it that the Alabama law would be that you could raise that subject matter jurisdiction issue at any time.

Mr. Biles: If they were wrong with respect to--

Unidentified Justice: Let's assume that they were wrong as to whether they thought preemption was subject matter jurisdiction issue.

Suppose it was actually, and if they had thought it was, they would have let it be raised at any time.

Mr. Biles: --If we are talking about the type of subject matter jurisdiction that cannot be waived, certainly.

Unidentified Justice: Well, you mean there is, there is a type of subject matter jurisdiction in Alabama that--

Mr. Biles: I would like to take that back.

No, sir.

Subject matter jurisdiction cannot be waived in Alabama.

Unidentified Justice: --All right.

Mr. Biles: But Alabama, as--

Unidentified Justice: So if they had thought preemption was subject matter jurisdiction, it would not have been waived by failure to raise it.

Mr. Biles: --That is correct.

But under--

Unidentified Justice: What sort of matters does the Alabama Supreme Court consider to be subject matter jurisdiction so far as the circuit courts go?

Mr. Biles: --Those matters which truly challenge the power of the Court to hear the case.

For instance, bankruptcy.

You couldn't file a bankruptcy proceeding in a state court in Alabama because Congress specifically has set bankruptcy proceedings.

Also, we have different jurisdictional amounts in civil cases for different courts in our judicial system in Alabama, and they recognize those type challenges as subject matter jurisdiction challenges.

Unidentified Justice: Does the circuit court have a limited jurisdiction moneywise?

Mr. Biles: No, Your Honor, it does not.

Unidentified Justice: What is your answer to the... are you familiar with the Curry case?

Mr. Biles: No, sir, but if you could give me the facts, I would certainly try--

Unidentified Justice: Well, it is a question about subject matter jurisdiction.

Mr. Biles: --I was going to address the Michigan v. Long case which--

Unidentified Justice: You go ahead.

You proceed at your own pace.

That's all right.

Mr. Biles: --Thank you.

I was going to point out to this Court that the Alabama Supreme Court decision was based solely on Alabama procedure.

This is not Michigan v. Long where the state court decision was based upon two grounds and the Court went ahead, the Supreme Court of the state went ahead and stated that it was ruling the way it did because of the way it interpreted Terry v. Ohio, which of course was the United States Supreme Court case dealing with the United States Constitution.

In this case, preemption under Alabama procedure was determined by the Alabama Supreme Court to be an affirmative defense which, if not pleaded, is waived.

This, I think, is supported by the decisions in this Court, the Lockridge decision.

In the Lockridge decision, this Court stated that when Congress passed the National Labor Relations Act, it didn't tell us to what extent it ousted state law.

Therefore, we, the Supreme Court of the United States, are not going to hold that the National Labor Relations Act preempted local regulation which in every and any way touches upon the complex relationships between unions, employees and employers.

The Court went on to state, obviously much of this is left to the states.

Certainly when Congress passed the National Labor Relations Act, it never expressed an intention to preempt state procedural... state procedure.

Absent a clear intent to preempt state procedure, federal law takes state courts where it finds them.

This Court stated that in Brown v. Gerdes.

As a matter of fact, the first judiciary act, and from the very beginning, we have envisioned that state courts would adjudicate state claims and federal claims without the imposition of a federal procedural code.

The ILA argues that preemption goes to subject matter jurisdiction and that it cannot be waived.

Of course, I have already pointed out what this Court stated in Lockridge, that obviously much is left to the states in this area.

In the Garmon case, the Farmer case, the Sears case, the Linn case, this Court applied a weighing test to determine whether or not the states, the interest that the state was attempting to protect outweighed the conflict with the National Labor Relations Act.

That necessarily implies that state courts in the first instance in these situations have the right to hear evidence, take testimony, and decide and decipher preemption from non-preemption issues.

Furthermore, we feel that subject matter jurisdiction and how a state court applies and recognizes subject matter jurisdiction is a question of state law.

The Alabama courts, as I have already stated, consider nonwaivable only the narrow class of true jurisdictional objections such as bankruptcy.

It's truly amazing how the ILA tried this case below.

They came into the Circuit Court of Mobile County, agreed to play ball by the rules in the Circuit Court of Mobile County.

They didn't object to those rules.

They didn't object to the procedural rules in the state of Alabama.

And now they stand before the highest court in the land and ask you to give them another shot.

They never raised the preemption until after the verdict.

They raised it then in a motion for j.n.o.v. as ground number 15 of 16 grounds.

They waited approximately two years after the beginning of this lawsuit before they raised it, and they had plenty of opportunity under Alabama procedure to raise it.

They could have raised it on their motion to dismiss.

They could have raised it in their answer.

They could have amended their answer at any time even before the jury Goes out in Alabama you can amend your answer.

They could have raised it on summary judgment.

They could have raised it on directed verdict.

They filed a motion for summary judgment.

They filed a motion to dismiss.

They filed a motion for directed verdict at the end of my case, my client's case, and also at the end of all the evidence, never mentioned it, never said one word about it.

There's no record on preemption.

This case wasn't tried with preemption in mind.

In the Herndon v. Georgia case, this Court recognized that a federal constitutional right can be waived if it's not timely raised under state procedure, and if it's not timely raised under state procedure and it is therefore not passed on below, this Court held in Herndon v. Georgia that it wouldn't reach the issue.

The issue was not passed upon below.

The ILA concedes, as well they conceded in their brief, they conceded to you here today, that if Mr. Davis were a supervisor, there would be no preemption and no question about preemption.

Again, it is totally amazing how they tried this case below.

Their tune has completely changed since they tried the case.

They never challenged Davis' supervisory status below in the trial court.

They never... they are the ones who introduced the regional director's ruling with respect to Mr. Trione, Mr. Trione being a fellow ship superintendent at Ryan-Walsh like Davis was.

Mr. Trione was provided an attorney by the ILA when he was fired.

He wasn't able to bring his lawsuit because he had to go bankrupt before he got to court.

But they hired him an attorney.

The attorney filed a complaint just like they were talking about to seek to make Ryan-Walsh reinstate him.

The regional director ruled that he was a supervisor, had no protection under the Act.

He was represented at that time by an ILA attorney, no appeal taken.

They introduced the ruling of the regional director at the trial.

They introduced Trione, set up a picket at their urgence, a one-man picket.

Ryan-Walsh went down and filed a preliminary injunction against him.

The state... the circuit court in Mobile County ruled again, Mr. Trione, as a ship superintendent at Ryan-Walsh, you are a supervisor.

They at the trial below asked the circuit judge to charge the jury that supervisors could join unions.

They didn't challenge Mr. Trione's definition or delineation of ship superintendent's duties that were set out at the trial of this case.

Unidentified Justice: Part of their story also was that they didn't say that we will get your job back if you're fired.

Mr. Biles: Yes, sir, that was part of their story, and it didn't go over with--

Unidentified Justice: And... well, I know, but their story was that they said that if it turns out you're a supervisor, why, you can be fired.

That was part of their story.

Mr. Biles: --That was Mr. Holland's story.

Unidentified Justice: Yes, that was part of their story.

Mr. Biles: It was interesting to note in the facts of the case that Mr. Holland also put on two other people who were with the union who were at that infamous meeting that night who didn't remember that Mr. Holland said those things.

Even his own witnesses didn't remember that Mr. Holland said those things.

This case was tried at the trial court level with the total understanding by everybody, including the ILA, that Mr. Davis was a supervisor, that that issue didn't have to be addressed by the trial court.

It was never questioned.

Now the ILA wants to say to you that we are arguably protected because this is organizational activity directed toward people who are arguably employees under the Act.

When you say arguably employees under the Act, that implies certainly that there are some facts to based that argument upon.

There are absolutely no facts in this record to indicate that Larry Davis was anything other than a statutory supervisor, absolutely no facts.

As a matter of fact, they introduced evidence that he was.

I couldn't understand why they were doing it when they did it.

Justice White: Do you think the... do you think the submission to the regional director which was unappealed sort of ends the matter anyway?

Mr. Biles: Your Honor, this Court has pointed out in Hanna Mining that a final ruling by the general counsel clears it up with unclouded legal significance, but this Court has never held that in the first instance you must have that type of question answered by the National Labor Relations Board.

As a matter of fact, in operating--

Justice White: How about my question?

Is rejection of the claim by the regional director and failure to appeal it to the general counsel, does that have the same effect as though the general counsel had agreed with the regional supervisor?

Mr. Biles: --That's not my position, no, sir.

I couldn't say that.

But I can say that this Court in Operating Engineers v. Jones recognized Mr. Jones' statutory supervisory status even though the National Labor Relations Board had never ruled on it either way.

Also, in the Sears and Garmon case, addressing that issue and addressing that question further, Justice White, the Court recognized that if the state courts in this area can understand and interpret the legal significance of acts under federal law by applying compelling precedent to essentially undisputed facts, then there is no preemption.

Justice White: What, on their appeal from the judgment of the trial court, did they appeal directly to the Alabama Supreme Court?

Mr. Biles: Yes, sir.

Justice White: Did they then... did the union then claim that this gentleman was not a supervisor?

Mr. Biles: They did.

Justice White: You mean even though they had conceded it, you say, in the trial court?

Mr. Biles: They did, just as they are arguing to this Court today, that he is arguably an employee when there are absolutely no facts on the record to support that he was an employee.

Justice White: Alabama Supreme Court didn't, because of their disposition, didn't discuss supervisor or not, did it?

Mr. Biles: No, sir.

The Alabama Supreme Court never reached that issue, stated that it was not reaching the merits of the issue at all.

This case went off simply on the procedural ruling of the Alabama Supreme Court.

Unidentified Justice: What would you say if an employer seeks to get an injunction against a union on the grounds that it's... he's picketing to get representation when, at a time when he shouldn't, when it shouldn't, and the state court issues an injunction against the picketing, and against the argument that this is an arguable unfair labor practice, and comes up here and we say that the state court should not have issued the injunction at all, and we say we reverse the Judgment below as beyond the power of the Georgia courts.

Consequently, the state court had no jurisdiction to issue an injunction or to adjudicate this controversy which lay within the exclusive powers of the National Labor Relations Board, and of course, this is one of the cases on which the argument is based that this is a subject matter jurisdiction question.

Mr. Biles: There is no question but that there are--

Unidentified Justice: Did you cite Curry in your brief?

Mr. Biles: --No, sir, I did not.

There's no question but that there are situations where states are not going to be able to exercise their jurisdiction to decide these type cases, but for instance, if Mr. Davis were an employee, this case becomes a much harder case for me.

But there's no question about the fact that he's a supervisor.

He's not arguably an employee, and my answer would be since he is obviously a supervisor, he has no rights under this act.

Unidentified Justice: Correct.

Right.

You know, a moment ago you said that the Alabama Supreme Court did not indicate whether he was a supervisor or not, but they very clearly did in their footnote 3, their footnote 2, rather, on page 3 of their opinion, they definitely assume he was a supervisor.

Mr. Biles: Yes, sir, but they never reached the merits of the preemption issue.

Unidentified Justice: Just said what they would do if they did reach the merits.

Mr. Biles: Said what they would do if they did reach it.

Unidentified Justice: Yes.

Mr. Biles: This Court further has held in Sears that with respect to the ILA's argument, and their argument is that they are arguably protected, this Court... and I quote, if I may...

"as long as a union has a fair opportunity to present the protection issue to the National Labor Relations Board, it retains meaningful protection against risk of error in state courts. "

The ILA clearly, whenever Mr. Davis and Mr. Trione were fired, could have filed a Section 8 complaint against Ryan-Walsh.

At that point in time the National Labor Relations Board would have dealt with their issue that they want to bring to this Court today, their arguable protection issue.

But they chose, and in the words of Sears, they chose to avoid the jurisdiction of the board because they knew that they had such a weak case, they knew that the regional director had already ruled that Trione, who was a fellowship superintendent, was a supervisor.

They knew the duties that these people had as ship superintendents.

They chose to avoid the jurisdiction of the board, and the protection that was available under the Act was available to them if they wanted to pursue it, and they chose to avoid it.

Furthermore, we would state that... let me--

Unidentified Justice: Well, you don't suggest that this plaintiff had any remedy before the board against the union, do you?

Mr. Biles: --No, sir.

The only--

Unidentified Justice: The only remedy he had was against the employer?

Mr. Biles: --That's the way I read it, your Honor.

In closing, let me state to this Court that the ILA committed many procedural defaults at the trial.

They come, they come to this Court and dress those procedural defaults in jurisdictional language.

They come to the highest court in the land to ask you to forgive them of their procedural defaults.

They come here to ask you to give them a second bite at the apple at the expense of Mr. Davis.

They waited almost two years before they raised this issue.

We had gone through discovery, unbelievable discovery.

I couldn't even take the depositions of Mr. Hollands.

He wouldn't bring himself into my jurisdiction, and my client couldn't afford to send me to Texas.

We had to try this case... we didn't know what in the world he was going to say.

We have gone through all of this.

These people could have raised this issue up front, and if this issue were dispositive, we would have done away with this case.

If the issue weren't dispositive, at least a record could have been built on it so this Court could have looked at the facts involved in the case?

The way the record is now, the trial Court in Alabama never had to make any decision with respect to a supervisor or employee.

The ILA treated the man as a supervisor all along, and there's no protection for a supervisor under this case.

I thank you very much.

Chief Justice Burger: Do you have anything further?

You have one minute remaining, Mr. Goldburg.

ORAL ARGUMENT OF CHARLES R. GOLDBURG, ESQ., ON BEHALF OF APPELLANT -- Rebuttal

Mr. Goldburg: First of all, to respond to what Justice White asked on the Curry case, we should have cited the Curry case in our brief, but I believe the Court said in the Curry case that Plaintiff alleged in the Complaint allegations which show that--

Unidentified Justice: Yes, but if you had cited it, the opposition might have had a good response to it.

Mr. Goldburg: --To respond to what Justice Stevens asked on the statute of limitations problem, there is also nothing to stop the state from establishing a toll for administrative proceedings of their limitations statute.

My brother says that federal constitutional rights can be waived.

I think preemption stands on a different footing from a mere constitutional violation because with preemption we have the deprivation of subject matter jurisdiction.

I believe that the activity is arguably protected here regardless of whether the plaintiff had any remedy before the union as far as the board was concerned.

If it was just a simple situation that the union was engaged in organizational picketing and the employer went into the state court, we would be arguably protected.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Local 28 v. the Equal Employment Opportunity Commission.

Attribution:

The OYEZ Project

Featured:

Colorado v. Nunez - Oral Argument

Thu, 30 Aug 2012 22:14:39 +0000

Case:

Colorado v. Nunez

Media File:

82-1845_19840117-argument

Related Transcript:

82-1845_19840117-argument

Transcript:

ORAL ARGUMENT OF STEVEN LEON BERNARD, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will arguments first this morning in Colorado against Nunez.

Mr. Bernard, you may proceed whenever you are ready.

Steven Leon Bernard: Mr. Chief Justice, and may it please the Court:

On the 7th day of November of 1981, Denver Detective Sergeant Don DeNovellis obtained information from a confidential informant.

The informant told Detective DeNovellis that a person known as Antonio Guadalupe Nunez had been seen by the informant within the last 24 hours preparing heroin for sale.

He was diluting the heroin and putting it into balloons, a common mode of packaging for sale.

The informant told Detective DeNovellis that Mr. Nunez said that he had recently been to Mexico and in Mexico he had purchased five ounces of heroin.

Detective DeNovellis then obtained a search warrant based upon this information and, along with Adams County Sheriff's officers, went to Mr. Nunez's home in Adams County, Colorado.

They entered the home and searched Mr. Nunez and from his pocket they took 15 balloons which contained heroin.

Mr. Nunez was charged with possession of a Schedule One Controlled Substance in Colorado and his counsel filed a motion to suppress the fruits of that search, alleging in part there was no probable cause for that search.

He also filed a motion for the disclosure of this particular confidential informant who provided this information.

A hearing was held in September of 1982 upon that motion for disclosure.

At that time, Mr. Nunez himself testified.

He stated among other things that he was off in the mountains hunting in his motor home, that he had to been to Mexico, and that the only people who had been at his home within 24 hours of the 7th day of November of 1981 were members of his immediate and extended family.

He also said at one point during cross examination that he did not know what heroin was.

The court, based upon this information, ordered the prosecution to disclose the name of the informant.

Unidentified Justice: Mr. Bernard, do you think that the Colorado court based its holding on federal law?

Steven Leon Bernard: I certainly do, Justice O'Connor, and for the following reasons:

The court in the case of Colorado versus Nunez relied upon three prior Colorado decisions.

The first decision was People versus Dailey which had been decided approximately one and a half years before.

In People versus Dailey, the Colorado Supreme Court referred at one point to the Colorado Constitution, but at that time it was only for the amount of information necessary to begin a veracity hearing.

Unidentified Justice: Well, on that point, I think Dailey states that in Colorado the rule is that a defendant is entitled to a veracity hearing once he shows a good faith basis for believing the material in the affidavit was inaccurate.

Now, do you think that that holding is based on federal law?

Steven Leon Bernard: Your Honor, I would like to say so, but I don't believe that I can, because there is an indication--

Unidentified Justice: Well, no, it is not.

Steven Leon Bernard: --There is an indication clearly that it was based upon the Colorado Constitution.

But, the issue in this case concerns the disclosure of the informant.

The Colorado court in Dailey--

Unidentified Justice: The Roviaro-McCray issue?

Steven Leon Bernard: --That is correct.

That is correct.

Unidentified Justice: On that you think the Colorado law is the same as or based on federal law on that aspect of the question?

Steven Leon Bernard: Yes.

Justice Lohr said exactly that.

They have adopted the same test of Roviaro versus McCray.

If I may elaborate on my answer a little bit, in the Dailey opinion, the Colorado Supreme Court said specifically that while the Colorado Constitution may support a lesser amount of evidence shown, when it talked about what consequences, and disclosure is one of the consequences, that must flow from the decision the court must make after that showing, it referred specifically to both the United States Constitution and to the Colorado Constitution.

At that hearing... After that hearing and after the order of disclosure, the prosecution took an interlocutory appeal to the Supreme Court of the State of Colorado in which that issue was addressed.

The Colorado Supreme Court affirmed the lower court's decision and we petitioned for certiorari.

This Court granted review.

The issue in this case is essentially twofold.

Unidentified Justice: Excuse me.

In Colorado is it true that you could have had an in camera hearing on this point?

Steven Leon Bernard: That is correct, Justice Marshall.

Unidentified Justice: And, you didn't ask for it?

Steven Leon Bernard: No, we did not.

Unidentified Justice: Why?

Steven Leon Bernard: We were concerned for the informant's safety.

Unidentified Justice: In an in camera?

Steven Leon Bernard: Yes, Your Honor.

The first issue in this case is an issue that was reserved in Franks versus Delaware.

In that opinion at page 170, Justice Blackmun reserved the issue, a difficult issue, of whether an informant should be disclosed after a satisfactory showing at a veracity hearing.

The issue in this case also concerns where, as in the case at bar, if the counsel for the accused and the court both concede that the credibility of the police officer of Frank is not at issue, therefore, should there be disclosure at all?

Before we get--

Unidentified Justice: Do you think the federal Constitution imposes some limits on how liberal a state's rule of evidence can be on that point?

Steven Leon Bernard: --Your Honor, I believe that this goes to a question of Fourth Amendment interpretation and the exclusionary rule.

First of all, beginning with Aguilar and Spinelli and with this Court's recent decision in Illinois versus Gates, there is clearly an issue of whether a confidential informant can be used in a search warrant.

When that happens, that becomes a Fourth Amendment issue.

This is not merely a question of evidentiary law, but this is a question of the application of the Fourth Amendment.

The question is, therefore, does the Fourth Amendment require disclosure if, after a veracity hearing, there is a certain showing.

Unidentified Justice: Do you think the Fourth Amendment forbids the disclosure of an informant's name?

Steven Leon Bernard: Yes.

We submit that the Fourth Amendment does that.

And, we submit, even assuming in certain situations that the Fourth Amendment does permit disclosure of an informant's name after an appropriate showing at a veracity hearing in our case, that should not be because the whole purpose of a veracity hearing is to question whether the state itself has erred in any way, whether there has been police misconduct, if the affiant's credibility is not at issue.

In other words, if the affiant in good faith relied upon what he was told by his informant, then there is no purpose, no application, no deterrant result for the exclusionary rule.

Unidentified Justice: How will you get to the veracity if you don't admit who the person is, if you don't have an in camera investigation?

You use the word "veracity".

That means truth, doesn't it?

How do you get to the truth if you hide the truth?

Steven Leon Bernard: Well, Justice Marshall, first of all, I do not believe that the purpose of using confidential informants is to hide the truth.

I think this Court has recognized what their use is in the past.

The issue at a veracity hearing--

Unidentified Justice: Well, what remedy does the defense counsel have if the government says we have this information, but we won't tell you where we got it from?

Steven Leon Bernard: --First, the defense counsel could strenuously cross examine the affiant himself.

The affiant was present in--

Unidentified Justice: Whom I assume also is very capable.

Steven Leon Bernard: --Pardon me?

Unidentified Justice: He is very capable.

He is not a run-of-the-mill person.

Steven Leon Bernard: The affiant?

Unidentified Justice: The officer, yes.

Steven Leon Bernard: I would hope that the officer--

Unidentified Justice: He is a well trained person?

Steven Leon Bernard: --Yes, sir.

Unidentified Justice: So, if you can't break him down, then you lose.

Steven Leon Bernard: Not necessarily, Your Honor.

There is--

Unidentified Justice: What else can you do?

Steven Leon Bernard: --There are alternative forms of information.

For example, as in this case, information from the accused himself, information from other people whom the accused may bring into the court who have information to give to the court on this issue.

Hypothetically, if the assertion had been that I had not been at my home when that person said I was there, and the defendant could bring in people who could say, yes, he was not at his home, he was with me.

That would be an alternative form of establishing that information.

So, I submit there are at least two alternatives.

One is questioning the affiant and one is permitting the defense himself to bring in information to attack the credibility of the affiant.

Unidentified Justice: But, why can't you have the in camera hearing?

Steven Leon Bernard: An in camera hearing--

Unidentified Justice: Is there somebody in there that you don't trust?

Steven Leon Bernard: --No.

Unidentified Justice: Because if you say so, I will ask you to name them.

Steven Leon Bernard: No.

Unidentified Justice: Well, why can't you have an in camera hearing?

Steven Leon Bernard: Because an in camera hearing, we feel, has certain threats.

One threat is this.

If an informant knows that he is going to be brought before a court, even in camera without defense counsel present, he may not provide the police the information that is necessary to either solve a crime or to--

Unidentified Justice: If I assume that correct and I also assume that on the same facts an informant would not hesitate to lie because nothing could be done about it.

Steven Leon Bernard: --Justice Marshall, I submit that there is always the possibility that an informant may lie and I think that is undeniable.

There is always the possibility that a police officer may lie.

But, I don't think that the presumption is either that police officers or informants lie.

I think that the privilege itself was established to permit a flow of information.

And, I think in McCray versus Illinois Justice Weintraub foresaw exactly the problem that we see in this case.

In the quote that I have cited in my brief, Justice Weintraub says that if a defendant knows that he can submit to the court any evidence at all, the court itself is going to order disclosure because they have no ability to impeach.

At that point, the informant will always be disclosed and the whole chain of information will be broken, the flow of information will be dried up.

If at a veracity hearing the purpose is to determine whether there is probable cause to believe that the accused has committed a crime and probable cause to believe that at his residence are the fruits of that crime, then in this case the disclosure of the informant is an ancillary part of that.

It is part of the probable cause determination.

Since Aguilar and Spinelli and Gates made rules under our Constitution to govern the use of confidential informants and warrants the decision whether to disclose them becomes a Fourth Amendment consideration here.

As I said to Justice O'Connor earlier, it is not a question of evidentiary law, state evidentiary law, it is part and parcel of the Franks versus Delaware analysis and it is part and parcel of the issue that this Court reserved in that case.

There is an issue as to whether there was an independent and adequate state grounds for this decision which Justice O'Connor raised.

The tests that this Court has established in a series of cases, Delaware versus Prouse, South Dakota versus Neville, culminating with Michigan versus Long, which was decided in July of 1983, I believe, indicates that this Court presumes that there is not an independent and adequate state grounds if there is not a clear and express showing on the face of the opinion.

In this case, as far as the issue of disclosure is concerned, there was no clear and independent showing of state law.

As far as any remedy to be derived from a veracity hearing, there was no clear and independent showing of state law.

Based upon that presumption, I submit that this Court does and should take jurisdiction.

In the Colorado Supreme Court's decision in the Nunez case... It referred, as I said earlier, to three cases... The case of Dailey, the case of Martinez, and the case of Bueno.

In Dailey, when the Court talked about disclosure, it referred to two things.

First, Franks versus Delaware, which was a case decided by this Court on Fourth Amendment grounds, and then the Court talked about solely in Dailey if there is the affiant's perjury or reckless disregard for the truth, the Colorado Court discussed that remedy in terms of Dailey... Excuse me, in terms of Franks only.

In other words, in terms only of the Colorado Constitution.

In fact--

Unidentified Justice: Of what Constitution?

Steven Leon Bernard: --Excuse me, in the United States Constitution.

I apologize, Justice White.

My mistake.

In fact, that Court said that the test for disclosure is the same as this Court established in Roviaro and in McCray versus Illinois.

Unidentified Justice: May I just ask one question about the disposition of the case?

Your brief ends by saying the judgment should be reversed.

Do you mean by that to say that the Colorado Supreme Court could not reinstated its prior judgment and explain that it really did mean to base it on Colorado law?

Steven Leon Bernard: Justice Stevens, that is always a possibility.

The Colorado Supreme Court could say this was a decision that should have been decided on Colorado State law, refer to the Colorado Constitution and decided that way.

Unidentified Justice: So, the outcome of the case conceivably... we don't say it would... but conceivably be exactly the same no matter what we do.

Steven Leon Bernard: I would submit that if this Court reversed, the Colorado Supreme Court would be bound by this Court's opinion.

If, in a later case, the Colorado Supreme Court wished to adopt the Colorado Constitution, then it could do so.

Unidentified Justice: But, do you think we can tell them they must hold a veracity hearing?

Steven Leon Bernard: Well, I believe--

Unidentified Justice: I mean, they must direct the lower court to hold a veracity hearing?

Steven Leon Bernard: --I believe so, especially since it referred to the United States Constitution.

And, since this Court is the ultimate arbiter of that Constitution, I believe that this Court can say that.

Unidentified Justice: And they have lost their authority to reach the same conclusion based on state law?

Steven Leon Bernard: I would submit that they have.

Unidentified Justice: Well, Mr. Bernard, that is quite a remarkable conclusion, I think, that you reach in answer to Justice Stevens' question that... I can see how we could say in correct case that the Fourth Amendment doesn't require the sort of rule which the Colorado Supreme Court thought it required, but you are saying that even though the Colorado Supreme Court wished to base its ruling on state law, the Fourth Amendment prevents it from doing that.

Steven Leon Bernard: No, I am not saying that, Justice Rehnquist.

Unidentified Justice: Well then, could you spell out exactly how you reach the conclusion that you do in answer to Justice Stevens' question?

Steven Leon Bernard: Certainly.

This Court can decide the federal issue present in this case.

If it does so, then the Court must say that since the Colorado Supreme Court referred to the consequences under the United States Constitution, the Colorado Supreme Court cannot take the United States Constitution and do what it wanted to do in this case.

If the Colorado Supreme Court wishes to rely on the State Constitution, I concur it is the ultimate arbiter of that Constitution.

Unidentified Justice: Yes.

And, in any mandate that comes down from this Court to a state court reversing the state court opinion says the judgment is reversed and the cause or matter for further proceedings is not inconsistent with this opinion.

Wouldn't such a proceeding be a hearing by the Colorado Supreme Court in which it said, well, we also relied on our State Constitution or, although we didn't before, we now rely on our State Constitution to reach the result we did?

Steven Leon Bernard: Justice Rehnquist, I would submit that that certainly is a possibility, however, if, in fact, that were the case, I am not cognizant of the subsequent decisions in Michigan versus Long at the state level and South Dakota versus Neville at the state level.

Unidentified Justice: That wouldn't take our jurisdiction away to hear the case, but I think that that would mean that your answer to Justice Steven's question perhaps ought to be reconsidered.

Steven Leon Bernard: Well, Justice Rehnquist, I guess what my position is is this; that this Court can tell the Colorado Constitution it can't do what it did under the United States Constitution.

If it wishes to do that under the Colorado Constitution, I suppose they can do so.

Unidentified Justice: Haven't several state supreme courts done that after we have reversed on the federal ground here?

Steven Leon Bernard: Yes.

Unidentified Justice: The Opperman case, I think, South Dakota.

Steven Leon Bernard: Yes.

And, I know California has done that too.

Unidentified Justice: Several of them have done that.

That might lead some people to the conclusion that the Court should not have been so ambiguous about the basis of its holding.

Steven Leon Bernard: Well, ultimately I think that that is probably an appropriate resolution anyway.

If a court does decide that it is going to rely on state law... I think Michigan versus Long says if it is going to do that it should make it very clear and that has not been done in this case.

Ultimately, there is no Fourth Amendment violation if an affiant in good faith--

Unidentified Justice: Well, this case was decided before we decided Michigan and Long, wasn't it?

Steven Leon Bernard: --Yes, by the Colorado court it was.

Unidentified Justice: Did we ever say before Michigan and Long that the State Supreme Court had to say clearly when it relied on the--

Steven Leon Bernard: At the time the Colorado case was decided, there was in existence the following cases: Delaware versus Prouse, South Dakota versus Neville, and those cases indicated that there is an appropriate basis for this Court taking jurisdiction.

There may be an independent ground, but it is not adequate and that was the prior test.

In fact, in our petition for writ of certiorari, in the jurisdiction statement at pages 1 through 9, we did argue those cases and not Michigan versus Long.

I think even under those tests there is an appropriate basis for this Court to take jurisdiction and there is not independent adequate state grounds.

Unidentified Justice: --But, you do contend, don't you, that Michigan against Long announced a new rule of law?

Steven Leon Bernard: Well--

Unidentified Justice: Do you argue that rule is retroactive?

Steven Leon Bernard: --Your Honor, I am--

Unidentified Justice: Maybe that is the issue in the case, whether Michigan against Long is retroactive.

Steven Leon Bernard: --That is not the issue here obviously.

Unidentified Justice: Well, it is a jurisdictional issue I might suggest.

Steven Leon Bernard: This Court has to decide whether it has jurisdiction.

And, we have not briefed whether Michigan versus Long is retroactive nor whether--

Unidentified Justice: Are you content to have us decide the jurisdictional issue without reference to Michigan against Long?

Steven Leon Bernard: --I would prefer to have it because I think it is clearer.

Unidentified Justice: You think it is a little helpful to you?

Steven Leon Bernard: Yes, I do.

Unidentified Justice: Yes.

Steven Leon Bernard: The exclusionary rule which was applied in this case, because the evidence was suppressed when the state refused to disclose its informant, balances two social issues.

First of all, the deterrent of police misconduct against convicting guilty people.

There is no deterrence by the application of the exclusionary rule if there is no police misconduct.

Therefore, if there is no deterrent effect, there is no need to let the guilty go free.

The purpose of a veracity hearing, therefore, has to be determine if the affiant, not the informant, has engaged in misconduct.

There will be, I would submit, an effect on law enforcement in revealing the names of confidential informants on a regular basis.

That will dry up sources of information which lead to the solving of crimes and dry up sources of information that lead to the apprehension of criminals.

It is a sad but true fact that some people will not come forward and cooperate with the police unless they are assured of anonymity.

Unidentified Justice: Sometimes it is bad for their health, is it not?

Steven Leon Bernard: It is, Your Honor.

And, that sadly has been something that has happened in the past.

As we indicated before, we say that there is no need as a matter of law ever to reveal an informant's name and I discussed with Justice Marshall the alternatives to disclosure of that informant.

However, even if an informant should be revealed in some circumstances, he should not be revealed here.

It was only private action in this case, although there has been some indication by the Respondent that the Respondent didn't mean to say that he did not question the affiant's credibility, nonetheless, the record contains four separate references to the fact that he was concerned with the informant, not the affiant's credibility.

Secondly, disclosure does not serve in this case, because there was no police misconduct, the Fourth Amendment, or the purposes of the exclusionary rule.

Even people who are involved at the fringes of the warrant process are going to be affected by the fact that they will not be assured of anonymity.

We ask this Court to at least, as far as the Fourth Amendment is concerned, indicate to the State of Colorado that the disclosure of informants should not occur at veracity hearings, and even if this Court feels that disclosure is in some cases appropriate, we ask this Court to indicate that the disclosure of the informant in this case was inappropriate because there was no indication, no allegation, and no proof that the affiant lied or recklessly disregarded the truth.

Chief Justice Warren E. Burger: Mr. Stern?

ORAL ARGUMENT OF KENNETH H. STERN, ESQ. ON BEHALF OF THE RESPONDENT

Kenneth H. Stern: Mr. Chief Justice, and may it please the Court:

The way this case has been postured, both in the briefs and during oral argument, is inconsistent with the record below.

The Petitioner has raised and melded together three separate issues, only one of which was ever adjudicated in the Colorado court system.

In Colorado, the process of challenging a search warrant, in making a veracity challenge, has three separate steps.

One step is making a threshold preliminary showing to be entitled to a hearing in the first place.

The second step is actually being successful on the merits--

Unidentified Justice: What is the purpose of that veracity hearing as you call it out there?

Kenneth H. Stern: --In Colorado?

Unidentified Justice: Yes.

Kenneth H. Stern: Well, the purpose of the veracity hearing at this point in time under Colorado law is to see if the affiant either committed perjury or reckless disregard of the truth.

The Colorado Supreme--

Unidentified Justice: Let's put that in concrete terms.

What did the affiant say about the informant?

What did he say that is going to be tested in this hearing?

Kenneth H. Stern: --One, does the information even exist; and, two, if the informant does exist, did he actually relate to the affiant what the affiant placed in the affidavit.

Unidentified Justice: Now, that doesn't tell me much in concrete terms.

What is it said that the informant informed to the police in this case?

Kenneth H. Stern: In the affidavit there is certain information allegedly stated by an informant.

Unidentified Justice: What was it?

Kenneth H. Stern: It was that on a certain date that the informant was in the home of the defendant and observed the defendant engaged in certain conduct.

Unidentified Justice: And, what was the conduct?

Kenneth H. Stern: The conduct was packaging heroin.

Unidentified Justice: And, what happened when they made the search?

Kenneth H. Stern: They did find heroin.

Unidentified Justice: Does that have any bearing on whether he was telling the truth?

Kenneth H. Stern: Obviously, it would have some bearing, Chief Justice, however, there are other possible sources of information that could have lead to the conclusion that Mr. Nunez had heroin which didn't come through an informant.

In fact, a number of the commentators have stated that it is possible that information could have come through an illegal wiretap.

Unidentified Justice: Now, let me see.

I am not sure I track you.

You say the informant told the police that on a given day he was in the home of Nunez and that he saw him engaged in handle dope, packaging it?

Kenneth H. Stern: That is correct.

Unidentified Justice: And then he gave that information to the police?

Kenneth H. Stern: That is correct.

Unidentified Justice: And, they put that in whatever form is required in Colorado law to get a warrant to search the house, is that right?

Kenneth H. Stern: Correct.

Unidentified Justice: And then the police took that warrant and went and searched the house, is that right?

Kenneth H. Stern: Correct.

Unidentified Justice: And then they found the packages exactly as the informant said they would, is that right?

Kenneth H. Stern: Very close to how he said they would be, that is correct.

Unidentified Justice: What is the problem about his veracity then?

Kenneth H. Stern: The problem about his veracity is that the defendant testified that the informant could not have done what it was alleged he had done in the affidavit because on those dates in question the defendant had not been in his home.

He was away for two weeks.

He could not have been delivering heroin using his vehicle during those two weeks.

He was not in his home when the informant said he was there.

He was on a fishing trip and that the only people who were there the second half of the day were his immediate relatives.

So, there was testimony from the defendant that created in the mind of the trial court judge a good faith basis and fact to question the accuracy of the affidavit.

And, under that particular test, under Colorado law--

Unidentified Justice: What if the informant had said to the police that he had been in the home of this man on a day within recent weeks or months, and he could not remember the day or the week, but that he distinctly saw him putting narcotics in packages on that day unnamed?

It would make it a little difficult for the man to say he wasn't there at that time, wouldn't it?

Kenneth H. Stern: --That would create a different problem of proof.

Unidentified Justice: Would it be sufficient to issue a warrant if the informant could not fix the date?

Kenneth H. Stern: That would be up to the magistrate to determine if that was sufficient to establish probable cause.

However, in the instant case, you have an informant saying he was located in the house at a particular time when, based upon testimony under oath by the defendant and other collateral evidence, he could not... At least created a reasonable basis and fact to believe that he could not have been in the house, and, therefore, Colorado, under Colorado's common law, as an evidentiary matter allows the informant to be disclosed, either in camera or to all the parties so that the defendant can have a reasonable opportunity to make the showing that he must make at the veracity hearing itself.

Unidentified Justice: Who was it that had to decide whether the defendant here was telling the truth when he said he was out on a fishing trip on that day?

Kenneth H. Stern: The trial court judge.

Unidentified Justice: Without a jury?

Kenneth H. Stern: Without a jury.

Unidentified Justice: And, is that an in camera proceeding in Colorado or is it an open hearing?

Kenneth H. Stern: Well, the first stage where the defendant must meet his burden of showing good faith basis and fact... the affidavit contains inaccuracies... is an opening hearing.

If after hearing that, the trial court judge decides that the defendant has met his burden and, therefore, is entitled to either disclosure in camera or to all the parties, then they would proceed accordingly.

Unidentified Justice: Mr. Stern, do you think that applying the standard and the balancing explained in the Roviaro opinion under the federal standard for when an informant's identity will be disclosed, that the disclosure would have been ordered in this case applying that standard?

Kenneth H. Stern: Applying that standard, I believe it would nave been.

Unidentified Justice: There would have been disclosure?

Kenneth H. Stern: There would have been disclosure.

Unidentified Justice: Do you think the Colorado court applied that standard?

Kenneth H. Stern: I do not.

As I was stating before, the issue regarding a preliminary threshold showing and the issue of what you must prove to be successful at the veracity hearing itself were never raised in this case.

In fact, if you were to remand this case... the motion to suppress which contained the veracity challenge is still pending before the trial court.

It was never decided.

The only issue ever decided was disclosure of confidential informants.

So, therefore, if the case was reversed, we would pick up with that veracity challenge and go to hearing on it.

Suppression was not issued pursuant to the Fourth Amendment.

Suppression was issued as a discovery sanction.

After the motion to disclose, informant was decided, was heard, the trial court judge ordered disclosure.

When the prosecution did not comply with that discovery order, the defense counsel filed a second motion to suppress.

That second motion to suppress, which was ultimately granted, was based as a sanction for failure to comply with the discovery order.

Unidentified Justice: Well, this chronology doesn't lead, I would think, to the necessary conclusion that there is not a federal basis for the Supreme Court of Colorado's decision.

It is just that its decision is a narrower one than you say your opponents have painted.

Kenneth H. Stern: My response is twofold.

First, the only issue is the motion to disclose informant.

Second, if you were to look at the four corners of the Nunez opinion, there is not one federal authority cited, not one federal case cited.

It is only state cases.

Unidentified Justice: Well, let me put this question... Supposing that the District Court in Adams County says I am going to order the disclosure of this informant pursuant to Roviaro, which I think as being on us, the no suppression, but, in like Hickman against Hiller where someone has to go to jail in order to raise a question in Appellate Court, the District Court says, no, we won't disclose, but I am going to appeal to the Supreme Court of Colorado.

The Supreme Court of Colorado says under Roviaro this informant should have been disclosed.

I think that person can come here and say you have got a federal question, don't you?

Kenneth H. Stern: Absolutely.

Unidentified Justice: You just say that is not what happened here.

Kenneth H. Stern: That is absolutely not what happened, because, again, if you look at the four corners of the Nunez opinion, they don't mention a single federal case or federal authority.

Even if this Court should decide to go beyond the four corners of the opinion and look to the underlying cases, yes, Roviaro is mentioned.

However, in no way is it mentioned as being compelling or binding upon the Colorado Supreme Court.

In fact, the particular rules of law which govern disclosure in Colorado, number one, that there be a good faith basis and fact to question the accuracy of the affidavit; and, number two, that a defendant must show that there is a reasonable basis and fact to believe either, one, the informant doesn't exist, or, two, if he does exist, he did not relate to the police officer what is contained in the affidavit, are unique creations of Colorado law.

When the Colorado Supreme Court made these specific rules, they did not cite any federal authority at all.

In fact, they didn't even cite the authority from any other jurisdiction.

This is the creation of Colorado law pure and simple.

And, Roviaro is mentioned, but there is nothing in the opinion that states even explicitly or implicitly that we are compelled to follow Roviaro.

We are required to follow Roviaro.

In fact, the Model Penal Code is also mentioned.

Professor Lafave's Treatise on Search and Seizure is mentioned.

Neither of them are mentioned in any kind of binding way, but merely for guidance.

And, when the decision is actually made, it is again a unique creation of Colorado law.

And, yes, there is no plain statement pursuant to Michigan v. Long.

And, as the questions clearly showed, the decision in Michigan v. Long came five months after the decision in Nunez.

But, what we really have in this case is not a situation where we are arguing or where the Respondent is arguing that there is an independent and adequate state ground, because that implies that there is a federal ground to begin with, and it is the Respondent's position that there is no federal ground whatsoever in the instant case.

It was determined entirely on state law.

And, that the other issues regarding preliminary threshold showing and regarding what a defendant needs to be successful on a veracity challenge were matters decided in other cases.

And, as a matter of fact, in the Dailey case, what the Colorado Supreme Court said about veracity challenges is not only consistent with Franks, but they stated our rule was the same prior to Franks.

And, in fact, in the Appendix to the Franks decision, it lists Colorado as one of the states that allows a veracity challenge based upon the exact same showing that came down in Franks v. Delaware prior to your decision.

Unidentified Justice: Do you think Roviaro is itself a decision which construes the federal Constitution?

Kenneth H. Stern: Roviaro is... This Court, as I understand it, is acting in a supervisory capacity dealing with an evidentiary matter based upon federal common law.

Unidentified Justice: But, McCray, of course, would be construing the Constitution.

Kenneth H. Stern: Absolutely.

And, in fact, it was McCray that established clearly that Roviaro was not constitutional litigation or adjudication, but was rather this Court acting in a supervisory capacity.

And, there is nothing inconsistent in McCray from what Colorado has done.

In fact, I think the McCray decision is the most supportive of the authority and right of the Colorado Supreme Court to create evidentiary rules regarding the common law informant's privilege as it sees fit, just the way it can create privileges with respect to the husband and wife privilege.

Unidentified Justice: Well, it can be more favorable to the defendant, criminal defendant in that area.

It can't be less favorable.

Isn't that what it--

Kenneth H. Stern: Well, the only way, in my opinion, that the United States Constitution would get involved in this question would be if the Colorado Supreme Court interpreted the common law informant's privilege in such a way that it infringed upon defendant's rights.

For example, if it said a defendant may never get disclosure for trial or at a suppression hearing, that would run afoul of the Fourteenth Amendment.

But, if Colorado did come up with a liberal interpretation, certainly since there is no constitutional principle or no constitutional right enjoyed by a law enforcement agent or by the informant to not have the identity disclosed, I don't believe that emanates from any constitutional provision, but rather from the common law.

Given that fact, as long as the Colorado Supreme Court does not run afoul of another constitutional provision by cutting off some of defendant's other rights, I don't believe it is a constitutional issue at all.

And, it is not even a federal issue which we have been arguing throughout these proceedings.

It is purely a matter of state concern.

And, again, as Justice Marshall inquired, Colorado has not adopted any kind of per se rule so that any time there is an informant in an affidavit a defendant is entitled to disclosure.

In fact, Colorado, in its decisions, has clearly stated it supports the common law informant's privilege.

It gives it a great deal of weight.

And, in reaction to that in the instant case, it states that a defendant must make a preliminary showing.

There is a mandatory showing a defendant must make before he can gain disclosure.

And, secondly, there is another safeguard built in and that is the in camera hearing, which in this case was not requested by the prosecution, but in other cases has been requested and has been granted, and is a way to actually balance this very difficult problem between keeping the information--

Unidentified Justice: --Of course, if you are right, whether this is quite a sensible opinion of the Supreme Court... We can think they are bananas if we want to, but if it is the state ground, it is none of our business.

Kenneth H. Stern: --That is true.

I was hoping to convey the opinion that they weren't bananas, but--

[Laughter]

--that is absolutely correct.

In conclusion, Respondents would argue that the writ that previously has been granted in this case should be dismissed as being improvidently granted or, at a minimum, the decision of the Colorado Supreme Court should be affirmed.

Chief Justice Warren E. Burger: Do you have any thing further, Mr. Bernard?

Steven Leon Bernard: Just one, Mr. Chief Justice, just one point.

The issue on disclosure was argued below and the record will bear that out.

But, I think that there is some confusion here between what Mr. Stern says and what I say.

Mr. Stern suggests that this is merely a discovery issue.

I submit that it is not a discovery issue.

The issue here is the use of disclosure in a veracity hearing which triggers constitutional issues of probable cause and police misconduct.

It is not a question of disclosure for trial at which an accused may want to have someone who witnessed the crime present to testify.

But, it is an issue of the warrant process and the warrant process is part and parcel of this Court's determination.

In Dailey, the case upon which the Colorado Supreme Court relied, when that Court discussed disclosure it referred to the Fourth Amendment, to Franks versus Delaware, to the sanctions that should fall under Franks versus Delaware, and under the Fourth Amendment, and in no place did it refer to any bit of Colorado Constitution.

It talked about McCray, it talked about Roviaro, it talked about Franks.

ORAL ARGUMENT OF STEVEN LEON BERNARD, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Unidentified Justice: May I interrupt you right there?

On the reference to Roviaro, is it the state's position that that was a constitutional case?

Steven Leon Bernard: No, however--

Unidentified Justice: Then, what is the relevance of the Colorado Supreme Court's reference to Roviaro?

Steven Leon Bernard: --Roviaro talks about the privilege in a general sense.

In Roviaro... That was not in this context.

It was a situation where the accused saw the crime, the act upon which the charge was based, and that was the focus of this Court's concern in Roviaro.

It was a due process concern.

Unidentified Justice: Doesn't the citation of Roviaro, which is a non-constitutional case, by the Colorado Supreme Court suggest that they thought they had a non-constitutional issue before them?

Steven Leon Bernard: I don't think it is that clear, Your Honor.

I submit--

Unidentified Justice: But, to the extent that Roviaro sheds any light on the matter, it would point in that direction, wouldn't it?

Steven Leon Bernard: --Well, there was also the reference to Franks versus Delaware which is obviously a constitutional issue.

Unidentified Justice: Yes, but the earlier Colorado cases did precede Franks against Delaware, didn't they?

Steven Leon Bernard: Yes, they did.

And, the issue as far as Roviaro was concerned is that in Roviaro the Court was talking about the existence of an informer privilege.

In McCray, it talked about the disclosure of informants when the issue was not whether the informant perceived the crime on which the charge was based.

And, finally we have now the melding of McCray and Franks presented in this case.

Chief Justice Warren E. Burger: Thank you, gentlemen, the case is submitted.

Featured:

Florida v. Casal - Oral Argument

Wed, 18 Feb 2009 07:11:09 +0000

Case:

Florida v. Casal

Media File:

81-2318_19830223-argument.mp3

Related Transcript:

81-2318_19830223-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF CAROLYN M. SNURKOWSKI ON BEHALF OF THE PETITIONER

Chief Justice Burger: We'll hear arguments next in Florida against Casal and Garcia.

Ms. Snurkowski, you may proceed whenever you're ready.

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

The issue before the Court today is whether the search of the San Rafael was authorized pursuant to an exception to the Fourth Amendment warrant requirement of the United States Constitution.

The facts in this case are relatively simple.

On September 18, 1977, Officer Soli and Officer Walker, both Marine Patrol officers with the Florida Marine Patrol were traveling along near Sugarloaf Key which is close to Key West.

They were on their way back.

Their tour of duty had almost ended and they were returning to port when they came upon the San Rafael.

Within 50 feet of the boat they put their spotlight on the boat, and approaching the boat identified themselves as Marine Patrol officers and asked, at that point, if they could see the registration papers or the registration certificate for the boat which is required pursuant to Florida statutes.

At that point, two individuals who had departed the cabin area came to the side of the boat and produced papers.

Those papers did not comport with the statute requirement, but rather, were documentation papers of unspecified nature, and tax receipts reflecting the purchase of the boat.

Unidentified Justice: May I ask you something right here.

Now, does Florida law require every boat to have a registration certificate?

Is that clear?

Mr. Snurkowski: Those boats that travel in the waters and conduct fishing activities in that area, yes.

Unidentified Justice: And does the absence of a registration certificate give a right for a valid custodial arrest?

Mr. Snurkowski: I believe it does.

I believe the statute... if there's a penalty, a second degree penalty for failure to have it aboard and available, upon that showing... the officers are not really... even having to board the boat is a matter of standing on their own boat and asking do you have it.

It's not a matter of having to board the boat in this instance.

And if it's not available they can, in fact, arrest the individuals because those statutes are very clear with regard to--

Unidentified Justice: Is that statute part of our--

Mr. Snurkowski: --I believe it is part of the petitioner's reply to the brief in opposition to certiorari.

I think he can put that as part of his pleadings.

But specifically, the statutes applicable with regard to having the registration onboard is 371.051, Subsection 5.

And that's of the 1977 statutes.

There has been a modification, and so I do not have the change because I was looking specifically at the applicable statutes.

Once there was no response by the defendants for the certification papers, Officer Soli, because of the bobbing of the boats, asked if she could board the boat.

At that point, consent was given and she made a statement at the suppression hearing and at trial that the reason she was boarding was to help them find these papers and also, to conduct a search, to do her duty, is what she said.

Unidentified Justice: --Didn't she also say that really what she was inspecting for was illegal seafood?

Mr. Snurkowski: That came... there was a statement to that effect later on, but she was initially going onboard for was for safety inspection and to help them find the papers.

They apparently were confused with regard to papers.

They said no, they didn't have them, but they were not the owners of the boat, nor did the papers that they did tender have their names on it.

Unidentified Justice: Would it make a difference whether the search was made for safety violations or for illegal seafood?

Mr. Snurkowski: The search, the subsequent search?

We have contended that there are three bases upon which the Florida Supreme Court could have legitimatized the search, and that the court missed its mark, actually, when they found that the initial stop was correct.

We have contended first of all, that an inspection was lawfully to ensue, and that by not holding that that inspection was valid in this case, they missed their mark.

But secondly, we said that as the circumstances developed in this case, and that is where Officer Soli followed the respondents to the cabin area of the boat, she asked if she could look into the ice chest there, and they gave consent for that.

This is part of her inspection.

She opens it up, finds no ice and finds that there are some bits of food that have been rotting in there.

Now, this triggered--

Unidentified Justice: I thought it was putrefying fish or something like that.

Mr. Snurkowski: --I don't remember it being putrefying fish.

All I remember is rotten food.

But if that was what the record--

Unidentified Justice: It smells the same.

Mr. Snurkowski: --Yes, I think it stinks.

The point being--

Unidentified Justice: Suppose actually she was inspecting only for illegal seafood, nothing to do with a safety violation.

She hadn't any authority to do that, did she?

Mr. Snurkowski: --She has authority... that's part of the scope of their authority, once they're lawfully aboard the boat.

Unidentified Justice: To inspect for illegal seafood?

Mr. Snurkowski: Pardon me?

Unidentified Justice: To inspect for illegal seafood?

Mr. Snurkowski: Part of their function, part of the Marine Patrol function in Florida is to maintain boating safety and to maintain the maritime, the fisheries and control or regulate fishing in the area.

As a matter of fact, that is perhaps the majority of their work.

They look for individuals who sell shorttails--

Unidentified Justice: Does the state statute cover all of this?

Mr. Snurkowski: --Yes.

Unidentified Justice: No matter what the purpose of the inspection is?

Mr. Snurkowski: The statute is very clear as to the regulatory responsibilities and the duties of the Marine Patrol with regard to investigating all activities concerning marine life and boating.

As a matter of fact, they also have a general proviso in their authority that they have the right to investigate and arrest for all violations of law of Florida.

Unidentified Justice: As I understand it, there's a state statutory probable cause requirement, whether it's for illegal fishing or for safety violations, is an act?

Mr. Snurkowski: I'm sorry, I didn't hear.

Unidentified Justice: Isn't there a state statutory probable cause requirement?

Mr. Snurkowski: There's a state statutory requirement to board the boat; 371.58 says--

Unidentified Justice: Does that require probable cause?

Mr. Snurkowski: --It requires either consent or probable cause to board the boat for a safety inspection.

The state would contend that the officers in this case had both the probable cause and consent to board the boat for the safety inspection when the papers were not produced.

There was something awry with this boat, and that was sufficient probable cause to board.

But more importantly, the record reflects, and of course--

Unidentified Justice: I know, but if the holding is that there was a probable cause requirement as required by state statute, why doesn't this case turn on an adequate state ground; why do we have to get into it?

Mr. Snurkowski: --Because the probable cause that the Florida Supreme Court found the search to be in violation of was a Fourth Amendment probable cause finding as opposed to the state statute.

I think the state statute is limited to boarding the boat for inspection.

The state statute is very clear; it says that you have to have consent of the owner or probable cause for the officer, so he may board the boat to conduct an inspection, to check safety equipment.

That is not the probable cause that the Florida Supreme Court found to be the culprit in this particular case with regard to the searching of the ice hold which came subsequent to this.

Unidentified Justice: Suppose... if we read what the Florida Supreme Court says, that they turned this on the statutory probable cause requirement, because that's the basis of it,--

Mr. Snurkowski: Well, they cite to two cases.

They cite to Hill and they cite to Tingley versus Brown.

Unidentified Justice: --Well, I know, but both of those were state cases, weren't they?

Mr. Snurkowski: They are, but they are not squarely on what we're suggesting is the probable cause.

Unidentified Justice: I'm asking you if we don't read it the way you suggest we should and we find that it did rest on that state probable cause requirement, isn't that the end of the case as far as we're concerned?

Mr. Snurkowski: Well, sir, I think... and to answer your question is a yes/no proposition.

Yes, if you really push me to the wall, but no because I believe this Court has modified its review of an ambiguous holding by a supreme court.

In Delaware versus Prouse you did it, and apparently, and I really must admit--

Unidentified Justice: There's no question that the Florida court thought the stop was all right.

Mr. Snurkowski: --Yes.

Unidentified Justice: And the boarding.

Mr. Snurkowski: Pursuant to Delaware v. Prouse, that it just--

Unidentified Justice: And the boarding.

Mr. Snurkowski: --And the boarding, yes.

Unidentified Justice: So you're legally on the boat.

Mr. Snurkowski: Oh, yes.

Unidentified Justice: And the only argument that--

Mr. Snurkowski: That we're trying to get--

Unidentified Justice: --That you and Justice Brennan are discussing is what occurs after that.

Mr. Snurkowski: --Exactly.

And I'm suggesting that the probable cause of the statute, 371.58, does not concern the search.

That follows straight line Fourth Amendment, which the Florida Supreme Court has always followed.

But that initial boarding had to be either probable cause or consent, and that was what the statute was to control.

Unidentified Justice: Is it not correct that insofar as the Florida Supreme Court was talking about the boarding and the stopping, it relied on federal cases.

And then when it got to the search, it cited the statute, and from that point on in its opinion it cited nothing but Florida cases.

Mr. Snurkowski: That is true, but I think that is because only of its own practice of citing its own decisions--

There's a problem in this particular case because the Third District Court of Appeals who originally saw this on the appellate level did not even address the search because they cut us off at the pass when they nixed us on the initial stop.

So therefore, that particular issue was not developed.

It was only developed when we got to the Florida Supreme Court and we had lost.

Unidentified Justice: But you're asking us to reverse the portion of the Florida Supreme Court's opinion that cites nothing but Florida authority.

Mr. Snurkowski: No, I don't believe that's true.

The majority cites nothing but Florida authority.

The minority, Justice Alderman and Justice McDonald disagree and say how can you apply the Fourth Amendment--

Unidentified Justice: I'm talking about the majority opinion, you're right.

Mr. Snurkowski: --They cite to Chimel and they cite to Carroll and they say how could you have done this in this particular case.

Because clearly, clearly--

Unidentified Justice: I suppose the answer is Florida doesn't have to follow those cases if it doesn't want to.

Mr. Snurkowski: --Well, that is certainly one outcome, but Florida has been... and there's a host of cases starting with State versus Hetlin that have always... and I repeat always... applied Fourth Amendment in the same way Fourth Amendment is to be applied federally.

I mean, that is the practice of the state.

As a matter of fact, our Article I, Section 12 is in line with that, and as a matter of fact, we have just modified... this last election year we had a referendum to codify how we are going to interpret it, and that is by seizing upon decisions of this Court in its interpretation of the Fourth Amendment.

So as far as search and seizure is concerned, we are following the Fourth Amendment, and if the court is talking about it, I believe their opinion is ambiguous at best, but certainly in the mode of the Fourth Amendment review.

And certainly, I would suggest that this court does have jurisdiction in that vein.

Once we're on the boat--

Unidentified Justice: Is it your view that in all doubtful cases, we should assume there's jurisdiction?

Mr. Snurkowski: --No, Your Honor.

I appreciate the problem--

Unidentified Justice: You do agree this is a doubtful case?

You're saying that presumption should be in favor of federal jurisdiction.

Mr. Snurkowski: --I think this is a close case to Delaware versus Prouse, and that case is the case... you've accepted that, and I appreciate that in yesterday's decision.

I haven't had a chance to read it, but there was a problem in that case.

Unidentified Justice: It supports you.

Mr. Snurkowski: Yes.

[Laughter]

I haven't had a chance to read it but I thought it might.

But the point is that we don't really feel we have that kind of a problem in this particular instance, and the history of the Florida Supreme Court's review of the Fourth Amendment has always been under the United States Constitution's application of it.

Unidentified Justice: When the minority mentions the federal cases and the majority ignores it, what conclusion do I draw?

Mr. Snurkowski: That the state was perhaps a little remiss in its briefing of the case because we were concerned with getting the stop found to be okay, and we did not ever think in our mind that we would lose the search.

Unidentified Justice: I'm talking about the opinions... the majority--

Mr. Snurkowski: I am suggesting--

Unidentified Justice: --does not mention the federal points--

Mr. Snurkowski: --That's right.

Unidentified Justice: --which were called to their attention by the minority.

Mr. Snurkowski: That's right.

Unidentified Justice: So certainly, they read them.

Mr. Snurkowski: They just didn't find them persuasive, I would submit.

And I might add there was a rehearing--

Unidentified Justice: If they didn't find it persuasive, why should I find it persuasive?

Mr. Snurkowski: --That they ruled on a Fourth Amendment ground as opposed to an independent state issue?

Or that they're applicable, the Fourth Amendment is applicable.

I'm sorry, I don't appreciate your question.

Unidentified Justice: My question is that the majority did not rule on the Fourth Amendment point as such, they cited state cases.

The minority cited the Fourth Amendment and federal cases.

Mr. Snurkowski: Right.

They cited--

Unidentified Justice: So, the state, the majority knew about that, and did not mention it.

What conclusion do I draw from that as to the majority opinion?

Mr. Snurkowski: --Your Honor, I don't know... I cannot pretend to understand what you would draw from that.

What I would draw from that is that they just did not appreciate the impact that those cases... and their applicability to this particular instance.

Because again, the nature of the case... it came up to the Florida Supreme Court on certiorari review, conflict certiorari review, regarding the initial stop.

The subsequent search, which became the subject matter for grounds before this Court, was a secondary issue that they fortuitously resolved.

Once the officers were onboard... or Officer Soli was onboard the boat, at that point Officer Soli asked if they could check the ice hold that was in the front of the boat.

Garcia indicated that... do you have a warrant.

Officer Soli said I'd like to check for fish products.

He says, do you have a warrant.

At that point, Officer Walker testified in the suppression hearing and at the trial that, we do not need a warrant; we are not going to search, you're under arrest for failing to have certificate papers, your registration papers.

At that point, no time went by, based on everybody's testimony.

Garcia says, you got me, in essence, there's marijuana all over the boat.

At that point, Miranda warnings were given, the officers asked him to reconfirm what he said.

He said there's marijuana on the boat.

At that point, Officer Walker asked if they would accompany Officer Soli to the ice hold, at which point the top or the lid was removed and marijuana... the aroma of marijuana was everywhere and apparently, leaf materials... it was just filled to the gills with marijuana.

The state contends that the minority opinion by the Florida Supreme Court that the case was instant to a lawful arrest, that it was a probable cause search and that, indeed, indeed, the search of the ice hold would have been justified pursuant to an inspection type check, all justified the search, and that the Florida Supreme Court was incorrect in finding that there was no consent and no probable cause.

I think a review of the decisions concerning consent... and I think the reason I am going to consent is that although the state never specifically argued that consent was given to search the ice hold, even though there was this kind of open statement like there's marijuana all over the boat, the state would contend that the fact that somebody's in custody, that they're not able to leave... the totality of the circumstances must be reviewed, and in this particular instance the consent was there.

But more importantly, the statement that was given was not coerced in any way, fashion or form.

And, therefore, there was sufficient... at that point, when the officer heard that Garcia said there is marijuana all over the boat, it developed the requisite probable cause to conduct the search of the entire boat, as this Court has suggested in Ross.

More importantly, as soon as Garcia and Mr. Casal were under arrest, the search instant to a lawful arrest was appropriate under Belton.

We're talking about a vessel which is no different than the automobile and certainly, the area that was to be searched was not a private sector of the boat, it was not someone's locker on the boat; it was a fish hold that... there are federal district court cases that have held that even the fish hold is not a private sector; it's open to the public and does not contain privacy protections.

Based on these three arguments, the state would contend that the Florida Supreme Court erred in determining that the particular search herein was unlawful.

Thank you.

Chief Justice Burger: Mr. McCormick?

ORAL ARGUMENT OF ARTHUR F. McCORMICK, Esq. ON BEHALF OF THE RESPONDENT

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

It is the position of the defendants that the judgment of the Supreme Court of Florida should be withheld.

The grounds that are being offered by the defendants in support of the decision of the Supreme Court, the judgment of the Supreme Court, are, number one, that the stopping was unlawful; number two, that the search was unlawful; number three, that there was a deception that was exercised by the police officers in the process of representing that a search warrant was not necessary; and number four, that the arrest was also unlawful.

Unidentified Justice: But you're not arguing that the judgment rests on an adequate state ground?

Mr. McCormick: Yes, sir, that also.

Unidentified Justice: How about the boarding?

You were rejected on that.

Mr. McCormick: No, I wasn't totally rejected, as in the brief by the state I was accused of using a thunderbust, and so I'm somewhat restricting my shot right now and eliminating the boarding aspect of it.

Based upon the arguments in the prior case,--

Unidentified Justice: So we are judging this case as though the boarding was constitutional.

Mr. McCormick: --The boarding I don't believe was by consent because--

Unidentified Justice: I know, but was the boarding constitutional or?

Mr. McCormick: --If it was not by consent then it wasn't constitutional.

Unidentified Justice: I know, but the Florida Supreme Court has said it was.

Mr. McCormick: The Florida Supreme Court, in interpreting the facts--

Unidentified Justice: Said the stop and the boarding was constitutional.

Mr. McCormick: --They said that--

Unidentified Justice: You haven't processed an appeal to that.

Mr. McCormick: --No, sir, I haven't.

But as far as the grounds for supporting the judgment of the Supreme Court of Florida, I'm not implying that the boarding was unlawful.

I believe that the decision of the Supreme Court of Florida can be withheld, I mean, can be sustained without analyzing the boarding aspect of it.

Unidentified Justice: All right, so we judge it as though the boarding was legal and from then on, you say whatever happened was enough to sustain the judgment.

Mr. McCormick: Judge, that, if you see that the boarding was illegal, I don't want to disagree with you in that respect at all.

Unidentified Justice: I didn't know that was an issue here, the legality of the boarding.

Mr. McCormick: I'm not raising it at this point, Judge.

Unidentified Justice: At this point.

You've lost an opportunity to raise it.

Mr. McCormick: And this is the last time.

No, sir.

The reply brief of the state objects to the analysis of the case on these points by the defendants.

We are satisfied with the judgment of the Supreme Court of Florida, and that being the case, we did not file any cross-petition seeking certiorari.

Unidentified Justice: Did you ever challenge the propriety of the arrest?

Mr. McCormick: Yes, ma'am.

Is that the propriety of the arrest was challenged initially by a written pleading on the motion to suppress.

And that was back on April 3, 1977.

The arrest was objected to and that was used as one of the grounds for the motion to suppress.

Unidentified Justice: You concede now that the arrest was lawful?

Mr. McCormick: No, ma'am.

Our position is that the arrest was unlawful.

In addition to that, before the Third District Court of Appeals, our brief on page 21 contains our objection to the arrest.

Before the Supreme Court of Florida, our Answer Brief on page 18, 19 and 40, and argument number vii.

Unidentified Justice: Mr. McCormick, are you talking about the arrests for not having a registration statement?

Not having a registration?

Mr. McCormick: Yes, sir.

Unidentified Justice: Well, at page 28 I think of your brief you say that those arrests were false arrests.

Mr. McCormick: Yes, sir.

Unidentified Justice: What did you mean by that?

Mr. McCormick: By that I mean that they were unlawful.

Is that there was no reasonable grounds to believe... I'm talking now about the initial arrests.

Actually, we've got two arrests involved.

We've got the first arrest--

Unidentified Justice: I'm talking about the one for not having a registration.

Mr. McCormick: --They never perfected that.

They told the men onboard, they said, you're under arrest, but they never followed it up by any type of a citation or anything else.

That is the arrest that I'm talking about that was unlawful.

Unidentified Justice: You say that arrest was federally infirm?

Are you saying that was federally infirm?

Mr. McCormick: No.

Unidentified Justice: Constitutionally?

Mr. McCormick: I'm saying that it was unlawful by the laws of the state of Florida, and by the same token, if there wasn't probable cause to believe that a crime had been committed when they were arrested for not having the registration papers, by the same token, it would be federally infirm.

We're attacking the... or, we're supporting the decision of the Supreme Court of Florida on these grounds, based primarily upon the Langley struck doctrine, the decision by Justice Cardozo in the Mauley Construction and Maryland Casualty case, as well as Gresman Supreme Court Practice, 477, 479.

The state, in its presentation of the facts of the case, I believe there should be some additions to it in order that the total picture can be appreciated in deciding this case.

Is that to begin with, this was off of Sugarloaf Key, is that... I don't know if you Justices are familiar with the Keys, but Sugarloaf is between Marathon and Key West, and it's a rather remote area of the Florida Keys and it was approximately three miles offshore.

It was about 1:00 o'clock in the morning and the seas were rough.

The evidence was that the Marine Patrol had a suspicion that there was lobster being stolen from fishermen's traps in this area.

Further was the evidence that they had no reason for suspicion of any kind that the defendants were involved in any type of illegal activity.

As a matter of fact, both of the Marine Patrol officers said that when they approached the vessel they had no knowledge or suspicion of any kind that these men were transgressors of the law.

Nevertheless, they decided to stop the vessel.

The vessel at this time was approximately three miles offshore, the seas were very rough and they approached the vessel from the stern, and then threw the floodlight on when they were approximately 50 feet away.

One of the officers asked the pilot of the San Rafael to take the vessel out of gear and to bring it to a stop.

Of course, it's bring it to a stop as best you can considering the roughness of the sea.

When a vessel is brought... is taken out of gear when the seas are rough, it has a tendency to be be thrown in the direction that the sea wishes it to be thrown.

Is that you lose control of a vessel when you take it out of gear in heavy seas.

The record indicates that the Marine Patrol boat was pulled up alongside of the San Rafael and that the two vessels were pounding together in the heavy sea while the Marine Patrol officer questioned the men onboard if they had their registration papers.

I believe at this juncture it should be pointed out that as far as the registration law, is that Florida has its registration law for power boats, motor boats as they're called.

Most states have their own individual laws for registering motor boats.

It used to be that the federal government had the exclusive right in this area, but then they delegated this to the states and permitted the states to pass their own registration laws.

Florida passed it, and by definition under the Act, is that they state that all motor boats... and I believe this has application to an inquiry by you, Justice Powell, is that all motor boats must be registered.

But then what they do is they say that the following vessels are not to be considered as motor boats under the Act.

They talk about boats strictly used for racing, they talk about other vessels from other states where they are properly registered.

And more importantly, they say documented vessels are not labeled as motor boats, and they don't have to have registration papers.

The evidence was at this point that the defendants produced the documentation papers for the vessel.

And even though the documentation papers were produced clearly indicating to the police officers that registration papers were not necessary, they insisted upon the registration papers.

Officer Soli then requested permission to get aboard, and at this time the boats are still pounding together in the heavy seas, and there's no indication inside of the record that permission was ever granted.

All it is is that she proceeded to get aboard and was given assistance while getting aboard by the defendants.

Once aboard, she immediately engaged in a search of the vessel.

Is that she states that the purpose of going onboard... her true purpose in going onboard was to find seafood products.

The Florida statute on point 370.021 specifically states that there must be reason to believe that the conservation law has been violated in order for the Marine Patrol officer to conduct a search of a vessel in that respect.

So in violation of that section of the Florida statute, she nevertheless proceeded to try and search the vessel.

The first area she went into was the wheelhouse.

The record indicates that she followed the men into the wheelhouse.

She didn't receive any consent to go into the wheelhouse; she just went into it from the cockpit.

She then went into the grocery box, and she wasn't looking for the registration papers when she went into the grocery box.

Unidentified Justice: Well, Mr. McCormick, supposing that a state custom agent, state marine officer, has legally boarded the boat and there isn't just a standoff between the captain or whoever it is.

The captain realizes the officer is there and walks to the wheelhouse and goes to the wheelhouse himself.

Do you think that when the state police officer comes from the outside part of the boat to the inside part of the boat he has to ask permission if the captain has simply gone on ahead, indicating for him to follow?

Mr. McCormick: Well, if the captain indicated that he should follow, then I would go along with you, but the record doesn't indicate that the captain indicated to him to follow.

Unidentified Justice: Well, what does the record indicate?

Mr. McCormick: The record indicates that once Office Soli got onboard, she immediately commenced to search for seafood products.

Unidentified Justice: But from your description of how she got to the wheelhouse, it sounds as though she had followed the captain there.

Not that she pushed the captain over to one side and went into the wheelhouse on her own.

Mr. McCormick: That's right.

Yes, sir.

But then she went into the grocery box, and she wasn't following the captain when she went into the grocery box.

She was really conducting a search.

Unidentified Justice: Well now, the Florida Supreme Court opinion says that in this case, consent was freely given to board the vessel and to look in the icebox.

Now, we have to take that as the correct finding, do we not?

You didn't come here on a petition for certiorari to dispute that.

We have to assume those things are true.

Mr. McCormick: I did not cross-petition, and I believe it's our position that it's not necessary for us to cross-petition based upon the Langley-Cardozo decision.

Unidentified Justice: Well, you can't ask us to disregard that state court's factfinding.

Mr. McCormick: Well, that's the reason why I said I don't want to have our position rely strictly upon the boarding or the illegality of the boarding of the vessel, because of that point.

But now as far as the icebox goes,--

Unidentified Justice: Well, it can't rest on that point at all.

Mr. McCormick: --Pardon?

Unidentified Justice: It can't rest on that point at all.

Don't we judge this case on the grounds that the officers were legally on the vessel?

Mr. McCormick: I believe so.

The icebox consent was given to look in the icebox but no place else.

It was after the Marine Patrol officer conducted a search of the wheelhouse, the grocery box and the cabin and then the icebox that she proceeded to the forward hold and indicated to Garcia that she wanted to see what kind of fish products Mr. Garcia had in the forward hold.

It was then that Mr. Garcia said, do you have a search warrant.

And Officer Soli said all we want to do is take a look in there and see what kind of fish products you have.

And he again repeated the question, and this dialogue was going on and Officer Walker, in the Marine Patrol boat alongside shouted out then and said, we don't have a search warrant, we don't need a search warrant.

We're not searching your boat.

You're under arrest for not having your registration papers.

And that's the arrest that I was speaking about that I say is unlawful.

Unidentified Justice: Why, again, do you say it was unlawful?

Because they didn't prepare something like a certificate of arrest?

Mr. McCormick: No.

I said it was unlawful because the Florida statutes specifically state that registration papers are not necessary for a documented vessel.

Unidentified Justice: So you're saying there was no offense for which--

Mr. McCormick: Yes, sir.

Unidentified Justice: --But didn't the Supreme Court of Florida disagree with you on that?

Mr. McCormick: No, it didn't.

Unidentified Justice: You say under Florida law he could not have been arrested for not having a boat registration certificate onboard.

Mr. McCormick: Yes, sir, that's correct.

Unidentified Justice: The Florida Supreme Court opinion, however, says, and I quote, "They" meaning the officers,

"then asked to see the boat's registration certification, which is legally required to be onboard. "

And they cite a statute.

And we're supposed to disregard that?

Mr. McCormick: It's supposed to be onboard a vessel for a motorboard, but this isn't a motorboat.

It's a vessel that has documentation--

Unidentified Justice: But they were dealing with this particular case, though.

Mr. McCormick: --Yes, ma'am.

Unidentified Justice: And they've told us in this case in that sentence that it was legally required.

Mr. McCormick: Then I advance this as an argument that was rejected by the Supreme Court.

And I believe, according to the Langley decisions as well as the other authorities that I mentioned, we're able to advance not only the arguments accepted by the Supreme Court of Florida, but also, those rejected by the Supreme Court.

And even arguments not even advanced to the Supreme Court.

Unidentified Justice: But you're unlikely to prevail, whatever you may be able to advance, on an argument that says that the Supreme Court of Florida misunderstood what the Florida police could arrest for, or what was legally required to be onboard under Florida law.

Mr. McCormick: There's no indication inside of the decision of the Supreme Court that the arrest was lawful.

Unidentified Justice: Suppose under Florida law it was lawful, that having a registration certificate onboard was required, and that you could arrest for not having it.

And suppose the officer said to the captain, well, you don't have a registration certificate so we're arresting you for that.

Now, if that was a lawful arrest, the only way it could have been lawful is if it were lawful without a warrant.

Mr. McCormick: Yes, sir.

Unidentified Justice: Now, are you saying that they needed a warrant?

Mr. McCormick: No.

I'm saying that it was an unlawful arrest because there was no probable cause to believe that the statute was violated.

The statute requiring registration papers.

Registration papers were not required.

Unidentified Justice: Well, they didn't have them.

Mr. McCormick: They weren't required because it was a documented vessel.

Unidentified Justice: The Florida Supreme Court says they were required.

Mr. McCormick: They were required by Florida statute as far as... there certainly is a Florida statute that says that motor boats must have registration papers.

But if I may read to you from the record, this is A-15, this is the testimony of Officer Walker.

"Two gentlemen came out of the wheelhouse. "

"I identified myself as Mark Walker, again with Marine Patrol, and I told them that I would like to check their registration papers for their boat. "

"Question: And did they produce the registration papers? "

"Answer: At first he handed me a white piece of paper and the tax receipt, taxes paid on the boat. "

"I assumed it was paid on the boat. "

"I told him that that wasn't what I wanted to see, that I wanted a small square piece of paper which was a Florida registration certificate. "

"He returned and handed me the documentation papers for the vessel, and I asked him if he was captain of the boat. "

"I don't remember whether he replied whether he was captain or not. "

et cetera.

Unidentified Justice: Anyway, the Florida Supreme Court opinion says that he could not... the registration certificate could not be located.

Mr. McCormick: That's correct.

There was no registration certificate.

Unidentified Justice: And after having said that the certificate was legally required to be onboard.

Anyway, they were legally on the vessel; there was no registration certificate to be found.

And if they could be arrested for that... there was no misrepresentation, I suppose, then, about the warrant.

Mr. McCormick: If they could arrest for the registration papers, I think next... assuming that was legal for purposes of argument at this stage... is that the next question is would they have the authority to search the vessel.

And Section 371.58 states that you're able to conduct a safety check with the owner or operator's consent, or when there has been reasonable cause to believe that a part of that section has been violated.

Now, if there was a violation of the safety requirements, then I say, yes, you could.

In contrast, if you don't have your registration papers onboard, is that... for example, if you don't pay your income taxes, I don't think that would give them the authority to search the forward hold.

And by the same token, if they don't have the registration papers onboard, I don't think that would give them the right to search the forward hold.

Unidentified Justice: So you're suggesting, which may be quite right, that under Florida law, even if you need a registration certificate onboard, even if you can be arrested for not having it, you may not search the rest of the vessel, or search the vessel at all, unless you have probable cause to believe you're going to find something besides the non-existence of a registration certificate.

Mr. McCormick: I would think, so, yes, sir.

Unidentified Justice: You think that's Florida law.

Mr. McCormick: Yes, sir.

I believe that would be consistent with the Carroll case, and I think it's also consistent with State versus--

Unidentified Justice: Well, it isn't.

Justice Stevens suggested to you that the requirement of probable cause is... that was imposed on these officers is purely Florida law.

Even if they could have arrested for not having a registration certificate.

Mr. McCormick: --Well, that portion of the decision, the last two pages of the opinion in chief, that deals with the aspect of probable cause and the arrest is that if all Florida statutes that they talk about, together with the Hill case and I believe the Taylor case and one other case, and they don't mention anywhere--

Unidentified Justice: Is that the premise of your argument that this judgment, then, rests on an adequate state ground?

Mr. McCormick: --Yes, sir, it certainly does.

In addition to that, our Article I, Section 12 of the Florida Constitution which was in force in 1977 and which was in force right straight through the trial and the appeals up until last year, was a little bit broader than the Fourth Amendment to the United States Constitution.

Article I, Section 12 even stated that any evidence that was obtained... that was unreasonable could not be introduced in court proceedings.

Unidentified Justice: What happened last year, Mr. McCormick?

Mr. McCormick: Well, they changed the constitution and now they're going along with the Supreme Court of the United States.

Unidentified Justice: Florida changed its constitution?

Mr. McCormick: Yes, sir.

It's suggested by the state that the search was incident to the arrest, and that area, I believe the Chimel versus California is still the law here before the Supreme Court is that there has to be, number one, a lawful custodial arrest, is that there's been no indication whatsoever that there was a lawful, custodial arrest here.

And that the search be limited to an area into which the arrestee might reach in order to grab a weapon or evidential item.

Is that the forward hold... is that the arrest took place in the cockpit of the boat.

The forward hold is on the other side of the cabin.

There's a hatch.

The evidence is that it required two men, strong men, to be able to lift the hatch, and before they could even get to it, there's fish traps located on top of the hatch that have to be removed.

So this would certainly not be an area where the arrestee might reach for a weapon or perhaps attempt to get some evidence and destroy it.

The Carroll Exception is that... just briefly, the probable cause for the arrest is that it's our contention did not exist.

Nor was there probable cause to believe that contraband was onboard.

Is that the testimony of Officer Soli and Officer Walker was that they had no suspicion whatsoever that there was any contraband onboard.

As a matter of fact, they testified that they just wanted to take a look in the forward hold because they thought they might be able to locate some lobster.

I don't know how they're able to say that after they... assuming that they did find the seafood products, that they could identify those seafood products as either being stolen or perhaps legally gained.

The evidence was also, by the testimony of the officers, that they had no reason to believe that this boat either fished in Florida waters or ever sold fish products in Florida waters.

Unidentified Justice: Well, what were the traps doing there?

Mr. McCormick: The traps were onboard the boat, and they--

Unidentified Justice: You said they didn't fish, but what were they doing with traps?

Mr. McCormick: --They stated that they were on the way to the Bahamas.

It's a caysal bank which is located almost due east of Sugarloaf, approximately 40 miles into the stream.

The further position of the state is that this was a lawful administrative inspection.

It's our position that as far as it being a lawful administrative inspection, Chapter 370 specifically states that the only time that you can have an inspection is if there is probable cause to believe that the conservation law has been violated.

And they, by their own testimony, stated they had no reason whatsoever, even a suspicion, to believe that the conservation law was violated.

371 deals with registration papers and safety equipment.

Is that it's the state's position now, which I say lacks vitality because the first time it was advanced was in their reply brief.

Is that they say that... the state is contending that the probable cause was gained by the lack of papers onboard, the registration papers.

This is the first time that they advance this, in their reply brief.

And it's our position, of course, that the failure to have registration papers wasn't... that doesn't give you the probable cause to conduct the search.

It is the state's position that the question for review, as indicated in their brief on their petition for certiorari,... it states that the respondents were validly arrested.

It stated that the Supreme Court of Florida so found that the respondents were validly arrested, prior to the hold of the boat being searched.

Is that nowhere in the opinion is there any indication that the state Supreme Court thought that the defendants were validly arrested.

And, of course, this is a pivotal point, is that if you... it has to be established in the first instance that there was a valid arrest.

Otherwise, everything else pretty much collapses.

Lastly, the decision mentioned inside of the defendants' brief; namely, Bumper v. North Carolina, which I believe is very similar to the case at bar, as well as, of course, U.S. v. Moat, which is at 359 Fed 2nd, and O.J. Sales, Inc., which is a 99 Supreme Court case.

Is that similar in kind where there's been a misrepresentation, especially if it's with reference to a search warrant or it's represented to the defendant that authority to search existed when, in fact, it did not, is that any statements made as well as evidence received and especially consent ostensibly given does not constitute consent at all.

And as was indicated in the case of State v. Taylor, acquiescence to authority does not constitute consent.

Thank you, gentlemen.

Chief Justice Burger: Do you have anything further?

Mr. Snurkowski: No, Your Honor.

Chief Justice Burger: Thank you, counsel, the case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Monday next at 10 a.m..

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Featured:

Oregon v. Kennedy - Oral Argument

Fri, 09 Jan 2009 14:47:15 +0000

Case:

Oregon v. Kennedy

Media File:

80-1991_19820329-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF DAVID B. FROHNMAYER, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Oregon against Kennedy.

You may proceed whenever you are ready.

Mr. Frohnmayer: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on a writ of certiorari to the Oregon Court of Appeals.

That Court reversed defendant's theft conviction despite the fact that defendant's earlier trial was terminated by defendant's own successful mistrial motion.

The Oregon Court of Appeals held that reprosecution itself was barred because of jeopardy grounds due to the events preceding defendant's successful mistrial motion in the aborted trial.

At issue in this case is whether a convicted thief ought to be able to escape the occasion of that conviction through the consequence of his own deliberate trial strategy.

The relevant facts, we believe, are few and simple.

Early in defendant's first trial, the prosecution asked an admittedly improper seven-word question.

Before the witness answered, defense counsel objected, moved for a mistrial, and asked that the matter be reset for trial.

The trial court granted defendant's motion over the strenuous objection of the prosecution.

Prior to his retrial, defendant then asked a different judge to dismiss the case on double jeopardy grounds.

The trial court declined to do so after making explicit findings that the prosecutor's conduct was not intentional, that the question was not asked in bad faith, and that it was not grossly negligent.

The Oregon Court of Appeals, however, reversed defendant's subsequent conviction, finding that there was nonetheless a Fifth Amendment jeopardy bar because the prosecutor's question constituted something, to wit, called overreaching.

The proposition we would put to this Court is simple, and that is that a defendant who elects to move for a mistrial cannot raise a jeopardy bar to his retrial except in one narrow circumstance, and that is where the prosecutor's conduct itself is intended to provoke that very mistrial, and we note at the outset the anomaly that under the settled law of this Court, had defendant merely objected to the question, been convicted, and then secured successful reversal upon appeal, he could be retried.

So, the issue is whether the defendant, by himself, shortcircuiting the trial process in a full trial on the merits, can be allowed to achieve a different result because his well-taken mistrial motion was granted.

We contend that the defendant cannot create these anomalous results and cannot complain except in the narrow circumstance where the prosecutor intends that the trial not be completed, and where the prosecutor's conduct was intended to provoke that very mistrial.

We believe that our proposed test would assist both the public and criminal defendants, and we believe that to affirm this case would do grave injury to both.

An affirmance would clog court calendars.

It would multiply appeals about the precise degree of prosecutorial misconduct or error which should lead under a blameworthiness standard of some kind to a double jeopardy finding.

It would also, we believe, deter trial judges from granting mistrials in cases where they are appropriate, because they would know for certain that the defendant would go scot free.

Under those circumstances, the delay, the time, the anxiety, the multiplication of appeals, and the cost to the public of hearing clearly meritorious appeals would be, we think, a prohibitively high cost for such a different rule.

We believe that the rule for which we argue is compelled by an understanding of the history and purposes of the double jeopardy clause, that it is implicit, at least, in the dicta and holdings of prior decisions of this Court that a Draconian sanction of barring retrial altogether when the prosecution makes an error ignores the fact that there exist equally effective sanctions against prosecutorial misconduct, and that as a matter of policy the ease and certainty of application of our rule make it a justifiable and appropriate one.

We note at the outset, of course, that one of the pieces of the history and purpose of the double jeopardy clause is to prevent against repeated harassment of a defendant by the prosecution when the prosecution suddenly realized that the case is going badly.

In that sense, this Court has spoken of the defendant's valued right to decision by a first tribunal.

On the other hand, we can find no decision of this Court which has ever found that the double jeopardy bar applies where a mistrial motion on behalf of the defendant is granted at the defendant's request, and that, we believe is for a good reason, and that is because, as this Court has explicitly recognized, in Lee and in other cases, a mistrial declaration, when it is properly made, serves the constitutional prohibition against double jeopardy.

It is a deliberate election on the part of the defendant to avoid a jury verdict which it is his right to achieve, and to challenge whatever error there may be in the record on appeal.

At the same time, that very mistrial motion ordinarily acts as sufficient and complete punishment for whatever prosecutorial error or unfair advantage there might have been, and of course, this Court has also recognized that there is and must be balanced against whatever right there is to a first tribunal, or policy there is in favor of a first tribunal, an important social interest in the completion of criminal proceedings against a defendant once and for all, a rationale which was re-emphasized as recently as the decision of this Court in United States versus Scott.

We think the policies that lie behind this and behind this Court's earlier dicta on the question make an enormous amount of sense, because ordinarily mistrial is itself a very significant sanction against the prosecutor.

It is very easy, I think, to envision the displeasure of the prosecutor's supervisor and the public at the expense of a new trial, let alone the fact that a new trial probably for the prosecution will be more difficult to carry through.

However, the limited exception to the rule, which we believe is implicit in this Court's dicta, at least, is that if the prosecutor wishes that very sanction in this trial to be imposed, then of course it loses its character as a sanction for misconduct, and under those circumstances, a more serious sanction would be called for, because if it is not, then the consequence is the deliberate harassment of the defendant within the central meaning of the double jeopardy clause itself.

In this case, of course, none of the factors that would call forth that rule exist.

We have already noted that under the facts, the error of the prosecutor occurred early in the trial.

Two perfunctory witnesses were heard.

The third had testified not to essential elements of the defendant's guilt or innocence, but was merely testifying as to the value of the rug that was in question.

Mr. Alito: Didn't your court say he was a key witness?

Mr. Frohnmayer: Yes.

There is no question, Justice Marshal--

Mr. Alito: Well, can't we take his word over yours?

Mr. Frohnmayer: --Yes, you certainly may.

I did not mean to intimate that any witness was not a key witness.

I am simply saying that the witness was not testifying directly to the guilt or innocence of the defendant, which is one of the points which earlier decisions of this Court, I believe, place special emphasis upon.

The point is that the trial judge did make findings, Justice Marshal, precisely with respect to the nature of the conduct in which the prosecutor had engaged.

Mr. Alito: May I ask you on that point, General Frohnmayer, the hearing on the double jeopardy issue was conducted by a different trial judge than the first one.

Mr. Frohnmayer: That is correct, sir.

Mr. Alito: Is that the normal... maybe these things don't arise that often, but was that pursuant to any special rule?

Mr. Frohnmayer: It was not to my knowledge pursuant to any special rule, although it would not be a typical for Oregon's largest county for a different judge to hear the motion calendar than had heard the case.

Mr. Alito: What would be your view of the case if the same trial judge, the judge who was conducting the trial had conducted the hearing on the double jeopardy issue, and you had exactly the same record at the original trial, and the same testimony, and the judge said, well, my impression is that the case was going badly for the prosecutor, and so the prosecutor took a few chances, and was trying to... hoping to get a better result, so although there was not a subjective intent to provoke a mistrial, it is tantamount to that, and therefore I will find that it was the equivalent of an intent to cause a mistrial, and that is unfair to the defendant?

Would that be a different case?

Mr. Frohnmayer: I am not sure that it would.

It would go mainly to the issue of who evaluates the record.

It is our view that this rule should give appropriate deference to the trial judge's finding, whether it is a different judge who evaluates the first conduct or the one who was there.

In the example that you posit, it seems perfectly appropriate that the judge who was even closer to the actual conduct of the criminal trial and therefore who might be able to judge and know of his own observation of the nuances of defendant's and prosecutor's demeanor might be an even better place to make such a decision.

Mr. Alito: Well, then, supposing the first trial judge said, I understand that the prosecutor testified she didn't intend to, but I really don't believe her, I think that she was pretty desperate, she wanted a second chance, and so I will find on the very facts we have in this case that it was deliberately done to provoke a new trial.

Then I take it there would be double jeopardy.

Mr. Frohnmayer: That is correct.

Mr. Alito: So that on this record it could have gone either way.

Mr. Frohnmayer: That is a possibility.

Mr. Alito: Depending on what the trial judge found.

Mr. Frohnmayer: Yes.

Of course, it is, and we believe that it is within the purview of the trial judge to evaluate not merely the testimony of the witnesses, the--

Mr. Alito: The court of appeals didn't rule on that point.

It ruled on flagrant.

Mr. Frohnmayer: --The court of appeals--

Mr. Alito: Isn't that right?

Mr. Frohnmayer: --The court of appeals accepted the findings of the trial court.

Mr. Alito: That's right.

Mr. Frohnmayer: Which, Justice Marshal--

Mr. Alito: And said, however, this case of flagrant overreaching lies outside that rule.

Mr. Frohnmayer: --Well--

Mr. Alito: Isn't that the ruling of the court?

It is the last... next to the last sentence.

Mr. Frohnmayer: --We understand that that is in fact what the court of appeals said, and we have no quarrel with the characterization of the prosecution's conduct as being improper.

What we simply state--

Mr. Alito: Flagrant?

Do you agree with flagrant?

Mr. Frohnmayer: --That is a characterization that--

Mr. Alito: That is... your court used that word.

Mr. Frohnmayer: --Well, that is a characterization of the court of appeals by which I assume that we are bound.

However, it does differ, I must say, in at least emphasis or epithet from that which was given to it by the trial judge whose findings the court of appeals accepted.

Mr. Alito: Perhaps stupid would have been a better characterization.

Mr. Frohnmayer: Well, we come to this Court with no apologies for the prosecutor's conduct, and I hope that is clear to this Court.

What we are simply saying is that however flagrant the conduct may be, whatever epithet had been attached to it, it was not of the character and kind which this Court's prior decisions and dicta, at least, quite properly indicate should be the occasion for finding that the mistrial motion was one into which the defendant was goaded without any real option or without any real choice.

Mr. Alito: Mr. Frohnmayer, even if we were to agree with you in your argument here today as far as the federal rule is concerned, if the case were to go back to Oregon, would Oregon apply a more stringent test, as has been suggested in one of the amicus briefs, so that under the Oregon constitution and under Oregon law, for example, in the Rathbun case, is a stricter standard applied?

Mr. Frohnmayer: Yes, I am glad that you asked the question, because it does give me a chance to point out that the amicus brief which raises the Rathbun case raises the wrong Rathbun case.

It refers to the Oregon Supreme Court case in the Rathbun case, but in fact the court of appeals whose decision we are contending today is erroneous cited deliberately its own opinion, and pointed out that the Supreme Court Rathbun case was decided on other grounds.

The other grounds on which the Oregon Supreme Court case was decided were in fact state constitutional grounds.

Mr. Alito: So you think that the court of appeals, when it cited its Rathbun decision, meant the decision of the court of appeals in Rathbun, and not the later decision of the Supreme Court of Oregon?

Mr. Frohnmayer: There is no question in my mind, Justice Rehnquist.

In fact, it is difficult to see how more clearly other than stating it explicitly the court of appeals could have been saying that it was deciding the case on federal grounds, because it cites its own opinion, says that the other opinion is reversed on other grounds, the other grounds on which it was reversed were state constitutional grounds, so there is no question but that we are here on federal grounds.

But to address your question, Justice O'Connor, it is not clear what the Rathbun case would dictate, because at the time the Supreme Court decided Rathbun, it noted that there was no state or federal constitutional authority precisely on point on the double jeopardy question where a bailiff attempts improperly to influence a jury, and there still is no such federal case, so we would have to know whether or not this Court, for example, would extend double jeopardy protections to a defendant where a bailiff engaged in improper conduct.

We did note that in the Rathbun case decided--

Mr. Alito: Well, is there a possibility that Oregon law would apply a different standard than that which you are arguing should be applied by us?

Mr. Frohnmayer: --Yes, it is a possibility, and what we represent to this Court, however, is that the Oregon court of appeals chose deliberately to determine the case on federal grounds, apparently believing, since the state constitutional grounds were argued to it at least in the briefs of both defendant and state, that the federal ground was the appropriate and dispositive ground.

Mr. Alito: But would not the proper disposition be, if we agreed with you, to send it back to that court to be sure that they do not think there is a state rule that adequately supports their determination?

Mr. Frohnmayer: No, I don't believe so at all, because the Oregon courts know when they wish to cite a state ground.

In fact, I think that's really explicit in the brief of the American Civil Liberties Union citing other cases.

Mr. Alito: Well, even so, Mr. Attorney General, if we were to reverse, our mandate is for further proceedings not inconsistent with our opinion, so I should suppose if your court of appeals wanted then to determine a state constitutional ground, it would be free to do so under our mandate, would it not?

Mr. Frohnmayer: I suppose that it would, except that the court of appeals made it explicit in our judgment that it rejected the viability of any state constitutional grounds because, had it wished to address those--

Mr. Alito: It may have, but we have no choice after we decide the federal question, if we do, in your favor, but to remand for further proceedings not inconsistent with our opinion.

Mr. Frohnmayer: --That is correct.

Mr. Alito: And I would suppose that would leave your court of appeals open to... if it wants to change its mind, to apply a state ground.

Mr. Frohnmayer: Yes.

However, Your Honor--

Mr. Alito: Your state supreme court declined to review this case, did it not?

Mr. Frohnmayer: --Our state supreme court had a crack at this case and did decline discretionary review, and that is why we believe it is appropriate to take this issue directly to you.

Mr. Chief Justice, I wish--

Mr. Alito: As I understand, the court of appeals says the law of Oregon gives two reasons for applying double jeopardy.

One, the trial court found didn't apply, and the second one was the one that the court of appeals ruled on, and you haven't... I mean, aren't we to give deference to their holding that this was overreaching?

Mr. Frohnmayer: --Their--

Mr. Alito: Didn't they specifically say it is overreaching?

Mr. Frohnmayer: --Overreaching is an epithet, Your Honor, which is taken directly from Fifth Circuit Court of Appeals federal cases purporting to construe this Court's precedents in double jeopardy cases.

That is a line of cases which we believe to be erroneous, and one which I will respectfully address on rebuttal, as will the Solicitor General.

Mr. Alito: But he says, this is a case... well, do you deny that there was overreaching?

Mr. Frohnmayer: No, we have never contended that the nature of the prosecutor's conduct was appropriate.

We are merely saying it does not fit the characterization of intentional misconduct designed to abort a trial because the prosecution wishes a more--

Mr. Alito: Well, is the law of Oregon that overreaching is a ground?

Mr. Frohnmayer: --No, it is the law of the Federal Constitution which the Oregon court is purporting to construe.

Mr. Alito: Is it the law of the court of appeals?

Mr. Frohnmayer: It is the law of the case of State versus Kennedy, which we are asking this Court to reverse.

Mr. Alito: And that's the court of appeals.

Mr. Frohnmayer: That's correct.

Mr. Alito: And you say their finding that... you admit that this man was overreaching.

Mr. Frohnmayer: That is correct.

That is the characterization of the court of appeals, the findings of the trial judge.

Mr. Alito: My question is, do you agree with it, that it is overreaching, end of quote?

Mr. Frohnmayer: Yes.

Mr. Chief Justice, I wish to reserve the balance of my time.

Chief Justice Burger: Mr. Alito.

ORAL ARGUMENT OF SAMUEL A. ALITO, JR., ESQ., ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

Mr. Alito: Mr. Chief Justice, and say it please the Court, the United States agrees with the state of Oregon that the double jeopardy clause does not prevent retrial of the defendant after a mistrial is declared at his request or with his consent, provided only that the prosecution did not deliberately provoke the mistrial request or the defendant's consent.

In the federal system, most of the courts of appeals now adhere to that rule.

However, some have held or stated that reprosecution may be barred where the mistrial request is caused by prosecutorial overreaching or gross negligence or bad faith or intentional misconduct.

In the brief time allotted to me this morning, I will attempt to show that none of these alternative standards is workable, and that all would produce highly undesirable practical consequences.

First, all these terms are simply too vague to provide any real guidance to courts or litigants.

Overreaching, for example, is simply a conclusory terms.

It means conduct that reaches or goes too far.

It is not a question of fact.

Since it means conduct that reaches or goes too far, virtually all prosecutorial or judicial error that causes a mistrial would appear to constitute overreaching, because by definition it is conduct that went too far.

It caused the mistrial.

Gross negligence is an equally vague standard.

This Court's decision in Lee in 1977 stands for the proposition that simple negligence on the part of a prosecutor or a judge is not sufficient to bar retrial, and no one has ever adequately explained the distinction between gross negligence and simple negligence.

In the field of torts from which that term was borrowed, the concept has now been generally repudiated.

The terms bad faith and intentional misconduct have similar flaws.

Apparently these terms refer to any conduct that is not inadvertent, and that the prosecutor or judge knows is wrong or improper.

Mr. Alito: Let me give you a hypothetical case to test your... Supposing you had a case in which the prosecutor toward the end of his case knew he didn't have enough evidence to convict, but he had had an interview off the record with some witness that was not admissible, and he thought, well, the only possible way... I know justice demands that we convict this man... would be to get this evidence before the jury, so he deliberately told the jury about some inadmissible evidence, and then the other side moves for a mistrial.

Would that be permissible?

He didn't even think about the consequences of a mistrial.

But a rather flagrant example.

Mr. Alito: In that case the remedy would be the declaration of a mistrial--

Mr. Alito: And a new trial?

Mr. Alito: --or if a mistrial was not declared, reversal on appeal.

Mr. Alito: Could he do anything bad enough to justify a final determination of innocence if he didn't really think about the mistrial problem and double jeopardy?

Mr. Alito: Under other provisions of the Constitution, he might, if he took some action that irreparably prejudiced the defendant's ability to obtain a fair trial.

Mr. Alito: Well, just in this particular trial.

He just did everything that you can think of that would make the trial unfair, but he just was very inexperienced and very zealous and very eager to get justice done in the particular case.

Mr. Alito: The remedy there is simply a mistrial reversal of a conviction.

Mr. Alito: And a second trial.

Mr. Alito: That's right.

The defendant has a valued right to have his trial completed by a particular tribunal, but it is important to emphasize that he has no right to a single errorless trial or even a single trial that is free of highly prejudicial reversible error.

That proposition was effectively settled more than 80 years ago, when this Court held in Ball that a retrial was permitted following reversal of conviction on appeal, and there are sound reasons for that rule.

It would simply be impossible as a practical matter to guarantee criminal defendants a single errorless proceeding.

Criminal trials are simply too complicated.

Too many things can go wrong.

Things happen spontaneously and unexpectedly.

Prosecutors and judges are required to say and do many things without the opportunity for leisurely reflection, and requiring a single... requiring the--

Mr. Alito: Yes, but granted all that, maybe you don't joint the Attorney General's concession, but on these very facts, if this young lady had deliberately intended to get a mistrial by asking that question, you would agree that then there would be double jeopardy?

Mr. Alito: --Certainly.

If she deliberately intended to provoke a mistrial, then double jeopardy would have barred reprosecution, but the trial level court found that she did not have such an intent, and that has not been disputed by... that was not reversed by the Oregon court of appeals.

Mr. Alito: How does one prove the subjective intent of the prosecutor?

Could you ever do it if the prosecutor denied that intent?

Mr. Alito: Yes, I doubt that there will be very many cases in which a prosecutor will admit that he set out to cause a mistrial, but I think that there will be circumstantial evidence from which an experienced trial judge could determine without great difficulty whether the prosecutor deliberately provoked a mistrial.

Mr. Alito: But not in the hypotheticals I gave you.

That wouldn't be adequate.

Mr. Alito: Well, as I understood your hypothetical.

Justice Stevens, there the prosecutor did not have the intent to provoke a mistrial.

Mr. Alito: Well, he got on the stand before the judge and said, well, I just didn't think about this consequence, and I haven't had much experience.

Mr. Alito: Well, if the Judge believed him, and based on the circumstantial evidence, how was the case going for the prosecutor, what was his manner when he made the fatal error, what is his background, what was his reaction to the defense mistrial request, based on all of those and other factors, if the trial judge believed that he lacked the intent to provoke the mistrial, then double jeopardy would not bar reprosecution.

As I was attempting to show, these alternative standards that have been adopted by some of the lower federal courts and by some state courts are simply too vague to provide any real guidance to courts or litigants.

They will produce inconsistent and inequitable results.

They will result in confusion on the part of trial judges who must decide whether to grant defense mistrial requests.

Because those judges will be fearful that granting a request will bar future prosecution, they will probably be more reluctant to grant defense mistrial requests, and that, of course, will work to the disadvantage of defendants.

It will also lead them to be more inclined than they are at present to permit the completion of tainted proceedings, knowing that a reversal on appeal would not bar reprosecution, and that would result in more appellate reversals, needless appellate litigation, and many wasted days of trial while tainted proceedings are permitted to run their course.

Mr. Alito: What you are saying is that with a subjective rule that almost requires psychoanalyzing the prosecutor, the safe thing for a trial judge to do is simply say, let it go, and then let them go the regular appeal route, correct the error on appeal, and then they will be retried?

Mr. Alito: I think that's... that's absolutely correct.

I have no idea what overreaching means.

It is simply a conclusory term.

It is not a finding of fact which in the federal system would be governed by the clearly erroneous rule.

It is simply a conclusion that the judge draws, and I would venture to say that in any arguable case, there are many... there is room for many opinions as to whether the conduct at issue constituted overreaching.

In sum, we don't think that any of these alternative standards is workable.

They would all produce highly undesirable practical consequences, and we therefore respectfully urge that the judgement of the Oregon court of appeals be reversed.

Mr. Alito: And you stand, I take it, on the fact that the trial court found and the reviewing court did not disturb the finding that there was no invidious or improper intent.

Mr. Alito: Yes.

We think that is the finding of fact that wasn't disturbed and decides this case under the rule that we advocate and that this Court has adopted repeatedly at least in dicta in recent decisions.

Mr. Alito: Are we bound by that finding, do you think?

Mr. Alito: I think... I don't believe this Court would disturb such a finding made by a trial level state court.

Mr. Alito: Can we also take the finding of the court of appeals?

Mr. Alito: Justice Marshal, I would not regard the court of appeals' statement that the prosecutor's conduct constituted flagrant overreaching as a finding of fact.

That was simply a conclusion that the court... a conclusion--

Mr. Alito: Well, are we bound by that conclusion?

Mr. Alito: --No, I don't believe you are.

Mr. Alito: And the reason we are bound by one and the other is what?

Mr. Alito: There are two reasons.

One is a finding of fact, and the other is simply a conclusion of law.

One was made by a trial level court, and the other was made by an appellate court.

Mr. Alito: And the trial level is above the appellate level.

Mr. Alito: No, but the trial level court took testimony on this issue, and was able to observe the--

Mr. Alito: Did it take testimony?

Mr. Alito: --Yes, it did.

Mr. Alito: It doesn't say so in the opinion.

Mr. Alito: The trial level court took testimony from, I believe, from the prosecutor.

Mr. Alito: And of course the prosecutor didn't say I violated the laws.

Mr. Alito: No, she didn't, and the trial level judge believed her, and made a finding of fact to that effect.

Mr. Alito: I understood that the appellate court did accept the finding of fact by the trial court that there was no intent to bring about a mistrial.

Mr. Alito: That's correct, Justice Powell.

It said under Oregon--

Mr. Alito: I didn't think you had mentioned that.

So you have a two-court rule, don't you, on that finding of fact?

Mr. Alito: --That's correct.

Thank you.

Chief Justice Burger: Mr. Walker.

ORAL ARGUMENT OF DONALD C. WALKER, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Walker: Mr. Chief Justice, and may it please the Court, I would like just to say a few things on the facts of this case which I think have been stepped over a little lightly.

On the prosecuting witness, the defense counsel of the trial had shown certain bias on the prosecuting witness, and then on redirect the deputy district attorney tried to rehabilitate the state witness.

The attorney... Mr. Attorney General stated that the deputy DA was goaded into it.

Now, there was a recess the day of the trial, so the deputy district attorney had all evening, and the testimony is that she met the witness in the hall and discussed it, found out... it came out in the facts of the case that the prosecuting witness did not know the defendant, had never done business with him, and they like to go over the fact that it was a seven-word question.

It was a commenting statement more than a question, and then it goes more to an objection as to the proprieties of a question on hearsay or the fact that the question could have been asked another way.

She knew that she had no basic testimony to extract from the prosecuting witness, and went ahead anyway.

So, I think that it is more than a technical breach.

The district attorney should be able to go maybe a lifetime without making such, I think, an overreaching and flagrant statement.

Now, one thing, too, that should be pointed out, that when this happened, the trial judge did not even seek argument.

He said, granted.

So, I mean, I think we have to take in the circumstances, the surrounding circumstances more than just the written word that was taken down in the transcript.

There was no question, and then where the trial judge says, well, you went over the line, it was overreaching.

One other thing that I think is important to know here is the history of the decision by the court of appeals, Judge Gillette.

Judge Gillette had this case before him, and before that was the Rathbun case, which is cited in his opinion.

The Rathbun case was the misconduct on the part of the bailiff.

When that case came up, Judge Gillette is the one that heard that case in the court of appeals and held that it was more like jury bias rather than overreaching or that sort of thing, and so he overruled the trial court.

That went up to the Oregon Supreme Court, and the Oregon Supreme Court overruled Judge Gillette.

So, when Judge Gillette in the Oregon Court of Appeals then has the Kennedy case, he has the latest decision in Oregon stating that a bailiff's misconduct, and that is the rationale of the case, where... is abhorrent, is the case that was used in that decision.

So, if the rationale and the bailiff's subjective intent was not important, so Judge Gillette had that precedent.

So he followed that case.

I disagree that he was following his own court of appeals decision.

Mr. Alito: Well, if you are correct, Mr. Walker, why does he cite the Rathbun case first to the court of appeals decision and then simply say reversed on other grounds, and cite the Supreme Court decision?

Mr. Walker: Well, I think, regardless of how he says that, Justice Rehnquist, I think that the Oregon rule and the rationale, I think he might have been trying to show some face-saving interest in his own court of appeals decision, but the thing that is interesting in the Kennedy decision by Judge Gillette is that he cites as dictum U.S. Jorn and Dinitz, but then he says, the court, Oregon, or State versus Rathbun, 287 Oregon, so what is in the court?

The only case that is really in point is State versus Rathbun, and the Oregon rule is that an officer of the court, a bailiff, misconduct that goes to that point where it did is flagrant and is overreaching.

Mr. Alito: You disagree, then, with the Attorney General as to the purpose of the use of the term "reversed on other grounds".

Mr. Walker: Definitely.

I think that the bottom line is, what is the Oregon rule, and the Oregon rule is the Supreme Court rule of State versus Rathbun, and that is what he was following, I think, in that case.

Now, I would like to go into the question about this case being before this Court.

First is that I think the Oregon Kennedy case is not ambiguous, and I think it is founded on state law, because when you say a court, that is... I looked it up in Black's Law Dictionary.

It says that, as a judge would say, I concur, I accord, and therefore, I think we are... we look back then to State versus Rathbun.

It definitely states, we are not deciding this, we are not going to speculate what the United States Supreme Court will do.

We are deciding this on Oregon constitutional grounds, and that, I think, is the rationale of State versus Rathbun, which was, I think, adopted in State versus Kennedy.

Mr. Alito: But he also relies on Jorn, the decision by this Court, several times.

Mr. Walker: Yes.

True.

I think--

Mr. Alito: Well, we can't ignore that.

Mr. Walker: --You can't ignore that, but I think that when the state judge is trying to uphold a constitutional guarantee, he has to be concerned with what is the state law that is involved, and then he can't ignore the federal law, but the... so he has to reconcile both.

Mr. Alito: Well, I would think if the Oregon law is tougher on the prosecution in the area of double jeopardy, he would first go to Oregon law.

Mr. Walker: Well, I think that's the correct procedure, and I think that it would be... perhaps we wouldn't be here if he had done that.

Mr. Alito: But he didn't.

He cites, as Justice Marshal said, Jorn.

Then he cites Dinitz.

Mr. Walker: That's true.

Mr. Alito: Doesn't Justice Lindy, at least, of your Supreme Court write opinions all the time encouraging reliance on your state constitution rather than on the federal constitution, doesn't it?

Mr. Walker: That's right, and he had a--

Mr. Alito: But he counsels doing it very explicitly, doesn't he?

Mr. Walker: --That's right, and I think probably that that message will get through to the court of appeals, and I think that that might make the job for everyone--

Mr. Alito: Well, but has your Supreme Court yet told the court of appeals that's the procedure to follow?

Mr. Walker: --Yes, I think--

Mr. Alito: Put it if possible on the state constitution?

Mr. Walker: --The State versus Cupp, which I think is a recent case in 290 Oregon... it's in one of the briefs... why states, first you look to the Oregon law, and if you look to the Oregon law and decide it on the Oregon constitution, that's the first analysis, and that's one, and if you follow your state constitution--

Mr. Alito: But can we say that was done by your court of appeals in the Kennedy case?

Mr. Walker: --Well, I think, Justice Brennan, I think that my second point is at most that the court of appeals decision is ambiguous, and if it is ambiguous, then it should be reversed and remanded for clarification, but I think, though, that sometimes, you know, when things move--

Mr. Alito: Well, tell me, if we were to disagree with you and think this is on a federal ground, and were to affirm it, or reverse it, rather, going back to my colloquy with the Attorney General, wouldn't your court of appeals still be free to follow Justice Lindy's counsel?

Mr. Walker: --By all means.

And--

Mr. Alito: Then they are making, in that case, they are making the decision on their own responsibility.

They are accountable to the state of Oregon and the voters, if you have an elective system there.

Mr. Walker: --That's right.

And I think that restraint should be exercised, and I think the fact that state courts should be more innovative, and I think they should exercise that responsibility.

Mr. Alito: By innovative, do you mean ignore the opinions of this Court?

Mr. Walker: No, I don't mean... no.

I think that they should... I think that due process, part of due process is following your own state constitution, and since the defendant Kennedy has basic rights under the Oregon constitution, and neither of the counsel here have suggested the fact that maybe his state due process rights haven't been taken care of by their argument.

I would say this, and my third point on the question... my first point being, I think that when it says the court... State versus Rathbun, I think that's the case that's... that Jorn and Dinitz don't really take care of Kennedy.

The dictum is referable all right, but State versus Rathbun is right on point.

If a bailiff is a court officer, certainly a deputy district attorney is a court officer, and that case, I would say, was practically on all fours.

But the third point that even though this Court thought it was not ambiguous and it was decided on federal law, it still should be reversed and remanded for Oregon to accept the responsibility of deciding their own law first, as Justice Lindy has stated, and then make that decision, but in that process, then, the state of Oregon would... certainly the scope of it would be to see that if Kennedy's due process rights, both under the Fourteenth Amendment and under the Oregon constitution, were protected, and it is not enough just to look at the Fourteenth Amendment, but also the Oregon constitution.

Mr. Alito: Now, addressing... if you will agree with me on the premise that this does rest on an interpretation of federal constitutional law... just assume that with me.

Then what do you say?

Mr. Walker: I say that even if it is based on that, that it is in line with Jorn and versus Dinitz, and in substance, it is the basis for a double jeopardy bar, and I think that--

Mr. Alito: Well, how do you phrase the test whether or not the mistrial was a second prosecution?

Mr. Walker: --Well, I think the fact that in the second prosecution that there was the harassment, there was threatened multiple trials, and bad faith, and I think those are the terms, I think, used both in Jorn and Dinitz, and they... both of those cases, the footnotes refer to U.S. versus Tateo, that the converse of the rule... I think we all realize that we are on the exception to the general rule.

Where the defendant moves for a mistrial, usually that is not a bar.

The exception being is what is discussed in Jorn and Dinitz, and both footnotes of those cases refer to Tateo.

Mr. Alito: Well, I take it that your position is based on the proposition that the question which had been referred to and described somewhere here in one of the briefs as stupid, that that question was a deliberate effort, a calculated effort to provoke a mistrial.

Is that your position?

Mr. Walker: I... Yes.

I think... I think that it is implicit in that statement, that commenting question, and I think that that is the end result, and I think to say, and to put the prosecutor on the stand and say, well, was that your intent, I don't think that is practical.

Mr. Alito: Well, what if the judge, the trial judge, now, had simply said that to the jury, that remark was not a question, it was a remark, it was wholly unprofessional and out of line, has no place, and you will disregard it, and then reprimand the prosecutor in open court, and then go on with the trial?

Then, if a conviction had occurred, then what?

Mr. Walker: Of course, then, I think it would be the basis for reversal, and I agree that it wouldn't be a bar, but there is one--

Mr. Alito: Then what you are saying is that the best thing to do is let the trials do on--

Mr. Walker: --No.

Mr. Alito: --never declare a mistrial.

Mr. Walker: I don't agree with that, and I think that counsel have been shown a lack of faith in trial judges, and they say that the term "overreaching" is vague.

The word "manifest necessity" can be vague also.

What does that mean?

But I think it is a guideline, it is a tool, and I think it was in Jorn where the Court has said, we've declined the invitation to place these in nice little categories of what the conduct will be.

Mr. Alito: Was that in the plurality opinion in Jorn?

There wasn't a Court opinion, was there?

Mr. Walker: It seems to me--

Mr. Alito: There was no Court opinion.

There was no Court opinion.

Mr. Walker: --there was... I think the language that we are not going to use the bright line rule, and that... in other words, they... it would be pretty difficult for this Court to make certain refinements that would take care of every situation, and I think that a trial judge who sees the method of... the behavior of the prosecuting attorney, maybe the raising or lowering of voice, and the temperament of the whole situation, is in that position, and I wouldn't say that trial judges are that flimsy in their decision-making power.

There comes a time, you take in the Perez decision, where you say that a hung jury, that is the basis for a mistrial, and no bar to reprosecution.

Everybody would agree with that, because that is an easy example of the manifest necessity rule.

But what if you had a ten-day criminal trial, and then the judge, trial judge declared a mistrial after the jury had been out an hour and a half, for no really apparent reason.

I think the defendant would certainly jump to the conclusion and jump to his feet after that say that would... he had a right for the double jeopardy bar.

So, any rule that the Court may make has to stand eventually on its own two feet, in common sense of a trial judge, and this trial judge, you see, there's like has been mentioned here before, the trial judge immediately granted the mistrial.

Then another trial judge, when it was going to be up for the trial the second time, then hears the statement of the prosecutor, and I would say in answer to the questions of the finding of fact, you can find the trial judge can make certain findings of the fact, but it's the constitutional impact or the consequences of those facts that the appellate court can say, well, those facts warrant this.

We're not changing the facts, but we're saying that the constitutional consequences of those facts lead us to this legal conclusion.

Mr. Alito: Isn't the trial judge who has been watching this whole proceeding the best person to make an evaluation of whether there was or was not an improper intent without relying on what the prosecutor claims is his intent?

Mr. Walker: I couldn't agree more, and... but the point of it is that the finding of facts that they are relying on is a second trial judge who was different than the first one who granted the mistrial just spontaneously, and so I think that the findings by the second trial judge is one thing, but when the appellate judge, Judge Gillette, says, we are saying that in spite of those findings, the consequential impact of those findings are that it is still flagrant overreaching, and remember, he had State versus Rathbun right before him, and State versus Rathbun says that the conduct of the bailiff was abhorrent, so what... now, if you say the state of Oregon rule is that the bailiff's conduct is abhorrent by talking to the jurors, I think there's a greater duty on the prosecuting attorney, and so then he comes along and doesn't use the word "abhorrent" but I think it is synonymous, "flagrant", and so I think that those situations are very similar.

Mr. Alito: How does one distinguish between flagrant conduct and abhorrent conduct, and as the Court of Appeals for the Fifth Circuit in the Dinitz characterized the prosecutor's conduct as "improper" conduct?

Mr. Walker: I think that... there again, I think that decision-making power has to be with the trial judge.

You know, when these cases come up and no trial judge probably prepares himself basically ahead of time, maybe it's a criminal case on questions of search and seizures and all that.

He is probably not thinking about double jeopardy and a mistrial.

So then somebody, some counsel might cite him this case, and he reads it over.

He hasn't read it maybe over in depth like we do in preparing for an argument, and so he has to be guided by certain common sense guidelines.

The term "bad faith", "overreaching", "manifest necessity", "deliberate intent", and all that.

It would be... and I think the most vague one and the most difficult is the word "deliberate intent".

I think "bad faith" and "overreaching" are much easier to arrive at.

Mr. Alito: Well, "deliberate intent" certainly isn't imprecise.

It may be hard to arrive at.

Mr. Walker: Well, yes, I know, but if it is hard to arrive at, Justice Rehnquist, and this is subjective, I can't imagine... and I think we could go through many, many cases, and... to find that the prosecuting attorney would say, yes, that was my deliberate intention.

Mr. Alito: Well, Mr. Walker, I thought this footnote in the court of appeals opinion, Footnote 1, indicated the court of appeals was very... had real reservations about subjective intent.

"We are not sure that the subjective intent of the prosecutor should necessarily play a pivotal role in the decision as to whether or not prior jeopardy forbids retrial."

What does that mean?

Mr. Walker: Well, I think that what that means to me, Justice Brennan, is that you have to take the objective remarks and what is the objective conduct of the--

Mr. Alito: So deliberate intent, to the extent that is subjective, the Court of Appeals at least thought was not too good a rule.

Mr. Walker: --Well, that's right, but in following State versus Rathbun, State versus Rathbun just before this case on the conduct of the bailiff, the Supreme Court of Oregon says, we can't speculate on the mind-reading of the bailiff, and so I think Judge Gillette had that in mind when he wrote that.

Mr. Alito: Mr. Walker, even if subjective intent is the standard to which we address ourselves, the trial judge can make the determination on factors other than the prosecutor's admission of intent.

Isn't that true?

The trial judge can look at the whole circumstances, and regardless of what the prosecutor says was intended, make that determination.

Mr. Walker: Yes.

But I think that the defendant Kennedy is, perhaps, on this procedure that was followed in Oregon, is only getting half a loaf, because the real person that can make that judgment better than anybody else is the trial judge who declared the mistrial, and he said granted, right away, so several weeks after then another judge who hasn't had the atmosphere of the first case firsthand, and then just listens to the prosecutor, that was the only witness, and then says, well, I don't find any deliberate intent, I don't think that takes us away from bad faith or overreaching or even the deliberate intent, getting back to the subjectiveness of it.

In the first place, the trial judge might say, I don't find by her testimony that she had the deliberate intent.

Mr. Alito: Well, the fact-finding of deliberate intent in this setting is not different, is it, from the fact-finding that the triers or trier must make on the intent in a criminal act, is it?

Mr. Walker: I think it's different in the fact that we have two different trial judges.

Mr. Alito: Well, did you ever object--

--Never mind two different trial judges.

Let's stay on the one question.

Is it any different from the problem of finding intent which judges and jurors do not find from express admissions, they find it from a series of objective facts, do they not?

Mr. Walker: That's right.

Mr. Alito: And then decide that all of these facts taken together either do or do not show an intent.

Now, I notice here that there is, in one of the opinions, I think the second one of the court of appeals, there's a footnote admonishing judges to see to it that their bailiffs are instructed not to talk to jurors, and so forth.

If you were to prevail here, perhaps that would invoke or provoke an admonition to trial judges, in view of this fog bank of meaning on the difficulty of making the subjective determination, we commend to trial judges the idea of never granting a mistrial, let it go to its determination, and let it be corrected if error on appeal, and then you won't have a double jeopardy question.

That might be the result, might it not?

Mr. Walker: I--

Mr. Alito: It wouldn't be a unanimous opinion.

It might be a result of such a holding.

Mr. Walker: --I think that puts trial judges down a little bit.

I don't think that trial judges are going to be that weak in making decisions.

I think they have an equal responsibility under the United States and the Oregon Constitutions to say when a person's prize guarantee has been violated, and to respond to the question of the trier of the fact might decide something, we know all types of situations where they might decide a fact, and it might require gross negligence.

Well, the court will say, in spite of your finding that is a fact, as a legal consequence, that is not gross negligence.

So, what I am saying is that the constitutional consequences of a finding of fact are still up to the appellate court on the legal consequences.

And when the Solicitor General... I think it puts a heavy burden in this case on Kennedy to use this case, which should be decided on Oregon law, as a basis for reconciling conflicts maybe in the various circuits, and I'm not so sure there is that much conflict.

I mean, there's... because every case has its own facts, and any proposed test, we are still going to set down to somebody can say, well, that's too vague, and no matter what you do, whether you say bad faith, overreaching, deliberate intent, whatever.

And I think that it is safer to leave the decision-making to where you have a common sense guideline, and I think Jorn and Dinitz do that.

Mr. Alito: If a trial judge in a hearing outside the presence of the jury after some dubious conduct on the part of the prosecutor then made a finding that this was deliberate and calculated conduct, misconduct on the part of the prosecutor, that would be the equivalent then under the rule you propose and perhaps the rule of the Oregon Supreme Court to dismissing the indictment with prejudice, would it not, because there could not be another trial?

Mr. Walker: I think that would be... I would agree with that.

But I don't think that... I don't think it might be a 100 percent situation where that the appellate court couldn't review it if it was just a misconstruing of the law as to those... what he said was deliberate intent.

Mr. Alito: But what if the judge making the finding that this was deliberate and calculated, inexcusable, unprofessional conduct, whatever terms you want to use, then said on that basis, in light of the decisions, I dismiss the indictment with prejudice.

That would be the end of the case, wouldn't it?

Mr. Walker: I think most likely.

Mr. Alito: Don't you think a trial judge ought to do that if he knew that the consequence was to create a double jeopardy situation?

That is, bite the bullet, and take the ultimate decision?

Mr. Walker: Well, I think... I'm not sure I understand the question fully, but if--

Mr. Alito: Well, if he is saying it is calculated, deliberate misconduct on the part of the prosecutor, under the theory you advance and the theory of the court of appeals in this case, that is equivalent to saying he cannot be tried again, and so then why not do it directly and openly, and say, the indictment is dismissed with prejudice on this ground?

Mr. Walker: --Well, the point there, I think, in some of these cases that involve a faulty indictment, I don't that is probably embraced in your question.

Mr. Alito: No, no, just conduct.

Mr. Walker: Well, maybe I can answer it this way.

In Dinitz, if it had been the prosecutor who had made those contemptuous remarks in the opening statement, and then was admonished by the trial judge, and he went on, and the trial judge finds that on those set of circumstances there was deliberate intent, I think definitely it would be under the rule that would be a bar to retrial.

But getting back to, I think, the... so in substance I still think that the Oregon court is not out of line with Jorn or Dinitz, but getting back, I think, to a very fundamental proposition on the case being... or this case should be disposed of, first, that... I don't think you can ignore a court in State versus Rathbun and its opinion, and certainly what does that mean?

It isn't meaningless, and you can't find... and that case is on point.

But even if it is ambiguous, then we reverse and remand.

But on the cases that... and this Court has... in Herb versus Pitcairn and other cases, I think that the Oregon court certainly, if it went back to the Oregon court, I think Judge Gillette would end up with the same decision, and then if it went to the Oregon Supreme Court, the Oregon Supreme Court is going to follow the rule of State versus Rathbun, and follow Justice Lindy's statements and policy that we first look to our own, and we cited the Oregon constitution in our briefs originally in the appellate... in the court of appeals.

So, I think that Kennedy is entitled to due process, which includes an analysis of the Oregon law, first by the Oregon court in that sequence.

If there are no more questions, why, I have tried to cover the waterfront.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Attorney General?

ORAL ARGUMENT OF DAVID B. FROHNMAYER, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Frohnmayer: Thank you, Mr. Chief Justice, and may it please the Court, several points.

First of all, in my colloquy with you, Justice Marshal, the term "overreaching" arose.

The origin and pedigree, of course, of that term comes from a dictum in the Jorn decision by this Court which was construed in aberrant ways by the Fifth Circuit Court of Appeals.

So it's clear from the very use of that term by Judge Gillette in the court of appeals in Oregon that in fact he was referring to a line of aberrant federal cases.

That leads us to the second point, which is really a combination of questions and concerns raised by Justice Stevens and Justice Rehnquist, concerning intent, various kinds of epithets used to characterize the prosecutor's misconduct.

What is at issue is the importance of giving a predicate to those particular epithets.

That is, not misconduct in the abstract, but misconduct which is deliberately designed to accomplish something, i.e., aborting the trial.

That seems to be, to us, the critical question, and the one on which this Court's decision--

Mr. Alito: Of course, if that is the test, and if we make it the test, every prosecutor presumably would know that, and therefore every time a prosecutor intended to abort the trial in that way, he would also intend to acquit the defendant, because that would be as a matter of law the consequence that would follow, isn't it?

So it has to be an intent to acquit in effect.

Mr. Frohnmayer: --Well, an attempt at least to abort the trial.

Perhaps he would also intend not to be discovered doing it, Your Honor.

Mr. Alito: I see, so it would have to be a secret intent by definition, because if he did it overtly, he would be acquitting the man.

Mr. Frohnmayer: I suppose that is true.

Mr. Alito: So you have to presume the situation in which the prosecutor is prepared to testify falsely that this was not his real intent.

Mr. Frohnmayer: No, I don't think so, and that really raises another point, and that is that there is a strong analogy to the rule that we are advancing in this case in the pre-indictment delay cases and discriminatory prosecution cases.

This type of inquiry is not unknown to this Court or to the federal courts.

It is perfectly appropriate by circumstantial evidence indeed in a criminal trial by circumstantial evidence and inference to conclude what the intent was of a defendant who never took the stand in his own defense.

So, I don't think that it's quite the paradox or the dilemma or the difficulty for a trial court making those findings as might appear at first blush.

Mr. Alito: No, but the ultimate inquiry is, what did he really intend to accomplish, and if he really did intend to accomplish a deliberate mistrial, and if he presumably knows the law, he then was intending to accomplish an acquittal.

It is a very strange combination of circumstances.

Mr. Frohnmayer: But one has to bear in mind that this is at best a very narrow exception to a general rule that the issue ought not ordinarily to be before the court at all, because by choosing to move for the mistrial, the defendant normally is electing not to go to the first jury at all.

Mr. Alito: Sure.

Something sufficiently prejudicial could have happened.

You don't think there should never be a mistrial, do you?

Mr. Frohnmayer: No, I do not.

In fact--

Mr. Alito: You don't take the--

Mr. Frohnmayer: --In fact, it's the very purpose of the rule that we are announcing to make it clear that where an egregious error has been committed in the trial, that the defendant and the trial court will feel free to start the trial process over again if initiated by the defendant.

Mr. Alito: --Do you agree that the Oregon Supreme Court in the Rathbun case expressly rejected the notion of subjective intent?

They there said the bailiff intended merely to help get a conviction, didn't intend at all to get a hung jury.

Mr. Frohnmayer: Well, they rejected it at least in the sense that it... under the Oregon statutes, which were also part of the decision setting forth what it is that the bailiff's duties were, that was the case, but let's bear in mind here that in Rathbun there was a hung jury--

Mr. Alito: Well, they went on.

I happened to get the opinion.

"There is nothing to suggest the bailiff sought to cause a mistrial."

"We dare say that nothing was further from her mind than causing a hung jury."

"On the contrary, her apparent purpose was to assist the state in securing a conviction."

And then they say, but nevertheless we just have got to apply an objective standard.

That would seem to be the rule in Oregon.

You don't look to subjective intent.

Mr. Frohnmayer: --Well, at least in the context of the Rathbun case, but the Rathbun case had been decided at the time this case was decided by the court of appeals.

Mr. Alito: Mr. Attorney General, you know, seriously, the missing witness in this case is the trial judge, and I want... my question is, suppose the hearing was held before him.

You would be pretty well bound by his ruling, wouldn't you?

Mr. Frohnmayer: Yes, I think that one of the appropriate things that stems from the rule that we advance is that the trial judge is in a position to make those findings, and we will accept those findings.

Mr. Alito: Right, but you didn't have a trial judge.

The trial judge didn't make this decision.

Mr. Frohnmayer: A different trial judge made the decision.

Mr. Alito: That's right.

Mr. Frohnmayer: It was a trial judge panel.

Mr. Alito: By trial judge, I am talking about the original trial judge.

I think we have to explain that.

Mr. Frohnmayer: Well, I suppose under unusual circumstances, of course, it would be appropriate for one to seek an affidavit from that judge if it were a matter on which they felt strongly.

Thank you, Mr. Chief Justice.

Chief Justice Burger: Very well.

Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Paschall v. Christie-Stewart, Inc. - Oral Argument

Thu, 23 Aug 2012 18:25:24 +0000

Case:

Paschall v. Christie-Stewart, Inc.

Media File:

72-922_19731016-argument.mp3

Related Transcript:

72-922_19731016-argument

Transcript:

Argument of William J. Legg

Chief Justice Warren E. Burger: We will hear arguments next in 72--922, Paschall against Christie-Stewart.

Mr. Legg, you may proceed whenever you're ready.

Mr. William J. Legg: Thank you, Mr. Chief Justice, may it please the Court.

This case is an appeal from the Supreme Court of Oklahoma, and it deals with the due process clause of the Fourteenth Amendment under the Mullane versus Central Hanover Bank and Trust Company and subsequent cases, concerning notice requirements.

And it also deals with the equal protection clause of the Fourteenth Amendment under interpretations of state law by the Oklahoma Supreme Court.

Chief Justice Warren E. Burger: When did you first raise the equal protection issue, Mr. Legg?

Mr. William J. Legg: I raised it in the brief to this Court, and the reason for that is that the case, the decision in the Oklahoma Supreme Court worked what I considered an equal protection situation, as compared with the previous case by the Oklahoma Supreme Court.

That had not come out until the appeal.

Chief Justice Warren E. Burger: Did you raise it in your jurisdictional statements here?

Mr. William J. Legg: I believe I did.

Chief Justice Warren E. Burger: I couldn’t find it there.

I thought it was first appearing in your brief --

Mr. William J. Legg: It may have been the basic brief.

Our basic point has been all along the notice requirements under the Mullane decision.

But we thought the equal protection argument was involved also when the decision by the Oklahoma Supreme Court came down.

The facts are that the appellants are the successors in interest of mineral owners under 40 acres of land in Seminole County of Oklahoma.

These mineral owners own no surface rights at all.

It was strictly severed mineral interest.

The Oklahoma law is that the surface owners are committed to pay the ad valorem taxes, and the mineral owners have no responsibility for that.

In 1952, the surface owner failed to pay the ad valorem taxes and the County Treasurer put the land on the publication notice for the original sale in 1953.

Now, in Oklahoma, ad valorem tax sales are an administrative process by the county officials.

It starts with an original sale when the surface owner fails to pay the taxes, and the County Treasurer must place the land on that original sale if the taxes are not paid.

He publishes notice for the original sale, and in the publication notice, he includes only the description of the land, and there is no personal service, or process, or any mailing, or posting on the land, or anything about nature at the original sale.

At the sale there are two ways that it can go, if there is a bid by an individual, and I'm speaking of the law in effect in 1953.

If there is a bid by an individual, the individual receives a certificate of paid taxes.

If there is not a bid by an individual then it is bid off to the County Treasurer, and he receives the certificate.

Chief Justice Warren E. Burger: Does any property lien house at that time to the county?

Mr. William J. Legg: It’s a lien.

It constitutes a lien on the land, which I would assume would be a property interest under the due process clause and the later decisions.

I believe there's a decision that holds that the complete title does not have to be held to have due process rights.

Then --

Unknown Speaker: Mr. Legg, I take it, you’re making no challenge to the original sale here.

Mr. William J. Legg: Well, I'm making no challenge to the original sale except that it forms the basis of the entire tax sale procedure.

And one of my key points is that if there had been notice given adequate under the constitution at the original sale, then we could not argue that there was no notice at the time of the resale.

But since there wasn’t any notice of the original sale and the resale in our argument, then we feel that we have to consider the original sale.

Unknown Speaker: Incidentally, now that I have you interrupted is why is there a difference between the two statutes?

One calls for three weeks public's notice, the other one for four weeks public's notice.

Makes no difference I suppose --

Mr. William J. Legg: I don’t know the reason for it, it is there, and you know that.

Unknown Speaker: And in the resale, you must name owner?

Mr. William J. Legg: In the resale --

Unknown Speaker: At least he was named here.

Mr. William J. Legg: In the resale, the owner must be named --

Unknown Speaker: Of the surface.

Mr. William J. Legg: Well, it says the owner as appears on the records of the County Treasurer.

Unknown Speaker: Well, there’s only owner who’s taxed.

Mr. William J. Legg: The surface owner.

Unknown Speaker: So, that means the surface, doesn’t it?

Mr. William J. Legg: That’s what it was after, yes, Sir.

Unknown Speaker: And in the office of the Treasurer, there’s no record of any mineral owners?

Mr. William J. Legg: There is none --

Unknown Speaker: There would be in the County --

Mr. William J. Legg: -- in the County Treasurer's office.

Unknown Speaker: What?

Mr. William J. Legg: There is none in the County Treasurer's office.

Unknown Speaker: But, next door in the county clerk's office --

Mr. William J. Legg: Yes, that’s correct.

Unknown Speaker: There is a -- the mineral interest is recorded?

Mr. William J. Legg: Correct.

Now, on that point, sometimes the records of the County Treasurer have names of owners of the mineral interest, but not in relation to those men.

In other words if they owned another tract in that county, their names and addresses would appear, but not in relation to that.

Unknown Speaker: If there were surface owners in the county?

Mr. William J. Legg: If they were surface owners, yes.

Unknown Speaker: That factor appeared in Treasurer's office.

Mr. William J. Legg: It would appear in the County Treasurer's office, yes sir.

Now, in the resale there also is no requirement for notice to the mineral owners as such.

There’s no requirement for service, or process, or posting on the land, or mailing, or anything of this nature.

So, what we have is under both at the time of the original sale and also at the time of the resale, we have nothing but publication notice.

And in the original sale there is no naming, there is just the description of the land.

At the resale, there is no notice by naming of the mineral owner as such.

So, at the time of the 1956 resale, it's our position that our people had no constructive notice under the Mullane decisions and the subsequent decisions.

They had no duty to pay the taxes to begin with, and their names were not there, except over in the county clerk's office.

Now --

Unknown Speaker: Would you be making the same argument if your client were a lessee, a long term lessee 20 years?

Mr. William J. Legg: I would assume that the lessee or mortgagee would have the same rights under the Mullane decisions --

Unknown Speaker: Even though there’s no record of the lease in the Treasurer's office?

And probably none in the -- may not be any in the clerk’s office?

Mr. William J. Legg: In the clerk’s office it would be a recordable document if it were a long term lease.

Unknown Speaker: Recordable but not --

Mr. William J. Legg: It would be recordable, you don’t have to record in Oklahoma, I mean it’s not absolutely necessary to record in Oklahoma for the validity of the document, in any event.

Unknown Speaker: But it is against subsequent owners, I suppose?

Mr. William J. Legg: Yes, in order to force all the third parties, you have to record that.

Unknown Speaker: So, would make the same argument as against lessees, mortgagees?

Mr. William J. Legg: I believe we would have to make on the principle --

Unknown Speaker: So, you really would be changing the practice at the Treasurer's office substantial?

Mr. William J. Legg: Yes, this would change, there’s no doubt about that.

Unknown Speaker: If you prevail here, what unsettling effect, if any, will this have on Oklahoma titles?

Mr. William J. Legg: In Oklahoma what?

Unknown Speaker: Titles.

Mr. William J. Legg: Well, I think it will change the case law in Oklahoma.

It will probably result in changing the statutory law of Oklahoma.

As far as the upsetting of titles, I believe it would be limited to a five year period, because we have a five year statute of limitations.

Where there is notice to the owner --

Unknown Speaker: Mr. Legg, I gather that while there maybe separate ownership of minerals and surface.

Mr. William J. Legg: Yes, sir.

Unknown Speaker: Minerals are not separately taxed, are they?

Mr. William J. Legg: They are not separately taxed until they become productive.

At that time there’s an in lieu production test.

Unknown Speaker: But then, what we're talking about here, this situation or not?

Mr. William J. Legg: This is a nonproductive situation.

Unknown Speaker: Yes, but as I understand it, nonpayment of taxes by the surface owner results in the sale not only the surface rights but also the mineral rights.

Mr. William J. Legg: That’s the construction placed upon these statutes by the Oklahoma Supreme Court.

Now, I might say in relation to production that the land has subsequently --

Unknown Speaker: Even though under Oklahoma law, the mineral interest is separately recognized under the law?

Mr. William J. Legg: It's a separately owned property interest, yes, sir.

I would like to say that --

Unknown Speaker: Perhaps in respect to my question which you were in the course of answering, your opponent will comment on it when he's up, as to the unsettling effect, if any, upon Oklahoma titles.

Mr. William J. Legg: Well, yes back to that, I think the statute limitations is the barrier to a full disruption of all titles in Oklahoma.

I think the Schroeder case can be read to the effect that the statute of limitations would not apply.

But I think in our land title situation, the difference is that the party, the tax sale purchaser goes into possession of the surface.

Now, at that point, he sets up his notice even though there hasn’t been notice through the statutory procedure, he sets up his notice by physically occupying the surface of the land.

And so, the five years statute would run as against ownership of the surface.

Now, as far as the mineral rights are concerned, it's our view that that occupation of the un-occupancy of the surface is not notice.

It’s not occupancy of the mineral rights, until there is actual drilling there, because there is nothing to put anyone on notice, or to put a severed mineral owner on notice that his rights are being claimed by someone else.

As a surface owner, the occupancy of the surface puts that person on notice, so that if you don't have constitutional notice under the tax sale procedure, going into possession substitutes that as notice, as far as the surface owners is concerned.

But in order to -- if you don't have constitutional notice during that tax sale to the mineral owners, and then someone goes into possession of the surface without going into possession of minerals, there is nothing to put the mineral owner on notice.

There’s no substitution through possession that puts him on notice.

He has to rely on someone actually drilling a hole there or mining or whatever it is.

Unknown Speaker: I don’t seem that is an answer to my question that with respect to mineral rights there will be a chaotic result in Oklahoma, if you prevail here.

Mr. William J. Legg: Well, if there has been an attempt to explore, there will not be chaos.

For those on those tracts land that have been explored, the statute limitations will start running and there’ll be five year period.

For those of mineral interest that have not been explored, there’s been no action taken to take the mineral rights under possession, and if there was no statutory notice given or constitutionally effective, then their position would be the same as it always has been.

They would still be owned by the former owner.

Justice William H. Rehnquist: Does this go back to 40 years to challenge tax sale of opportunity described as a non deductive mineral interest?

Mr. William J. Legg: Well, are you referring to the 40 years statute in Oklahoma?

Justice William H. Rehnquist: Well, no I didn't.

I just guessed.

Mr. William J. Legg: Oh, yes.

Well, there is a 30 year land statute in Oklahoma but it doesn’t apply to mineral rights.

Justice William H. Rehnquist: Well, you say that because the mineral owner doesn’t have notice from a new surface claimant going into effect, the five years statute doesn’t apply as to him.

Is there any statute that would operate on the nonproductive mineral claim?

Mr. William J. Legg: The case law in Oklahoma on the statute of limitations is that the possession of the surface is not possession of the minerals, except in the case of the resale tax deed, not in the case of a certificate tax deed, but only in the case of the resale tax deed.

And this is for the equal protection of the law comes in to my argument.

Justice William H. Rehnquist: Let me ask you just one more question Mr. Legg, if I may to try to wind up this one aspect, then, as to a non-producing mineral interest, there isn't any statute limitations in Oklahoma that would bar a man going back and saying, making this constitutional claim that you make here with respect to a sale that had taken place 20, 30, 40 years ago.

Mr. William J. Legg: There is no statute of limitations, except in the case of a resale tax deed which we have here as construed by the Oklahoma Supreme Court.

Justice William H. Rehnquist: And what is the statute of limitations for a resale tax deed?

Mr. William J. Legg: That would be five years.

Justice William H. Rehnquist: But that requires some sort of notice doesn’t it?

Mr. William J. Legg: No, just the possession.

Justice William H. Rehnquist: Going into possession?

Mr. William J. Legg: There is no notice.

Justice William H. Rehnquist: Well, but you were equating going into possession on the part of the surface claimant with a form of notice to the former owner to start this statute running.

There is no analogous going into possession with respect to a nonproductive mineral interest, is it?

Mr. William J. Legg: No, you’d have to drill or you'd have to take possession of the mineral rights in some way, yes.

And this is a statute case for Oklahoma.

Unknown Speaker: Yes, but if you have -- the only time the question of starting this statute limitation comes up with the resale tax deed, this is you have an invalid one supposedly, isn’t it?

Mr. William J. Legg: Not under --

Unknown Speaker: Because I thought the law was that the resale tax deed was valid against the mineral interest without notice at all?

Mr. William J. Legg: No, under Walker versus Hoffman which was a certificate tax deed case, the court held, the Oklahoma Supreme Court held that possession of the surface is not possession of the minerals.

Unknown Speaker: Yes.

Mr. William J. Legg: And consequently, the tax deed if it's invalid in this inception is invalid.

But their is language in that same case, it didn’t deal with the resale situation but there’s language in that same case that holds to the affair, or says, we will hold that if it’s a resale, then it’s a completely new title and possession of the surface --

Unknown Speaker: Is notice to the mineral --

Mr. William J. Legg: -- is notice to that --

Unknown Speaker: And that, even if it was tax deed, resale tax deed, were invalid for some reason?

Mr. William J. Legg: Yes.

Unknown Speaker: It would still start -- possession of the surface would still start --

Mr. William J. Legg: According to that --

Unknown Speaker: -- the five year statute running?

(Voice Overlap)On that basis, if you won this case and Oklahoma stuck to that rule, the unsettling effect on mineral interest will just be five years?

Mr. William J. Legg: That’s true, except that, I --

Unknown Speaker: Well, I said if Oklahoma stuck to that rule.

Mr. William J. Legg: If it did but this gets into my equal protection --

Unknown Speaker: I understand that.

That's --

Justice William H. Rehnquist: That's not true of a certificate of sale though, is it, as opposed to a resale?

Mr. William J. Legg: A certificate tax deed.

Justice William H. Rehnquist: A certificate tax deed.

Mr. William J. Legg: The possession of the surface is not possession of the minerals.

Justice William H. Rehnquist: So there, the unsettling effect could grow back indefinitely?

Mr. William J. Legg: Yes, but that’s decided long in Oklahoma.

That was the Walker versus Hoffman case exactly is at this lady, I believe it was a lady that owned the mineral rights and the tax, the certificate tax deed purchaser claimed the mineral rights.

Unknown Speaker: Yes, so this case won’t affect that rule that’s already the rule in Oklahoma.

Mr. William J. Legg: That’s already the rule in Oklahoma.

Unknown Speaker: Would you refresh recollection as to how the county would have been able as a practical matter to give notice to the owners of the mineral rights, no taxes are assessed, would that require a title examination?

Mr. William J. Legg: That will require if the mineral owner's name and address is not in the County Treasurer's office.

He would have to go to the county clerk’s office to find it.

Now --

Unknown Speaker: When he went to the county clerk’s office, would he have to go the through land books, the title like a lawyer would?

Mr. William J. Legg: He would have to go through the indexes of the land records to find out who claims, if any or outstanding.

Unknown Speaker: That could go back --

Mr. William J. Legg: It could go back to statehood, yes.

Unknown Speaker: Yes.

Mr. William J. Legg: But the fact is that the mineral interest is a separately owned interest, separately owned property and that property owner has received no notice that his rights are in jeopardy.

Unknown Speaker: I understand that I was just curious that there appears to be no provision either for taxing the owners, the minerals rights, or providing some readily available list so that the authorities would know who they are.

Mr. William J. Legg: That is true.

Unknown Speaker: In my state they tax them.

Mr. William J. Legg: I beg your pardon?

Unknown Speaker: I just said in Virginia they tax the owners of minerals.

Mr. William J. Legg: Yes, in a numbers of states they do.

In Oklahoma becomes taxable in the event of production.

Justice Thurgood Marshall: What I’m not clear on is what right does the state have to extinguish this right if there’s no duty to pay taxes?

Mr. William J. Legg: Well, this is part of our argument Justice Marshall.

We have no duty to pay taxes, the severed mineral interest.

Justice Thurgood Marshall: You don’t owe the state anything.

Mr. William J. Legg: Under the state law, taxing law we don’t.

Justice Thurgood Marshall: But you lose your property.

Mr. William J. Legg: But it’s a separately owned property interest and it is lost, if the surface owner fails to pay the taxes.

Chief Justice Warren E. Burger: What do you have to say about the obligation of the owner of these mineral rights to keep some track of whether the taxes are being paid by the surface owner?

Would you think he ought to pay a little attention to that since his rights could be extinguished?

Mr. William J. Legg: I believe he should, yes, sir.

I think that since he has no duty, it would be an ordinary and reasonable assumption on his part that his surface owner is paying the taxes and that’s all about I can say about that, because --

Chief Justice Warren E. Burger: Well, was there any presumption that people pay their real estate taxes?

Mr. William J. Legg: There is no presumption in Oklahoma that I know of.

Chief Justice Warren E. Burger: Well, in the early --

Mr. William J. Legg: There’s a statutory requirement that it be done.

Chief Justice Warren E. Burger: In the earlier days of the country when eastern banks and mortgage companies were financing large proportion of the purchases in the western part of the country, insurance companies and banks, checks every year to see whether the taxes were being paid.

Mr. William J. Legg: Yes, the oil companies do that, I believe Justice White asked about that too that the oil companies and the mortgagees regularly check for payment.

But it’s the individual land owner that is not ordinarily going to check on that kind of a situation.

He will make an assumption that is being paid.

Now --

Unknown Speaker: You mean the mineral owner doesn’t check to see whether the surface owner had paid the tax?

Mr. William J. Legg: Ordinarily, I would assume that he would not do that.

Unknown Speaker: You mean you have the same reason for doing it that a mortgagee has to do it?

Mr. William J. Legg: Yes, there’s the same liability, yes, sir.

But if there were --

Chief Justice Warren E. Burger: -- of the same economic risk hasn’t he?

Mr. William J. Legg: (Voice Overlap)But the mortgagee is dealing with wide holdings, a lot of economic interest is involved and he is --

Chief Justice Warren E. Burger: Not necessarily, one widow might have a mortgage on a farm or a piece of land –

Mr. William J. Legg: (Voice Overlap)But I was referring to the large mortgagees who do check.

I’m familiar with their procedures and also oil companies do check to make sure of it.

Justice Byron R. White: Is there any procedure in your state whereby owner of a mineral interest could go to the Treasurer, and to say “By the way, add me to your list of interested parties in the event, the tax isn't paid?”

Mr. William J. Legg: Well, there’s no statutory provision for that.

I don’t know whether it would be valid or not if he does --

Justice Byron R. White: Because at the recording in the clerk’s office he has noticed everybody except the purchaser of the tax deed, I guess?

Mr. William J. Legg: Yes and the County Treasurer according to this decision, yes.

Justice Byron R. White: But does the Treasurer ever receive that sort of a notice for that?

Mr. William J. Legg: I have no experience on that, Justice White, it’s --

Justice Byron R. White: It would seem sensible wouldn’t it, if you say that?

Mr. William J. Legg: The problem with it would be that if there were statute that permitted him to do that then I think it would be dependable, but if he did it --

Justice Byron R. White: It’d be sort of a second recorders office, though wouldn’t it?

Mr. William J. Legg: Yes.

It would be and there’s -- as a matter of fact, I have attempted to have instruments recorded even in the county clerk’s office, and they sometimes refuse that, because there is no statutory provision for receiving that kind of an instrument.

I think if I’ve given you the facts and the statutory law, I think that’s basically my case with the questions have been asked, thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Legg.

Mr. Rolston.

Argument of Joe S. Rolston Iii

Mr. Joe S. Rolston Iii: Mr. Chief Justice, may it please the Court.

I believe it is absolutely imperative that the chronological order of facts as to how this case reached this Court to be spelled out.

First, we’re dealing with 40 acres of land in Seminole County as Mr. Legg has indicated.

The taxes became delinquent for four years, first delinquency occurred in ‘52 and subsequently until ’55.

In 56 a resale, 1956 a resale tax deed was issued in May to the appellees.

It was filed of record on June the 6th, 1956, and it covered in addition to the 40 acres some 12 other partial to real estate.

Thereafter, in 1963, the appellees executed an oil and gas lease to Christie-Stewart Oil Company, who was actually the party plaintiff when this litigation first arose.

During the period from 1956 until 1965 when the lawsuit was filed, the Trial Court found that the appellees had been an open, notorious, and adverse, and in continuous possession of the property.

And one of the elements of the holding of the Trial Court was that the claims of the appellants was barred by the statute of limitations.

The suit by the oil company was filed in 1965 in order to perfect their lease, because their attorneys who examined the title of course realized that this was a resale tax deed, and there was always a degree of uncertainty about its validity.

The appellants then filed an answer in the cross-petitioner and brought in the appellees as party’s defendant.

The appellees then filed an answer to the Cross--Petitioner which they specifically raised the statute of limitation that the appellants were barred.

The first issues in the case the validity of the oil and gas lease was adjudicated by the trial court in 1965.

And then for some reason, unknown to my self since I was not personally involved in the original trial, the issues as between the appellant and the appellees was not decided until 1969.

During that period, an oil well was drilled upon the property and production headed.

And I’m sure that keenly increased interest of all parties when that occurred.

I think it is also absolutely necessary that this Court have a crystal clear understanding of the statutory procedure on tax sales in Oklahoma.

First of all, the statutes hold that it is the burden of the taxpayer to come forward and pay his tax.

Unknown Speaker: As to the surface owner?

Mr. Joe S. Rolston Iii: As to the surface owner, yes, Your Honor, to come forward and pay the tax.

Mr. Legg is correct and that non-producing oil and gas interest are not subject to ad valorem on tax.

They are deemed included in the surface.

Only when production first arises do severed mineral bear any ad valorem tax, and that is in lieu of tax for growth production.

After the tax has become delinquent, there is a certificate sale which occurred.

At that time, the County Treasurer runs a publication saying forth illegal description of the property in amount of tax due.

Any party can then come in and buy a certificate.

This allows the party to have a lien upon land.

One of the requirements at that time is that the purchaser must pay the full amount of the tax.

So, at that period, the County Treasurer has collected this tax.

He has performed his service as required by law and collected 100 cents on the dollar for the delinquent taxes.

The certificates holder then is required to hold the tax certificate for at least two years, and anytime after 2 years and before 10 years which bars the certificate by statute of limitations, he may apply to the county Treasurer for a tax deed.

Now the specific statute that gives the tax certificate holder that right provides that he will obtain upon receipt of the tax deed from the County Treasurer, a perfect title provided that the tax certificate holder give notice to all of the owners of the property.

Not owners as reflected by the records of the County Treasurer's office, but all of the owners.

Now there in lies the distinction --

Unknown Speaker: In the Oklahoma Supreme Court?

Mr. Joe S. Rolston Iii: That that is correct.

And the Oklahoma Supreme Court has by numerous cases held that the term owner as used in that statute and placing that burden upon the tax certificate holder includes, mortgages, it includes any land holder it includes severed mineral interest and so forth.

Now, Mr. Legg has referred to some confusion between the Supreme Court and of Oklahoma and the case involving a tax certificate deed when it did not apply the statute of limitations.

The distinction in that case is that it was a certificate deed, and it was stipulated in that case that the tax certificate holder when he applied for the tax deed, did not give the statutory notice to the then mineral owner.

And the Court said that one of the conditions precedent to you acquiring your appropriate title is that you fulfill your obligation, my statute and give the notice.

And therefore since you did not give the notice, the mineral holder’s interest was never acquired by your certificate deed.

Therefore having never acquired his interest, the statute of limitations would not run, because you were not in possession of his interest, having not acquired it in the deed.

Unknown Speaker: What is the name of the case that so held.

Mr. Joe S. Rolston Iii: Walker versus Hoffman, Your Honor.

That’s set forth in our brief.

Now if, as Mr. Legg has indicated, if there are no bidders at the tax sale then the property is bid in by the County Treasurer and he is required by law to hold the taxes for two years.

During this period of time, anyone having any interest in property is free to redeem.

The Supreme Court has also held that a non-producing mineral holder may redeem taxes at anytime and there by obtains a lien upon the interest of the surface owner, and may enforce that lien by equitable foreclosure.

Unknown Speaker: Well I gather is it, your argument then that any due process requirements are satisfied by the requirement that noted to get a perfect title, the holder of this certificate must give notice everyone including --

Mr. Joe S. Rolston Iii: That’s correct, and I don’t think Mr. Legg would raise any issue about our present statute and tax certificate.

Unknown Speaker: But my question, your answer to the due process claim is that due process is satisfied by that provision of your law.

Mr. Joe S. Rolston Iii: As to the tax certificate, yes, Sir.

Unknown Speaker: Yes.

Mr. Joe S. Rolston Iii: Because it does require notice to the owner.

Now when the property then moves on to the County Treasurer, and the County Treasurer under the law as it existed at the time this deed was issued, is required to publish.

After two years, no redemption is required to publish, and at that time the name of the owner as reflected by the records of the County Treasurer appear in the publication and the illegal description of the property in the amount of tax due, and I believe that there maybe some other matter.

Chief Justice Warren E. Burger: The owner, do you mean surface owner?

Mr. Joe S. Rolston Iii: Surface owner.

Well, that’s only record in the County Treasurer's office is the name and address of the party to whom which are paying the tax.

In that case it is the surface owner.

In many cases, if there are undivided interests in the surface owner, they may have more than one name.

Now it is interesting to note that in 1965, the Oklahoma legislature changed the statute on resale tax deed requiring not only publication, but also a mailing of a notice to the owner as reflected by the county assessor’s office.

Now as to position to appellees that this clearly wasn’t application of the Oklahoma legislature of the rules of the Mullane and the subsequent case.

Since prior of that time the surface owner even though he paid the tax, the only notice given was a publication notice.

And I think if I was in the position to having to argue before this Court that that was the same situation with the mineral owners in face of Mullane and the other cases, I could not prevail.

Clearly, I think the legislature in ‘65 when they amended the statute and required not only publication with the owners name in it, but also mailing to his last known address and reflected by the record of County Treasurer, they complied with Mullane and were attempting to comply with Mullane.

Unknown Speaker: But again that personal kind of notice under the ‘65 amendment was a notice only to the surface owner, wasn’t it?

Mr. Joe S. Rolston Iii: That’s correct.

Now, I think the Court must recognize that Oklahoma is a major producer of oil and gas.

It has been so for a number of years.

Great industries exist in Oklahoma based upon the production of oil and gas.

People since statehood have become cognizant and aware of the value of mineral interest and thus it is the exception rather than the rule in Oklahoma, nowadays, that you find a piece of ground which the minerals have not been settled.

And in many cases, if there has been production that has seized, you may find thousands, literally of various owners, the interest of which is almost beyond imagination.

And I am not aware as to whether any of you justices have had occasion to examine the title for oil and gas and rendering opinion, but I assure the Court that it results in sometimes interests that are, you have to use a computer to determine the size.

Now, based upon counsel’s argument for the appellants, all of these individuals would be entitled to notice.

Justice William H. Rehnquist: What you’re suggesting is that the 5s, 15, 16th and 116th that you have in this case is by no means the furthest mathematical progression of that you are --

Mr. Joe S. Rolston Iii: No, Your Honor, it could be out as many as 7 to 8 decimal places.

The interest as I say many of the original oil and gas fuels in Oklahoma are no longer producing and the minerals then became non-producing, and subject again to ad valorem tax by the surface.

Chief Justice Warren E. Burger: Mr. Rolston, practical matter when someone’s buying and has practicing lawyer, and the client is purchasing surface, purchasing land, does he make an independent check in these books that Mr. Legg referred to, the index to see whether there are some mineral rights?

Mr. Joe S. Rolston Iii: Well, if it please the Court, Oklahoma is an abstract title state.

The owner of the surface has an abstract of title.

All of the oil companies in purchasing leases rely upon abstracts by bonded abstracters who are examined by attorney.

These abstracts were compiled by the abstracter going to the county records, searching out all of the various records, arrangements that have been recorded.

Unknown Speaker: County clerk too?

Mr. Joe S. Rolston Iii: County clerk.

Well the county clerk is charged with the responsibility of recording instruments, all deeds, mortgages, leases, anything about the property.

Unknown Speaker: They don’t limit it to the county auditor’s record then?

Mr. Joe S. Rolston Iii: No, it’s called the county clerk Your Honor.

Chief Justice Warren E. Burger: That would then flush out any -- presumably it would flush out any claim of the subsurface rights.

Mr. Joe S. Rolston Iii: That’s correct.

It would reflect to any mineral deeds if the abstracter wasn’t instructed to obtain that type of the abstract.

It’s possible the abstracter a piece of property only as to the surface and will omit the minerals, which in many cases because of the size of the abstract that’s done.

But, at this I point out that – and one of my arguments is the great difficulty that counsel for the appellant asked this Court to place upon the County Treasurer. Oklahoma is the track index state that is when I am walk in and I file a deed covering a certain piece of property, reference to that deed is first made in the reception record indicating that it was tendered for recording.

Then it is mechanically put on an index book in particular Quarter Section Township and arranging so forth.

Indicating that on a certain day, certain warranty deed to somebody from somebody, covering a certain property where it was recorded.

That deed is then reproduced photographically, or in early by hand, in another book and page, in another book.

And in order to find the details of the conveyance such as the interest covered so forth and any addresses that might appear would require first of all that a party go to the track index book, research the title from (Inaudible) to determine where a particular deed came in the chain of title, or any particular deeds covering minerals or which might purport to covering minerals, or might be overriding all interest, or some type of reservation of life estate or so forth in the mineral.

Then the party would have to take the book and page of each of this instruments, go then to the general recording data and examine each of the instruments in order to find out what exactly the instrument said, because the reference in the track index book is merely to date it was recorded, the nature of the instrument whether it be warranty deed, mineral deed, quick claim deed, mortgage and the names of the grantor and the grantee, and the legal description of the property.

Justice William H. Rehnquist: You have a separate grantor, grantee index in your county recorders office?

Mr. Joe S. Rolston Iii: Yes, Your Honor, there is.

Justice Thurgood Marshall: Mr. Rolston, what is the interest of the state in extinguishing the mineral rights?

A great emphasis on the deed of the county clerk to collect every nickel of taxes.

You said that.

Well, once you’ve collected all of the taxes, what is the interest in extinguishing the other right?

Mr. Joe S. Rolston Iii: Alright, I’ll explain it this way, Your Honor, that if the county is not required to bid at the tax certificate sale, the county’s done with the thing it’s up to the individual tax certificate holder to proceed further if he wants to acquire the property.

If there are no bidders in the county as required by law to the bid property in, we then go to the resale.

At the resale, you can buy the tax, the property for anything less than what the tax is due, or anything more.

It is my opinion and of course not being a member of legislature, I don’t know the reasoning behind it, but it is my opinion in order to make it attractive since the taxes are now delinquent for four years for a person to bid at the resale, the legislature deemed that it be viable if you bid, then the county will give you a perfect virgin title of that property.

And that is to encourage bid, since they’ve already been aware on one time and have received no bids, and the second time out, the county can sell it for less than the tax is due or more, if there are a number of bidders.

But at that point, if the county does not, if there are no bidders at the resale, then the county is required to bid it in, and it is deeded to the county commissioners.

(Voice Overlap)Excuse Mr. Justice Marshall.

Justice Thurgood Marshall: It sounds to me, like you threw into man’s land next to it, while you’re at it?

Mr. Joe S. Rolston Iii: I would not say that that could not conceivably happen Your Honor.[Laughter]

Unknown Speaker: What happens with the producing mineral interest?

Mr. Joe S. Rolston Iii: The law is very clear in Oklahoma, producing mineral interests are the in loop growth production tax, the tax deeds do not cover producing minerals.

Unknown Speaker: They don’t cover producing minerals and they are separately owned?

The only difference is that they are producing and they are taxed separately.

Mr. Joe S. Rolston Iii: That’s correct.

Unknown Speaker: And the fractional interest are taxed separately.

Mr. Joe S. Rolston Iii: Well, the amount of production determines the amount of tax.

Unknown Speaker: I know, but who pays it?

Well, it is taken out by the oil companies at the time before they ever turned the money over to the roll owner, or the mineral owner.

So, that on producing mineral interest the Treasurer never knows who owns the mineral interest?

Mr. Joe S. Rolston Iii: No, as I understand the operator.

Unknown Speaker: It’s just the operator –(Voice Overlap)

Mr. Joe S. Rolston Iii: -- the working interest gets up for like a sales tax order.

Mr. Joe S. Rolston Iii: Sort of, that is correct, Your Honor, in my understanding to the operators.

But I would point out I think we rely most heavily on the case of Lee versus Green, which we realized is a very old case, but I still think it is very sound and of the basic points of that case, the court there said the process of taxation does not require the same kind of notice as it was required in suit at law.

Or even in proceedings for the taking of private property under the power of eminent domain.

It involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the principles which underlie that.

And I submit that the form of procedure employed in Oklahoma has been that way since statehood for more than 60 years that this almost this exact procedure except there’s slightly change in 1965 it’s been impossible.

Unknown Speaker: What case is that you are reading from?

Mr. Joe S. Rolston Iii: That’s Lee versus Green.

Unknown Speaker: Is that cited in your brief?

Mr. Joe S. Rolston Iii: Yes, it is.

Chief Justice Warren E. Burger: 192, this is that the one?

Mr. Joe S. Rolston Iii: Yes, this is a case involving the Nebraska’s tax law in which you involve the land holder on the piece of property and an administrative sale in it.

I consider that they dealt – this case was in rem and created a new and independent title.

I realized that this Court apparently in Mullane indicated that whether it was in rem or in personam was not necessary the criteria for determining whether you know, you were entitled to personal notice or whether publication notice was sufficient.

But I submit this Court did not destroy the distinction between the two, it merely said that it is not necessary controlling it, and I have no quarrel with that decision.

Justice William H. Rehnquist: Mr. Rolston, if the owner of the producing mineral interest becomes delinquent in his obligation to pay the lieu tax.

Can that be made a lien on that producing interest in the producing interest ultimately sold in a similar proceeding to this?

Mr. Joe S. Rolston Iii: I do not know the answer to that question.

Justice William H. Rehnquist: Well, how does the state enforce the obligation of a delinquent owner of reproducing if he has to pay the lieu tax?

Mr. Joe S. Rolston Iii: Well, the producer that is the part of who is operating the well, and collects the money from the sale, pays it directly that state the --

Justice William H. Rehnquist: What if he doesn’t pay?

Mr. Joe S. Rolston Iii: When I received my royalty check if I was fortunate to own minerals that they were producing.

It would be, it would show the gross production, last gross production taxed net to me and, that’s all I would receive.

Justice William H. Rehnquist: What if the operator who’s obligated to pay the tax or the producer for all these people doesn’t pay it, what does the state do?

Mr. Joe S. Rolston Iii: I am not familiar with the procedures implied in that situation.

Unknown Speaker: I ask again, I fail to find Lee against Green cited in your brief but you are relying on it.(Voice Overlap)

I know what it is, it is cited in the other brief, it is not cited in yours.

Mr. Joe S. Rolston Iii: I believe it is.

Unknown Speaker: At least it’s not in your index.

-- I can’t find it anywhere in the text.

But I take it now, you are relying on it?

Mr. Joe S. Rolston Iii: It is certainly an over sight on my part Your Honor, because I have always considered that my Stallwood case.

Unknown Speaker: One other question, I listened to your description of checking titles, this sounded to me just exactly like one checks titles in any other state.

Mr. Joe S. Rolston Iii: Alright, there are some states that do not use abstracts of title and employ private companies to search out for it.

Unknown Speaker: But I wondered about the significance of your displaying outline in this detailed method of checking titles.

It doesn’t seem to be particularly honors or unusual.

Mr. Joe S. Rolston Iii: No, Your Honor, I wanted the Court to be absolute certain as to the burden they would place upon the County Treasurer, if they require the County Treasurer to embark upon the search.

Bearing in mind, it would not necessarily to be one property but could be hundreds of properties that were then delinquent.

And I feel like that is a burden at this Court has not required in the Mullane or the subsequent cases.

Unknown Speaker: Do you say the Oklahoma law puts the burden on the private purchasee before he gets the perfect title.

Mr. Joe S. Rolston Iii: That’s correct.

Unknown Speaker: They’ll give everybody notice which means he has to go also through the process of the searching, as you described it, but that the Oklahoma law does not put that burden on the county Treasurer.

He’s the one who gets the title.

All he has to do is give the published notice.

And there he names as I understand it, that’s the resale, is not it?

He names only the surface on it.

Mr. Joe S. Rolston Iii: That’s correct, Your Honor.

The distinction, I draw there in the individual, the tax has been sold, and the state is no longer involved.

It is a private individual acting and there is a distinction between a private individual enforcing a right he has obtained from the state and in my mind and the right of the state to still attempt to collect their tax.

Unknown Speaker: But I take it that we still have to decide whether in the case of the acquisition on resale by the treasurer gives only the published notice you have described.

Whether that satisfies Mullane due process, don’t we?

Mr. Joe S. Rolston Iii: If the Court does not feel that the statute of limitations is barred the appellant’s right to recover which I strongly believe has.

Unknown Speaker: It has.

Mr. Joe S. Rolston Iii: That the lower court found that.

I cannot explain to this Court in anyway while the Intermediate Court of Appeals and the Supreme Court of Oklahoma made no reference to the finding by the Trial Court that the statute of limitations barred.

Unknown Speaker: Well, this is an argument that the issue isn’t even here.

Mr. Joe S. Rolston Iii: I raised it simply because I think the record shows it.

Justice William H. Rehnquist: Supreme Court of Oklahoma didn’t treat in its opinion, or did it?

Mr. Joe S. Rolston Iii: No, Your Honor.

We were there on certiorari from the adverse decision to the appellees by the Intermediate Court of Appeals of the state of Oklahoma which reversed the trial court in the --

Unknown Speaker: You have any comment on my question to your opponent about the unsettling effect of a reversal here?

Mr. Joe S. Rolston Iii: Yes, Your Honor, I certainly do and I would like to comment that, and I cite in my brief Bomford versus Socony Mobile Oil Company which is a Supreme Court case for Oklahoma where they applied the Mullane rules to service by publication and I would like to read to the Court, the last paragraph from the last paragraph of that case.

It says “Mindful of our duties guard against any attempt to upsets settled titles by the imposition of new requirements which did not exist before we declared all procedural modifications enunciated herein, shall not be construed as invalidating the publication process in the case or in any case in which the trial judgment shall have been rendered before the opinion becomes final.”

Now I submit that if this Court holds that the statute of limitations has no application, then every tax deed issued, every resale tax deed issued in the State of Oklahoma since statehood is subject to attack.

Unknown Speaker: That is not a problem, is it?

Isn’t that a state law of questioning?

Mr. Joe S. Rolston Iii: I think it’s the matter this must consider.

Unknown Speaker: The statute of imitation?

Mr. Joe S. Rolston Iii: No, consider -- what a decision by this Court would to titles within the state of Oklahoma.

Unknown Speaker: Well, you say there was a finding that the statute of limitations has barred the claim anyway?

Mr. Joe S. Rolston Iii: That was one of the trial court’s principle findings.

It appears in the appendix at the trial court’s judgment.

Unknown Speaker: Well, Mr. Rolston you didn’t on the motion to dismiss or affirm as I read your motion, rely on that is a reason that we ought not demote this appeal.

Did you?

Mr. Joe S. Rolston Iii: No, Your Honor.

Unknown Speaker: You apparently relied primarily on Lee and Green as I read your motion.

Mr. Joe S. Rolston Iii: That’s correct.

There are Oklahoma cases which relied upon that.

The most recent of which was offered to this Court in 1949, and was rejected.

The Cornelius versus Jackson I believe the case was.

But I have no dispute, Your Honor, what the courts rulings in Mullane, or City of New York, of (Inaudible), or Walker, or Wisconsin, or Schroeder.

I have no objection to all because I think those were proper results of the facts that were before the Court.

Unknown Speaker: Well, you do argue that twice before we have refused to review the issue now presented to us.

Mr. Joe S. Rolston Iii: That’s correct.

Unknown Speaker: Both in Cornelius, as I gather that was an Oklahoma case, wasn’t it?

Mr. Joe S. Rolston Iii: Yes, Your Honor.

Unknown Speaker: And then there was a Kansas case too?

Mr. Joe S. Rolston Iii: And there was a Kansas case very similar.

Unknown Speaker: Robertson and Levin.

Mr. Joe S. Rolston Iii: But I respectfully submit that the record in this case does not present sufficient fact to allow the Court to apply the rule on Mullane.

The rule on Mullane simply says, if the names are known or if they are very easily ascertainable then you must give personal notice, or something better than publication.

There are absolutely no evidentiary facts in this case that would warrant this Court of saying that the rule should be blankly applied.

No facts at all.

The one witness testified at the trial.

There were certain stipulations that no personal notice was received.

I think it would be extremely dangerous for the Court to embark upon a strict application of Mullane without having that evidentiary fact before the Court as to whether is or isn’t.

I will argue that it would be extremely difficult to find the names of these parties and Mr. Legg will argue the opposite, but that does not constitute a fact that this Court should predicate a decision upon it.

Unknown Speaker: Incidentally, that finding in statute of limitations, does that appear in your appendix, anywhere, the findings of the trial courts?

Mr. Joe S. Rolston Iii: It appears in great detail in the journal after the judgment of the trial court.

Unknown Speaker: Well, I mean does that --

For the statute of limitations?

For it, or just the fact that the statutory procedures where carried out here?

Mr. Joe S. Rolston Iii: Well, also that not only the deed was issued in compliance with all the statutory requirements but that the five year statute of limitations indeed applied, and that the party, the appellees have been open untoward possession, that maybe in the jurisdictional statement, and not reducing for the court in the appendix.

Unknown Speaker: You said I’d find that in the --

Justice William H. Rehnquist: Mr. Rolston, it’s in appendix B to their jurisdictional statement isn’t it though?

Mr. Joe S. Rolston Iii: I believe so.

Justice Thurgood Marshall: Mr. Rolston, some of these subsurface deeds are files right?

Mineral rights deeds are filed, aren’t they?

Mr. Joe S. Rolston Iii: Yes, Your Honor.

There is no, requirement that the mineral deeds be filed but in most cases they are.

Justice Thurgood Marshall: Well, would it be too much to require that the county check to see if one is filed and noted by hand?

Mr. Joe S. Rolston Iii: In my opinion, it would Your Honor.

It would require skilled parties not just -- they would have to determine the nature of the interest not only just because a mineral deed appeared then you would have to check to see where that interest had been conveyed at.

You must ultimately arrive at who the present owners are or you haven’t accomplished anything.

There maybe --

Justice Thurgood Marshall: Well, that’s not what I said.

I said that one man files a deed.

Would it be too much to notify him even though he has sold it?

Mr. Joe S. Rolston Iii: You mean the County Treasurer?

Justice Thurgood Marshall: Yes.

Mr. Joe S. Rolston Iii: No, Your Honor but I don’t think that you cannot say that every piece of property is going to have just one deed that therein lies the problem.

I think that we may in most cases be dealing with literally hundreds rather than one.

Justice Thurgood Marshall: You’d have a hundred mineral deeds on one piece of problem?

Mr. Joe S. Rolston Iii: Very easily, Your Honor.

160 acres of land, the mineral interest as I’ve point out the Court can be divided up as many as six decimal places.

The interest is just -- it’s very difficult, I understand for justice to --

Justice Thurgood Marshall: Well, you could break up the service the same way.

Mr. Joe S. Rolston Iii: Yes, that’s true.

Justice Thurgood Marshall: And you still would have to notify them?

Mr. Joe S. Rolston Iii: Because their names would appear on the records of County Treasurer, if they are being assessed as to their interest.

But there is no dispute as to the facts that the name of the non-producing mineral owners does not appear on the county records or the County Treasurer’s office.

And I --

Justice Thurgood Marshall: But it’s in the office right next to it, it could be.

Mr. Joe S. Rolston Iii: But I cite to the Court, the case of Ponder versus Ebby which the Supreme Court of Oklahoma there specifically held that it was the legislature’s intent that the County Treasurer was not to look beyond his own records in throwing notices.

And I think that was clearly the intent of the legislature and the --

Justice Thurgood Marshall: But that doesn’t make it legal?

Mr. Joe S. Rolston Iii: No, Your Honor.

But that was their intent and not requiring that he go outside of his office.

Chief Justice Warren E. Burger: What’s that case again, the last one you’ve just cited on?

Mr. Joe S. Rolston Iii: Ponder versus Ebby.

Thank you.

Justice Byron R. White: Before you sit down, may I ask Mr. Rolston.

Is this provision at page 17?

As to the statute of limitations, the Court further finds orders of judges and decrees it from the date of the recording and says “We sale tax deed.” On June 6, 1956, Garrett and Vaughn have been an open continuous exclusive and hostel possession and so forth.

And that said contesting substitute of party defendants are further forever barred and precluded by the statutes of limitations and seeking to a assert the invalidity of said resale tax deed, is that what you had referenced to?

Mr. Joe S. Rolston Iii: That’s correct Your Honor, and I --

Justice Byron R. White: And who are the contesting substituting party defendants?

Mr. Joe S. Rolston Iii: The original parties are deceased in their administrators and executors have been substitute.

Justice Byron R. White: Whom do you represent?

Mr. Joe S. Rolston Iii: The appellees, the purchasers at the resale tax.

Justice Byron R. White: What is the relevance in this appendix of the journal entry of judgment on page 15?

Mr. Joe S. Rolston Iii: The appendix, Your Honor.

Justice Byron R. White: Or is it journal entry of judgment on the 14th day of June, 1965 and in your appendix b to the jurisdictional statement, there is a journal entry of judgment with respect to a later date.

Mr. Joe S. Rolston Iii: The first adjudication by the trial court at ‘65 was that the oil company did have a valid lease.

It had leases from both parties at that time.

Justice Byron R. White: Well, that isn’t what this says.

Mr. Joe S. Rolston Iii: As I pointed out to Court, I did not try the original case in the trial court.

Justice Byron R. White: Because this particular general entry of judgment and the case is styled under the same number and the same heading.

There’s no reference to statute of limitations.

I thought maybe there might have been different entries of judgments with respective different parties, different tracts of land.

Mr. Joe S. Rolston Iii: Mr. Legg maybe able to answer the Court.

Chief Justice Warren E. Burger: Mr. Legg, you have two minutes left.

Rebuttal of William J. Legg

Mr. William J. Legg: Well, in answering Justice White’s question, this journal entry of judgment on June 14th, 1965 did what Mr. Rolston said.

It simply determined that the oil company owned a lease on these 40 acres whichever way the title was finally decided as between the mineral owners.

As between my clients and his clients but then there was a later journal entry of judgment which is in the jurisdictional statement that determines --

Justice Byron R. White: Well in then, there is a finding then in the trial court that you were barred by statute of limitations anyway?

Mr. William J. Legg: There is a finding that the statute of limitations run, yes sir.

But, it was not argued in the appeal to the Court of Appeals, and no decision was made, and it was not argued in the Supreme Court of Oklahoma and no decision was made.

Justice Byron R. White: You’re the one that went to the Court of Appeals?

Mr. William J. Legg: Yes, we appealed.

Justice Byron R. White: And you didn’t appeal from that finding?

Mr. William J. Legg: No.

Chief Justice Warren E. Burger: And then when the Supreme Court restarted the trial court’s judgment, those findings remain extent, is that not correct?

Mr. William J. Legg: Yes, true.

May I make three explanations?

The reason for the four year gap in the pursuit of this case that the Mr. Rolston noted was that there were some estates pending and it wasn’t carried forward until those estates were closed.

Then I would also like to point out that Oklahoma is the least is an example of the least strict tax foreclosure procedure in the United States.

It’s strictly judicial, I mean strictly administrative, it has no, you don’t have to ever go in to Court, you don’t have to ever give any notice except this publication service and there are 11 states in that category according to my research and there are 14 states however that have fully judicial tax lien foreclosure procedures, where you have to bring all parties into Court and foreclose it just like you would mortgage it.

In that situation there would have to be a process issued to everyone.

And so, we have 11 states with least strict 14 states with more strict and we have 39 states, either more strict or somewhere in the middle where they have, even though they’re using an administrative procedure, they have to give notice either formal process, or mailing, or of some nature that goes beyond just the publication in this case.

Unknown Speaker: Mr. Legg can we go back to this, your appeals up to the State Court system, you did not appeal from this finding that the statute of limitations barred you?

Mr. William J. Legg: We appealed from --

Unknown Speaker: That is to the Intermediate Court of Appeals, you did not bring this up.

Mr. William J. Legg: We appealed from the decision.

We did not specify that particular-- it’s my recollection that there’s nothing in our appeal documents that touches on that but I wouldn’t want to be bound by that statement.

There maybe something that we appeal from the total decision but our basis of appeal -- our strong argument was on the basis of Mullane, and that was from the very first.

This particular point was not contested strongly, it may have been touched upon but it wasn’t --

Unknown Speaker: But what did you win on Mullane that under state law you were barred anyway?

By the statute of limitations, I mean why did you appeal on just Mullane, it would not do you any good.

Mr. William J. Legg: We felt that there was a constitutional issue here and this is what we were primarily concerned with.

Unknown Speaker: Why is that if you’re right on the constitutional issue then the statute couldn’t have started to run because you wouldn’t have had to put notice on the constitution?

Mr. William J. Legg: Yes, that is one argument that --

Unknown Speaker: That was the same as in the Schroeder case as I remember it.

Mr. William J. Legg: That is exactly right, the --

Unknown Speaker: Schroeder against New York.

Mr. William J. Legg: The Schroeder case would stand --

Unknown Speaker: There was a claim there on the statute of limitations.

Mr. William J. Legg: No, statute?

Unknown Speaker: But Mrs. Schroeder said, “Well, I couldn’t run cause I didn’t have the notice.”

Mr. William J. Legg: You are right.

Unknown Speaker: Is it?

Justice Byron R. White: There was a previous Oklahoma case that said, in resale cases the possession of the surface is noticed?

Mr. William J. Legg: In Oklahoma decision, yes.

Justice Byron R. White: Yes.

Mr. William J. Legg: There is --

Justice Byron R. White: You didn’t attack that, did you?

Mr. William J. Legg: There is dictum on that point in the Walker versus Hoffman.

Justice Byron R. White: When was that decided?

Mr. William J. Legg: That was 1965 case.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Wright v. Georgia - Oral Argument

Tue, 25 Sep 2012 22:37:00 +0000

Case:

Wright v. Georgia

Media File:

68_19621107-argument

Related Transcript:

68_19621107-argument

Transcript:

Argument of James M. Nabrit, Iii

Chief Justice Earl Warren: Number 68, Nathaniel Wright, et al., Petitioners, versus Georgia.

Mr. Nabrit.

Mr. James M. Nabrit, Iii: Mr. Chief Justice, may it please the Court.

This case is on somewhat unlikely six cases which have preceded it this week and that here, arrest have been made for conduct on city property, city park property, managed by a city department but it is similar to those other six cases.

And that here again, the police are engaged in enforcing segregation customs as if they were an extension of or part of the law.

This case is before the Court on writ of certiorari to the Supreme Court of Georgia brought by six young Negro men from Savannah, who were convicted of the crime of unlawful assembly under Section 26-5301 of Georgia Code, that statute which appears on page 2 of our brief punishes any two or more person who assemble and this is the key language, assemble for the purpose of disturbing the public peace or committing any unlawful act and fails to disperse on the command of peace officers, etcetera.

The petitioners were charged under an accusation filed substantially in the statutory language for assembling at Daffin Park in Savannah, Georgia for the purpose of disturbing the public peace.

No reference was made in the accusation to the second clause relating to committing any unlawful act.

And petitioners were convicted in the City Court of Savannah by a jury and sentenced to fines or to imprisonment in default of payment of the fines.

On appeal, their convictions were affirmed by the Supreme Court of Georgia.

In the courts below and here, we contend the petitioners have asserted due process claims that they were convicted without evidence of their guilt and convicted under a vague statute which denied them due process.

I think it's important to look at the facts in some detail because of the no evidence claim.

The four witnesses testified at the trial in the state court.

Two of them were -- only two of them were witnesses to the incident which led to the arrest.

They were the two arresting officers.

The other two people who have testified were police sergeant who came upon the scene after the arrest had been made and the head of the city park department who wasn't there at all.

It had no contact with the petitioners whether a witness to the incident.

He didn't know about it until after.

So that the facts I'm giving you, the arresting officers' version of what transpired and I submit that it demonstrates completely that the petitioners are guilty of no criminal acts of any kind.

Now, on January 23rd, 1961 at about two o'clock in the afternoon, police officers Thompson and Hillers were on duty in Daffin Park which is a 50-acre recreational park which as I have said is managed and operated by the City of Savannah.

They were in their currently --

Justice Hugo L. Black: This is owned and operated by the City of Savannah?

Mr. James M. Nabrit, Iii: I understand that that is the fact, Your Honor, and that there's no dispute about that.

The testimony of the park manager at page -- beginning at the bottom of page 42, indicates that he is the superintendent of the recreational department of the city and as superintendent, he is overall the pick playgrounds in the city and later on in his testimony, he lists them and mentions the Daffin Park.

There's no explicit statement about ownership but it's never been contested.

And I'm sure that the city attorneys will confirm that.

Now, where officers Thompson and Hillers were approached by a person who was identified only in the record as a white lady, and she is, according to Officer Thompson's testimony supposed have told them that there were colored people playing basketball in the park.

And Officer Thompson made it clear that as soon as he heard this, he pres -- he and his fellow officer preceded immediately to the basketball court.

He said, “I did not ask this white lady how old these people were.

As soon as I found out these were colored people, I immediately went there.”

And when Officers Thompson and Hillers got to the basketball court, they found the six petitioners playing basketball.

Both officers agreed that that was all it was going on.

Officer Hillers' testimony at page 50 says, “When I arrived, the defendants were playing basketball.

They were not necessarily creating any disorder.

They were just shooting at the goal.

That's all they were doing.

They weren't disturbing anything.”

And Officer Thompson's testimony at page 41 is the same.

He said that at the middle of the page, “I've observed the conduct of these people when they were on the basketball court and they were doing nothing besides playing basketball.”

He goes on to say, they were normally playing basketball and no children around.

Justice Hugo L. Black: There is what?

Mr. James M. Nabrit, Iii: There were no children around.

In the earlier point in his testimony, Mr. Justice Black, he had mentioned that there were schools in the neighborhood.

That the schools let out at about 2:30 in the afternoon and that at that time, the children usually came to this area to play but that this was about two o'clock.

Justice Hugo L. Black: Did you say that claim that basketball it was against the rule of the city to play basketball in the park?

Mr. James M. Nabrit, Iii: The -- at per se, no, sir.

No, sir.

This facility was obviously designed for playing basketball.

Justice Hugo L. Black: There's no claim by the city that it was not available for and use for playing basketball, is it not?

Mr. James M. Nabrit, Iii: No.

That is correct.

The city in its brief in this Court makes an argument about a park rule or a claimed argument that this facility was for children and not for adults.

This was something that was never relied upon by the arresting officer.

Again on page 41, the officer expressly disclaimed any reliance on this.

At the end of that first paragraph -- the first paragraph which starts on the page, Officer Thompson said, “I have never made previous arrests in Daffin Park because people played basketball there.

I don't have any knowledge from myself that any certain age group is limited to any particular basketball court.

I don't know the rules of the City Recreational Department.”

Officer Thompson gave --

Chief Justice Earl Warren: Were any rules presented to the Court in this case, any written rules?

Mr. James M. Nabrit, Iii: No, Your Honor.

There were no written rules.

There was some testimony by the park superintendent as to certain preferences and priorities that he had in his own mind.

I submit that these were very vaguely defined and in part contradictory but the important thing is that there is no reason at all to think that the petitioners had any notice of what was in the park superintendent's mind or any reason to -- or an opportunity to know about it.

The --

Justice Hugo L. Black: Is there any finding of fact?

Mr. James M. Nabrit, Iii: Your Honor, there's a general finding of guilty.

Justice Hugo L. Black: That the persons like these, I'm not talking about colors but persons to play basketball in the park was prohibited by the city and applied to everybody in the same way.

Mr. James M. Nabrit, Iii: Well, there is no indication to that of anything of that kind.

Justice Hugo L. Black: Any fact, no finding to that effect.

Mr. James M. Nabrit, Iii: There is only a general finding of guilty by the jury.

There are no court findings in the record.

Justice Hugo L. Black: Anything in the charge to the jury?

Mr. James M. Nabrit, Iii: The charge -- no, sir.

The charge to the jury contained no discussion of the evidence, no definition of the offense beyond a reading of the statute to the jury and a statement to them that these police officers were peace officers within the meaning of the statute.

That was the only explanation of the statute given to the jury.

Now, turning again to the scene when the officers arrived, they proceeded immediately upon arriving to order these petitioners to leave the basketball court.

At this point, one petitioner asked the officer who, as Officer Thompson, who ordered him to come out here and what does authority well to come out here and order them all, and Officer Thompson responded that he didn't need any authority, he didn't need any orders.

And another petitioner began to write down the officer's badge numbers and when they didn't leave after a few moments, they were all placed under arrest.

Now, Officer Thompson --

Justice John M. Harlan: Is there any physical resistance from the officer?

Mr. James M. Nabrit, Iii: No, sir.

No indication of that at all.

In fact, the State attempts to make something of the fact that these -- I don't quite understand how this helps the State's case but they attempt to argue something from the fact that the petitioners were cooperative with the officers and got in his car without any arguing and when they were placed under arrest.

The -- when the -- Officer Thompson testified at the trial, he stated in language that is clear as day on page 41, that he had a racial reason for this arrest.

Right in the middle of the page there, beginning of that paragraph he said, “I arrested these people for playing basketball in Daffin Park.

One reason was because they were Negroes.”

And everything about his conduct confirms that that was -- he's consistent with that reason.

And that, he said that he immediately went to the scene when he found out that colored people were playing in the park.

And there is additional testimony in the record that this park was one which it customarily been used only by white people.

That the City of Savannah establishes its parks in colored and white neighborhood as such.

That if the park superintendent testified that it was customary to use this park separately for the different races at page 45.

Now, Officer Thompson also mentioned another reason which is if it means anything related to race but is really completely unsubstantiated, he said that he may -- he said at another point on page 40 that the purpose of asking them to leave was to keep them trouble which appeared to him might start and he referred to the fact that there were five or six cars driving around the park with white people in it.

At another place on cross-examination, he acknowledged that these cars were on a driveway which passed the court, basketball courts, and that this was not unusual traffic for the time of the day.

Curios thing about the testimony is that there's nothing at all -- at all to give us any information about the conduct, the demeanor of these people within the cars, there's nothing to even indicate that they observed the petitioners, that the petitioners observed them.

There's no indication that they slowed down, that they drove by repeatedly.

There's nothing at all to make -- to connect this up.

And as a justification of substantiation the officers expressed for their fears of trouble might start.

There was no one else around.

There was no one else present on the -- in the area at all.

Justice Hugo L. Black: Did the charge contain anything based on such an assumption that that was an issue?

Mr. James M. Nabrit, Iii: The charge of the jury or the accusation?

Justice Hugo L. Black: Yes, the charge to the jury.

Mr. James M. Nabrit, Iii: The charge to the jury, Your Honor, which appears.

Justice Hugo L. Black: I just read it.

And I --

Mr. James M. Nabrit, Iii: I don't think so.

Justice Hugo L. Black: You seem to submit it on the fact that they were there and the officer ordered them to leave and they had to leave.

Mr. James M. Nabrit, Iii: Well, that's right.

That's how I view it, Your Honor.

The -- but in any event, the -- this was one of the things expressed by the officer during the trial.

Beyond this, there is none.

Beyond this is completely unsubstantiated fear of trouble.

And his positive statement that his other reason was because they were Negroes, that is the State's proof.

Justice Hugo L. Black: The statute is broad enough to cover what was shown to be done here, is it not?

Because it said, assemble for purpose of disturbing public peace or for committing any unlawful act must moved on and ordered by a judge, justice, sheriff, constable, court and not any other people.

Mr. James M. Nabrit, Iii: I don't know if Your Honor misread that on that.

It's unlawful act.

Justice Hugo L. Black: I'm reading it -- I'm reading it from page 62.

Mr. James M. Nabrit, Iii: It's for committing any unlawful act.

Justice Hugo L. Black: It says here any lawful act probably has a strength as it appears in the Court --

Mr. James M. Nabrit, Iii: You're reading from the judge's charge to the jury.

Justice Hugo L. Black: Page 63.

Mr. James M. Nabrit, Iii: That is a misquotation of the statute as it appears in the Code.

Justice Hugo L. Black: Then it has --

Mr. James M. Nabrit, Iii: Whether that represents what he read to the jury or not, Your Honor, I don't know.

We have only the court report or certificates.

Justice Hugo L. Black: It happened to be under the statute -- under the statute, they assemble for the purpose of disturbing the public peace or committing any unlawful act.

Mr. James M. Nabrit, Iii: That's correct.

The correct statute appears to be -- to my brief.

Justice Hugo L. Black: But what did he charge to do would be the unlawful act?

Mr. James M. Nabrit, Iii: The -- well, I don't believe that he charged them anything and I point out again as I attempted too early that the accusation itself never relied on that part of the statute committing any unlawful act.

This is something which the court below also observed in its opinion when it said the only thing involved with the phrase ‘disturbing the public peace' or ‘purpose of disturbing a public peace'.

In answer to Your Honor, the original question I'm at who ever this statute covered this conduct.

I state that this statute is probably so vague and indefinite that it could cover almost any type of lawful conduct.

This statute has been authoritatively construed by the Georgia Court of Appeals to go to cover acts which I consider beyond the common law meaning of this type -- to go beyond the common law concept of unlawful assembly and the only appellant decision construing this statute in a prosecution order, State against Sanders.

This statute was applied to sit-in demonstrators on facts substantially the same as those in two of the cases in Garner against Louisiana.

These were people who have not been ordered out of a store by any proprietor.

And people who were there in sufferance of the proprietor who were ordered out by police officer.

And in that opinion, it seems to me evident that the Court took this statute beyond any common law concept of disturbing a peace and applied it through the area of liberty protected by Due Process Clause.

Justice Tom C. Clark: You mean as I understand -- are you saying that this statute which is a fairly common statute, isn't it this type on its face is vague?

Mr. James M. Nabrit, Iii: I'm arguing.

Justice Tom C. Clark: Or you're saying that there wasn't evidence to warrant a conviction under the statute.

Mr. James M. Nabrit, Iii: I'm arguing -- I'm making both of those arguments and a third argument which I haven't express yet that the statute didn't give them fair warning, their particular acts were prohibited.

Justice Tom C. Clark: What was argued in the Georgia Court as the federal basis for relief in the Supreme Court?

Mr. James M. Nabrit, Iii: Yes, sir.

Justice Tom C. Clark: Would you -- in the course of your argument, would you point out which of these was directed to the Georgia Supreme Court?

Mr. James M. Nabrit, Iii: Your Honor has perhaps observed that the Georgia Supreme Court's opinion does not at all discuss the facts.

Justice Tom C. Clark: That is correct.

Mr. James M. Nabrit, Iii: And this is a curious thing that might attract the attention of the Court.

It is our contention that the no evidence issue, the vagueness -- and the vagueness of the statute in all of the applications of that term were properly argued and preserved at every stage of the proceedings in the state court.

The vague -- due process vagueness question was first raised in a demurrer.

It was again raised in a motion for a new trial as it was the claim that there was no evidence upon which the defendants could be convicted.

The assignments of error contended that the Court did err in overruling that motion for new trial which embodied the no evidence claim and a due process vagueness claim.

The --

Justice Tom C. Clark: Was there no evidence claim buttressed on the federal constitution?

Mr. James M. Nabrit, Iii: The no evidence claim -- I think it's inherently a federal issue Your Honor that it appears at page 17 of the record.

This is the -- there were six identical motions for new trial.

This is the first one and paragraph one says that the verdict is contrary to evidence and without evidence to support.

There was no particular reference at that point for the Due Process Clause but I believe that Thompson against the City of Louisville stands for the proposition that the conviction without evidence is inherently a due process matter.

Now, the States --

Justice Tom C. Clark: Was it the State's proposition that an allegation of this type or a complaint of this type is sufficient to direct the attention of the Court to the federal question involved?

Mr. James M. Nabrit, Iii: Well, I don't believe that Thompson indicates anything on that one way or another.

However, I submit that this Court -- this Georgia Supreme Court's attention wasn't directed to the problem which we're attempted to raise here.

I'll try to tell you why.

The basis upon which the Georgia Supreme Court determined currently not to consider the evidence was a theory that the petitioners, the defendants there, had impliedly abandoned their claim that the -- there was error in overruling the motion for new trial by their brief in the Georgia Supreme Court.

We -- when the record and the petition for certiorari were filed here certified copies of all of those briefs were deposited with the clerk here so that they're available for the Court to inspect.

Now, we submit that that brief defines what will have of these petitioners and the court below.

While it did not say in the section labeled argument, while there was no subsection saying, “We are now arguing our motion for new trial”, nevertheless did argue these due process issues.

In that, it did argue the facts of the case.

It did argue that the petitioners who were convicted for innocent acts.

It did argue that the officer's conduct was arbitrary and capricious.

There was a long quote from the language in the Yick Wo case about arbitrary application of statutes.

And I might point out that when the Court decided Thompson against Louisville, it cited in support of the notion -- in support of the holding that conviction without evidence was a denial of due process.

One of the cases that was cited was Yick Wo.

Justice John M. Harlan: Accounts have been said at the time the Supreme -- the state court had written.

Mr. James M. Nabrit, Iii: I am inclined to think that it was.

I don't know that the respective dates on hand Your Honor but I know that the date of decision in the State Supreme Court was November a year ago.

Justice John M. Harlan: November 1961.

Mr. James M. Nabrit, Iii: Yes.

I have no knowledge as to when the briefs are filed.

The copies are deposited with the clerk and they very well indicate that.

Now, I'd like to reserve the --

Justice Potter Stewart: Mr. Thompson this is cited in the brief?

Mr. James M. Nabrit, Iii: No, it was not Your Honor.

I believe I'd like to reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Garfunkel.

Argument of Sylvan A. Garfunkel

Mr. Sylvan A. Garfunkel: Mr. Chief Justice and Associate Justices.

I should like to state at the beginning that the City of Georgia and we are not city attorneys; we're the District Attorney's Office.

They call us Solicitor Generals and I'm Chief Assistant Solicitor General in the circuit which is Savannah.

We admit that this was a city operated park.

We further admit that it would be unconstitutional to practice segregation in such a park.

We further admit and feel that if this statute was being used in a manner to preserve segregation in this park as a centrifuge to preserve segregation, then under the facts in this case, this case should be reversed and sent back and the defendants acquitted.

However, we ask the Court to look at the record in this case and study the facts that were developed.

As I heard on the news yesterday --

Chief Justice Earl Warren: Are those issues without those issues with that -- those issues be before us to determine?

Mr. Sylvan A. Garfunkel: Yes, sir.

That's what I was coming to now.

Chief Justice Earl Warren: Yes.

Mr. Sylvan A. Garfunkel: As I heard the arguments yesterday, the Court several term referred to the question of what was the policy.

And as Mr. Nabrit referred to the park superintendent having testified in the development of this case on cross-examination of the -- would understood that the park was being made that these people were arrested because they were Negroes.

It was, therefore, we put the park superintendent on the stand to outline for the jury and the court below, and the Court of Appeals, and when the case came to this Court for this Court to understand the policy of the park playgrounds in Savannah.

And I therefore would like to refer to the Court to page 42 of the record which is the testimony of the playground superintendent, in which he outlined the way the parks were setup in Savannah.

He said, “We tried to put them in areas, wide areas, and in colored areas, although, we have several which are now mixed areas park extensions, and wells park because in certain areas the -- and they play together.”

He says, “That has occurred from time to time, that colored children would play in the Daffin Park area and in the park extension area but no action had been taken because it is legal, it is allowed, and nobody has said anything about it.

“That is in the middle of page 43 of the -- of the record.

Justice William O. Douglas: As Mr. Hagan.

Mr. Sylvan A. Garfunkel: This is Mr. Hagan, the park superintendent, Your Honor.

He said then further on the bottom of the page the playground areas, in further explaining, the playground areas are basically for young children, say 15 to 16 and under along that age group.

We give priorities to the playground to the younger children over the grownups.

It made no difference as to whether they were white or colored.

Anytime that we requested anyone to do something and they refuse, we would ask the police to stop -- it says stop and it's a misprint should be step.

If we would ask them to leave when they did not, we would ask the police to step in.

We have other reports of colored children who have played on the park extension but they were never arrested or told to leave.

He further -- he referred earlier at the course that they had played in the Daffin Park area and not been arrested.

The facts in this case showed that these defendants were grown men, the youngest of which was 23 years of age and the oldest of which was 32 years of age.

That they went upon this playground around 1:30 or 2:00 in the afternoon during a school day.At that time, they were dressed not for playing basketball, but dressed more for business purposes, that is they had all the hard shoes, they had on shirts, jackets, I think some of them might even had ties on them, I'm not sure of the police officer.

Well --

Chief Justice Earl Warren: Is that against the rule?

Mr. Sylvan A. Garfunkel: No, sir.

But it was to go into the question of the bonafide as we -- the purpose of the question of the intent.

That came into the intent because the defendants constantly said they were just merely there for the purpose of playing basketball.

And we said the intent was not to play basketball and although, they've denied this all the way down up to this Court, in their brief in this Court.

They say that perhaps it was not to play basketball but to make a profound nonverbal expression against segregation in public parks.

That's the way they put it so that in order to come into a question of free speech.

However, Mr. Hagan further along with his testimony, said that he further testified that if there were conflict between the younger people and the older people using the park facilities, the preference would be for the younger people to use them.

But the -- we have no objections to all the people using the facilities if there are no younger people present or if they are not -- or if they are not scheduled to be used by the younger people.

He said, and this is on further direct examination, “It has been accustomed to use the park separately for the different races but I couldn't say whether or not a permit would or would not be issued to a person of color if that person came to my office in the recreational department or requested a permit to play on the courts but I don't have the opinion that it would have been.

We have never refused one.

The request has never been made.”

In other words, he says if they came, we would grant them but nobody has ever come and asked and so I can't say that we have done it because nobody has requested it.

Justice John M. Harlan: What does the record shows to whether there were younger people who wanted to play basketball?

Mr. Sylvan A. Garfunkel: I'm trying to come to that right -- right now Your Honor.

The -- further, I would like to give -- to go on to Mr. Hagan's point because then I'll come back to the actual facts.

On school days and this was a school day, these courts and the playground area are at -- at Daffin Park are available for only certain age groups and they are only used at that time of day by the schools in that vicinity.

It is more or less left available for them.

That is the way we have our recreation set up.

In other words, at this time, this park, this playground, was reserved -- I think the evidence shows that there were two schools right across the street, was reserved for the use of these schools.

And he further said that all during the day, these people came from the various schools to play not just during recess but they had physical education activities in which they would come out and play on these playgrounds.

And that all during the day, this particular moment, they might not be there.

They would be -- momentarily they might come in the next five minutes and a policeman knew definitely that the school would be out at 2:30, and at that time, he knew the children would be coming across to play on the playground.

And that this was -- and this policeman so testified in Court that he knew these children were coming.

Justice Hugo L. Black: Was there any issue of this kind submitted to the jury?

Mr. Sylvan A. Garfunkel: Yes, sir.

This was all evidence that went before the jury.

Justice Hugo L. Black: I'm not talking about evidence.

Did the Court charge the jury on that the issue which you were discussing?

Mr. Sylvan A. Garfunkel: Mr. Justice Black, in the Georgia procedure, we have what is known and colloquially as what as known as the Dumb Act.

And that is that the judge is not able to comment on the evidence.

He cannot comment one way or the other on the evidence.

He merely charges the jury on the law.

Justice Hugo L. Black: But he said -- he said, “I have not charged you fully on the law”, but then he charged on the law with reference to some rule that they had that these people had violated.

Mr. Sylvan A. Garfunkel: Well the rule know what they had violated with --

Justice Hugo L. Black: On practice on precedent.

Mr. Sylvan A. Garfunkel: They had violated -- no.

what he charged them was that they had violated the order of the police officer.

Justice Hugo L. Black: Orders of the police officer but is it the law as you understand it in Georgia that a man's charge during the defense of during accepting, it's unlawful and the police officer director orders him to leave that when tried they do not submit any issue to him except whether he had to move when an officer told him.

Mr. Sylvan A. Garfunkel: Is it your -- is the general verdict, it is only a general verdict.

There's no --

Justice Hugo L. Black: I understand the general verdict but does the State have to prove its case?

Mr. Sylvan A. Garfunkel: The State attempt to prove its case --

Justice Hugo L. Black: Yes, but not of its case what you've been arguing to us here that these people were violating the rule because they were playing at the time when children should play?

Mr. Sylvan A. Garfunkel: No, the Court did not go into detail as to whether it violated the rule.

Justice Hugo L. Black: But he mentioned it, didn't he?

Mr. Sylvan A. Garfunkel: No, he did not.

He mentioned in the -- only that they were charged with going on the purpose and this was the question of whether this was an intent to disturb the peace.

All of these were taken into consideration.

Justice Hugo L. Black: But maybe it doesn't affect your argument saying here but as far as the charge is concerned, nothing like this was even pointed out in the charge.

Mr. Sylvan A. Garfunkel: Of the trial judge.

Justice Hugo L. Black: If you are supposed to be charge, I suppose, but the law is what they had violated (Voice Overlap).

Mr. Sylvan A. Garfunkel: The usual trial -- the judges and the courts below of the Georgia courts.

Justice Hugo L. Black: He didn't charge him what would be -- on what they passed on as being lawful or unlawful or except that you say they disobeyed the policeman.

Mr. Sylvan A. Garfunkel: They were not charged with doing something unlawful Your Honor.

They were charged with going on the playgrounds for the purpose of disturbing the peace.

Justice Hugo L. Black: Disturbing the peace or there were some other unlawful acts?

Mr. Sylvan A. Garfunkel: No, sir.

No.

Justice Hugo L. Black: Alright, disturbing the peace.

Mr. Sylvan A. Garfunkel: Disturbing the peace, there was nothing --

Justice Hugo L. Black: Did he charge them on what would amount to disturbance of the peace?

Mr. Sylvan A. Garfunkel: Not in detail, Your Honor.

Justice Hugo L. Black: Did he charge him at all?

Mr. Sylvan A. Garfunkel: He charged them, and I'll have to get his charge sir.

Justice Hugo L. Black: But it wouldn't disturb the peace.

What if they were there not violating any rules and not violating any rule as he said it?

Mr. Sylvan A. Garfunkel: Not generic.

This is the key and this is the statute of the way we were arguing it to the Court.

The statute becomes violated not by disturbing the peace but by two or more people assembling for the purpose of disturbing the peace.

Not of the purpose that the peace has to be disturbed but assembling --

Justice Hugo L. Black: But if they weren't disturbed, they wouldn't assemble for the purpose of disturbing the peace, wouldn't they, if they assemble to do first of all, a lawful act on the park?

Mr. Sylvan A. Garfunkel: But it became unlawful when they refuse to obey the police officer's request to leave.

Justice Hugo L. Black: But then they finally get back to the fact.

You're saying that under your Georgia statute, the policeman has complete power and one of their contentions was I believe, that has vested them with arbitrary power.

He has complete power to determine whether they've already done something for the purpose of violating the peace.

Mr. Sylvan A. Garfunkel: So then it's up to the jury to so determine and in fact have to find --

Justice Hugo L. Black: If they have tried, what would be then?

Mr. Sylvan A. Garfunkel: If they thought that the policeman was correct.

Now the -- that question has not been raised very much but the recent case that is very interesting from the Court of Appeals in New York, People versus Galvin.

And in that case, one of those -- one of the million cases, Mr. (Inaudible) Galvin was a member of the bar of the State of New York and the reference is made under my brief.

I won't cite the citation.

And he had come out of arrest and he was standing on the sidewalk talking to some friends of his.

And a policeman came along and said, “Would you please move.”

And he says, “I don't have to move.

I'm on the public sidewalk.”

And the policeman arrested him for somewhat -- under somewhat the most statute in the State of New York.

This -- he was convicted.

This went all the way up to the Court of Appeals in New York and they were faced with somewhat to some of them because there, he says, he was probably on the sidewalk.

And the Court said that the policeman had a right to believe that they might block the sidewalk.

And as the policeman felt in his mind and he may bona fide made a request.

In his mind that there was at that chance, that refusing to obey the police officer at that time could then may very well be -- was a disturbance of the police peace for which the jury or the judge sitting as a jury could convict him.

And they affirmed his conviction.

And the record showed that there was no disorder that was all talked very friendly, there were no harsh words or anything else.

It was just a request made by a policeman.

Justice Hugo L. Black: I understand though.

I understand your citation of that case as a justification of what was done for that and maybe the way the jury was charged, that's what I think, the only thing submitted to them.

Did the policeman ordered him to go away and did they stay?

I see no other issues submitted except that and that case to which you refer maybe wholly irrelevant on that.

Mr. Sylvan A. Garfunkel: And that then we have the further question of the Supreme Court of Georgia construing its statute in which I think this Court held in Garner versus Louisiana, that it was up to the Court, Highest Court, to construe the meaning of its own statute and when it was violated.

The question that I see would be presented to this Court would be two; first, was the statute used as a veil to preserve segregation?

And second, was there any evidence whatsoever to justify the police officer to believe that the breach of the peace was eminent or might happen to cause him to ask and to leave?

Was he bona fide in asking them to leave?

Justice Arthur J. Goldberg: What the general -- what in this record would leave the police officer to believe that?

Mr. Sylvan A. Garfunkel: That's right.

Yes sir.

I'm glad, Mr. Justice Goldberg, you brought that up because there are several issues.

First that these children were there, whether they were coming and they expected them there, he testified, Officer Hillers testified and that is on the record or rather Officer Thompson, I believe --

Justice Arthur J. Goldberg: 41

Mr. Sylvan A. Garfunkel: Right.

Justice Arthur J. Goldberg: He said he made this arrest around two o'clock and the schools let at around 2:30 and it would have been at least 30 minutes before any children would have been in this particular area.

Mr. Sylvan A. Garfunkel: That is true.

But Your Honor at what point was it being necessary for him to tell them to leave this playground.

Under the rules of the playground commission, the playground was available for these school children all during the day.

Justice Arthur J. Goldberg: But that isn't what the superintendent said.

Precisely you read part of it, did he not also say on page 48 that, “That basketball court was not scheduled.

It would be compatible with our program for them to use it and we would not mind them using it.”

Then he further say on page 47 that, “I don't know whether or not we had a plan program arranged for the day that these arrests were made.”

Mr. Sylvan A. Garfunkel: But early above that Your Honor he said, when he was -- this was an answer to a hypothetical question.

And that this is the total answer.

If your plan program did not have the 23rd of January, 1961, set aside for any particular activity, would it have been permissible to use this basketball court in Daffin Park in the absence of children?

And his answer said, “Well, I can't very well answer that question because you have several questions in one.

First, I would like to say that normally we would not schedule anything for that time of the day because of the school's using the total area there,” so that at that time, it was reserved according to the first part of his testimony.

Then in going to try and help the -- answering this hypothetical question, he said, “If we had not had something scheduled at that time of the day, then we would have granted information.”

But at that time the total area was reserved for the school children.

Now --

Chief Justice Earl Warren: Who's -- whose witness was this man?

Mr. Sylvan A. Garfunkel: This man was the State's witness when the defense started to develop the fact that they were arrested solely because of the fact that they were Negroes.

Chief Justice Earl Warren: Aren't you bound by his cross-examination?

Mr. Sylvan A. Garfunkel: Yes, sir.

But this -- this was the all answer.

This -- to what Mr. Justice Goldberg asked me was.

He said don't give me the quote of the last part.

And this was the first part of the answer to the same question that had been asked.

In other words, this answer goes on for almost half of page.

And he said at the first that, “at that time of day, this playground was reserved for the schools.”

Then in going along further, they said, “You have to ask him several questions in one if they have not been reserved.”

He said, “If all that basketball court was not scheduled, it would be compatible with our program for them to use it, and we would not mind them using it.

And if there was a permanent issue, there would be no objections as to race, creed, or color.

In other words, that is the last part of the answer.

Chief Justice Earl Warren: And then -- and then he also said that he didn't know whether it was schedule -- anything scheduled or not, didn't he?

Mr. Sylvan A. Garfunkel: He says, “We never know when they are coming in one part.

That is the parochial schools use it during recess and lunch breaks and also for sport.

As also the Lutherans schools and the public schools bring their students out there by bus in various times during school hours all day long.

We never know when they are coming and they use Kent Park the same way.”

And I might add now Kent Park is a park area in the colored section.

And I think what the interpretation of his answer is that he personally doesn't know if the schools are going to bring somebody around there at ten o'clock, at twelve o'clock, or one o'clock.

But as far as the playground as far as the playground department is concerned, those playgrounds are exclusively for the use of the schools during those hours or whenever they want to use it.

Justice Arthur J. Goldberg: But this was not invalid in any regulation known to anybody, is that correct general?

Because as I read his testimony on page 46, he says there is no regulation for playing on a court when it is not in use and there is no one around.

Mr. Sylvan A. Garfunkel: That is correct sir.

There was no printed regulation and there was no -- and what we state this, Mr. Justice Goldberg, that the going or merely going upon the park grounds and playing the basketball is not criminal.

And if they had walked up, the policeman had walked up to him and said, “I am arresting you.

You are -- and we'll let you argue with the misdemeanor” is a basic unfairness in such a statute because obviously no one would know that he has violated or was violating something.

But it becomes -- the fairness in this is that it does not become a misdemeanor until he is asked to leave and refuses to leave and asked to leave by a peace officer who is a policeman wearing a -- a police officer wearing a uniform.

Justice Arthur J. Goldberg: So it's your contention that substance is, there being no regulation against the use when it is not being used by anyone else.

There being no children evident in the vicinities since they were not out of school until 2:30.

Then it becomes a disturbance of the peace, that the group of men are there playing using an empty court, it becomes a disturbance of the peace if you do not obey a police officer or an officer when he says, “While they're here legally and properly and not against any regulation, I tell you now to move on.”

Is that disturbance of the peace?

Mr. Sylvan A. Garfunkel: The police officer didn't actually tell them that while you are here legally and properly --

Justice Arthur J. Goldberg: But I mean the --

Mr. Sylvan A. Garfunkel: Because the --

Justice Arthur J. Goldberg: -- the superintendent said that they were there illegally and --

Mr. Sylvan A. Garfunkel: No, I think the superintendent said if they hadn't been scheduled but at that time they just played there, they would not have been allowed to play.

Justice Arthur J. Goldberg: But the -- didn't we both agree a moment ago that there is no regulation for playing on a court when it is not in use and there's no one around?

Mr. Sylvan A. Garfunkel: Well, there's no printed regulation but there's a regulation of the park.

I mean that's the way they regulate the parks.

If he want -- we will put it if that's the way the park superintendent regulates the park.

Now, if you -- if they had printed, if you're saying are there printed regulations and posted and all of that, I would say, no, but there is this regulation in the sense that that is the way the parks are run.

Justice Arthur J. Goldberg: But here then would you define what constituted the disturbance of the peace under these circumstances.

Mr. Sylvan A. Garfunkel: Yes, sir.

The disturbance of the peace out of these circumstances, Your Honor, was that they were had gone there, we feel, and to think the record shows because they went there that to what they thought was to test segregation.

The police officer said, “I --

Justice Arthur J. Goldberg: Is that illegal?

Mr. Sylvan A. Garfunkel: No, sir.

It's not illegal.

But the police officer said on other occasions, “I have seen colored children in Daffin Park and I have not arrested them because I -- but in these circumstances I did.”

Now, I think what we are faced with is, the police officer was exercising a question of judgment.

What did he -- did he bonafidely feel that there could be a disturbance of the peace.

Now, not that they were disturbing the peace but by their actions caused others to disturb the peace and --

Justice John M. Harlan: Mr. Garfunkel, could I ask this question?

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice John M. Harlan: The basis of the statute you mean to say should be taken mainly that the defense is this being a proper question for his argument, what do you do with the statement that the -- it seems to be understood that the arresting officer so said that one consideration would let the command whether this man was a (Inaudible).

Mr. Sylvan A. Garfunkel: Yes, sir.

I --

Justice John M. Harlan: Is that consideration?

Mr. Sylvan A. Garfunkel: That is the -- if that was the overriding consideration for the men's arrest, I would say that this case should be reversed.

Justice John M. Harlan: And you don't get to any question of the sufficiency of the evidence or anything absolutely --

Mr. Sylvan A. Garfunkel: If I'm going -- the question as to --

Justice John M. Harlan: I wish you'd deal with that point.

Mr. Sylvan A. Garfunkel: Yes, sir.

The question present wouldn't in the -- by in the briefs.

The question presented by the petitioner and the way the question is presented by the respondent expressly states that because in -- in our brief, we have put the question in this manner and we feel that the evidence shows it.

Whether the conviction of petitions for unlawful assembly denied them due process of law under the Fourteenth Amendment when they were convicted on evidence which showed that they were grown Negro men, who took over a playground in a predominantly white neighborhood, at the time when the playground was reserved for and was to be used by school children, and they refused to leave when requested by the police.

Now, the reason he said he asked them to leave was because he expected the children.

Now, they say that children -- he said he knew the children will be there by 2:30.

He knew they were going to be there by 2:30.

They could have come earlier.

He asked them to leave.

Now, here we are in a predominantly white area --

Justice Hugo L. Black: What does that have to do that?

Mr. Sylvan A. Garfunkel: Your Honor, because they asked the question of --

Justice Hugo L. Black: (Voice Overlap) a classification of this.

Mr. Sylvan A. Garfunkel: Yes.

He said that they asked on cross-examination.

It was one of the reasons you arrested them because they were Negro.

And he said partly, one of the reasons was but the overriding reason that --

Justice Hugo L. Black: But -- why should you include in your question then unless it was based on color, the base that it was in a predominantly white neighborhood?

Mr. Sylvan A. Garfunkel: Because the evidence showed it was in a predominantly white area --

Justice Hugo L. Black: Alright.

Mr. Sylvan A. Garfunkel: Because it was part of the thing that he was felt -- he felt --

Justice Hugo L. Black: If you don't get -- it shows here that your law is alright if you provide that their parks are located in a predominantly white neighborhood, people can be excluded on that kind of their color?

Mr. Sylvan A. Garfunkel: No, sir.

Justice Hugo L. Black: But what does that have to do --

Mr. Sylvan A. Garfunkel: We would -- because the question was asked the police officer.

And we said -- and that was on cross-examination.

If this had been white adult man, they would still have been asked to leave.

But the fact that they were Negro added to the fear of the police officer, that here they were on a playground at that time was reserved for these children.

And the park superintendent says, “We keep them separate as to groups because it's not good park policy to have grown people on a playground which is reserved for children.”

He says, “We don't want it.”

And that is in the record.

Now, here with these people in -- who if they had been adult white men would still have been requested to leave?

But the question on cross-examination was asked said, “Well what's part of the reason, was it read this as partly.”

Well of course in the policeman's eyes, it's a fact I can't deny it, that the fact that they had been therefore to -- were asked to leave that there was a further chance of a disturbance of the peace because of the fact that they were Negro.

That was merely -- that is not the overriding consideration.

Justice Hugo L. Black: What is -- do you think that would have been efficient ground to exclude them?

Mr. Sylvan A. Garfunkel: Which one sir?

Justice Hugo L. Black: The one that they were colored and just part within a predominant --

Mr. Sylvan A. Garfunkel: No, sir.

No, sir.

That would not have been sufficient and if that was the overriding reason, I would say this case should be reversed.

But the overriding reason had not -- color had nothing to do.

Justice Hugo L. Black: Suppose that's one of the reasons to say --

Mr. Sylvan A. Garfunkel: That now -- that is --

Justice Hugo L. Black: Does that make any difference?

Mr. Sylvan A. Garfunkel: We feel that if the fact that one of the reasons that the police officer says, if there is a --

Justice Hugo L. Black: (Voice Overlap)

Mr. Sylvan A. Garfunkel: Yes.

If there is a legitimate reason, reverse it.

If there is a legitimate reason for the police officer to ask them to leave without regard to color, the fact that color might incidentally be part should not say that you would not be guilty.

For instance, suppose white adult men went on the playground and they ask him to leave and this case came up on the record of the same type that they went there and played the same way.

Then, it would be fact that these people were white not would that mean that they should be acquitted when colored in the same category would be -- would be convicted with color from the same category would be convicted -- would be acquitted.

Chief Justice Earl Warren: If these people were -- had been white people, would you have put in your question as you read it to us the fact that this was in a predominantly white neighbor?

Mr. Sylvan A. Garfunkel: No, sir.

I would not.

The only reason I mention that was because in the record it shows on cross-examination to the -- in our answer to one of the defense attorney's lawyer -- lawyers that -- one of the defense attorneys, was one of the reasons you asked that you arrested them because they were Negro or why -- “did you arrest them because they were Negro?”

And in response to that question, he said, “Yes”, and that was what we put on the question because it was -- it had been -- it had been put into the case by the defense counsel.

Chief Justice Earl Warren: Why do you say that the predominant reason for the arrest was other than -- than because they were Negroes?

Mr. Sylvan A. Garfunkel: Because the facts that the State proved showed that colored children had played in that park on other times and never been arrested.

The te -- undisputed testimony of the park superintendent was that there was -- that they had a right to play and it was legal.

That the park superintendent was aware of the fact that colored children had played in that park and not been arrested.

The arresting officer himself testified that he had seen colored children playing in that park and they had not been arrested.

So that in this instance, I would now say one swallow wouldn't make a summer.

One arrest of these people does not show quite a program of such segregation but there's this feeling that this would be a legitimate area of inquiry by this Court and by any of the high appellant courts.

We, the State showed in its -- by putting this that this was not the reason because if it were the reason -- if this were the true reason, then it will also have been applicable to all of the other instances and they should have been arrested to show that.

Chief Justice Earl Warren: Then to the extent that -- that he was motivated by the fact that they were Negroes, the arrest would be illegal.

Mr. Sylvan A. Garfunkel: If that was the sole -- if that was the proper overriding reason.

By that I mean if that was his motivating reason.

Chief Justice Earl Warren: Now you -- you say the other is the overriding reason.

I understood Mr. Nabrit to say that one of these officers testified that they didn't know anything about the rules, they didn't know had any rules and they know what they were, and that he didn't, in effect, that he didn't arrest them because of the violation of the rules.

Mr. Sylvan A. Garfunkel: He arrested them.

He said because in --

Chief Justice Earl Warren: Now was there -- is that true?

Mr. Sylvan A. Garfunkel: That is correct in this respect that he didn't know about the rules of the park but he did know of the facts that the children would be there.

He knew that everyday, he arrives this street and he knew that everyday these children came out and played in the park during recess as he put it which was probably during their physical education or --

Chief Justice Earl Warren: But he didn't know there were any rules against anybody being there.

Mr. Sylvan A. Garfunkel: No, sir.

He knew that that park was reserved for those children.

Chief Justice Earl Warren: Where did he say it?

Mr. Sylvan A. Garfunkel: He says that that “I knew that within half an hour in the --

Chief Justice Earl Warren: Within --

Mr. Sylvan A. Garfunkel: Officer Hillers or Officer Thompson.

“Under ordinary circumstances, I would not arrest boys playing basketball on a public park.

I made this arrest around 2:00 and the school is that around 2:30 and I would have been at least 30 minutes before the children.”

Well, that was in cross-examination but the children from the schools -- it's page 40, middle of the page, “the children from the schools would have been out there shortly after that.

The purpose of asking them to leave was to keep down trouble which looked to me like it might start”, and up to top.

“There's a school nearby this basketball court.

It is located at Washington Avenue in Bee Road, I mean, at Washington Avenue in Waters which is just across the street.

There's another school on 44th Street.

There are two schools nearby.

I believe that they are both Drama Schools.

I patrol that area and the children from these schools play there.

They come there everyday, I believe.

I believe they come there after -- afternoon when they get out of school and I believe they come there during recess.”

Chief Justice Earl Warren: But he also says, “I don't have any knowledge to myself, if any certain age group is limited to any particular basketball court, I don't know the rules of the City Recreation District.

Mr. Sylvan A. Garfunkel: That's right.

That's right, sir.

Chief Justice Earl Warren: And still he -- he arrested them presumably for a violation of those rules plus the fact that they were Negroes.

Mr. Sylvan A. Garfunkel: No.

He arrested them Your Honor for them failing to leave when he made this request.

Chief Justice Earl Warren: Well, but if they weren't doing anything illegal, if he had no knowledge of them violating any rules, then he have the right as a police officer just to move them along.

Mr. Sylvan A. Garfunkel: That is the -- well that is the main issue as we see in this case.

Chief Justice Earl Warren: Well, does he have that right as a police officer?

Mr. Sylvan A. Garfunkel: We feel as a police officer, he has the right to ascertain from the facts that he can tell from what's happening to determine whether he should make a request to leave.

That it's a question of judgment that there might be a question whether if you or I or someone else was there whether we think that we should have asked them to leave.

But when the police officer acting on the best available evidence the way he observes it, makes this request to leave.

That if there is any evidence whatsoever to sustain him to show that this was a bona fide request that he was trying to keep down good order in the parks.

That then that should be obeyed and that he would fairly to obey it, you're doing it as your peril where you might be right and you might be wrong.

In other words, you say, “I did leave and I was right” just like some types of answers, go ahead and violate that law, it's unconstitutional.

You violated at your peril and I think that when --

Chief Justice Earl Warren: That's true.

What if -- if these people were doing nothing out of the way which he -- which he said.

He said that they were just playing -- they're just playing there and doing nothing else and if that is true.

And if it's true that he had no knowledge of the violation of any rules of the park, what is there in this case to indicate that these people were doing something unlawful for which they could be moved along by a police officer without an order?

Mr. Sylvan A. Garfunkel: We were not charging them we're doing something unlawful, Your Honor.

We were charging them with going upon the parks for the purpose of disturbing the peace and in that --

Chief Justice Earl Warren: It was a public park.

Mr. Sylvan A. Garfunkel: That is correct, sir.

Chief Justice Earl Warren: Didn't they -- you admitted that they had the right to go there?

Mr. Sylvan A. Garfunkel: The -- they have to --

Chief Justice Earl Warren: Didn't you?

I thought your opening statement was that they had the right to go to that park.

Mr. Sylvan A. Garfunkel: We said they have -- if the -- if this arrest was used for the purpose of preserving segregation in the park, we say that it should be reversed.

We further state --

Chief Justice Earl Warren: Well, you mean that -- that although, you admit that that you don't admit that a Negro had a right to go on that court?

Mr. Sylvan A. Garfunkel: No.

I -- the Negro had a right to go on that court but not for the purpose which they went on.

In other words, they went on to see if what will happen.

They went on to see if they can play.

Chief Justice Earl Warren: Well, I thought --

Mr. Sylvan A. Garfunkel: And as they -- at the time of day, what is that sir?

Chief Justice Earl Warren: I thought you also told us that you made no point of that, that they had a right to go there because it was legal under the rules of the park where Negroes or anybody could go in that park.

Mr. Sylvan A. Garfunkel: No, sir.

I said that -- no, sir.

I said that was the -- they have -- it was -- I admit that if there's no -- there's no park segregation but you do not have a right to go on to the park when the park is reserved for others and you're requested to leave.

And we see the purpose is when they went on to this playground for the purpose of disturbing the peace not by their actions but by the reaction that they could get from the people around there.

That if they had actually gone upon that park to play basketball, they would have acted in a different manner.

That these were grown man, 23 to 32 years of age and they went on with the purpose of seeing not of their actions but the reaction and part of the -- part of the disturbance of the peace as we understand in our brief.

In our brief to the Supreme Court of Georgia, we have dealt very extensively with that and that was made a part of this record.

And part --

Chief Justice Earl Warren: But Mr. Schneider, I -- I must come back to this -- this statement.

“I observed the conduct of these people when they were on the basketball court and they were doing nothing besides playing basketball.

They were just normally playing basketball and none of the children from the schools were there at that particular time.”

Now, what was it -- are you going to tell us that -- that because someone else driving around that park might get excited and might do something unconstitutional that these people can be put in jail --

Mr. Sylvan A. Garfunkel: But these, that --

Chief Justice Earl Warren: -- for not moving along and --

Mr. Sylvan A. Garfunkel: The unconstitutionality was not because at this time, this park was a well-known public playground that people riding around and we presume new that those children were coming because they'd come there everyday during school hours, and now here were these men who had come on this park at this time when these children were generally there and they took it over.

And we say that this was a reaction --

Chief Justice Earl Warren: They took it over?

Mr. Sylvan A. Garfunkel: Well, they took over the playground.

There was nobody else.

The play -- certainly the school teachers or the children would not want to go on a playground.

They would not -- not -- might want to go there but you -- you would not want them to go on the playground.

Chief Justice Earl Warren: Is that all there was on the playground just a basketball park?

Mr. Sylvan A. Garfunkel: No, there's the -- the record does not show it but I can state that there's swing and slides, there's a playground area.

That's a very --

Chief Justice Earl Warren: -- rather large park.

Mr. Sylvan A. Garfunkel: It's a very large -- it's a very -- the -- it's a large park but the playground area is small.

The playground area is at one end of the park.

The rest of the park is devoted for other purposes.

And the playground area is immediately across the street from these schools.

Chief Justice Earl Warren: Very well.

Justice Hugo L. Black: Suppose you'd had a statute enjoined stating precisely what you've said here.

There was the overall consideration for making it illegal for these people to stay there.

In other words, you had a statute which said that if Georgia wants to -- wants to regulate the park and regulates it this way, where men go on the park, played and they are colored, and they are there the time when they should not be there, that's not what you've argued here as to what had happened, the -- they shall be committing an offense.

Mr. Sylvan A. Garfunkel: No, sir.

Justice Hugo L. Black: Or they can be convicted of a defense.

Mr. Sylvan A. Garfunkel: No.

Such a statute would certainly be unconstitutional because of the fact that it was -- part of it was --

Justice Hugo L. Black: The Court had embraced it.

Mr. Sylvan A. Garfunkel: The Court embraced the fact that they were colored.

Justice Hugo L. Black: Well, what was the reasons that this man gave for excluding these men for not one being it was color and if we didn't have to try to determine which was the overriding ground for the statute, if it was a statute, why would we have to decide when it's in this -- brought up in this neighborhood statute.

Mr. Sylvan A. Garfunkel: It -- the statute -- the question of the colored with what as if we're going into what is in the mind of the police officer as to why he asked them to leave.

He said --

Justice Hugo L. Black: He went in good and said he arrest them because they were colored.

Mr. Sylvan A. Garfunkel: No.

He said first originally, “I arrested them because I was afraid of what might happen.

Children were expected on the playground within a certain -- by 2:30.”

Justice Hugo L. Black: And you also use the word he arrested them because they're colored, weren't they?

Mr. Sylvan A. Garfunkel: The police officer on cross-examination.

Justice Hugo L. Black: But whatever it was --

Mr. Sylvan A. Garfunkel: Yes.

Came back on cross-examination and said, i was one of the reasons or it was the reason that you arrested him because they were colored, he said, “well part”.

But that was not the reason that he yield.

Justice Hugo L. Black: I suppose that Georgia statute said partly because we don't -- do not want the people to play --

Mr. Sylvan A. Garfunkel: Statute would be unconstitutional.

Justice Hugo L. Black: It would be unconstitutional.

Mr. Sylvan A. Garfunkel: That's right.

Justice Hugo L. Black: Well, why wouldn't it be it if they try to do the same thing with other statutes?

Mr. Sylvan A. Garfunkel: But then the State of Georgia is not that is why we went into the other --

Justice Hugo L. Black: But you have to extend --

Mr. Sylvan A. Garfunkel: Yes.

That is why we -- yes.

Yes.

But I'm talking about that that is though in the record honestly, Your Honor.

So that is why we went in to the other issues to show that under similar circumstances where there were children who were colored, they were not asked to leave or not arrested.

That they -- because of the fact that to show that the reason for the arrest was not override -- primarily because they were colored, the reason for the arrest was because they were grown men.

If they had been children and they would not have been arrested.

Justice Hugo L. Black: Of course, if this were to be used as a device for the purpose of keeping colored men off, you'd agree that you can't do it.

Mr. Sylvan A. Garfunkel: That is exactly what I said at the beginning of my argument.

Justice Hugo L. Black: Any more than you could disfranchise people by the grand --

Mr. Sylvan A. Garfunkel: That is exactly what I've said so that we were trying to show to the Court and to the jury by the testimony of the police officer that in other circumstances, colored children had been allowed to play on this playground, had not been arrested.

So that this would differentiate and show that color was not and at the same police officer said that he had seen colored children playing out on this playground and had not arrested and ask them to move.

But he said, “But this was different.

These were grown men and this playground at that time was designed, was set aside, and I knew the children were coming.”

Justice Hugo L. Black: Well suppose they only applied it to grown men when they were colored.

He said, “These were colored and they were grown men.”

Mr. Sylvan A. Garfunkel: Then I think if the defense would have shown that that had been abused for a purpose that they were only applied to colored grown men, I think it would have been a valid defense and they should have been acquitted.

I would like to call the Court's attention to the fact that no evidence was introduced by the defendants.

The only witnesses were witnesses by the State.

Justice Hugo L. Black: Why did they need to introduce and show the reason for the arrest when the man who made the arrest gave the reason?

Mr. Sylvan A. Garfunkel: Well, you go to the fact that, Your Honor, puts the question to me if they just arrested -- didn't arrest any white people or white men.

I might say that nobody has been arrested, no colored man has been arrested, or no colored children had been arrested under this statute, and we have had no further difficulty on this question.

This is the sole arrest that was made.

Colored children had played on the parks and grown colored men had played on the parks during the afternoons after school hours.

I don't know if they play in Daffin Park so much because it's -- as I say, it's further away from the colored area, but they do play quite extensively in park extension which is in the middle of the mixed area.

And every afternoon, they're out there playing.

Justice Hugo L. Black: In your view that if we find -- if we will have to find whether this was the overriding purpose and this is what you call the overriding purpose, Georgia has the right to do it.

Mr. Sylvan A. Garfunkel: I would say that the jury had a right to find the man guilty because of the fact that he was -- the overriding purpose was not -- whether the statute was not being used as a -- as a cloak to preserve segregation and it was not being used as a cloak to serve -- to preserve segregation, then we feel that it should be affirmed.

Justice Hugo L. Black: What was the actual reason the officer gave to these petitioners?

Mr. Sylvan A. Garfunkel: The petitioners did not actually ask it.

The petitioners -- he went up to the petitioners and said, asked them to leave but they said, “By what authority do you get here”, in a very sarcastic manner.

And that was all.

They did not ask why.

I think if they had asked why they would be entitled to be given a reason.

But the evidence of the officer says, he said, “By what reason?”

he said, “Well I -- by what authority” and then he said, “Well, I'm going to have to ask you to leave and if you don't leave,” he says, and they just piled into his police car that he had -- that there were seven of them, he had to ask them to get out and wait until the cruiser because it couldn't carry them all.

He said they look like -- the testimony of the officer said, “They look like they were waiting to be arrested.”

Chief Justice Earl Warren: Well, has somebody asked you to get out of the public park whether he's a police officer or not?

What would be your question?

Wouldn't you be likely to ask him for what reason or by what authority he was ordering you off?

Mr. Sylvan A. Garfunkel: I think that would be by what authority, but he said he put it in the way of what authority because the police -- he put it -- he did not -- he put it by what authority but he did not ask the question why are you asking me to leave or why are you asking us to leave?

They were merely -- supposedly we said they're ready to be arrested the way from the -- the way the police officer said.

They went on that park ground.

They played when a police officer came up and ask them to leave.

And he says if they don't leave, they said, “By what authority?”

and then he says, “I'm going to have to arrest you” and says, they just piled right in there and that is in the record.

The police officer it looked like to him.

Chief Justice Earl Warren: The fact that they went along with him peaceably after he arrested them --

Mr. Sylvan A. Garfunkel: No, not a question of --

Chief Justice Earl Warren: -- could be taken as evidence against the --

Mr. Sylvan A. Garfunkel: No.

Not a question that they went along peaceably, Your Honor.

But that they practically anticipated it.

That's the point I'm getting at.

Chief Justice Earl Warren: Very well.

Justice Hugo L. Black: Does your state permit arrests by the policeman where a man gets peacefully out of place without getting him arrested?

Mr. Sylvan A. Garfunkel: Our state -- I think the police officers in uniform and the police officer has a right to arrest a man for -- for committing an offense in his presence.

Of course, this became an offense when he asked to leave and they didn't.

Justice Hugo L. Black: Without telling him why?

Mr. Sylvan A. Garfunkel: It doesn't state whether you have to tell the man why at that time.

I mean, it was perfectly obvious what was going on.

I think if you were to be the man and say, “I'm going to arrest you”, the man will say, “Well what's my arrest?”

He would tell him what I think the normal person would ordinarily say “Why are you arresting?”

I think if I were some policeman say, he was going to arrest me the first question I'd ask him was why and I wouldn't probably say by what authority because I think this authority is uniform.

Justice Hugo L. Black: He might choose other words.

Mr. Sylvan A. Garfunkel: Yes.

But I think authority means --

Justice Hugo L. Black: Now, let's suppose one of the first basic rules to that arrest here that you arrest a man, you got to tell him why, by what authority you got, wouldn't he have the right to resist it if he didn't?

Mr. Sylvan A. Garfunkel: If he is questioning the arrest, if he is questioning and suppose, and I'm talking about the questioning the reasons for the arrest.

Now, if a man in -- if I were in plain clothes and I were a detective and I said to a man, “You're under arrest.”

He might want to know by what authority that I have to arrest him.

But he was a man in his uniform and the record shows that he was in his own uniform as a police officer.

Now he says, “I'm going to have to ask you to leave.”

And they say, “By what authority do you come out here to tell us such.”

Then he said, if he has said, “Why” and the police officer said, “Well, there are going to be children out here on this playground in a few minutes, and we're asking you to leave to let them come out here.”

I think it would have been a legitimate question for why and I think the policeman ultimate them a duty to tell them why.

But they didn't go that far.

As soon as he said, “I'm going to have to arrest you”, they immediately piled into the car.

And that was why he said that they -- they anticipated all of these.

Justice Hugo L. Black: His answer didn't encourage them to think that he was anxious to let them know why he was arresting them.

Mr. Sylvan A. Garfunkel: I think Your Honor that the record will show that most of the - the record shows most of the sarcasm or all the sarcasm was on the part of the defendants.

There's no record and thing to show that the policeman did not act in a polite or courteous manner to these men.

Justice Hugo L. Black: It's in there that they didn't act politely?

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice Hugo L. Black: When?

Mr. Sylvan A. Garfunkel: He says that that “One of them sarcastically asked me.”

Justice Hugo L. Black: Sarcastically.

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice Hugo L. Black: You mean by the inflection of the voice?

Mr. Sylvan A. Garfunkel: I don't know exactly what I mean.

All I know is that that's what the witness testified to Your Honor.

On that point, that the witness was given.

It's his opinion.

One of them said sarcastically.

Chief Justice Earl Warren: But later he said they were in there peacefully, just playing basketball and doing nothing else, and it would be somewhat irritating wouldn't it to be thrown off of the --

Mr. Sylvan A. Garfunkel: But Your Honor --

Chief Justice Earl Warren: -- basketball court or out of the park.

Mr. Sylvan A. Garfunkel: -- let's see, it is the reaction that hurts that the -- to come to such order.

It would hurt me a lot of things to be thrown out of anyway too.

But it's the reaction that's call.

For instance, let's use another example because I see it's very hard to realize that what we are saying is not their actions but it's the reaction that arises from their actions.

Let us take this.

I'm Jewish.

I'm a member of the Orthodox faith.

Now, there's a big difference between the Conservatives and the Orthodox.

The main difference isn't seen mixed seating -- in Orthodox you have separate seating and Conservative you mixed seating.

And I'll just say we have an Orthodox synagogue and they're having services on Saturday and a member of the synagogue is one of the things they should have mixed seating.

So on a Saturday morning, he comes dressed with his wife and they go down and sit in the middle of the synagogue peaceably without doing anything, asking for -- for prayer here, and want to engage in prayers in there.

They're not doing anything unlawful.

They're not disturbing the peace per se.

But I believe that you would have a tremendous reaction in a truly Orthodox synagogue by these people so sitting in the section reserved exclusively for men.

Chief Justice Earl Warren: But do you think if a man -- do you think if an Irish policeman came in there and said, “Get out of here.”

Mr. Sylvan A. Garfunkel: I think --

Chief Justice Earl Warren: Do you think that they wouldn't have a right to say, “By what authority do you do this?”

Mr. Sylvan A. Garfunkel: I think if they asked, “By what authority”, well I think -- by what authority they ask to come in, and I think if he said, “By the authority of my uniform”, I think they would be required to go.

Justice William O. Douglas: But you've overlooked one other --

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice William O. Douglas: -- crucial fact here is that the State has sent somebody to prison or fine somebody --

Mr. Sylvan A. Garfunkel: Fine somebody.

The fines where you would notice were $100 well, six of them -- five of them were $125 for the six and it was a reason for that.

I mean there was no intent to -- to make a big case.

It was just a question of whether they were -- had actually violated the --

Chief Justice Earl Warren: But if they don't have $100, they go to jail?

Mr. Sylvan A. Garfunkel: I think -- if they don't the $100, they would have to go to jail, wouldn't they?

Thank you.

Chief Justice Earl Warren: Assistant General, very well.

Mr. Nabrit.

Rebuttal of James M. Nabrit, Iii

Mr. James M. Nabrit, Iii: May it please the Court.

These were the first Negroes to play on this basketball court.

There was some evidence that the young children had fished in Daffin Park.

But all the witnesses agreed these were the first -- no colored children had played basketball here.

As I understand the State's argument it is that Negro is welcome in this park and has the right to play there, but he doesn't have a right to come there for the purpose of finding out if there so.

In any event, this is a segregated park to me where the only Negroes -- segregated basketball court where they only Negroes who go there get arrested.

People against Galvin, a New York case was mentioned and that case involved no constitutional issue state or federal.

This is direction of a state law.

Now, this argument that com -- the State makes that there was a purpose to commit a breach of the peace is an intent to prove a state of mind.

It's an attempt to prove a state of mind in a case where there's no admission of such a purpose and where there are no circumstances from which you could infer such a purpose.

The circumstances of the State points to are, one, the fact that these are Negroes in a white neighborhood, and two, a claim that this playground was reserved.

Now, if the -- if you accept the State's case as a strong case that maybe somehow this area was reserved for children, you still can't get an inference of an intent to commit a crime without making an unconstitutionally impermissible use of the statute to permit someone to be punished where he didn't know.

They had no opportunity to know of this rule, that he was breaking the rule.

There were no signs around that this was reserved for children.

This -- there's nothing in this case, in Mr. Hagan's testimony remotely rising through the dignity of a rule or regulation.

The best you can get is that he had a personal preference, department preference unexpressed to anyone until the trial for children to use the basketball court.

And there are some -- in his testimony about of it being reserved for the use of the schools he says they are more or less left available for them.

But there's no reason I think that the petitioners had any opportunity to know this.

So the statute would be doubly vague.

Indeed, this is very reminiscent of the problem in Niemotko against Maryland where the petitioners before this Court were convicted of disorderly conduct for holding a religious meeting in a public park where the -- there was no -- and the only claim of disorderly conduct was that they were there without a permit and there was no ordinance requiring that there'd be a permit, if -- and indeed no standards for the grant of a permit but the facts are somewhat analogous.

Now, there is a contention that because children were going to be at this park in half an hour, perhaps this is a circumstance from which you can infer a breach of the peace.

There's no evidence to indicate that the petitioners knew the children would be there in a half an hour.

When they asked the officer by what authority -- I think I will read that testimony.

One of the -- I don't know which one it was, this is Thompson testifying.

Justice John M. Harlan: What page?

Mr. James M. Nabrit, Iii: Middle of page 40.

He says, “One of the -- I don't know which one it was, came up and asked me, who gave me orders to come out there and by what authority I came out there.

And I told them that I didn't need any orders to come out there.”

You can translate that testimony about you can imagine what that officer really said.

The -- but his own version of it is that he didn't -- he told that this -- he didn't need any orders to come out there and order them off.

Well the point of this is that the --

Justice Arthur J. Goldberg: Imagine what the officer said, can we also imagine that these fellows came out in the park to test the segregation questioned in the park and prepared to take the consequences of that if there might be some trouble if they did?

Would that be a fair inference from this record?

Mr. James M. Nabrit, Iii: I -- I think my argument is the same whichever way you look at that, Your Honor.

I think that we can assume that a Negro going on to a customarily white basketball court in Savannah, Georgia is engaging in nonconformance conduct --

Justice Arthur J. Goldberg: Which might create some problems?

Mr. James M. Nabrit, Iii: That's right.

But to me, that doesn't --

Justice Arthur J. Goldberg: But you'd he had the right to do it.

And that he would be protected and he has the right not arrested for exercise, is that what you said?

Mr. James M. Nabrit, Iii: That's right.

Now -- and to finish that, that the officers never connected.

They're orders that lead to this problem of -- that the park was for children or to the half hour period.

Actually, half hour is a pretty good period to engage in a basketball game especially when you get up around 30 years old.

I respectfully submit that the judgment below should be reversed.

Featured:

Wolfe v. North Carolina - Oral Argument, Part 1

Thu, 29 Nov 2012 22:24:20 +0000

Case:

Wolfe v. North Carolina

Media File:

7_19591019-argument-1

Related Transcript:

7_19591019-argument-1

Transcript:

Argument of J. Alston Atkins

Chief Justice Earl Warren: Number 7, Leon Wolfe, George Simkins, Jr., et al., Petitioners, versus the State of North Carolina.

Mr. Atkins, you may proceed.

Mr. J. Alston Atkins: Mr. Chief Justice, may it please the Court.

In this case, the Court postponed further consideration of request in the jurisdiction until this hearing on the merit.

We have discussed the manner of jurisdiction at length as the first question in the brief on the merits and we do request consideration here.

Appellants have alleged the questions of jurisdiction in this kind of setting.

In this case, six Negro appellants who are citizens of Greensboro, North Carolina, had been convicted of the crime of criminal trespass for peacefully playing golf on the public municipal golf course of that City.

And appellants are under a 15-day jail sentences imposed under Section 14-134 of the General Statutes of North Carolina.

Appellants alleged first in the motion to quash and then in the motion to set aside the verdict, the motion to quash being incorporated also in the motion to set aside the verdict.

That this statute in this case has been and is being unconstitutionally applied to these appellants because it is being used to implement by prosecution and jail sentences, the denial of certain constitutional rights of appellant under the Fourteenth Amendment and also in the Supremacy Clause of the Constitution.

In that -- first in this case on the question of racial discrimination, the trial court was put upon notice in the motion to quash that the position of the defendants there, appellants here, was raising a question of racial discrimination and when the trial came on, the trial court in this case close the mouths of the State's agencies who were in operation and control of this golf course by refusing to permit them to divulge what they knew and it's -- we believe what the State knew as to the operation of this golf course, so far as the exclusion of Negroes from participation and discrimination against them in play upon this golf course

Those actions of the trial court found on pages 45, 48, and 78 of the record, where on page 45, the appellee's agent (Inaudible) who was the assistant golf pro in charge of the golf course, when appellants sought to play, testified that no Negro had played on this golf course, insofar as he knew and when -- but that some had sought to play and when he was asked to tell why they have not played, the trial court would not permit him to testify with reference to why Negroes had not played on the golf course.

On page 48 of the record when the golf pro and manager of the golf course himself, was on the stand -- and by the way, his testimony shows that he had been the golf pro and manager from the time the golf course was first opened in 1941, down until the time of this trial.

He was not permitted by the trial court even to tell whether or not any Negroes had played on the golf course, to say nothing of while he had not played.

As of those two witnesses, it's our view that they knew more about the question of racial discrimination on this golf course than anybody else and that it was virtually preventing the appellants, defendants there, from proving by the State's own agents, whose knowledge we believe of knowledge of the State, that there was in fact racial discrimination and exclusion from this golf course.

Now, on page 78 of the record, the president of the golf corporation which was found to be insofar as I know, there's no dispute as to that golf corporation being an agency of the State, it appeared that he was a witness in a case in the United States District Court for the Middle District of North Carolina, which I shall discuss shortly.

Where --

Justice William O. Douglas: Who is this witness, did you say?

Mr. J. Alston Atkins: His name is John R. Hughes.

He was the president of this golf corporation which was in control in management of the golf course.

He had testified in a case in the United States District Court for the Middle District of North Carolina, involving the identical acts of playing golf which held to be a crime in this case.

And the appellants, defendants there, undertook to show by this witness that what he testified to in that case.

And the trial court refused on this ground.

Appellants have sought to call him as an adverse witness when the State rested this case without calling him and the trial court refused to be permit -- to permit and to be called as an adverse witness.

He had been subpoenaed to bring the bylaws of the corporation which he did.

And so the defendants, appellants here, put him on the stand anyway and to try to prove what he knew better than anybody else, in turning -- concerning the operation of this golf course and he had been the chief witness through which racial discrimination and the mechanics and the actualities of operating the golf course have been proved in the federal court case to which I will come in a moment.

And because the appellants, defendants there had -- had called him, when State rested without calling him and when the federal court refused to permit and to be called as an adverse witness, I think the record shows clearly that he was hostile.

The trial court would not permit the appellants, defendants there, to prove anything in the transcript of the record from the federal court by this witness.

We think that the Court has jurisdiction to review the question of whether or not, these actions of the trial court do implement a denial of due process by preventing the defendants' files here from proving that case there and hence, preventing them from proving the question of racial discrimination.

Justice Felix Frankfurter: What was it that they were not allowed to prove?

What offer of proof did they make that was denied by the trial court?

Mr. J. Alston Atkins: They -- the defendants there, counsel for defendants, when the witness Hughes had said that he had not testified for his association in the federal court case.

The counsel for appellants, defendants, said -- I think that's found on the top of page 78 of the record, “I hold in my hand a transcript of the record in that case.

Whereupon, the prosecuting solicitor objected and the trial court would not permit the appellants, defendants there, to go any further into the matter of what was in that transcript of the record.

Justice Felix Frankfurter: What does -- what does that mean, I told you that you could call him as your witness?

Mr. J. Alston Atkins: Defendants --

Justice Felix Frankfurter: I --

Mr. J. Alston Atkins: -- have sought to call him as an adverse witness, so that they might impeach him.

And if he was hostile as he was clearly hostile from his answer to the question in the bottom of page 77, the State would not -- I though that the -- the trial court would not permit him to be called an adverse witness.

And to try to have his testimony, the defendants called.

Justice Felix Frankfurter: And so the real -- the real ruling adversed to you, that is to be complained of, is that he wouldn't allow you to introduce as evidence on the basis of having called a hostile witness rather than calling him as your witness and making him your witness and then making this offer.

Isn't that true?

Mr. J. Alston Atkins: That's correct.

Yes, sir.

Justice Felix Frankfurter: Well, is that a -- you -- is that violative of the Fourteenth Amendment?

Isn't that a ruling on the local law of evidence?

Mr. J. Alston Atkins: Except as it presents a question of fundamental fairness which we think it does, all of these rulings not permitting these witnesses to testify with regard to the question of racial discrimination which will --

Justice Felix Frankfurter: But he didn't rule that you couldn't offer their testimony.

He said, “You must introduce that to one vehicle rather than another.

You chose to bring this in as an impeaching testimony.”

And the Court said, “Bring him in.

Call him as your witness.”

Now, I'm not -- I don't know whether he was right or wrong about it, but I want to know whether that is the basis of saying some United States constitutional right was denied to, that he made a ruling as to whether you should have an adverse witness or your own witness.

Mr. J. Alston Atkins: Well, as I have thought, Mr. Justice Frankfurter, that where a State through its agencies, is in possession of information which nobody else possesses and we -- and we think that that was clear and true after this president of the operating corporation of the golf course, that it -- it presents a question of fundamental unfairness when the State refuses to divulge through him, what he knows with regard to that matter.

Justice Felix Frankfurter: Well, then the -- then the claim of violation of due process is that you weren't allowed to bring forward your testimony, relevant testimony and therefore, the trial was fundamentally unfair.

Is that your position?

Mr. J. Alston Atkins: That's one of the -- so far as these --

Justice Felix Frankfurter: That has nothing to do with -- that has nothing to do with discrimination or the use of the golf course or anything.

That has to do with the conduct of a trial and he alleged unjustifiable -- so unjustifiable as divided at the due process of letting you prove your case.

Mr. J. Alston Atkins: Mr. Justice Frankfurter, where it is clear that the question of racial discrimination is involved as it was, we believe in this case especially in view of the motion to quash.

And the -- those who are operating the golf course, the golf assistant pro (Inaudible) the golf pro manager then established, when they are asked, "Have Negroes played on this golf course as best for last?"

And he said, "They have not to his knowledge, but that some have presented themselves for playing."

Mr. J. Alston Atkins: We think that it does present a question of fundamental unfairness when the State refused to permit him to tell why the Negroes were not permitted to play or did not play on the golf course.

Justice Felix Frankfurter: Well, would you -- you could have to tell me whether you maintain that the court, the trial court, unqualifiedly prevented you from putting in this evidence or merely said you can't do it this way which is it?

Mr. J. Alston Atkins: Well, I think they settled as to these witnesses that you could not prove it by them.

Justice Felix Frankfurter: By them, calling them the way you did.

He --

Mr. J. Alston Atkins: On a state.

Justice Felix Frankfurter: -- didn't even say you couldn't -- you could --

Mr. J. Alston Atkins: The State -- the State called up the -- the assistant golf pro and the golf pro, they were not our witnesses.

Justice Felix Frankfurter: Well, I understand that.

I don't know the rest of the record, but what you called your -- our attention on page 78 that --

Mr. J. Alston Atkins: (Voice Overlap) --

Justice Felix Frankfurter: -- they right or wrong in reading that merely as a ruling as to the time and manner and circumstances under which what you offered to prove you were disallowed to prove.

Isn't that all that's set there on page 78?

You may have other matters in the record with which I'm not familiar.

Mr. J. Alston Atkins: Going to the question of adverse witnesses as I believe -- well, so far as we've been able to find there's no particular case on it, that where a state agent is in possession of information, it is clear that this agent is hostile, that the State there has violated due process where it refuses to divulge through this witness, by a rule that you cannot call him as an adverse witness.

For instance, when he said that he had not testified in the federal court case, we were not permitted to show by the transcript what -- what the facts were.

The second point is that in this case, this statute, if it meant the conviction and sentence to jail of Negro citizens for exercising constitutional right to play golf on this golf course, the identical acts of playing golf having been held by the United States District Court for the Middle District of North Carolina in the case of Simkins against City of Greensboro and others, that these identical acts represented the constitutional rights of the appellants and that the denial of play was unlawful -- an unlawful interference for the constitutional rights of the defendant who were plaintiffs in that action and that this denial was based upon race and color.

And at that point, which we think gives the Court jurisdiction and other matter of points that I mentioned in the brief, in this case for the very first time, so far as we have been able to determine --

Justice Potter Stewart: Mr. Atkins --

Mr. J. Alston Atkins: Sir.

Justice Potter Stewart: -- excuse me for interrupting you, but was this trial a jury trial?

Mr. J. Alston Atkins: The criminal cases --

Justice Potter Stewart: Yes.

Mr. J. Alston Atkins: -- before.

Yes, sir.

Justice Potter Stewart: And what did the trial court tell the jury about the matter of racial discrimination?

Mr. J. Alston Atkins: They said that the law of racial discrimination was that defendants could not be denied the right to play because of racial discrimination.

And that's why I think that the first point was -- we think the first point was important at the same time that he was saying that racial discrimination was not involved and could not be used to keep defendants from playing on the golf course.

He was refusing to permit the golf pro and the assistant golf pro, to tell why no Negroes had played on the course.

In other words, it's our view so far as that factual situation is concerned that number one, the -- the very thing that the trial court was telling to the jury about the federal law being that Negroes could not be excluded on the ground of race, he was by his by rulings, when the assistant golf pro and the golf pro will understand, refusing to let us prove those very things which would show racial discrimination.

The third point --

Justice Potter Stewart: I -- I don't quite get why evidence as to whether or not, other Negroes and other times had -- had or had not played on this golf course.

How -- how that would go to the merits of this particular case, so long as the trial judge instructed the jury as you tell us that he did that the Negroes could not be excluded because of the fact they were Negroes.

Mr. J. Alston Atkins: Well, there is a rule of exclusion which this Court asked about that with reference to the proof of racial discrimination, since it is very difficult to prove except by laws or doing of discriminating.

That is not necessary as I understand the rule in such cases Hernandez against Texas and Eubanks against Louisiana and others, that when the defendants in this case, appellants prove three things, first, that they are members of a group, a clan.

Second, that some of them have the same qualifications that other people have or permitted to exercise these public rights.

And third, that over a long period of time, no member of the class has been permitted to enjoy his right that that makes a prima facie case which then the State must met.

And we do not think they merit as required under -- under the decision of this Court.

All the testimony which they offered to me, it was the testimony of the assistant pro applied whereas he said, “The reason I didn't let them play was that this was a private club for members and invited guests only.”

We think that that's much weaker than in Hernandez where five jury commissioners in the presence of a prima facie case testified that they had used only their best judgment in selecting the best qualified jurors and where the judges in charge of the selection of jurors -- grand jurors, I believe in Eubanks, testified that they were just trying to get their best qualified people.

Now, that test order was held to be insufficient to meet the prima facie case.

We think that that is adequate if evidence in the record -- aside from they exclude -- the excluded evidence, but we think that it was a -- a denial of this constitutional rights to say in one breath that racial discrimination has nothing to do in the next breath that you cannot prove it.

Justice William J. Brennan: But the fact that this direct motion for a directed verdict and acquittal on the record as it stood.

As I understand it, the North Carolina law is that racial discrimination had that been established as the reason for the exclusion, would have been a complete defense to these charges.

Mr. J. Alston Atkins: I understand that that's true.

They recognize the decisions of this Court.

It's not -- not original on the -- but they (Voice Overlap) --

Justice William J. Brennan: Although, it was not in the course of this case, I forgotten, but were there not two opinions of the Supreme Court of North Carolina?

Mr. J. Alston Atkins: That's correct.

And then --

Justice William J. Brennan: And then the --

Mr. J. Alston Atkins: -- and we were first --

Justice William J. Brennan: -- it was laid down that if you prove racial discrimination that would be a complete defense to these criminal charges.

Mr. J. Alston Atkins: No, sir.

That question was not before the Court in that first opinion.

That was a failure of technical question of whether or not, there was a (Voice Overlap) --

Justice William J. Brennan: On any event --

Mr. J. Alston Atkins: -- of error --

Justice William J. Brennan: -- whenever it was, that is the -- that is the rule, I gather, is it not, in North Carolina?

Mr. J. Alston Atkins: In adoption of the --

Justice Felix Frankfurter: That's the ruling --

Mr. J. Alston Atkins: -- servants of this Court.

Justice Felix Frankfurter: -- that is the ruling, if I may intervene, that's the ruling of case.

The judgment of which is the one that is now before us.

Is that right?

Mr. J. Alston Atkins: I -- I think that's true.

Justice William J. Brennan: Yes.

That's what I said was.

Well now, as I -- I think you just said that there was other evidence upon which there might have been an acquittal establishing racial discrimination, notwithstanding the exclusion of the evidence you've been talking about.

And yet, do I understand that there was no motion for directed verdict of acquittal on that ground?

Mr. J. Alston Atkins: There was a motion for nonsuit, which I think mass with the same thing in --

Justice William J. Brennan: When was that?

At the -- at the --

Mr. J. Alston Atkins: Close of the evidence.

Justice William J. Brennan: At the close of the evidence?

Mr. J. Alston Atkins: That's correct.

Justice William J. Brennan: And then --

Mr. J. Alston Atkins: And then a motion set aside the verdict after the verdict, which raised these constitutional questions.

Justice William J. Brennan: Tomorrow, we're about closing time, would you point out in the record where that is?

Mr. J. Alston Atkins: Yes, sir.

Chief Justice Earl Warren: We'll recess.

Featured:

Wolfe v. North Carolina - Oral Argument, Part 2

Thu, 29 Nov 2012 22:24:21 +0000

Case:

Wolfe v. North Carolina

Media File:

7_19591020-argument-2

Related Transcript:

7_19591020-argument-2

Transcript:

Argument of J. Alston Atkins

Chief Justice Earl Warren: Number 7 Lean Wolfe, George Simkins, Jr., et al., Appellants, versus the State of North Carolina.

Mr. Atkins, you may proceed with your argument.

Mr. J. Alston Atkins: Mr. Chief Justice, and may it please the Court.

Today at the outset, I would like to address my remarks in answer to the question of Mr. Justice Brennan which was pending at the close yesterday involving all the facts on racial discrimination.

If Mr. Justice Brennan and Court will indulge me, I would like to make a brief background statement with regard to these additional facts which I think ultimately will show that this identical conduct of appellants, the identical acts of appellants which I held to be a crime in this case have been held by the United States District Court for the Middle District of North Carolina to represent their constitutional rights and that the acts of State's agents which the State has held to be lawful where an unlawful denial of these constitutional rights under the Federal Constitutions solely on the grounds of race and color.

Now while the appellate process was running its course in connection with the first set of warrants toward the first opinion of the State Supreme Court in this case to which Mr. Justice Stewart referred yesterday, these appellants as plaintiffs have sued in the United States District Court for the Middle District of North Carolina against State's agencies, City of Greensboro, Greensboro City Board of Education who held title of the land and Gillespie Park Gold Club, Inc. which was operating it and with -- about which they have no question of -- they've also became agents of the State.

The case was found Simkins against City of Greensboro and others the opinion of which is reported in 149F.Supp.562, In due course the case was tried by the honorable Justice J. Hayes in response to request for two types of relief which the appellant's plaintiffs here asked.

First was a declaration of the rights of the parties concerning these identical conduct here, these are identical acts of playing golf on this golf course and the right of appellants so to play and also the rights of the parties with reference to the conduct of the State's agencies in interfering with that right.

Second type of relief asked was injunctive relief against any future repetition of this type of conduct about which are declaratory judgment was asked in the first type of relief.

Upon the trial of issues, the appellants prevailed and a declaratory judgment was issued declaring number one but this -- these identical acts represented the constitutional rights of appellants and second that the acts of the defendant's agent says interfering with that right to play was unlawful under the Constitution of the United States and that it was done solely on the grounds of race and color.

Justice John M. Harlan: Are your clients sole plaintiffs in that (Inaudible)

Mr. J. Alston Atkins: No sir, there were four other plaintiffs.

They were total of ten, but I think that the record in that case and opinion and all of the items showed that the facts of the State Supreme Court say in this case is that this identical conduct was before them.

Judge Hayes on --

Justice John M. Harlan: All of your clients were involved?

Mr. J. Alston Atkins: All of our -- all of the appellants in this case were the six plaintiffs which I mentioned several times in the opinion and findings of fact in that case.

Justice Felix Frankfurter: Are you saying, what was the determined in that case was res judicata in the subsequent state case in which on the assumption that the same issue was involved -- that the same issue was involved, is that the point?

That it was res judicata?

Mr. J. Alston Atkins: I wouldn't use the word res judicata Mr. Justice Frankfurter --

Justice Felix Frankfurter: Well, I mean that the issue was determined one way in the prior proceeding to show in the federal court which subsequently became -- came into issue to the state court and therefore the issue was foreclosed by the federal -- I'm trying to find out what -- what the point is.

Is that the point?

Mr. J. Alston Atkins: The point is that this judgment became supreme in our opinion in that --

Justice Felix Frankfurter: Well, it could become supreme on the -- on the area of res judicata, is that it?

Mr. J. Alston Atkins: Well, I'm not as familiar with the verifications of res judicata as to say categorically that I think would be exactly a question of res judicata but we think that the federal court having held -- having found by a declaratory judgment that when they were on that golf course, they have a constitutional right to be there.

And that the interference on the States agency is whether that being that was unlawful under the constitution of the United States that the State could not bear after finding that conduct of being a crime and to punish them by jail sentences (Inaudible)

Justice Felix Frankfurter: It all depends what they found a crime, isn't that it?

The federal case was about the constitutional right not to be discriminated against in the enjoyment of state activities, is that right?

Mr. J. Alston Atkins: Not generally but it's --

Justice Felix Frankfurter: Specifically --

Mr. J. Alston Atkins: Specifically reference to this conduct --

Justice Felix Frankfurter: I mean, it arouse in connection with the protection against discrimination by a State in the use of its facilities, is that right?

Mr. J. Alston Atkins: I would think the injunction or I went to that point but that -- it was a separate -- this declaratory judgment built specifically with this specific conduct.

Justice Felix Frankfurter: It may well be but for instance, that federal judgment didn't say that anybody could slug somebody else on those golf grounds, could they?

Mr. J. Alston Atkins: No, sir.

Justice Felix Frankfurter: Alright.

So the question is whether the legal issue was the same and even if it wasn't the same, it has then a question either of res judicata of independently a violation -- infringement of what this Court held since Brown against Allen, is that your -- is that it?

I'm trying to find what the constitutional claim is that you make other than the one you made yesterday that the conduct of this trial on the charge of whether essentially was a breach of the thieves or something like that.

Mr. J. Alston Atkins: No, sir.

There was no question about the peaceful conduct of appellants.

Justice Felix Frankfurter: But I mean, what was the charge?

What did North Carolina charged?

Mr. J. Alston Atkins: Trespass on this property.

Justice Felix Frankfurter: Alright.

Perfect, thanks.

Mr. J. Alston Atkins: There was no suggestion in this case anywhere that the conduct of appellants was other than peaceful.

Justice Felix Frankfurter: Well, alright.

It was trespassing.

It was criminal charge not saying that a colored person hasn't the right the other white person has at least not only that is what was claimed.

That is what the North Carolina prosecuted them for.

So, you may say that's what it amounted to in effect.

That's what you are saying.

Mr. J. Alston Atkins: I am saying that Judge Hayes found specifically that that was what happened.

Justice Charles E. Whittaker: In the Federal Court?

Mr. J. Alston Atkins: In the Federal Court.

Justice Charles E. Whittaker: Was that the record that the Federal Court put in evidence as a defense in this criminal -- second criminal case?

Mr. J. Alston Atkins: I say yes and no, Mr. Justice Whittaker.

In fact, it was the preservation of it in this particular record, as we will discuss.

Justice William O. Douglas: (Voice Overlap) at the bottom of the page 30 -- 33 in the record, in your motion to quash you state that you have (Inaudible) the clerk in the Federal Court of bringing a full record in that case, was that subpoena executed?

Was it --

Mr. J. Alston Atkins: It was executed but permission was not given to present it that on the hearing of that motion.

Justice William O. Douglas: You mean the Court did the -- the trial court denied the --

Mr. J. Alston Atkins: Denied the opportunity.

Justice William O. Douglas: Where does that denial appear?

Mr. J. Alston Atkins: Well, the motion quash says -- requests an opportunity to present and the -- and the motion was summarily disposed off as shown on page 108 of the record in the Supreme Court's opinion.

Justice William O. Douglas: What page is that?

Mr. J. Alston Atkins: Page 108.

Justice William O. Douglas: That's moved in a -- the quash and their motion for overrule, is that what you're referring to it on page 108?

Mr. J. Alston Atkins: That's right.

Justice William O. Douglas: So, you -- you claim that these paragraph in the motion for quash was a -- was attender of that record and of the ruling denying the motion was a denial of attender and refusal --

Mr. J. Alston Atkins: On the -- on the hearing of the motion.

Of course the State takes the position that it was not properly and it was there at that time which -- an opinion of the Federal Court --

Chief Justice Earl Warren: May I ask you, was that the only time this was offered during the proceeding?

Mr. J. Alston Atkins: No, sir.

It would --

Chief Justice Earl Warren: Well then, why don't you tell us about that?

Mr. J. Alston Atkins: On page 71 of the record where the clerk of the Court was on the stand of --

Chief Justice Earl Warren: Clerk of what court?

Mr. J. Alston Atkins: Of the Federal District Court for Middle District of North Carolina was on the stand.

You'll see what happened there.

The full record of it of what was there does not appear in the record, but over on page 79, where it appears that exhibits 6 and 7 were excluded with objection to them was sustained.

The fact was that those exhibits 6 and 7 represented the record of the Federal Court in --

Justice William J. Brennan: (Inaudible)

Mr. J. Alston Atkins: The original documents -- no, sir.

Justice William J. Brennan: (Inaudible)

Mr. J. Alston Atkins: What actually happened there did -- it did not by some way that --

Justice William J. Brennan: (Inaudible)

Mr. J. Alston Atkins: Yes.

Justice William J. Brennan: Well, that means (Inaudible)

Mr. J. Alston Atkins: I was not in the case under the -- in the state courts so I don't know exactly what happened, but I have examined the original transcript of the record in that case and I have attached for you to see photo -- I grabbed copies of two pages when that transcript which show that what these exhibits 6 and 7 were in fact they represented the judgment and the findings of fact -- pages 97 and 98 in the brief found the other -- bottom of the page let the record show that being offered in evidence of these, that is being offered in evidence, page 98 of the brief on the merits.

Now, --

Justice William J. Brennan: Well, that (Inaudible)

Mr. J. Alston Atkins: 6 and 7, that showing in -- the -- on page 98 near the bottom of the page.

Chief Justice Earl Warren: Were 6 and 7 is the judgment in the findings?

Mr. J. Alston Atkins: That's correct.

Chief Justice Earl Warren: Were they offered in --

Mr. J. Alston Atkins: They were offered in --

Chief Justice Earl Warren: Were they rejected?

Mr. J. Alston Atkins: They were rejected.

Chief Justice Earl Warren: The record shows it?

Mr. J. Alston Atkins: The record shows it.

I don't think the Attorney General said in fact that they were not offered in -- these pages that are photographed here are (Inaudible) original transcript of the evidence as furnished to counsel --

Justice William J. Brennan: Well, as I understand the Attorney General's brief and whether what -- that you have say to this.

It's in the fact that while this record has says you have pointed it out to it, it's nevertheless also the fact that 6 and 7 physically were not before the Supreme Court of North Carolina and that the fact that they were not before that Court explains largely the conclusion it has reached, then I think the Attorney General does not argued that since they were not before the North Carolina Supreme Court that its his judgment we're reviewing, we can't take any notice of them either.

Mr. J. Alston Atkins: They were not falling in this record.

They were tendered to -- to the Supreme Court on the theory of judicial notice and the Court did not take judicial notice.

There is one little item that I think is pertinent to this because as I understand the decision of this Court that -- a State Supreme Court must be bound by its rule and decisions that it cannot, it's forbidden to consider matters which technically do not appear in the physical record.

But, that if the State Supreme Court does have discretion to consider matters which do not appear in the physical record, that then this Court may look into the matter and it's not concluded absolutely by such inadvertences as appear here.

Justice William J. Brennan: Well, do you suggest we look at them, Mr. Atkins by taking judicial notice of the federal record, is that it?

Mr. J. Alston Atkins: Some of the important items are in this record.

Items which I'm --

Justice William J. Brennan: Well, specifically, is there anything contained in 6 and 7 which you say is a --

Mr. J. Alston Atkins: Yes, sir.

Yes, sir and I was just giving this background before I come to say in the record with -- the crucial items or say the some of the crucial items formed these documents.

Now, on page 98 – 94, you see Judge Hayes' finding of fact number 33.

Chief Justice Earl Warren: What -- what page is this?

Mr. J. Alston Atkins: Page 94 of the record.

So far as I know is --well, controversy that that's a faithful and accurate reproduction of that finding of fact.

Chief Justice Earl Warren: But what part -- where are you reading from?

Where do you -- directing our attention to?

Mr. J. Alston Atkins: On days other than holidays in the middle of the finding of fact.

You see the -- on page 94, do you see --

Chief Justice Earl Warren: I don't -- 94 --

Mr. J. Alston Atkins: Of the record.

Chief Justice Earl Warren: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. Alston Atkins: Both.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. Alston Atkins: Days other than holidays and weekends and greens fees are a dollar and quarter.

White citizens were permitted to play without being members by paying fees above set forth and without paying the extra dollar and without any questions being put to them.

And the plaintiffs applied to be given the same privilege, they were refused on the ground that they were not members but primarily because of their color.

Plaintiffs laid the greens fees on the table in the club house, went out to play and after they got through third hole, the pro in-charge of the golf course ordered them off and they insisted they have the right to play and would not get off unless they were arrested by an officer whereupon the pro had them arrested and they were tried and convicted.

Justice William J. Brennan: Now of course that was never before the jury, was it?

This is -- as I understand it -- is contained in your motion to set aside the verdict --

Mr. J. Alston Atkins: That's correct.

Justice William J. Brennan: -- after the trial was closed.

Mr. J. Alston Atkins: That's correct.

There is no controversy about what happened in this case.

As I understand the rules of this Court which is (Inaudible) against Maryland, (Inaudible) versus Illinois decided last term that where there are no conflicts of testimony that this Court is not bound by the conclusion drawn by the lower courts including its verdict of the jury.

Now, on page 92 of the record, here's the declaratory judgment in the federal case.

It's the third paragraph of our brief.

As far as I know that there is no question about that being faithful and accurate reproduction of -- that declaratory judgment.

Whereas you see the Court said that this will actually (Inaudible) on the plaintiffs there, appellants here, defendants in the criminal case represented a constitutional rights and that they have been unlawfully denied because of race and color.

Now, the next item to which I would like to refer you comes from the opinion of the State Supreme Court itself, I think it's about line 11 from the bottom on page 115 or the record.

Justice William O. Douglas: Page 15?

Mr. J. Alston Atkins: 115.

On the facts was -- presented to him, Judge Hayes issued an oral enjoining racial discrimination in the use of golf course.

Now there are two things about that; number one, there are prior to State Supreme Court who could've filed that by ignoring outside the record and looking at the decree and injunction which was just one document, the bottom part of it was the injunction the part was just a declaratory judgment which is -- you see on page 92 of the record, but the crucial thing about that is -- it seems to me and -- and we have asked ourselves a thousand times, is it conceivable great and distinguished judge like an honorable Johnson J. Hayes would have issued an order forbidding discrimination at this golf course where no racial discrimination existed.

If as the State would have this Court believe that its agencies have been (Inaudible) circumspect in opening this golf course to every citizen without into regard to race and color, is it conceivable that Judge Hayes would have enjoined what did not exist at this golf course.

Justice John M. Harlan: (Inaudible) to show that these two exhibits 6 and 7 were in fact before the trial judge in the sense that they were identified, in the sense that he was asked to make a ruling upon them, in the sense that he knew what the exhibits were and that the denial of the ruling to -- of admissibility which appears on page 79 constitutes or deprives what the Supreme Court of North Carolina says of being an adequate state ground.

In other words, that these exhibits were physically in the record, do you argue that?

Mr. J. Alston Atkins: Exactly, Mr. Justice Harlan.

And as -- further substantiation of it, in the second paragraph of the opinion of the Supreme Court of North Carolina on page 115, Supreme Court itself said although defendants have the record in that case identified and there is no place in this record that the State Supreme Court could find a (Inaudible) identified that all of the place that have been able to find where the Supreme Court could have found that those records were identified was in the transcript in the trial court photographed a content of which -- in the brief 97 and 98.

Now, on this matter of --

Justice Potter Stewart: Mr. Atkins.

Mr. J. Alston Atkins: Yes, sir.

Justice Potter Stewart: May I ask you this question of the State practice so that I can fully understand it.

Generally speaking, without particular reference to this case, generally speaking in a case tried in North Carolina, if the trial judge excludes evidence that is offered and if -- if you want -- if the appellant wants to -- claims that was error to exclude such evidence, such documentary evidence whose job is it to present to the Supreme Court what that evidence was?

Whose job is it to make up the record?

Is it the clerk's job or is it fundamentally the appellant's job?

Mr. J. Alston Atkins: It's fundamentally the defendant's job as I understand.

I am not an authority on North Carolina law but that is my understanding, it is the defendant's duty to make up the --

Justice Potter Stewart: To see to it that there are in the record what he wants to present in the Supreme Court of the North Carolina?

Mr. J. Alston Atkins: That's correct, that's correct.

Justice Charles E. Whittaker: (Inaudible) the findings and the decision of the Federal District Court that you referred to?

Mr. J. Alston Atkins: It did not contained them in -- in the sense --

Justice Charles E. Whittaker: In our record.

Mr. J. Alston Atkins: In the sense of having been offered as these exhibits 6 and 7.

Justice Charles E. Whittaker: Did you move there in any time in the Supreme Court of the State to supplemental the record by insertion of the new material (Inaudible)

Mr. J. Alston Atkins: Not this particular.

As I understand, I was -- I was not in the State case was designed stand at no -- no motion was made to add these particular documents to the record.

Justice John M. Harlan: Well, did -- did the record before the Supreme Court contained exhibits 6 and 7 as marked for identification even though they were not admitted into evidence?

Mr. J. Alston Atkins: I didn't quite understand that Mr. --

Justice John M. Harlan: Did the record that was before the Supreme Court of North Carolina contained these exhibits 6 and 7 as exhibits that were marked for identification, even though they had been excluded by the ruling of the trial court as being admissible in evidence?

Mr. J. Alston Atkins: Do you mean did they include the federal (Inaudible)

Justice John M. Harlan: Did they physically include two exhibits marked for identification?

Mr. J. Alston Atkins: No, sir.

Justice John M. Harlan: It did not?

Mr. J. Alston Atkins: No, sir.

Justice Charles E. Whittaker: As I understand --

Mr. J. Alston Atkins: In fact, it did not include the fact that they were identified when the Supreme Court says that at the top of page 115 that if they were identified, the only place they could find that would be examining something outside the record.

Justice Felix Frankfurter: May I ask you --

Justice John M. Harlan: Well, excuse me.

In that connection, I have been looking at page 79 which were Mrs. Kennedy, is it?

Mr. J. Alston Atkins: That's correct.

Justice John M. Harlan: If Your Honor please, we would like, if possible, to have a ruling on whether or not these would be admissible.

Court I am going to sustain the objection as to those two exhibits that is 6 and 7, and the 6 and 7 presumably or what the Supreme Court in its opinion on 115 referred to the exhibits as having been --

Mr. J. Alston Atkins: Identified.

Justice John M. Harlan: -- identified but not physically received in evidence?

Mr. J. Alston Atkins: That's correct.

Justice John M. Harlan: And, it was page 79 of the record that you printed it here, part of the record that was before the Supreme Court of North Carolina?

Mr. J. Alston Atkins: This is a reproduction, most of this off the record that was before Supreme Court.

Justice John M. Harlan: So, what you have -- what you have, at least you can argue what you have is before the Supreme Court a proffer of two exhibits 6 and 7, a ruling against their immiscibility buy a record that lacks the physical exhibits themselves marked for identification, is that it?

Mr. J. Alston Atkins: Exactly.

That's -- I would like --

Justice Felix Frankfurter: May I ask you a question Mr. --

Mr. J. Alston Atkins: Mr. Justice Frankfurter, I would like to --

Justice Felix Frankfurter: (Inaudible) on the question out to you by Mr. Justice Stewart, you would be good enough to turn to page on 105 of the record?

Mr. J. Alston Atkins: Yes, sir.

Justice Felix Frankfurter: The (Inaudible) is tended by the defendant, (Inaudible) Supreme Court.

To whom was the record tended -- the case on appeal tended?

Mr. J. Alston Atkins: To the Solicitor -- the prosecuting solicitor.

Justice Felix Frankfurter: That -- that's what he meant.

In below, we have the record to be acknowledging the service by the Solicitor?

Mr. J. Alston Atkins: That's correct.

Justice Felix Frankfurter: So that -- if an appeal is taken from the Superior Court, from any Superior Court in North Carolina, the case on appeal is made up by the appealing party in this case the present petitioner --

Mr. J. Alston Atkins: That's correct.

Justice Felix Frankfurter: -- and it's submitted to the appellee and if the appellee has any objection, he was (Inaudible) permitted or included (Inaudible) do you then go before the judge?

Mr. J. Alston Atkins: That's correct.

Justice Felix Frankfurter: But this here -- you or -- petitioner made up -- the counsel made up this record submitted to the Solicitor of the 18th judicial district and he okayed it, and that's the basis of the appeal.

Mr. J. Alston Atkins: That's correct.

I'd like to reserve the rest of my time if --.

Chief Justice Earl Warren: You may, Mr. --

Mr. Moody.

Argument of Ralph Moody

Mr. Ralph Moody: Mr. Chief Justice and may it please the Court.

Before I get down to the State's contentions in the matter which I would hope to state very succinctly in a very few words, you're trying my State here and I know you want to try fairly and the -- I'm asking you therefore to try them on the things they have before them, the Court, the Supreme Court of North Carolina had before them and what the trial court had before it.

Now, they have put into the -- to their brief excerpts, editorials from newspapers.

They put in to their brief parts of the findings of fact that they say that Judge Hayes made in the District Court.

They have put into their brief parts of the declaratory judgment that they read to you and they have also put into their brief excerpts from a manual, if I recall correctly from the work progress of administration.

Now I respectfully say to this Court that none of those things at all were ever before that trial court.

None of those things were before the trial court insofar as this record shows at all.

Certainly, he will not contend to you that the portions of the manual from the works progress administration which I think maybe was used in the federal trial whatever into it introduced in evidence, none of these at newspaper editorials and these petitions and proceedings that they say were had before the City Council of Greensboro, were ever put before the trial court in order -- did it ever appear before the Supreme Court of North Carolina.

Justice Felix Frankfurter: May I infer from your statement which is the (Inaudible) they offered and rejected and claimed that this improperly rejected --

Mr. Ralph Moody: Yes, sir.

I go to -- so I say that, too.

Now, --

Chief Justice Earl Warren: Offered in the trial court –-

Mr. Ralph Moody: None of these -- Mr. Chief Justice, let me get to what you are referring to.

You're referring to these editorials and --

Justice Felix Frankfurter: The things you've said --

Chief Justice Earl Warren: No, you said -- the things you said then --

Mr. Ralph Moody: They were not offered in the trial court.

Chief Justice Earl Warren: Among them were the judgment and the -- a portion of the judgment of the Federal Court and as I understood the counsel, there had been a problem of the judgment of the Federal Court.

Now, do you say there was no such problem?

Mr. Ralph Moody: I say this record -- from this record, we can't tell whether there -- Mr. Chief Justice, whether ever was such a -- an offer made or not.

Justice Hugo L. Black: What about page 79?

Mr. Ralph Moody: Page 79, Mrs. Kennedy says “If Your Honor, we would like if possible to have a ruling on whether or not these would be admissible.”

Now --

Justice Hugo L. Black: And then what did the judge say?

Mr. Ralph Moody: “I am going to sustain the objection as to those two exhibits that is 6 and 7.”

Justice Hugo L. Black: Then what did your department said, did he accept --

Mr. Ralph Moody: There is an exception there but we don't -- excuse me, sir.

Justice Hugo L. Black: Is that sufficient under the North Carolina law.

Mr. Ralph Moody: We don't know what 6 and 7 were.

There's nothing in this record that identified 6 and 7.

What you heard is what he says to -- that 6 and 7 are.

Justice John M. Harlan: But you -- what effect do you attribute to the Supreme Court's understanding of what those exhibits were by a virtue of the statement on 115?

Mr. Ralph Moody: The Supreme Court -- I don't know where he was reading from in that opinion.

Justice John M. Harlan: It's 115 of this record.

Mr. Ralph Moody: 115?

Justice John M. Harlan: Where the Supreme Court says, “Defendants move to set aside the verdict of jury is the basis for their emotion.

They rely on the Simkins against the City of Greensboro, that's the federal case decided by the United States District Court on March 1957.

Although defendants have the record in that case identified they did not offer --

Mr. Ralph Moody: Well, I think they got that from another part of the record over here which I wish to call to your attention.

I think they got that from the testimony at -- of the deputy clerk that they have there at that time.

Mrs. Myrtle Cobb, I'm looking now Your Honor at page 71, Mrs. Cobb is there and she said that she had some records.

She said that it's her duty to keep in possession the public possession, the records in the case of Simkins and others against The Gillespie Park Golf Course.

I have all (Inaudible) there's no papers in that case.

Now, there's nothing there that says their exhibit 6 and 7 may it please the Court.

The 6 and 7 at all is nothing there that ties them with 6 and 7.

She said she happened.

Then, counsel get off into this question which my friend here talked about the other day about examining people as an adverse witness under GS8-50.

And as you will see if you go to 72, they get off into the question of about an adverse witness and we don't hear about anything anymore until we get over to where Mrs. Kennedy says that she'd like to get a ruling on these, whatever these are and the Court says that he was sustained to 6 and 7.

And as pointed out by Mr. Justice Frankfurter, which is correct, I want them to be the -- I subscribe to equal protection law and I don't think that constitutionally, we can set up a new procedures or event, new motions or things to exclude them for the setting up their federal rights.

I don't think that for a minute, but, as suggested by Mr. Frank -- Justice Frankfurter, they have charge of the preparation of the case what we call the case on appeal.

We have two things.

We have a record which consists of the permanent part of the case, things that we'd like to think of as permanent, the Bill of Indictment, the judgments and things like that and then we have what the case -- about we call the case on appeal which consists of the various flexible fluid things that transpire at the trial, motions, evidence, rulings on evidence and things of that nature.

Now, it was up to them to make up their case on appeal.

Had I been in their position, it would have been up to me, and I say that this is not a -- an unusual, unheard of anomalous procedure for an attorney who's get -- making up their own case on appeal if they thought some exhibits had been excluded that when -- wrongfully excluded and to which they are -- wanted an appellate review that they would make an offer or tender of those exhibits for the basis of a exception.

Justice William O. Douglas: Wasn't that covered in -- I think 103 from the assignments of error in the Superior Court of Guilford County page 103, its folio 104, assignment of error number 22.

Mr. Ralph Moody: Well, that's the same thing isn't it Your Honor of with or without these would be --

Justice William O. Douglas: Sustaining the state of objection, but isn't that -- I don't know what North Carolina practice but this -- isn't that a proper way of brining up the propriety --

Mr. Ralph Moody: Well, it's alright.

Well --

Justice William O. Douglas: -- including those exclusion of those exhibits?

Mr. Ralph Moody: You do -- yes, it would.

If you had them, that's a proper way to make an assignment error if you got the exhibits.

You should --

Justice William O. Douglas: They should be attached to this.

Mr. Ralph Moody: They should be attached so the appellate court can see what you're complaining about.

Justice John M. Harlan: You're point is that -- in that on all this -- there is nothing to identify exhibits 6 and 7 with the judgment or whatever you choose to call it in the Federal Court proceeding, that's your point?

Mr. Ralph Moody: And yes, that is my point.

And of course you -- I think you have a State record.

I'm not sure if certified here, I believe it is and you will see there is no record of 6 -- exhibit 6 and 7 in the State record at all.

The exhibits were there that were sent up.

Now, I think they're bound by the same rules of practice that I would be or anybody else, and I've tried to cite in my brief to show this Court that North Carolina is simply following things that it's been following all the time and that it is invented no new or anomalous practice to try to exclude these people from a federal -- raising a federal question at all.

It's the same practice that all lawyers have to follow and it's the same thing that's been followed all the time.

The same thing is true about their questions -- they had some question over there if the -- beginning when he was raising this part about closing mouths of witnesses.

(Inaudible) those were our witnesses that they were cross examining and the prosecutor simply objected to evidence of -- he tried this case like any other trespass case this record shows it.

He simply objected the evidence of some other colored people that had been down there and that was sustained and they say that's closing the mouths of witnesses.

At that time, they had never told the Court that now we wish to make a defense.

They had filed a motion to quash.

I'm not overlooking that but the motion to quash is relying upon the efficacy of this declaratory judgment obtained in the Federal District Court and they rely on that as an estoppel among other things and of course an attempt to raise a question on form of jeopardy and various things like that.

But in the motion to quash, I -- I there have set forth in my brief case after case to show Your Honors that the motion to quash is not the way to raise a question and that pertains that matters that appear on the face of the record.

Justice William O. Douglas: That's North Carolina?

Mr. Ralph Moody: That's North Carolina law in practice and I have cited the cases way back -- considerable distance back before a racial questions ever came to any prominence or -- in southern States or in North Carolina to show that that is the practice.

Justice William J. Brennan: Mr. Attorney General is the essence of the State's position here that this judgment of the -- your Supreme Court turns on a state ground namely a failure to comply with State rules of procedure either at the trial or in perfecting the appeal and therefore, that it's beyond the jurisdiction of this Court to deal with the constitutional question?

Mr. Ralph Moody: Yes, sir.

That's I think fairly put -- rather fairly states my position.

You've raised of course -- tried to raise other questions here that I don't think that the -- I should burden this Court with going into.

I do call your attention but let me comment just one minute on the facts that they say -- talk about the facts over the great deal.

Greensboro and the City Administrative unit which is an educational unit leased the land to Gillespie Park Golf Course.

Now, it wasn't as bogus lease, a straw lease or a fictitious lease I say for this reason.

The directors of the corporation pledged their own faith and credit and put over $100,000 into the development of the property and built a small club house and the rules are stated the -- they have their rules for membership.

I have in my set forth in my brief a list of things that these gentlemen are now raising for the first time and were not presented to my courts, who you're now passing upon, one of them was the sufficiency or the adequacy of the rules where they too nebulous and too broad and did they contain too much arbitrary discretion?

They haven't raised that question, the trial judge didn't pass on that, the Supreme Court of North Carolina didn't pass on such questions as that.

Now, they had a rule that people could play that were belonged to golf clubs affiliated with the Carolina Golf Association and as to the rules themselves as stated in the bylaws, there is -- I can consider some ambiguity.

I don't see them right now but when you look at them, there is some ambiguity and it -- here in the Article I, membership in this corporation should be restricted to members or approval to Board of Directors.

For membership in the club, there should be two types of membership and that was the $60 plus taxes and so on.

And then, they said the golf course and its facilities should be used only by members and invited guests, members in good standing of other golf clubs, members of the Carolina Golf Association and people -- or the professional and his invited guest.

There's an ambiguity there as to whether that golf clubs who affiliate with the Carolina Golf Association or whether it's a person who is a member in good standing in the golf club can -- would also be entitled to play in this.

In either case, it makes no difference in this case because these gentlemen, three of them who weighed something around 100 pounds had decided to got down there and play golf and -- they didn't go down there and say, “Now – here is a letter showing that we're in a good standing with the Nocho Golf Club” which one of them says they belonged to, only one of the defendants testified, they presented no letter to the pro or anybody else like that, saying “We are members in good standing of this golf club.”

They just came down -- 75 cents down pushed in and said “we're going to play golf” and they were prosecuted for trespass which Judge Hayes said it was a -- he seems to think in his opinion according to the federal supplement that it was a matter of discrimination.

But that was never presented and we don't -- even if they -- is the same incident that was adjudicated in the Federal Court.

Even if it was, we don't know under what circumstances they went in and what they did even in exercising a right to say we're entitled to exercise.

Chief Justice Earl Warren: Is this the only golf course the town has?

Mr. Ralph Moody: No, there were – frankly I am not familiar with their golf courses.

You see, I don't -- we don't prosecute these cases below.

They -- there was another course there, the Nocho Golf Course that -- which most of the colored people play.

There was there -- and there maybe others -- Mr. Chief Justice, I really don't know.

Justice Potter Stewart: Mr. Attorney General said we don't know the circumstances under which -- this whole happened. What was the evidence on the specific facts of this criminal case?

The criminal --

Mr. Ralph Moody: Oh at this time?

We do have that evidence in the record.

I think Your Honor, I made -- I didn't state that clearly.

Justice Potter Stewart: I misunderstood you.

Mr. Ralph Moody: Yes, we do have that.

Mr. Bass testified, they came down to and said “we offered him 75 cents” and said “we're going to play golf” and he said “you can't play.”

I believe he told him I'm not too sure of this.

I think he told them they were not members or -- and they said they formed a line he said, they form a sort of a rough of line, threw 75 cents down on a counter of a little club house that they've built there and proceeded to go out and play golf.

Justice Potter Stewart: And at the third hole they were arrested.

Mr. Ralph Moody: And I think that --

Justice Potter Stewart: By the pro?

Mr. Ralph Moody: When the pro came back who is the manager of -- Mr. Bass told him about it and the pro went out and told him twice I think.

They said they knew who the members of the club were, merely all of it -- all of the members were and these gentlemen never made then who came down there and did this never made any (Inaudible) membership.

They said they were going to play golf and it was quite evident of course that they've been intended to make such a move at this for sometime because Simkins testified that over a year and a half ago, he'd written his lawyer about it and that he had a letter from his lawyer.

Under this statute if they had a bona fide license to enter on the property or a bona fide belief that they had a license to go on the property and the defense might have been different as to the technical defense is in the statute.

They never claimed that at all.

Simkins said, “I have a letter from a lawyer about it” and he never -- they never offered the letter in evidence -- evidently thought that what he read in this letter was license for him to do what he wanted to do.

Whether here then that was all.

They never claimed membership at all.

Chief Justice Earl Warren: Didn't -- didn't Judge Hayes and his Federal Court's decision find that it had been customary for white people to go there and do the very things that these people are convicted in doing here and that the reason these people weren't permitted to do it was because of the discrimination against their color?

Mr. Ralph Moody: He said that in his opinion.

Yes, sir.

He said that.

Chief Justice Earl Warren: That's his finding.

Mr. Ralph Moody: No, sir.

I -- I don't know what the findings are but that's in the opinion they were find --

Chief Justice Earl Warren: Yes, that's in his --

Mr. Ralph Moody: That's his opinion but -- I don't think you'll find -- if you're going to consider that, I -- it's my position all the time that that is not before the Court.

But -- I don't think you'll find that he ever found anything like that.

Chief Justice Earl Warren: That's in his opinion though?

Mr. Ralph Moody: Yes, sir.

That is in the opinion.

A whole lot of things are in the opinion, Mr. Chief Justice.

He said that he had a lot of common knowledge about things.

He put that in there, too and a whole lot of things that I claim that if you're going to try my Court and my State that we are not bound by it.

Justice John M. Harlan: So, make that this record were Federal Court record were before the State Supreme Court, what would be the effect of it in your view as -- as to the collateral estoppel as far as relitigation of that issue is concerned?

Mr. Ralph Moody: Well, I admit it.

It's my contention that that is matter in which the State is not bound by at all.

The State of North Carolina is not bound of that finding as a matter or a collateral estoppel or as any estoppel at all.

They keep talk about these being agencies of the State.

One was a private corporation, the other was a City Administrative Unit and the other was a municipal corporation.

But the State of North Carolina has -- as I've stated in my brief to you, has not authorized those agencies to stand in judgment for it in criminal matters and in criminal proceedings.

Now, if -- if the State can be bound by this as an estoppel, assuming first of all, let's assume they had it and properly all there and properly approved and offered it in evidence, I still say that it was proper to exclude it and that the -- a State constitutionally, as I say doesn't -- as a matter of constitutional law is not required to extend recognition to the doctrine if it doesn't want to.

Justice John M. Harlan: You have such a doctrine?

Mr. Ralph Moody: We have such a doctrine as been applied in civil cases.

I think I believe I point that out, but I say that a State constitutionally does not have to extend the doctrine and it does not have to accept criminal, civil issues and criminal cases.

We have tried to discuss that in our brief and I received -- I thought a great deal of comfort from the statement in your opinion against Hoag -- Hoag against New Jersey.

For there, I believe you will find language in which you said it was very doubtful or there was very grave doubt as to whether a State had to extend to or recognize the doctrine of collateral estoppel.

Now, I'm aware that you have considered it in old (Inaudible) case of the (Inaudible) case in which I believe there was a statement that -- that even the issues adjudicated in a civil case might be available in the criminal case.

But I would call to your attention there sir that you were dealing with Federal Courts all the way through.

Justice John M. Harlan: One gets the impression perhaps mistakenly from reading of your Supreme Court's opinion that you do have a doctrine of collateral estoppel and that apart from the question of whether this record was properly before the Court that the vice that they found or the difficulty they found in applying the State doctrine was because the State itself has not been a party to the proceeding in the Federal Court.

Mr. Ralph Moody: You're correct --

Justice John M. Harlan: Is that fair reading of the opinion (Inaudible)

Mr. Ralph Moody: Yes, I think so.

But I would call to you attention though that the doctrine of collateral estoppel, as far as I know of it in my jurisdiction has only been applied in civil cases, the adjudicating of issues as between the same parties or perhaps privies of those -- were connected or related in the determining and concluding matters, but I haven't found it in where it has ever been applied that a civil -- a conclusion or an adjudication in a civil matter has been reached -- has been placed over and used as an estoppel against the State in a criminal prosecution.

Justice John M. Harlan: Has it indicated such things that in this opinion?

Mr. Ralph Moody: No, sir it did not.

I don't think you find any such authority of such.

Justice John M. Harlan: They didn't reach any of these questions because of their view as to the deficiency in the record?

Mr. Ralph Moody: I think so except they did consider the question of judicial notice.

Justice John M. Harlan: Yes.

Mr. Ralph Moody: And there, I will not debate that unless someone wishes for me to go in to any of it.

It's suffice it to say that they -- they're now asking for judicial notice make up for all of these and -- as some of the question while ago about these motions that were filed in the Supreme Court of North Carolina, they filed a motion suggesting a diminution of the record, but they never said anything about this in that motion at all.

They thought that their record has been sufficiently shown appeals -- appeal interest from the Municipal County Court which had original and exclusive jurisdiction.

Justice William O. Douglas: (Inaudible)

Mr. Ralph Moody: And they thought that they were short there on the appeal I did, too.

I filed a motion to dismiss it but the Supreme Court held against me and -- with them.

But I call it to your attention that when they were interested in diminutions of the record, they didn't seem to be interested in -- in the record in the Federal Court at all.

Rebuttal of J. Alston Atkins

Mr. J. Alston Atkins: Well, Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Atkins.

Mr. J. Alston Atkins: First if I may be permitted, I would like to suggest the number of questions in our brief that manifest the time we're not permit and we would appreciate it very much if the Court would consider all those questions which we have and I -- an opportunity to the argument as submitted on the brief.

Now on the question of collateral of estoppel is, a file prior to judgment at the State, it confuses the question of a estoppel and collateral estoppel in the supremacy on this federal judgment which is not based upon the question of estoppel at all although the -- the supremacy clause, we understand that it makes this judgment supreme as a matter of supremacy and not because of any question of estoppel.

Justice Hugo L. Black: Where do you quote the part of the judgment on which you rely for that -- the Federal Court judgment?

Mr. J. Alston Atkins: It's -- it's quoted in full as collateral -- I mean the -- on page 92 of the record, the full declaratory judgment is quoted in full --

Justice Hugo L. Black: Does that mean, are you asserting here that there are some injunctions that they have violated that they have the right to play there by reason of the injunction?

Mr. J. Alston Atkins: No, sir.

We are saying that these acts by virtue of this declaratory judgment became impressed -- in view of the impression of Mr. Justice Douglas in the Hanson case (Inaudible) of federal constitutional law upon them in the same way we believe that the labor contract did in that case.

However, that the Federal Court having jurisdiction of this case could in fact determined well in that -- these specific acts were constitutionally protected and that several months after when these warrants were drawn -- and they withdrawn months after that determination had been made --

Justice Hugo L. Black: As to this particular incident?

Mr. J. Alston Atkins: That's correct -- that's correct.

There were three criminal proceedings in this case, and the last one under these warrants, the warrants would be December 2nd, 1957 whereas the judgment of employments in the Court of Appeals of Judge Hayes' decision came down on June the 28th, 1957 (Inaudible).

Now if I may -- because as I understand because I'm not in any (Inaudible)

Justice Hugo L. Black: Why would these -- why were these two exhibits not put in the record?

Mr. J. Alston Atkins: I cannot answer that, Mr. Chief -- Mr. Justice Black except to say what counsel have said.

They said that -- they understood the North Carolina procedures to be that the exception that you mentioned in talking with the Attorney General did preserve any questions as to improper exclusion of those records and they call it to the attention of the Supreme Court on page 14 of their brief as they -- was proper to do.

That brief was no printed in the record where it was set up and requested to be presented but the clerk thought that it was not properly printed, but it is in the original transcript on full on page 14, they said the Court erred in refusing to admit the defendant's exhibit 6 and 7 as set out in exception 22.

These exhibits were under the decree of the findings of fact, conclusions of law and opinion of the Federal District Court in the Simkins case and opinion of the Court of Appeals of the Fourth Circuit in the same case.

Justice Hugo L. Black: Do you claim that it was the duty of the Supreme Court of North Carolina to pass on the validity of that exception, although the exhibits were not in the record?

Mr. J. Alston Atkins: Yes, sir.

Justice Hugo L. Black: Why?

Mr. J. Alston Atkins: For the reason that the Supreme Court of North -- first, the Supreme Court of North Carolina, as we understand its rule has almost unlimited discretion to consider matters coming before it.

In the case Aycock against Richardson, they said moreover the clerk of this Court at its direction as obtained citing material from the Superior Court.

Now, in reliance upon this statement in the brief, the counsel in the State Supreme Court did tender these records for the convenience of the Court asking it to take judicial notice of them but they were available and we believe -- as I read the Supreme Court's cases that it could have within its discretion -- looked at those records.

It could have --

Justice Hugo L. Black: Where is the state -- where is the statement in the record showing that they were tended to the Supreme Court?

Mr. J. Alston Atkins: It's on -- toward the end of the -- end of the record, motion to take judicial notice.

Justice Hugo L. Black: What --

Mr. J. Alston Atkins: Page 128 or the record.

From the argument of this case solely for the convenience of the Court in connection request in judicial notice certified counsel saved in records under United States Court, that saying construction of the constitution law of United States upon the -- identical facts involved in this appeal.

Justice Hugo L. Black: Where does it appear that those were exhibits 6 and 7?

Mr. J. Alston Atkins: It appears in the brief of the -- of appellants in that case through the appellants here on page 14.

They said what those 6 and 7 were.

Justice Hugo L. Black: It does not appear on the motion?

Mr. J. Alston Atkins: I don't think it does, Mr. Justice Black, although I -- I am (Inaudible), but it describes them -- we believe that this is fair case of racial discrimination which the State Supreme Court could have reached and that -- and this Court is not precluded.

Now, from considering these questions, we set out reasons more elaborately and -- in our brief which we hold the (Inaudible).

Thank you.

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